| Page Range | 28747-28981 | |
| FR Document |
| Page and Subject | |
|---|---|
| 82 FR 28777 - Effluent Limitations Guidelines and Standards for the Dental Category | |
| 82 FR 28981 - Delegation of Authority Under the Consolidated Appropriations Act, 2017 | |
| 82 FR 28747 - Amending Executive Order 13597 | |
| 82 FR 28820 - 2017 Fee Schedule for National Travel and Tourism Office for the Advance Passenger Information System (APIS)/I-92 Program, I-94 International Arrivals Program, and Survey of International Air Travelers Program | |
| 82 FR 28910 - Sunshine Act Meeting Notice | |
| 82 FR 28910 - Sunshine Act Meeting | |
| 82 FR 28873 - Certificate of Alternative Compliance for the TUG INDEPENDENCE | |
| 82 FR 28928 - 30-Day Notice of Proposed Information Collection: Birth Affidavit | |
| 82 FR 28877 - United States v. General Electric Co., et al., Proposed Final Judgment and Competitive Impact Statement | |
| 82 FR 28887 - United States, et al. v. The Dow Chemical Co., et al., Proposed Final Judgment and Competitive Impact Statement | |
| 82 FR 28851 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 82 FR 28850 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 82 FR 28911 - Information Collection: Design Information Questionnaire-IAEA N-71 and Associated Forms N-72, N-73, N-74, N-75, N-76, N-77, N-91, N-92, N-93, and N-94 | |
| 82 FR 28864 - National Vaccine Injury Compensation Program; List of Petitions Received | |
| 82 FR 28863 - Lists of Designated Primary Medical Care, Mental Health, and Dental Health Professional Shortage Areas | |
| 82 FR 28862 - Low-Income Levels Used for Various Health Professions and Nursing Programs Authorized in Titles III, VII, and VIII of the Public Health Service Act | |
| 82 FR 28848 - Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0083 & 0194) | |
| 82 FR 28912 - Submission for Review: OPM Form 1203-FX (Occupational Questionnaire) | |
| 82 FR 28875 - Endangered and Threatened Wildlife and Plants; Pima Pineapple Cactus (Coryphantha scheeri var. robustispina) Draft Recovery Plan | |
| 82 FR 28827 - Review of National Marine Sanctuaries and Marine National Monuments Designated or Expanded Since April 28, 2007; Notice of Opportunity for Public Comment | |
| 82 FR 28785 - Fisheries Off West Coast States; Modifications of the West Coast Commercial Salmon Fisheries; Inseason Actions #1 Through #4 | |
| 82 FR 28927 - Digital Sequence Information on Genetic Resources Public Meeting | |
| 82 FR 28788 - Special Conditions: Safran Aircraft Engines, Silvercrest-2 SC-2D; Rated Takeoff Thrust at High Ambient Temperature | |
| 82 FR 28943 - Agency Information Collection Activity: The Veterans' Outcome Assessment (VOA) (Veteran Survey Interview) | |
| 82 FR 28944 - Agency Information Collection Activity Under OMB Review: Fiduciary Agreement | |
| 82 FR 28819 - Reorganization of Foreign-Trade Zone 229 Under Alternative Site Framework; Charleston, West Virginia | |
| 82 FR 28929 - Fourth Drone Advisory Committee (DAC) Meeting | |
| 82 FR 28829 - Agency Information Collection Activities; Proposed Collection; Comment Request; Contests, Challenges, and Awards | |
| 82 FR 28836 - Combined Notice of Filings | |
| 82 FR 28858 - Agency Information Collection Activities; Proposed Collection; Comment Request; Extralabel Drug Use in Animals | |
| 82 FR 28834 - Application to Export Electric Energy; Rainbow Energy Marketing Corporation | |
| 82 FR 28832 - Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use Act | |
| 82 FR 28817 - Proposed Information Collection; Comment Request; 2018 National Sample Survey of Registered Nurses | |
| 82 FR 28848 - Notice of Request for Comment on the Exposure Draft of a Proposed Federal Financial Accounting Technical Release Entitled Implementation Guidance for Establishing Opening Balances | |
| 82 FR 28833 - Application To Export Electric Energy; Talen Energy Marketing, LLC | |
| 82 FR 28832 - Certification Notice-249; Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use Act | |
| 82 FR 28818 - Request for Comment; Notice of Development of Outdoor Recreation Satellite Account (To Define and Measure the Economic Impact of Outdoor Recreation) | |
| 82 FR 28856 - Proposed Information Collection Activity; Comment Request | |
| 82 FR 28823 - Passenger Vehicle and Light Truck Tires From the People's Republic of China: Final Rescission of 2015-2016 Antidumping Duty New Shipper Review | |
| 82 FR 28819 - Passenger Vehicle and Light Truck Tires From the People's Republic of China: Final Rescission of 2014-2016 Countervailing Duty New Shipper Review | |
| 82 FR 28824 - Dioctyl Terephthalate From the Republic of Korea: Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances | |
| 82 FR 28833 - Application to Export Electric Energy; MAG Energy Solutions, Inc. | |
| 82 FR 28816 - Notice of Public Meeting of the Louisiana Advisory Committee To Discuss Civil Rights Topics in the State | |
| 82 FR 28874 - Agency Information Collection Activities: Extension, Without Change, of an Existing Information Collection; Comment Request; OMB Control No. 1653-0022 | |
| 82 FR 28928 - Quarterly Rail Cost Adjustment Factor | |
| 82 FR 28816 - Submission for OMB Review; Comment Request | |
| 82 FR 28938 - Sanctions Actions Pursuant to an Executive Order Issued on September 23, 2001, Titled “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism” | |
| 82 FR 28938 - Supplemental Identification Information for One Individual Designated Pursuant to Executive Order 13224 | |
| 82 FR 28800 - Proceedings of the Copyright Royalty Board; Violation of Standards of Conduct | |
| 82 FR 28827 - Proposed Information Collection; Comment Request; Small Business Innovation Research (SBIR) Program Application Cover Sheet | |
| 82 FR 28946 - Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List 10 Species of Giant Clams as Threatened or Endangered Under the Endangered Species Act | |
| 82 FR 28929 - Thirtieth RTCA SC-225 Rechargeable Lithium Batteries and Battery Systems Plenary | |
| 82 FR 28908 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Logging Operations Standard | |
| 82 FR 28906 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Report on Occupational Employment and Wages | |
| 82 FR 28837 - Jordan Cove Energy Project, L.P.; Pacific Connector Gas Pipeline, L.P.; Notice of Intent To Prepare an Environmental Impact Statement for the Planned Jordan Cove LNG Terminal and Pacific Connector Pipeline Projects, Request for Comments on Environmental Issues, and Notice of Public Scoping Sessions; Correction | |
| 82 FR 28846 - Kaukauna Utilities; Notice Soliciting Scoping Comments | |
| 82 FR 28848 - Bayshore Solar A, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 82 FR 28836 - HD Project One LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 82 FR 28847 - Combined Notice of Filings #2 | |
| 82 FR 28845 - Combined Notice of Filings #1 | |
| 82 FR 28814 - Submission for OMB Review; Comment Request | |
| 82 FR 28913 - 1889 BDC, Inc., et al.; Notice of Application | |
| 82 FR 28826 - Export Trade Certificate of Review | |
| 82 FR 28829 - Proposed Information Collection; Comment Request | |
| 82 FR 28815 - Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection | |
| 82 FR 28929 - Fourteenth RTCA SC-228 Plenary Session | |
| 82 FR 28872 - Merchant Marine Personnel Advisory Committee | |
| 82 FR 28871 - Merchant Marine Personnel Advisory Committee | |
| 82 FR 28814 - Notice of Intent To Grant Exclusive License | |
| 82 FR 28934 - U.S. Merchant Marine Academy Board of Visitors Meeting | |
| 82 FR 28773 - Safety Zone; Danvers River, Beverly, MA | |
| 82 FR 28855 - Submission for OMB Review; Comment Request | |
| 82 FR 28906 - Agency Information Collection Activities; Proposed Collection; Comments Requested; Request To Be Included on the List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings (Form EOIR-56) | |
| 82 FR 28802 - Endangered and Threatened Wildlife and Plants; Proposed Endangered Listing Determination for the Taiwanese Humpback Dolphin Under the Endangered Species Act (ESA) | |
| 82 FR 28857 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Medical Devices; Reports of Corrections and Removals | |
| 82 FR 28796 - Safety Zone, Delaware River; Pipe-Removal | |
| 82 FR 28772 - Drawbridge Operation Regulation; Long Creek, Hempstead, NY | |
| 82 FR 28860 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Annual Reporting for Custom Device Exemption | |
| 82 FR 28763 - Commission Delegated Authority Provisions and Technical Amendments | |
| 82 FR 28749 - Tart Cherries Grown in the States of Michigan, et al.; Free and Restricted Percentages for the 2016-17 Crop Year for Tart Cherries | |
| 82 FR 28870 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 82 FR 28909 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Application for Use of Public Space by Non-DOL Agencies in the Frances Perkins Building | |
| 82 FR 28907 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Records of Tests and Examinations of Mine Personnel Hoisting Equipment | |
| 82 FR 28830 - Proposed Information Collection; Comment Request | |
| 82 FR 28860 - Issuance of Priority Review Voucher; Rare Pediatric Disease Product | |
| 82 FR 28931 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal System | |
| 82 FR 28932 - Petition for Waiver of Compliance | |
| 82 FR 28834 - Orders Granting Authority To Import and Export Natural Gas, To Import and Export Liquefied Natural Gas, and Vacating Prior Authorization During April 2017 | |
| 82 FR 28875 - Threatened Species; Exemption From Threatened Species Permits for a Qualifying Beluga Sturgeon Aquaculture Facility | |
| 82 FR 28919 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing of Amendment No. 1 and Order Approving Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to ICE Clear Europe's End-of-Day Price Discovery Policy | |
| 82 FR 28917 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Implementation Date for Trade Modifiers When Reporting Transactions in U.S. Treasury Securities | |
| 82 FR 28924 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Fees for Use on Bats EDGX Exchange, Inc. | |
| 82 FR 28920 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related To Amend Its Fee Schedule To Replace Current Inverted Pricing Model With Low Fee Model | |
| 82 FR 28912 - Submission for OMB Review; Comment Request | |
| 82 FR 28941 - Proposed Collection; Comment Request for Application To Participate in the IRS Acceptance Program | |
| 82 FR 28942 - Proposed Collection; Comment Request for Request for Miscellaneous Determination | |
| 82 FR 28939 - Proposed Revision of Information Collection Request Submitted for Public Comment; Draft Model Non-Quantitative Treatment Limitations Form | |
| 82 FR 28942 - Proposed Collection; Comment Request for Regulation Project | |
| 82 FR 28941 - Proposed Collection; Comment Request for Regulation Project | |
| 82 FR 28869 - Center for Substance Abuse Treatment; Notice of Meeting | |
| 82 FR 28866 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meetings | |
| 82 FR 28868 - National Institute on Drug Abuse; Notice of Closed Meeting | |
| 82 FR 28868 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
| 82 FR 28869 - National Human Genome Research Institute; Notice of Closed Meeting | |
| 82 FR 28868 - National Eye Institute; Notice of Closed Meetings | |
| 82 FR 28867 - National Center for Complementary and Integrative Health Notice of Closed Meeting | |
| 82 FR 28869 - National Center for Advancing Translational Sciences; Notice of Closed Meeting | |
| 82 FR 28867 - Center for Scientific Review; Notice of Closed Meetings | |
| 82 FR 28868 - Center for Scientific Review; Notice of Closed Meetings | |
| 82 FR 28940 - Proposed Collection; Comment Request for Taxpayer Statement Regarding Refund | |
| 82 FR 28790 - Special Conditions: General Electric Company, GE9X Engine Models; Endurance Test Special Conditions | |
| 82 FR 28760 - Implementation of the Federal Civil Penalties Inflation Adjustment Act | |
| 82 FR 28770 - Special Local Regulation; Zimovia Strait, Wrangell, AK | |
| 82 FR 28853 - Medicare and Medicaid Programs: Approval of an Application From the Center for Improvement in Healthcare Quality for Continued CMS Approval of Its Hospital Accreditation Program | |
| 82 FR 28798 - Safety Zone; Nights in Venice Fireworks, Beach Thorofare, Ocean City, NJ | |
| 82 FR 28927 - Administrative Declaration of a Disaster for the State of Tennessee | |
| 82 FR 28932 - Preparation of an Environmental Impact Statement for West Santa Ana Branch Transit Corridor Project in Los Angeles, CA | |
| 82 FR 28861 - Arthritis Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
| 82 FR 28852 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 82 FR 28801 - Approval and Promulgation of Air Quality Implementation Plans; Indiana; CFR Update | |
| 82 FR 28775 - Approval and Promulgation of Air Quality Implementation Plans; Indiana; CFR Update | |
| 82 FR 28777 - Waiving Departmental Review of Appraisals and Valuations of Indian Property | |
| 82 FR 28794 - Proposed Amendment, Revocation, and Establishment of Class D and E Airspace; Enid Vance AFB, OK; Enid Woodring Municipal Airport, OK; Enid, OK; and Vance AFB, OK | |
| 82 FR 28758 - Airworthiness Directives; DG Flugzeugbau GmbH Gliders | |
| 82 FR 28930 - Parts and Accessories Necessary for Safe Operation; Application for an Exemption From Daimler Trucks North America LLC | |
| 82 FR 28757 - Regulation D: Reserve Requirements of Depository Institutions | |
| 82 FR 28755 - Regulation A: Extensions of Credit by Federal Reserve Banks | |
| 82 FR 28935 - Hazardous Materials: Notice of Applications for Special Permits | |
| 82 FR 28937 - Hazardous Materials: Notice of Applications for Special Permits |
Agricultural Marketing Service
Agricultural Research Service
National Agricultural Statistics Service
Census Bureau
Economic Analysis Bureau
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Antitrust Division
Copyright Royalty Board
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Federal Transit Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Internal Revenue Service
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Agricultural Marketing Service, USDA.
Final rule.
This rule implements a recommendation from the Cherry Industry Administrative Board (Board) to establish free and restricted percentages for the 2016-17 crop year under the marketing order for tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin (order). The Board locally administers the marketing order and is comprised of producers and handlers of tart cherries operating within the production area, and a public member. This action establishes the proportion of tart cherries from the 2016 crop which may be handled in commercial outlets at 71 percent free and 29 percent restricted. These percentages should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns.
Effective June 27, 2017.
Steven W. Kauffman, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This final rule is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 13563 and 13175.
This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, free and restricted percentages may be established for tart cherries handled during the crop year. This final rule establishes free and restricted percentages for tart cherries for the 2016-17 crop year, beginning July 1, 2016, through June 30, 2017.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This final rule establishes free and restricted percentages for the 2016-17 crop year. This rule establishes the proportion of tart cherries from the 2016 crop which may be handled in commercial outlets at 71 percent free and 29 percent restricted. This action should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The carry-out and the final percentages were recommended by the Cherry Industry Administrative Board (Board) at a meeting on September 8, 2016.
Section 930.51(a) of the order provides authority to regulate volume by designating free and restricted percentages for any tart cherries acquired by handlers in a given crop year. Section 930.50 prescribes procedures for computing an optimum supply based on sales history and for calculating these free and restricted percentages. Free percentage volume may be shipped to any market, while restricted percentage volume must be held by handlers in a primary or secondary reserve, or be diverted or used for exempt purposes as prescribed in §§ 930.159 and 930.162 of the regulations. Exempt purposes include, in part, the development of new products, sales into new markets, the development of export markets, and charitable contributions. Sections 930.55 through 930.57 prescribe procedures for inventory reserve. For cherries held in reserve, handlers would be responsible for storage and would retain title of the tart cherries.
Under § 930.52, only those districts with an annual average production over the prior three years of at least six million pounds are subject to regulation, and any district producing a crop which is less than 50 percent of its annual average of the previous five years is exempt. The regulated districts for the 2016-17 crop year are: District 1—Northern Michigan; District 2—Central Michigan; District 3—Southern Michigan; District 4—New York; District
Demand for tart cherries and tart cherry products tends to be relatively stable from year to year. Conversely, annual tart cherry production can vary greatly. In addition, tart cherries are processed and can be stored and carried over from crop year to crop year, further impacting supply. As a result, supply and demand for tart cherries are rarely in balance.
Because demand for tart cherries is inelastic, total sales volume is not very responsive to changes in price. However, prices are very sensitive to changes in supply. As such, an oversupply of cherries can have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control provisions in the order to balance supply and demand to stabilize industry returns.
Pursuant to § 930.50 of the order, the Board meets on or about July 1 to review sales data, inventory data, current crop forecasts and market conditions for the upcoming season and, if necessary, to recommend preliminary free and restricted percentages if anticipated supply would exceed demand. After harvest is complete, but no later than September 15, the Board meets again to update its calculations using actual production data, consider any necessary adjustments to the preliminary percentages, and determine if final free and restricted percentages should be recommended to the Secretary.
The Board uses sales history, inventory, and production data to determine whether there is a surplus, and if so, how much volume should be restricted to maintain optimum supply. The optimum supply represents the desirable volume of tart cherries that should be available for sale in the coming crop year. Optimum supply is defined as the average free sales of the prior three years plus desirable carry-out inventory. Desirable carry-out is the amount of fruit needed by the industry to be carried into the succeeding crop year to meet market demand until the new crop is available. Desirable carry-out is set by the Board after considering market circumstances and needs. Section 930.151(b) specifies that desirable carry-out can range from zero to a maximum of 100 million pounds.
In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (
After the Board determines optimum supply, desirable carry-out, and market growth factor, it must examine the current year's available volume to determine whether there is an oversupply situation. Available volume includes carry-in inventory (any inventory available at the beginning of the season) along with that season's production. If production is greater than the optimum supply minus carry-in, the difference is considered surplus. This surplus tonnage is divided by the sum of production in the regulated districts to reach a restricted percentage. This percentage must be held in reserve or used for approved diversion activities, such as exports.
The Board met on June 23, 2016, and computed an optimum supply of 287 million pounds for the 2016-17 crop year using the average of free sales for the three previous seasons and a desirable carry-out of 57 million pounds. The Board determined three months of sales would be a good estimate for what was needed at the end of the season, as there is a three-month gap between the calculation of carry-out at the end of one season and the availability of fruit in the next season. The recommended carry-out of 57 million pounds is approximately a quarter of average annual sales.
The Board then subtracted the estimated carry-in of 81.3 million pounds from the optimum supply to calculate the production needed from the 2016-17 crop to meet optimum supply. This number, 205.7 million pounds, was subtracted from the Board's estimated 2016-17 production of 351.3 million pounds to calculate a surplus of 145.6 million pounds of tart cherries. The Board also complied with the market growth factor requirement by adding 23 million pounds (average sales for prior three years of 230 million times 10 percent) to the free supply. The surplus minus the market growth factor was then divided by the expected production in the regulated districts (348 million pounds) to reach a preliminary restricted percentage of 35 percent for the 2016-17 crop year.
The Board then discussed whether this calculation would provide sufficient supply to grow sales while being able to supply orders that are already scheduled, including filling remaining orders from a USDA purchase made the previous season. The Board, after considering anticipated supply needs for the 2016-17 season, decided to make an economic adjustment of 22 million pounds to increase the available supply of tart cherries. This economic adjustment further reduced the preliminary surplus to 100.6 million pounds. After these adjustments, the preliminary restricted percentage was recalculated as 29 percent (100.6 million pounds divided by 348 million pounds).
The Board met again on September 8, 2016, to consider final volume regulation percentages for the 2016-17 season. The final percentages are based on the Board's reported production figures and the supply and demand information available in September. The total production for the 2016-17 season was 341 million pounds, 10 million pounds below the Board's June estimate. In addition, growers diverted 26 million pounds in the orchard, leaving 315 million pounds available to market, 310 million pounds of which are in the restricted districts. Using the actual production numbers, and accounting for the recommended desirable carry-out and economic adjustment, as well as the market growth factor, the restricted percentage was recalculated.
The Board subtracted the carry-in figure used in June of 81.3 million pounds from the optimum supply of 287 million pounds to determine 205.7 million pounds of 2016-17 production would be necessary to reach optimum supply. The Board subtracted the 205.7 million pounds from the actual production of 341.3 million pounds, resulting in a surplus of 135.6 million pounds of tart cherries. The surplus was then reduced by subtracting the economic adjustment of 22 million pounds and the market growth factor of 23 million pounds, resulting in an adjusted surplus of 90.6 million pounds. The Board then divided this final surplus by the available production of 310 million pounds in the regulated districts (336.1 million pounds minus 26.4 million pounds of in-orchard diversion) to calculate a restricted percentage of 29 percent with a corresponding free percentage of 71 percent for the 2016-17 crop year, as outlined in the following table:
The primary purpose of setting restricted percentages is an attempt to bring supply and demand into balance. If the primary market is oversupplied with cherries, grower prices decline substantially. Restricted percentages have benefited grower returns and helped stabilize the market as compared to those seasons prior to the implementation of the order. The Board believes the available information indicates that a restricted percentage should be established for the 2016-17 crop year to avoid oversupplying the market with tart cherries. Consequently, based on its discussion of this issue and the result of the above calculations, the Board recommended final percentages of 71 percent free and 29 percent restricted by a vote of 16 in favor, 2 opposed, and 2 abstentions.
Though production came in below the Board's June, 2016, estimate, the initial restriction percentage remained the same due to the substantial in-orchard diversion. During the discussion of the proposed restriction, several members supported the proposed percentages as there was no change from the preliminary 29 percent restriction recommended in June. They believed deviating from the percentages announced in June would be disruptive to the industry, as processors have already made agreements with growers.
Another member noted when there was a crop failure in 2012, there was not enough reserve to maintain sales and warned against being unprepared in the future. The member also noted that in the last four years, even with volume regulation and an increase in imported products, overall domestic sales have increased since 2013, including modest growth in both juice and piefill.
Some members opposed to the proposed restriction expressed concern regarding competition from imported tart cherry juice concentrate. In particular, they were concerned that the additional volume from imports is not accounted for in the Optimum Supply Formula (OSF), thus not capturing overall supply and demand.
Others were of the opinion that the Board's recent actions to expand the use of diversion credits in new markets or through grower diversion were allowing the industry to remain competitive without making additional adjustments to supply. Another member countered that not all handlers are helped by new market diversion credits and cannot sell all of their product under a restriction.
When asked how much of the market currently being served by imports could be supplied by the domestic handlers, some members stated they could utilize the full adjusted calculated surplus of 90.6 million pounds. Others noted that trying to compete for those markets by matching the price of imported concentrate would drop grower returns to an unsustainable level.
One member summarized that, although there is a carrying cost for storing restricted fruit, and the industry appears to be at a trade disadvantage, the Board should account for those factors all the while focusing on continuing to grow sales. Though there was much discussion regarding the market impact of imports, there was no motion made by any Board member to make a further economic adjustment to the calculation based on imported product.
After reviewing the available data, and considering the concerns expressed, the Board determined that a 29 percent restriction with a carry-out volume of 57 million pounds meets sales needs and establishes some reserves without oversupplying the market. Thus, the Board recommended establishing final percentages of 71 percent free and 29 percent restricted. The Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS) and Board data, the average annual grower price for tart cherries during the 2015-16 season was approximately $0.347 per pound. With total utilization at 251.1 million pounds, the total 2015-16 crop value is estimated at $87 million. Dividing the crop value by the estimated number of producers (600) yields an estimated average annual receipt per producer of $145,000. This is well below the SBA threshold for small producers. In 2015, The Food Institute estimated a free on board (f.o.b.) price of $0.96 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Multiplying the f.o.b price by total utilization of 251.1 million pounds results in an estimated handler-level tart cherry value of $241 million. Dividing this figure by the number of handlers (40) yields an estimated average annual handler receipts of $6 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal bell-curve distribution, the majority of producers and handlers of tart cherries may be classified as small entities.
The tart cherry industry in the United States is characterized by wide, annual fluctuations in production. According to NASS, the pounds of tart cherry production for the years 2012 through 2015 were 85 million, 291 million, 301 million, and 251 million, respectively. Because of these fluctuations, supply and demand for tart cherries are rarely equal.
Demand for tart cherries is inelastic, meaning changes in price have a minimal effect on total sales volume. However, prices are very sensitive to changes in supply, and grower prices vary widely in response to the large swings in annual supply, with prices ranging from a low of 7.3 cents per
Because of this relationship between supply and price, oversupplying the market with tart cherries would have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control authority in the order to align supply with demand and stabilize industry returns. This authority allows the industry to set free and restricted percentages as a way to bring supply and demand into balance. Free percentage cherries can be marketed by handlers to any outlet, while restricted percentage volume must be held by handlers in reserve, diverted, or used for exempted purposes.
This rule controls the supply of tart cherries by establishing percentages of 71 percent free and 29 percent restricted for the 2016-17 crop year. These percentages should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. This rule regulates tart cherries handled in Michigan, New York, Utah, Washington, and Wisconsin. The authority for this action is provided for in §§ 930.50, 930.51(a) and 930.52 of the order. The Board recommended this action at a meeting on September 8, 2016.
This rule will result in some fruit being diverted from the primary domestic markets. However, as mentioned earlier, the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (
In addition, there are secondary uses available for restricted fruit, including the development of new products, sales into new markets, the development of export markets, and being placed in reserve. While these alternatives may provide different levels of return than the sales to primary markets, they play an important role for the industry. The areas of new products, new markets, and the development of export markets utilize restricted fruit to develop and expand the markets for tart cherries. In 2015-16, these activities accounted for over 27 million pounds in sales, 12 million of which were exports.
Placing tart cherries into reserves is also a key part of balancing supply and demand. Although handlers bear the handling and storage costs for fruit in reserve, reserves stored in large crop years are used to supplement supplies in short crop years. The reserves allow the industry to mitigate the impact of oversupply in large crop years, while allowing the industry to maintain supply to markets in years when production falls below demand. Further, storage and handling costs are more than offset by the increase in price when moving from a large crop to a short crop year.
In addition, the Board recommended an increased carry-out of 57 million pounds and made a demand adjustment of 22 million pounds in order to make the regulation less restrictive. Even with the restriction, over 300 million pounds of fruit will be available to the domestic market. Consequently, it is not anticipated that this regulation will unduly burden growers or handlers.
While this action could result in some additional costs to the industry, these costs are more than outweighed by the benefits. The purpose of setting restricted percentages is to attempt to bring supply and demand into balance. If the primary market (domestic) is oversupplied with cherries, grower prices decline substantially. Without volume control, the primary market will likely be oversupplied, resulting in lower grower prices.
The three districts in Michigan, along with the districts in New York, Utah, Washington, and Wisconsin, are the restricted areas for this crop year with a combined total production of 310 million pounds. A 29 percent restriction means 220 million pounds will be available to be shipped to primary markets from these five states. The 220 million pounds from the restricted districts, 5 million pounds from the unrestricted districts (Oregon and Pennsylvania), and the 81 million pound carry-in inventory would make a total of 306 million pounds available as free tonnage for the primary markets. This is similar to the 305 million pounds of free tonnage made available last year. This is enough to cover the 251 million pounds of total utilization in 2015-16, while providing substantial carry-out. Further, the Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.
Prior to the implementation of the order, grower prices often did not cover the cost of production. The most recent costs of production determined by representatives of Michigan State University are an estimated $0.33 per pound. To assess the impact that volume control has on the prices growers receive for their product, an econometric model has been developed. Based on the model, the use of volume control would have a positive impact on grower returns for this crop year. With volume control, grower prices are estimated to be approximately $0.06 per pound higher than without restrictions. In addition, absent volume control, the industry could start to build large amounts of unwanted inventories. These inventories would have a depressing effect on grower prices.
Retail demand is assumed to be highly inelastic, which indicates that changes in price do not result in significant changes in the quantity demanded. Consumer prices largely do not reflect fluctuations in cherry supplies. Therefore, this action should have little or no effect on consumer prices and should not result in a reduction in retail sales.
The free and restricted percentages established by this rule provide the market with optimum supply and apply uniformly to all regulated handlers in the industry, regardless of size. As the restriction represents a percentage of a handler's volume, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities.
The stabilizing effects of this action benefit all handlers by helping them maintain and expand markets, despite seasonal supply fluctuations. Likewise, price stability positively impacts all growers and handlers by allowing them to better anticipate the revenues their tart cherries would generate. Growers and handlers, regardless of size, benefit from the stabilizing effects of this restriction. In addition, the increased carry-out should provide processors enough supply to meet market needs going into the next season.
The Board considered alternatives in its preliminary restriction discussions that affected this action. Regarding demand, the Board began with the actual sales average of 230 million pounds. However, the Board noted that some previously contracted sales would be due for delivery in the coming season. In order to avoid undersupplying the market, the Board determined that the calculation of the optimum supply should include an additional adjustment for that purpose. After discussion, an adjustment of an additional 22 million pounds was made in the 2016-17 available supply of tart cherries as it was determined that this amount would best meet the industry's
Regarding the carry-out value, the Board considered a range of alternatives. One member suggested the Board begin with 57 million pounds, approximately a quarter of average annual sales. Other members suggested alternatives as high as 70 million pounds. However, some members were concerned about leaving too much fruit on the market at the end of the season and depressing prices going into the next year. The Board determined three months of sales would be a good estimate for what is needed at the end of the season, as there is a three-month gap between the calculation of carry-out at the end of one season and the availability of fruit from the next season. Thus, the other alternatives were rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This action will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule. Further, the public comments received concerning the proposal did not address the initial regulatory flexibility analysis.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, the Board's meeting was widely publicized throughout the tart cherry industry, and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the June 23, 2016, and September 8, 2016, meetings were public meetings, and all entities, both large and small, were able to express views on this issue.
A proposed rule concerning this action was published in the
Eleven comments were received during the comment period in response to the proposal. Four comments favored the proposed regulation and seven comments opposed the proposed regulation. One comment received was signed by 67 industry members. The commenters included growers, handlers, Board members, an industry representative, economic policy and law students, individuals, and one anonymous cherry consumer. Most of the points made by the commenters in opposition had been discussed prior to the Board's vote recommending this action.
The comment signed by 67 industry members asserted the United States government import data indicate that 40 percent of tart cherry consumption in the 2015 season was from imported products. AMS's analysis of the Foreign Agricultural Service's Global Agricultural Trade System (GATS) indicates an equivalent of more than 230 million pounds of cherries products were imported into the U.S. in the 2016 season. The imported volume has remained above 230 million pounds since the 2014 season. According to the data, tart cherry juice concentrate represents by far the largest segment of imports and has experienced tremendous growth beginning in 2012.
Five of the comments in opposition, including the comment signed by 67 industry members, reference the absence of imported tart cherry products in the OSF. All of these commenters implied that not including imported tart cherry products into the OSF calculation disregards a large portion of the demand for tart cherries. As a result, these commenters since believe the proposed rule fails to bring supply into balance with demand in the targeted market. The comment with 67 signatures states the federal marketing order does not account for the total demand of tart cherry products in the US because imported products are not included in the formula. Another commenter suggested not considering imported products in the OSF indicates the Board's recommended restriction is arbitrary and capricious.
The OSF presented to the Board included several adjustments to avoid the possibility of undersupplying the market. In determining demand, the Board takes into account many factors, including previous sales history and an analysis of economic factors having a bearing on the market. The final percentages recommended by the Board included several adjustments to supply additional fruit to the market. In calculating these adjustments for determining demand in the OSF, the Board also considered supplies of competing commodities and the additional ten percent added for the market growth factor. This was noted by one of the commenters voicing support for the proposed regulation. The economic adjustment added 22 million pounds and the market growth factor added 23 million pounds for an additional 55 million pounds beyond the average sales.
Under the order, when computing and determining final percentages for recommendation to the Secretary, the Board must give consideration to several factors including supplies of competing commodities and economic factors having a bearing on cherry markets. At the meetings on June 23, 2016, and September 8, 2016, the Board discussed its concerns regarding the economic impact of imports. At the September meeting, following the motion to adopt the OSF as presented, several comments and observations were made regarding the matter of imports. However, none of the members suggested an alternative adjustment for imports. Additionally, the Board did not propose amending the order language in section 930.50 to include imports as a factor in calculating the OSF. Most of the comments at the September meeting supported the motion to adopt the OSF as presented.
The comment with 67 signatures also states that the domestic industry has been unable to supply the significant growth in consumption of dried and juiced cherry products. Data concur that domestic production alone would not replace the imported volume in recent years. However, the Board reported steady or increased overall domestic sales from 2013-15, even though each of those seasons were regulated. The use of diversion credits allowed handlers to ship an additional 27.5 million pounds of restricted fruit during the 2015-16 season in addition to free sales. Despite this growth, the industry reported a remaining free inventory of over 80 million pounds going into the crop year,
Also at the September meeting, a Board member stated an adjustment to the OSF for imports is one alternative, but the Board's preferred alternative was to use restricted cherries for supplying new and competing commodity markets. Therefore, alternatives were considered consistent with Executive Order 13563. The member also stated that restricting cherries under the order aids in stabilizing grower prices. Placing excess cherries into the market is contrary to the purpose of the order. The Board supports utilizing exempted markets for restricted cherries as an alternative to storage. Exporting cherry products and participating in new product and new market projects allows handlers to sell restricted cherries into these markets.
Should domestic handlers decide to compete in these new markets, in most cases, restricted cherries could be used and the handler could receive diversion credits under the diversion provisions of the order. Further, the Board recently recommended extending the maximum length of these activities from three years to five years, creating even more opportunities to pursue new markets. Consequently, handlers currently have ample opportunity to compete for new markets using restricted cherries while continuing to service traditional markets with unrestricted cherries. In addition, should industry efforts cause demand to exceed available volume, the Board could meet and recommend the release of additional volume.
Another commenter opposed to the 29 percent or approximately 90 million pound restriction indicated the total percent restriction, over the past three years, was 69 percent. However, the percent restriction for each year cannot be added together to arrive at the total restriction over the last three years. The calculation to derive the percent restriction over the past three years is achieved by dividing the total adjusted surplus by the total production in regulated districts over the past three years. The pounds of regulated production for 2014, 2015, and 2016 seasons were 295 million with 59 million restricted, 240 million with 47 million restricted, and 310 million with 91 million restricted, respectively. The total 197 million pounds of surplus divided by the total regulated production of 845 million equals a 23 percent restriction. The miscalculation from the commenter in opposition overstated the total percent restriction for the past three years by triple.
This commenter also stated that marketers of cherry products should not be forced to hold volume off the market while imported products enter the market freely. Contrary to the commenter's opinion, a Board member at the September 8, 2016, meeting stated that placing excess cherries into the market as a method of countering imports would only lower grower prices significantly and would not be positive for the grower community. Another Board member added that imports are capturing a less profitable market while the domestic industry is serving more profitable markets.
One commenter indicated the OSF was calculated incorrectly by including the in-orchard diverted fruit as part of production in the formula. This individual suggested if the in-orchard diverted fruit was removed from production, the percentage would be 21 percent, instead of 29 percent restriction. However, 26.4 million pounds of in-orchard diversion were accounted for when calculating the volume subject to restriction from the regulated districts. This is consistent with the method used to account for fruit produced in unrestricted districts. The total production (341.3 million pounds) minus the in-orchard diversions (26.4 million pounds) and production in unrestricted districts (5.2 million pounds) left 309.7 million pounds subject to restriction. The Board divided the surplus of 90.6 million pounds by this volume to arrive at 29 percent restricted and 71 percent free market cherries.
One comment, submitted twice, from two students in opposition to this regulation suggested the government should not intervene and require cherry farmers to restrict supply. This comment assumed the order restricts the amount of tart cherries that can be produced. Volume regulation under the order is a tool for the tart cherry industry to stabilize market conditions due to fluctuations in supply and the inelastic nature of demand for tart cherries. This action does not regulate growers' production of the commodity. This regulatory action is a restriction on domestic tart cherry products handled for the market. This regulation will only restrict cherries purchased for handling. Further, this action is a recommendation from the tart cherry industry as represented by the Board made up of growers, handlers, and a member of the public. The Board considered not regulating as a possible alternative, consistent with Executive Order 13563, but this consideration was rejected after reviewing production data.
One commenter opposed the restriction because it would reduce tart cherry production and not allow the producers to benefit from maximizing the crop. The commenter also concluded the restriction would make it difficult for the industry to reach optimum supply. As previously mentioned, this action does not restrict tart cherry production. Production decisions are made well in advance of the recommendation for volume restriction, which is discussed just prior to harvest and finalized following harvest. Unlike some other commodities like row crops, tree crops such as tart cherries cannot be easily taken out of production. This action regulates only the handling of tart cherries.
Regarding the commenter's second concern, USDA requires 110 percent of average sales be made available under any volume regulation. The Board recommended an economic adjustment for the 2016-17 season to make even more fruit available, going beyond the initial optimum supply calculation. While the restriction may not impact production costs, producers do experience a drop in price when the market is oversupplied. When the market approaches optimum supply, prices tend to be more stable.
All four of the proponents of this action suggest the restriction will stabilize the cherry industry's economy. Three of the proponents made reference to the industry wide support for the recommended restriction, as represented by the Board's vote in which 16 members, the majority of the Board, voted in favor, two abstained and two opposed the recommended restriction. One of these proponents indicated this level of support is significantly greater than the requisite two-thirds majority required for Board action. Further, two proponents made reference that the action is supported by a large majority of the industry.
Three proponents of this action recognized the Board's consideration of the opponents' concerns in their comments on the proposal. All three noted the matter of imports has been addressed by the Board at several meetings. One proponent recognized the Board established a committee to suggest alternative ways to increase domestic juice and juice concentrate sales. Another commenter suggested if growers and processors want to account for imports in a way other than through adjustments, then the Board should focus on amending the order language for determining optimum supply to account for imports.
All three proponents made reference to the Board's efforts in promoting the exemption process as a method of competing with imported cherry products. One commenter noted the
One commenter referenced the opportunities available to use both in-orchard and post-harvest diversion to comply with a restriction. The commenter stated the Federal marketing order provides major incentive to expand sales by using restricted fruit to serve new markets, new products, and exports. Additionally, there is incentive in place for growers to divert excess fruit where there is no market or where the cost associated with marketing the fruit may not increase returns. Growers who choose to divert in the orchard can be issued certificates by the Board that can be sold to handlers to meet their restriction requirements.
One commenter noted the Board felt the final calculations were appropriate. They also stated that the majority of the industry approved the order in its last referendum, believing that the order brings more returns to growers. Another proponent noted, even with the restriction, sales are not being lost due to lack of available unrestricted cherries. The carry-in from July 2016 (81 million lbs.) and the projected availability of free market carry-out (57 million lbs.) indicate the restriction is not a factor in limiting sales of tart cherry products. The Board deliberated thoroughly on whether or not to make an additional economic adjustment to account for imported cherry products. However, no motion was made for an additional adjustment to reflect the impact of imported cherry products. As one commenter noted, there is a lack of consensus on how to factor imports into the final calculation.
Further, according to Foreign Agricultural Service's GATS database, though imported cherry products remained high (230 million lbs. equivalent) during the 2016 calendar year, the volume is down from the 2015 calendar year (267 million lbs. equivalent) and also below the 2014 calendar year (244 million lbs. equivalent). The final NASS prices for the 2016 season are not yet available, but from 2013-15, grower prices were stable, ranging from $0.34 to $0.36 per pound. Thus, when using available sales, utilization, and price data from previous years it is difficult to determine what, if any, specific negative impact imports have had on the market for domestic tart cherries and then account for that impact in the OSF.
As previously stated, there are more than 309 million pounds of tart cherries available for free sales for 2016-17. This volume exceeds total sales from 2015-16 of both free and restricted cherries of 288 million pounds. Further, the order provides numerous alternatives for the use of restricted fruit, such as handler diversion, for complying with the recommended restriction. Additionally, the USDA announced the intent to purchase over 10 million pounds of cherry products in the 2016-2017 season as surplus purchases. Therefore, as stated in the RFA, it is not anticipated that this action will unduly burden growers or handlers.
Accordingly, no changes will be made to the rule as proposed, based on the comments received.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Reporting and recordkeeping requirements, Tart cherries.
For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:
7 U.S.C. 601-674.
For the 2016 crop year, the desirable carry-out inventory, for the purposes of determining an optimum supply volume, will be 57 million pounds.
The percentages for tart cherries handled by handlers during the crop year beginning on July 1, 2016, which shall be free and restricted, respectively, are designated as follows: Free percentage, 71 percent and restricted percentage, 29 percent.
Board of Governors of the Federal Reserve System.
Final rule.
The Board of Governors of the Federal Reserve System (“Board”) has adopted final amendments to its Regulation A to reflect the Board's approval of an increase in the rate for primary credit at each Federal Reserve Bank. The secondary credit rate at each Reserve Bank automatically increased by formula as a result of the Board's primary credit rate action.
This rule is effective June 26, 2017. The rate changes for primary and secondary credit were applicable beginning June 15, 2017.
Clinton Chen, Attorney (202/452-3952), or Sophia Allison, Special Counsel, (202/452-3565), Legal Division, or Lyle Kumasaka, Senior Financial Analyst (202/452-2382); for users of Telecommunications Device 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.
The Federal Reserve Banks make primary
On June 14, 2017, the Board voted to approve a
The
In general, the Administrative Procedure Act (12 U.S.C. 551
Regulation A establishes the interest rates that the twelve Reserve Banks charge for extensions of primary credit and secondary credit. The Board has determined that the notice, public comment, and delayed effective date requirements of the APA do not apply to the final amendments to Regulation A for several reasons. The amendments involve a matter relating to loans, and are therefore exempt under the terms of the APA. In addition, the Board has determined that notice, public comment, and delayed effective date would be unnecessary and contrary to the public interest because delay in implementation of changes to the rates charged on primary credit and secondary credit would permit insured depository institutions to profit improperly from the difference in the current rate and the announced increased rate. Finally, because delay would undermine the Board's action in responding to economic data and conditions, the Board has determined that “good cause” exists within the meaning of the APA to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation A.
The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.
In accordance with the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.
Banks, Banking, Federal Reserve System, Reporting and recordkeeping.
For the reasons set forth in the preamble, the Board is amending 12 CFR part 201 as follows:
12 U.S.C. 248(i)-(j), 343
(a)
(b)
Board of Governors of the Federal Reserve System.
Final rule.
The Board of Governors of the Federal Reserve System (“Board”) is amending Regulation D (Reserve Requirements of Depository Institutions) to revise the rate of interest paid on balances maintained to satisfy reserve balance requirements (“IORR”) and the rate of interest paid on excess balances (“IOER”) maintained at Federal Reserve Banks by or on behalf of eligible institutions. The final amendments specify that IORR is 1.25 percent and IOER is 1.25 percent, a 0.25 percentage point increase from their prior levels. The amendments are intended to enhance the role of such rates of interest in moving the Federal funds rate into the target range established by the Federal Open Market Committee (“FOMC” or “Committee”).
This rule is effective June 26, 2017. The IORR and IOER rate changes were applicable on June 15, 2017.
Clinton Chen, Attorney (202-452-3952), or Sophia Allison, Special Counsel (202-452-3198), Legal Division, or Thomas Keating, Financial Analyst (202-973-7401), or Laura Lipscomb, Section Chief (202-973-7964), Division of Monetary Affairs; for users of Telecommunications Device 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.
For monetary policy purposes, section 19 of the Federal Reserve Act (“the Act”) imposes reserve requirements on certain types of deposits and other liabilities of depository institutions. Regulation D, which implements section 19 of the Act, requires that a depository institution meet reserve requirements by holding cash in its vault, or if vault cash is insufficient, by maintaining a balance in an account at a Federal Reserve Bank (“Reserve Bank”).
The Board is amending § 204.10(b)(5) of Regulation D to specify that IORR is 1.25 percent and IOER is 1.25 percent. This 0.25 percentage point increase in the IORR and IOER was associated with an increase in the target range for the federal funds rate, from a target range of
Information received since the Federal Open Market Committee met in May indicates that the labor market has continued to strengthen and that economic activity has been rising moderately so far this year. Job gains have moderated but have been solid, on average, since the beginning of the year, and the unemployment rate has declined. Household spending has picked up in recent months, and business fixed investment has continued to expand. On a 12-month basis, inflation has declined recently and, like the measure excluding food and energy prices, is running somewhat below 2 percent. Market-based measures of inflation compensation remain low; survey-based measures of longer-term inflation expectations are little changed, on balance.
Consistent with its statutory mandate, the Committee seeks to foster maximum employment and price stability. The Committee continues to expect that, with gradual adjustments in the stance of monetary policy, economic activity will expand at a moderate pace, and labor market conditions will strengthen somewhat further. Inflation on a 12-month basis is expected to remain somewhat below 2 percent in the near term but to stabilize around the Committee's 2 percent objective over the medium term. Near term risks to the economic outlook appear roughly balanced, but the Committee is monitoring inflation developments closely.
In view of realized and expected labor market conditions and inflation, the Committee decided to raise the target range for the federal funds rate to 1 to 1
A Federal Reserve Implementation note released simultaneously with the announcement stated that:
The Board of Governors of the Federal Reserve System voted unanimously to raise the interest rate paid on required and excess reserve balances to 1.25 percent, effective June 15, 2017.
As a result, the Board is amending § 204.10(b)(5) of Regulation D to change IORR to 1.25 percent and IOER to 1.25 percent.
In general, the Administrative Procedure Act (12 U.S.C. 551
The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to the final amendments to Regulation D. The rate increases for IORR and IOER that are reflected in the final amendments to Regulation D were made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest, and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation D.
The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.
In accordance with the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3506; 5 CFR part 1320, appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.
Banks, Banking, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Board amends 12 CFR part 204 as follows:
12 U.S.C. 248(a), 248(c), 461, 601, 611, and 3105.
(b) * * *
(5) The rates for IORR and IOER are:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all DG Flugzeugbau GmbH Models DG-400, DG-500M, DG-500MB, DG-800A, and DG-800B gliders. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as a manufacturing defect in certain textile fabric covered fuel hoses, which could cause the fuel hose to fail. We are issuing this AD to require actions to address the unsafe condition on these products.
This AD is effective July 31, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 31, 2017.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact DG Flugzeugbau GmbH, Otto-Lilienthal Weg 2, D-76646 Bruchsal, Germany; telephone: +49 (0)7251 3202-0; email:
Jim Rutherford, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4165; fax: (816) 329-4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all DG Flugzeugbau GmbH Models DG-400, DG-500M, DG-500MB, DG-800A, and DG-800B gliders. The NPRM was published in the
The MCAI states:
During service and annual inspection, DG found that some fuel hoses with textile fabric covering, installed from the beginning of the year 2015, had become weak or untight with time. The suspected root cause for this premature degradation is a manufacturing defect of a certain batch of fuel hoses.
This condition, if not detected and corrected, may lead to kinking of the fuel hoses, possibly resulting in a reduced fuel supply and consequent partial or total loss of available power.
To address this unsafe condition, DG-Flugzeugbau published Technical Note TN 800-44, 500-10, DG-SS-02 providing inspection and replacement instructions.
For the reason described above, this [EASA] AD requires inspection and replacement of the affected fuel hoses.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed DG Flugzeugbau GmbH Technical note No. 800-44, 500-10, DG-SS-02, dated November 9, 2016, and co-published as one document; DG-400 diagram 8, 6 TN DG-SS-02; DG-500M diagram 14, TN 500/10; DG-500MB diagram 14, TN 500/10; DG-800A/LA diagram 11, TN 800/44; DG-800B Solo 2625 diagram 11, TN 800/44; DG-800B Solo 2625 diagram 11a, TN 800/44; DG-800B Solo 2625 diagram 11b, TN 800/44; and DG-800B ab W.Nr. 8-155/from ser. no. 8-155 on, diagram 11d, TN 800/44, all diagrams issued October 2016. In combination, the service information describes procedures for inspecting and replacing the fuel hoses on different aircraft model variants covered by the applicability of this AD. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD will affect 59 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with each inspection required by this AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the inspection cost of this AD on U.S. operators to be $10,030, or $170 per product.
In addition, we estimate that each replacement action required by this AD will take about 8 work-hours and require parts costing $500. Based on these figures, we estimate the replacement cost of this AD on U.S. operators to be $69,620, or $1,180 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, 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.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective July 31, 2017.
None.
This AD applies to DG Flugzeugbau GmbH Models DG-400, DG-500M, DG-500MB, DG-800A, and DG-800B gliders, all serial numbers, that:
(1) Have textile fabric covered fuel hoses installed in the fuselage; and
(2) are certificated in any category.
Metal fabric covered fuel hoses installed in the engine area are not affected by this AD.
Air Transport Association of America (ATA) Code 28: Fuel.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as a manufacturing defect in certain textile fabric covered fuel hoses, which could cause the fuel hose to fail. We are issuing this AD to prevent failure of the fuel hose, which could cause reduced fuel supply and result in partial or total loss of power.
Unless already done, do the following actions:
(1) Within the next 30 days after July 31, 2017 (the effective date of this AD), inspect all textile fabric covered fuel hoses located in the fuselage following Instructions 1. of DG Flugzeugbau GmbH Technical note (TN) No. 800-44, 500-10, DG-SS-02, dated November 9, 2016.
DG Flugzeugbau GmbH TN No. 800-44, DG Flugzeugbau GmbH TN No. 500-10, and DG Flugzeugbau GmbH TN No. DG-SS-02, are all dated November 9, 2016, and co-published as one document.
(2) If any kinking or wet fabric covering is found during the inspection required in paragraph (f)(1) of this AD, within the next 14 days after the inspection, replace all textile fabric covered fuel hoses located in the fuselage following Instructions 2. of DG Flugzeugbau GmbH TN No. 800-44, 500-10, DG-SS-02, dated November 9, 2016, and DG-400 diagram 8, 6 TN DG-SS-02; DG-500M diagram 14, TN 500/10; DG-500MB diagram 14, TN 500/10; DG-800A/LA diagram 11, TN 800/44; DG-800B Solo 2625 diagram 11, TN 800/44; DG-800B Solo 2625 diagram 11a, TN 800/44; DG-800B Solo 2625 diagram 11b, TN 800/44; and DG-800B ab W.Nr. 8-155/from ser. no. 8-155 on, diagram 11d, TN 800/44, as applicable, all diagrams issued October 2016.
(3) If no kinking or wet fabric covering is found during the inspection required in paragraph (f)(1) of this AD, within the next 12 months after July 31, 2017 (the effective date of this AD), replace all textile fabric covered fuel hoses located in the fuselage following the instructions and diagrams specified in paragraph (f)(2) of this AD.
(4) Within 12 months after doing the replacements required in paragraph (f)(2) or (f)(3) of this AD, as applicable, and repetitively thereafter at intervals not to exceed 12 months, inspect all fuel hoses in the fuselage for any signs of wear, fissures, kinks, lack of tight fit, or leaks. For this inspection, the ignition switch must be turned on to run the electric fuel pump to demonstrate an operating fuel pressure. Do this inspection following Instructions 4. of DG Flugzeugbau GmbH TN No. 800-44, 500-10, DG-SS-02, dated November 9, 2016.
(5) If any signs of wear, fissures, kinks, lack of tight fit, or leaks are found during any inspection required in paragraph (f)(4) of this AD, replace the defective fuel hose in the fuselage following the instructions and diagrams specified in paragraph (f)(2) of this AD. Continue with the repetitive inspections as specified in paragraph (f)(4) of this AD.
(6) If no signs of wear, fissures, kinks, lack of tight fit, or leaks are found during any inspection required in paragraph (f)(4) of this AD, at intervals not to exceed 10 years, replace the fuel hoses in the fuselage with new fuel hoses following the instructions and diagrams specified in paragraph (f)(2) of this AD.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2016-0259, dated December 21, 2016, for related information. You may examine the MCAI on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) DG-400 diagram 8, issued October 2016 TN DG-SS-02.
(ii) DG-500M diagram 14, issued October 2016 TN 500/10.
(iii) DG-500MB diagram 14, issued October 2016 TN 500/10.
(iv) DG-800A/LA diagram 11, issued October 2016 TN 800/44.
(v) DG-800B Solo 2625 diagram 11, issued October 2016 TN 800/44.
(vi) DG-800B Solo 2625 diagram 11a, issued October 2016 TN 800/44.
(vii) DG-800B Solo 2625 diagram 11b, issued October 2016 TN 800/44.
(viii) DG-800B ab W.Nr. 8-155/from ser. no. 8-155 on, diagram 11d, issued October 2016 TN 800/44.
(ix) DG Flugzeugbau GmbH Technical note (TN) No. 800-44, 500-10, DG-SS-02, dated November 9, 2016.
DG Flugzeugbau GmbH TN No. 800-44, DG Flugzeugbau GmbH TN No. 500-10, and DG Flugzeugbau GmbH TN No. DG-SS-02, are all dated November 9, 2016, and co-published as one document.
(3) For service information identified in this AD, DG Flugzeugbau GmbH, Otto-Lilienthal Weg 2, D-76646 Bruchsal, Germany; telephone: +49 (0)7251 3202-0; email:
(4) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the Internet at
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
National Aeronautics and Space Administration.
Interim final rule with request for public comment.
The National Aeronautics and Space Administration (NASA) is publishing for public comment an interim final rule to adjust the civil monetary penalties within its jurisdiction for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act or the Act), as amended by the Debt Collection Improvement Act of 1996 and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act). The revision to this rule is part of NASA's retrospective plan under Executive Order (E.O.) 13563 completed in August 2011. NASA's full plan can be accessed on the Agency's open Government Web site at
This interim final rule is effective August 25, 2017.
Bryan R. Diederich, Office of the General Counsel, NASA Headquarters, telephone (202) 358-0216.
The Inflation Adjustment Act, as amended by the 2015 Act, requires Federal agencies to adjust the civil penalty amounts within their jurisdiction for inflation by July 1, 2016, and then by January 15 every year thereafter.
The Inflation Adjustment Act prescribes a specific method for calculating the inflation adjustments.
To determine the new penalty amount, the agency must apply the multiplier reflecting the “cost-of-living adjustment”
This interim final rule establishes the inflation-adjusted maximum amounts for each civil penalty within NASA's jurisdiction. The following table lists the civil penalties within NASA's jurisdiction and summarizes the relevant information needed to calculate the inflation adjustments pursuant to the statutory method.
NASA followed the procedure outlined above in part II to calculate the adjusted civil penalty amounts. In accordance with the statutory requirements and OMB guidance, NASA multiplied each penalty amount as established or last adjusted under a provision other than the Inflation Adjustment Act by the OMB multiplier corresponding to the appropriate year, and then rounded that amount to the nearest dollar, to calculate the new, inflation-adjusted civil penalty amount. The following chart summarizes the results of these calculations:
This rule codifies these civil penalty amounts by amending parts 1264 and 1271 of title 14 of the CFR.
NASA issues this rule under the Federal Civil Penalties Inflation Adjustment Act of 1990,
The Administrative Procedure Act (APA) generally requires an agency to publish a rule at least 30 days before its effective date.
Although notice and comment rulemaking procedures are not required, NASA invites comments on this notice. Commenters are specifically encouraged to identify any technical issues raised by the rule.
Under the APA, notice and opportunity for public comment are not required if NASA finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis.
In accordance with the Paperwork Reduction Act of 1995,
Claims, Penalties, Lobbying.
For the reasons stated in the preamble, the National Aeronautics and Space Administration amends 14 CFR parts 1264 and 1271 as follows:
31 U.S.C. 3809, 51 U.S.C. 20113(a).
Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L. 97-258 (31 U.S.C. 6301
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (the “Commission” or “CFTC”) is adopting final rules to establish new and amend certain existing delegations of authority to Commission staff. The Commission is also adopting amendments to update statutory authority citations and correct limited typographical and technical errors in certain rules.
This rule is effective June 26, 2017.
David Van Wagner, Chief Counsel, Division of Market Oversight, (202) 418-5481,
The Commission is adopting final rules to establish new and amend certain existing delegations of authority to Commission staff. Previously, the Commission delegated, to the Director of the Division of Market Oversight (“DMO”), various authorities for implementing certain Commission regulations.
For certain regulations, the Commission is revising the statutory authority citations to reflect the most current citation. On July 21, 2010, President Obama signed the Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) into law.
In addition, the Commission is amending certain of its regulations to revise a limited number of typographical and formatting errors, and to delete a duplicate regulation.
Part 5 of the Commission's regulations governs off-exchange foreign currency transactions. Section 5.20(d) covers Commission delegated authority to the DMO Director to make special calls for information on controlled accounts from retail foreign exchange dealers, futures commission merchants (“FCMs”) and introducing brokers (“IBs”), and to make special calls for information on open contracts in accounts carried or introduced by FCMs, IBs, and foreign brokers. The Commission is amending its delegation of authority in § 5.20(d) to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 5 statutory authority citation.
Part 11 of the Commission's regulations establishes rules relating to investigations. Section 11.2(a) delegates authority to the DOE Director, the Director of the Division of Swap Dealer and Intermediary Oversight (“DSIO”), the Director of the Division of Clearing and Risk (“DCR”), the Director of DMO, the Chief Economist, and members of their staffs acting within the scope of their respective responsibilities, to
Part 16 of the Commission's regulations governs reports by designated contract markets and swap execution facilities. Section 16.07(a) delegates authority to the DMO Director to determine the form, manner and time of filing reports required in §§ 16.00(b) and 16.01(d). Section 16.07(b) delegates authority to the DMO Director to determine the format, coding structure and electronic data transmission procedures used by reporting markets pursuant to §§ 16.00(b)(1), 16.01(d)(1) and 16.06. The Commission is amending its delegations of authority in § 16.07(a) and (b) to remove the DMO Director from its list of delegates and to delegate such authority to the ODT Director, with the concurrence of the DMO Director, or such other employee or employees as the Directors each may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 16 statutory authority citation and updating the part 16 statutory authority citation to reflect the correct numerical ordering of the statutory provisions cited. The Commission is also amending the outline formatting of § 16.07.
Part 17 of the Commission's regulations governs reports by reporting markets, futures commission merchants, clearing members, and foreign brokers. In § 17.03, the Commission is adding a delegation of authority, pursuant to § 17.01(e), to the ODT Director, in consultation with the DMO Director, or such other employee or employees as the Directors each may designate from time to time, to issue requests for Forms 102 and 71. The Commission is also making typographical corrections to the time formatting in § 17.02, and deleting the Dodd-Frank Act reference from the part 17 statutory authority citation.
Part 18 of the Commission's regulations governs reports by certain traders. Section 18.03 governs Commission delegated authority to the DMO Director to issue special calls for certain reports and information to be furnished by traders, and to request information related to the maintenance of books and records. The Commission is amending its delegation of authority in § 18.03 to remove the DMO Director from its list of delegates for issuing special calls for information pursuant to §§ 18.00 and 18.05, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also amending its delegation of authority in § 18.03 to remove the DMO Director from its list of delegates for issuing special calls for information pursuant to § 18.04, and to delegate such authority to the ODT Director, in consultation with the DMO Director, or such other employee or employees as the Directors each may designate from time to time. Finally, the Commission is deleting the Dodd-Frank Act reference from the part 18 statutory authority citation.
Part 19 of the Commission's regulations governs reports by persons holding bona fide hedge positions, and by merchants and dealers in cotton. Section 19.00(a)(3) governs Commission delegated authority to the DMO Director to issue special calls for Series `04 reports (cash market positions of large traders in cotton and grains). The Commission is amending its delegation of authority in § 19.00(a)(3) to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 19 statutory authority citation.
Part 20 of the Commission's regulations governs large trader reporting for physical commodity swaps. Section 20.8 governs Commission delegated authority to the DMO Director to: Issue special calls for certain forms, books and records; determine the form and manner of reporting; and determine compliance schedules. The Commission is amending its delegation of authority in § 20.8 to remove the DMO Director as its delegate for issuing § 20.6(d) special calls for books and records, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also amending its § 20.8 delegation of authority to remove the DMO Director as its delegate for issuing § 20.5 requests for 102S and 40S filings, and to delegate such authority to the ODT Director, in consultation with the DMO Director, or such other employee or employees as the Directors each may designate from time to time. Finally, the Commission is amending its § 20.8 delegation of authority to remove the DMO Director as its delegate for determining the form and coding structure of reporting in § 20.7, and will delegate such authority to the ODT Director, with the concurrence of the DMO Director, or such other employee or employees as the Directors each may designate from time to time. Finally, the Commission is also making typographical corrections to the time formatting in § 20.5, and deleting the Dodd-Frank Act reference from the part 20 statutory authority citation.
Part 21 of the Commission's regulations governs various types of Commission special calls. Section 21.05 particularly governs Commission delegated authority to the DMO Director to issue special calls for information on certain controlled accounts and open interest contracts in certain accounts. The Commission is amending its delegation of authority in § 21.05 to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 21 statutory authority citation.
Part 48 of the Commission's regulations governs the registration of FBOTs. The Commission is amending the part 48 rules to add a new § 48.11 that addresses delegations of authority to DMO. Section 48.11 will address delegations with respect to the following provisions:
1. Section 48.7 governs FBOT requirements for registration. The Commission is delegating authority, pursuant to § 48.7, for the DMO Director and his designated staff to request additional information and documentation in connection with an application for registration.
2. Section 48.9 governs the revocation of an FBOT's registration. The Commission is delegating authority,
3. Section 48.10 requires that FBOTs that wish to make additional contracts available to trade by members or participants located in the United States with direct access to the FBOT's trade-matching system must submit to the Commission a written request before offering the additional contracts in the U.S. The FBOT can offer the additional contracts for trading 10 business days after the Commission receives the FBOT's written request unless the Commission notifies the FBOT that additional time is needed to complete its review of policy or other issues pertinent to the additional contracts. The Commission is delegating authority, under § 48.10, for the DMO Director and his designated staff to, within the 10-day review period, notify an FBOT whether additional time is needed to complete its review of policy or other issues pertinent to the additional contracts, or that the contract can be made available for trading by direct access.
Part 140 of the Commission's regulations governs organization, functions and procedures of the Commission. The Commission is making the following amendments to the part 140 regulations.
1. Section 140.72, pertaining to delegation of authority to disclose confidential information to a registered entity, swap execution facility, swap data repository, registered futures association or self-regulatory organization.
Currently, § 140.72 delegates authority directly to the various Commission Division directors and certain identified senior staff positions to disclose confidential information. The Commission is amending its delegation of authority in § 140.72(a) to delegate authority to Division directors and their designated staff members.
2. Section 140.73, pertaining to delegation of authority to disclose information to United States, states, and foreign government agencies and foreign futures authorities.
Currently, § 140.73 delegates authority directly to the various Commission Division directors and certain identified senior staff positions to disclose confidential information. The Commission is amending its delegation of authority in § 140.72(a) to delegate authority to Division directors and their designated staff members.
3. Section 140.74, pertaining to delegation of authority to issue special calls for series 03 reports and Form 40.
The Commission is amending § 140.74 to remove the delegation of authority to the DMO Director, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time, for issuing special calls for series 03 reports. The Commission is also amending § 140.74 to delete a duplicate rule provision regarding authority to issue special calls for Form 40.
4. Section 140.97, pertaining to delegation of authority regarding requests for classification of positions as bona fide hedging.
The Commission is amending § 140.97 to remove the delegation of authority to the DMO Director, and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time.
Part 150 of the Commission's regulations governs limits on positions. Sections 150.3(b) and 150.4(e) govern Commission delegated authority to the DMO Director to issue calls for information related to claims of exemptions from positions limits, certain position, trading and business relationship information, and to determine the form, coding structure and transmission procedures for submitting data. The Commission is amending its special call delegation of authority in §§ 150.3(b) and 150.4(e) to remove the DMO Director from its list of delegates and to delegate such authority to the DOE Director, or such other employee or employees as the Director may designate from time to time. The Commission is also amending its form and manner delegation of authority in § 150.4(e) to remove the DMO Director from its list of delegates and to delegate such authority to the ODT Director, with the concurrence of the DOE Director, or such other employee or employees as the Directors each may designate from time to time. The Commission is also deleting the Dodd-Frank Act reference from the part 150 statutory authority citation.
The Administrative Procedure Act (“APA”)
The Regulatory Flexibility Act requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities.
The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (“OMB”) pursuant to the Paperwork Reduction Act.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
The Commission is amending its delegations of authority in §§ 5.20(d), 11.2(a), 16.07, 18.03, 19.00(a)(3), 20.8, 21.05, 140.72(a), 140.73, 140.74, 140.97, 150.3(b) and 150.4(c), and in part 48. The Commission is also amending certain statutory citations in, and making limited technical and typographical corrections to parts 5, 11, 16, 18, 19, 20, 21, 140, and 150. For assessing whether and to what extent costs or benefits are likely to flow from the amendments, the Commission is using the CEA and related regulations that currently instruct market participants as to which delegated authorities may ask for and receive requested information. The proposed amendments do not change the status quo.
There are no costs to the industry or the public associated with the amendments to certain Commission delegations of authority, regulation statutory citations, or typographical errors in the regulations.
The Commission believes that market participants and the public will benefit from these ministerial rule amendments since the updated delegations of authority will reflect the Commission's “mission to identify and prosecute violations of law and regulation” and “foster increased efficiencies through knowledge sharing and cross training under unified leadership; thus benefitting the Commission's surveillance mission and enforcement responsibilities.”
Commodity futures, Consumer protection, Foreign currencies, Off-exchange transactions, Reporting and recordkeeping requirements, Securities, Trade practices.
Administrative practice and procedure, Investigations.
Contract markets, Reporting and recordkeeping requirements, Swap execution facilities.
Brokers, Clearing members, Foreign brokers, Futures commission merchants, Reporting and recordkeeping requirements, Reporting markets.
Reporting and recordkeeping requirements, Traders.
Bona fide hedge positions, Cotton, Grains, Merchants and dealers, Reporting and recordkeeping requirements.
Administrative practice and procedure, Large traders, Physical commodity swaps, Reporting and recordkeeping requirements.
Brokers, Reporting and recordkeeping requirements, Special calls.
Foreign boards of trade, Registration requirements, Reporting and recordkeeping requirements.
Authority delegations (government agencies), Conflicts of interest, Organization and functions (government agencies).
Cotton, Grains, Position limits.
For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR chapter I as set forth below:
7 U.S.C. 1a, 2, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, and 23.
(d)
7 U.S.C. 4a(j), 9, 12, 12a(5) and 15.
(a) The Director of the Division of Enforcement and members of the Commission staff acting pursuant to his authority and under his direction may conduct such investigations as he deems appropriate to determine whether any persons have violated, are violating, or are about to violate the provisions of the Commodity Exchange Act, as amended, or the rules, regulations or orders adopted by the Commission pursuant to that Act, or, in accordance with the provisions of section 12(f) of the Act, whether any persons have violated, are violating or are about to violate the laws, rules or regulations relating to futures or options matters administered or enforced by a foreign futures authority, or whether an applicant for registration or designation meets the requisite statutory criteria. For this purpose, the Director may obtain evidence through voluntary statements and submissions, through exercise of inspection powers over boards of trade, reporting traders, and persons required by law to register with the Commission, or when authorized by order of the Commission, through the issuance of subpoenas. The Director shall report to the Commission the results of his investigations and recommend to the Commission such enforcement action as he deems appropriate.
7 U.S.C. 2, 6a, 6c, 6g, 6i, 7, and 7b-3.
(a) The Commission hereby delegates, until the Commission orders otherwise, the authority set forth in paragraphs (b) and (c) of this section to the Director of the Office of Data and Technology, with the concurrence of the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate from time to time. The Commission hereby delegates, until the Commission orders otherwise, the authority set forth in paragraph (d) of this section to the Director of the Division of Market Oversight, to be exercised by such Director or by such other employee or employees of such Director as may be designated from time to time by the Director. The Directors may submit to the Commission for its consideration any matter which has been delegated in this paragraph. Nothing in this paragraph prohibits the Commission, at its election, from exercising the authority delegated in this paragraph.
(b) Pursuant to §§ 16.00(b) and 16.01(d), as applicable, the authority to, with the concurrence of the Director of the Division of Market Oversight or the Director's delegate, determine whether reporting markets must submit data in hard copy, and the time that such data may be submitted where the Director determines that a reporting market is unable to meet the requirements set forth in the regulations.
(c) Pursuant to §§ 16.00(b)(1), 16.01(d)(1), and 16.06, the authority to, with the concurrence of the Director of the Division Market Oversight or the Director's delegate, approve the format, coding structure and electronic data transmission procedures used by reporting markets.
(d) Pursuant to § 16.02, the authority to determine the specific content of any daily trade and supporting data report, request that such reports be accompanied by data that identifies or facilitates the identification of each trader for each transaction or order included in a submitted trade and supporting data report, and establish the time for the submission of and the manner and format of such reports.
7 U.S.C. 2, 6a, 6c, 6d, 6f, 6g, 6i, 6t, 7, 7a, and 12a.
(b) * * *
(2) * * *
(i) The applicable reporting party shall submit a completed Form 102 to the Commission no later than 9 a.m. on the business day following the date on which the special account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (b)(3) and (4) of this section. Such form shall include all required information, including the names of the owner(s) and controller(s) of each trading account that is not an omnibus account, and that comprises a special account reported on the form,
(ii) With respect to the owner(s) and controller(s) of each trading account that is not an omnibus account, and that comprises a special account reported on Form 102, information other than the names of such parties must be provided on Form 102 no later than 9 a.m. on the third business day following the date on which the special account becomes
(c) * * *
(2) * * *
(i) The clearing member shall submit a completed Form 102 to the Commission no later than 9 a.m. on the business day following the date on which the volume threshold account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (c)(3) and (4) of this section. Such form shall include all required information, including the names of the owner(s) and controller(s) of each volume threshold account reported on the form that is not an omnibus account,
(ii) With respect to the owner(s) and controller(s) of each volume threshold account reported on Form 102 that is not an omnibus account, information other than the names of such parties must be provided on Form 102 no later than 9 a.m. on the third business day following the date on which the volume threshold account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (c)(3) and (4) of this section. Unless otherwise specified by the Commission or its designee, the stated time is Eastern Time for information concerning markets located in that time zone, and Central Time for information concerning all other markets.
(e) Pursuant to § 17.01(c), the authority shall be designated to the Director of the Office of Data and Technology, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate from time to time, to make special calls on Form 71 for omnibus volume threshold account originators and omnibus reportable sub-account originators information as set forth in § 17.01(c).
(f) Pursuant to § 17.01(e), the authority shall be designated to the Director of the Office of Data and Technology, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate from time to time, to request information required to be filed by futures commission merchants, clearing members, foreign brokers, and reporting markets as set forth in § 17.01.
(g) Pursuant to § 17.02(b)(4), the authority shall be designated to the Director of the Division of Market Oversight to determine the date on which each futures commission merchant, clearing member, or foreign broker shall update or otherwise resubmit every Form 102 that it has submitted to the Commission for each of its special accounts.
(h) Pursuant to § 17.02(c)(4), the authority shall be designated to the Director of the Division of Market Oversight to determine the date on which each clearing member shall update or otherwise resubmit every Form 102 that it has submitted to the Commission for each of its volume threshold accounts.
7 U.S.C. 2, 4, 5, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 6t, 12a, and 19.
(a) The Commission hereby delegates, until the Commission orders otherwise, the authority to make special calls on traders for information as set forth in §§ 18.00 and 18.05 to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate from time to time.
(b) The Commission hereby delegates, until the Commission orders otherwise, the authority to make special calls for information as set forth in § 18.04 to the Director of the Office of Data and Technology to be exercised by the Director, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate from time to time.
(c) The Directors of the Division of Enforcement and Office of Data and Technology may submit to the Commission for its consideration any matter which has been delegated in this section.
(d) Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section.
7 U.S.C. 6g(a), 6i, and 12a(5).
(a) * * *
(3) All persons holding or controlling positions for future delivery that are reportable pursuant to § 15.00(p)(1) of this chapter who have received a special call for series `04 reports from the Commission or its designee. Filings in response to a special call shall be made within one business day of receipt of the special call unless otherwise specified in the call. For the purposes of this paragraph, the Commission hereby delegates to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate from time to time, authority to issue calls for series `04 reports.
7 U.S.C. 1a, 2, 5, 6, 6a, 6c, 6f, 6g, 6t, 12a, 19.
(a) * * *
(4)
(b)
(a) The Commission hereby delegates, until it orders otherwise, to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate from time to time, the authority in § 20.6(d) for issuing a special call.
(b) The Commission hereby delegates, until it orders otherwise, to the Director of the Division of Market Oversight or such other employee or employees as the Director may designate from time to time, the authority in § 20.10 for determining the described compliance schedules.
(c) The Commission hereby delegates, until it orders otherwise, to the Director of the Office of Data and Technology, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate from time to time, the authority:
(1) In § 20.5(a)(3) for issuing a special call for a 102S filing; and
(2) In § 20.5(b) for issuing a special call for a 40S filing.
(d) The Commission hereby delegates, until it orders otherwise, to the Director of the Office of Data and Technology, with the concurrence of the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate from time to time, the authority, in § 20.7, for providing instructions or determining the format, coding structure, and electronic data transmission procedures for submitting data records and any other information required under this part.
(e) The Directors of the Division of Enforcement, Division of Market Oversight, and the Office of Data and Technology may submit to the Commission for its consideration any matter which has been delegated in this section.
(f) Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section.
7 U.S.C. 1a, 2, 2a, 4, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 7, 7a, 12a, 19 and 21.
The Commission hereby delegates, until the Commission orders otherwise, the special call authority set forth in §§ 21.01 and 21.02 to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate from time to time. The Director of the Division of Enforcement may submit to the Commission for its consideration any matter which has been delegated in this paragraph. Nothing in this section shall be deemed to prohibit the Commission, at its election, from exercising the authority delegated in this section.
7 U.S.C. 5, 6 and 12a, unless otherwise noted.
(a) The Commission hereby delegates, until it orders otherwise, to the Director of the Division of Market Oversight, or such other employee or employees as the Director may designate from time to time, the authority:
(1) In § 48.7, to request additional information and documentation in connection with an application for registration;
(2) In § 48.9(a)(1), to notify a registered foreign board of trade that it or the clearing organization has failed to satisfy any registration requirements or conditions for registration;
(3) In § 48.9(c), to request that a registered foreign board of trade file with the Commission a written demonstration, containing such supporting data, information, and documents, in such form and manner and within such timeframe as the Commission may specify, that the foreign board of trade or clearing organization is in compliance with the registration requirements and/or conditions for registration; and
(4) In § 48.10, to notify a foreign board of trade whether additional time is needed for staff to complete its review of policy or other issues pertinent to the additional contracts, or that the contract can be made available for trading by direct access.
(b) The Director of the Division of Market Oversight may submit to the Commission for its consideration any matter which has been delegated in this section.
(c) Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section.
7 U.S.C. 2(a)(12), 12a, 13(c), 13(d), 13(e), and 16(b).
(a) Pursuant to the authority granted under sections 2(a)(11), 8a(5) and 8a(6) of the Act, the Commission hereby delegates, until such time as the Commission orders otherwise, to the Executive Director, the Director of the Division of Swap Dealer and Intermediary Oversight, the Director of the Division of Clearing and Risk, the Chief Accountant, the General Counsel, the Director of the Division of Market Oversight, the Director of the Division of Enforcement, the Chief Economist of the Office of the Chief Economist, the Director of the Office of International Affairs, or such other employee or employees as the General Counsel, Directors, Chief Accountant or Chief Economist each may designate from
(a) Pursuant to sections 2(a)(11), 8a(5) and 8(e) of the Act, the Commission hereby delegates, until such time as the Commission orders otherwise, to the General Counsel, the Director of the Division of Enforcement, the Director of the Division of Market Oversight, the Director of the Division of Swap Dealer and Intermediary Oversight, the Director of the Division of Clearing and Risk, the Chief Economist of the Office of the Chief Economist, the Director of the Office of International Affairs, or such other employee or employees as the General Counsel, Chief Economist or Directors listed in this section each may designate from time to time the authority to furnish information in the possession of the Commission obtained in connection with the administration of the Act, upon written request, to:
(a) The Commodity Futures Trading Commission hereby delegates, until such time as the Commission orders otherwise, to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate from time to time, the authority to issue special calls for series 03 reports under § 18.00 of this chapter.
(b) The Director of the Division of Enforcement may submit any matter which has been delegated to the Director under this section to the Commission for its consideration.
(c) Nothing in this section may prohibit the Commission, at its election, from exercising the authority delegated to the Director of the Division of Enforcement under paragraph (a) of this section.
(a) The Commodity Futures Trading Commission hereby delegates, until such time as the Commission orders otherwise, to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate from time to time, all functions reserved to the Commission in §§ 1.47 and 1.48 of this chapter.
(b) The Director of the Division of Enforcement may submit any matter which has been delegated to the Director under paragraph (a) of this section to the Commission for its consideration.
(c) Nothing in this section may prohibit the Commission, at its election, from exercising the authority delegated to the Director of the Division of Enforcement under paragraph (a) of this section.
7 U.S.C. 6a, 6c, and 12a(5).
(b)
(e)
(i) In paragraph (b)(8)(iv) of this section to call for additional information from a person claiming the exemption in paragraph (b)(8) of this section.
(ii) In paragraph (c)(3) of this section to call for additional information from a person claiming an aggregation exemption under this section.
(2) The Commission hereby delegates, until it orders otherwise, to the Director of the Office of Data and Technology, with the concurrence of the Director of the Division of Enforcement, or such other employee or employees as the Directors each may designate from time to time, the authority in paragraph (d) of this section to provide instructions or determine the format, coding structure, and electronic data transmission procedures for submitting data records and any other information required under this part.
(3) The Directors of the Division of Enforcement and the Office of Data and Technology may submit to the Commission for its consideration any matter which has been delegated in this section.
(4) Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section.
The following appendix will not appear in the Code of Federal Regulations.
On this matter, Acting Chairman Giancarlo and Commissioner Bowen voted in the affirmative. No Commissioner voted in the negative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard proposes to establish a temporary special local regulation to enable vessel movement restrictions for certain waters of the Zimovia Strait. This action is necessary to provide for the safety of life on these navigable waters near Wrangell Harbor during power boat races on July 4, 2017. This regulation would prohibit persons and vessels from transiting through, mooring, or anchoring within the specified race area unless authorized by the Captain of the Port Southeast Alaska or a designated representative.
This rule is effective from 3 p.m. on July 4, 2017 through 7 p.m. on July 4, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email LT Kristi Sloane, Sector Juneau, Waterways Management Division, Coast Guard: telephone 907-463-2846, 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. The Wrangell Chamber of Commerce will be conducting power boat races from 3 p.m. to 7 p.m. on July 4, 2017 for the Wrangell 4th of July Celebration. The boat races will be taking place approximately 100 yards off of the city dock in Wrangell, AK. The event organizers did not finalize the location of the power boat races in sufficient time for the Coast Guard to solicit public comments.
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. 1233. The Commander, Seventeenth District has determined that potential risks of collision, allision, and wake damage associated with power boat racing will be a safety concern for any vessels (other than the participants) entering the race course. Boat races typically result in vessel and spectator congestion in the proximity of the race course. Vessel movement restrictions are necessary to ensure spectators remain an adequate distance from the specified race area thereby providing unencumbered access for emergency response craft in the event of a race-related emergency. This rule establishes a specified race area and ensurse the safety of this marine event by prohibiting persons and vessel operators from entering, transiting or remaining within the designated race zone during times of enforcement.
This rule establishes a special local regulation to restrict vessel movement within the race area from 3 p.m. to 7 p.m. on July 4, 2017 to include Wrangell Harbor entrance and an area extending north along the shoreline approximately 600 yards. No vessel or person would be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
E.O.s 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 approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
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.
This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Vessel traffic would be able to safely transit around the proposed race area which would impact a small designated area in Wrangell Harbor for 4 hours. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the race area, and the rule would allow vessels to seek permission to enter the race 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 would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the race area may be small entities, for the reasons stated in section V.A above this rule would not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person
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 would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under 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 proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 implementation of a special local regulation lasting 4 hours that would prohibit entry within 100 yards of the event area. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. 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
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)
(d)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Loop Parkway Bridge across Long Creek, mile 0.7, at Hempstead, New York. This action is necessary in order to facilitate an annual fireworks display. The deviation allows the bridge to remain in the closed position for approximately two and one half hours.
This deviation is effective from 9:30 p.m. on July 8, 2017 to 11:59 p.m. on July 9, 2017.
The docket for this deviation, USCG-2017-0523 is available at
If you have questions on this temporary
The Town of Hempstead Department of Public Safety submitted and the bridge owner, the New York State Department of Transportation, concurred with a temporary deviation request from the normal operating schedule to facilitate a public fireworks event.
The Loop Parkway Bridge, mile 0.7, across Long Creek, has a vertical clearance of 21 feet at mean high water and 23 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.799(f).
This temporary deviation will allow the Loop Parkway Bridge to remain closed from 9:30 p.m. through 11:59 p.m. on July 8, 2017 with a rain date of July 9, 2017. The waterway is used primarily by seasonal recreational vessels and occasional tug/barge traffic. Coordination with waterway users has indicated no objections to this short-term closure of the draw.
Vessels that can pass under the bridge without an opening may do so at all times. The bridge will be able to open for emergencies. Additionally, there are alternate routes for vessels to pass.
The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waters within a 300-yard radius of the swing span portion of the Massachusetts Bay Transportation Authority (MBTA)/AMTRAK Bridge, at mile 0.05 on the Danvers River, between Salem and Beverly, Massachusetts. The safety zone is needed to protect personnel, vessels and the marine environment from potential hazards created during removal and replacement of the swing span portion of the MBTA Railroad Bridge. When enforced, this regulation prohibits entry of vessels or people into the safety zone unless authorized by the Captain of the Port (COTP) Boston or a designated representative.
This rule is effective without actual notice from June 26, 2017 through November 1, 2017. For the purposes of enforcement, actual notice will be used from June 20, 2017 through June 26, 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 Mark Cutter, Waterways Management Division, U.S. Coast Guard Sector Boston, telephone 617-223-4000, email
On March 23, 2017, Sector Boston was made aware of a bridge rehabilitation project that includes the replacement of the swing span portion of MBTA Railroad Bridge, which spans the Danvers River in Beverly and Salem, Massachusetts. The COTP Boston has determined that the potential hazards associated with the bridge rehabilitation project will be a safety concern for anyone within the work area.
The project is scheduled to begin on June 5, 2017 and be completed by November 1, 2017. During this project, removal and replacement of the swing span will take place. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The safety zone will be enforced during different periods when work barges and gantry cranes will be placed in the navigable channel or when other hazards to navigation arise. The Coast Guard will issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) 24 hours in advance to any period of enforcement or as soon as practicable in response to an emergency. If the project is completed prior to November 1, 2017, enforcement of the safety zone will be suspended and notice given via Broadcast Notice to Mariners.
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The late finalization of project details did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the construction work is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to protect the safety of the public and waterway users.
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 legal basis for this temporary rule is 33 U.S.C. 1231. The COTP Boston has determined that potential hazards associated with the bridge rehabilitation project starting on June 5, 2017 and continuing through November 1, 2017 will be a safety concern for anyone within the work zone. This rule is needed to protect personnel, vessels, and the marine environment within the safety zone while the bridge rehabilitation project is completed.
This rule establishes a safety zone from June 5, 2017 through November 1, 2017. The safety zone will cover all navigable waters from surface to bottom of the Danvers River, MA within a 300-yard radius of the swing span portion of the Massachusetts Bay Transportation Authority (MBTA)/AMTRAK Bridge. The duration of the zone is intended to protect people, vessels, and the marine environment in these navigable waters during the bridge rehabilitation project. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the
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 has determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The safety zone only impacts a small designated area of the Danvers River, (2) the zone will only be enforced when work barges and gantry cranes will be placed in the navigable channel during removal and replacement of the swing span or if necessitated by an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Boston or a designated representative. The Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities 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 all of the reasons discussed in the REGULATORY PLANNING AND REVIEW Section, 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 (Public Law 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,
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)
(1) No person or vessel may enter or remain in this safety zone without the permission of the Captain of the Port (COTP) or the COTP's representatives. However, any vessel that is granted permission by the COTP or the COTP's representatives must proceed through the area with caution and operate at a speed no faster than that speed necessary to maintain a safe course, unless otherwise required by the Navigation Rules.
(2) Any person or vessel permitted to enter the safety zone shall comply with the directions and orders of the COTP or the COTP's representatives. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means, the operator of a vessel within the zone shall proceed as directed. Any person or vessel within the safety zone shall exit the zone when directed by the COTP or the COTP's representatives.
(3) To obtain permissions required by this regulation, individuals may reach the COTP or a COTP representative via Channel 16 (VHF-FM) or 617-223-5757 (Sector Boston Command Center).
(d)
(e)
(f)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving a request submitted by the Indiana Department of Environmental Management (IDEM) on December 13, 2016, to revise the Indiana state implementation plan (SIP). The submission revises and updates the Indiana Administrative Code (IAC) definition of “References to the Code of Federal Regulations,” from the 2013 edition to the 2015 edition.
This rule is effective on August 25, 2017, unless EPA receives adverse written comments by July 26, 2017. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0760 at
Charles Hatten, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On May 25, 2016, IDEM published a “Notice of Public Information” in several newspapers, and on its Web site at
On December 13, 2016, IDEM submitted a request to revise the definition of “References to the Code of Federal Regulations” in SIP rule 326 IAC 1-1-3 to mean the 2015 edition of the Code of Federal Regulations (CFR).
IDEM has requested that EPA approve the Indiana Administrative Code rule revision:
IDEM updated the reference to the CFR in 326 IAC 1-1-3 from the 2013 edition to the 2015 edition. This is solely an administrative change that allows Indiana to reference a more current version of the CFR. By amending 326 IAC 1-1-3 to reference the 2015 version of the CFR, the provision in Title 326 of the IAC will be consistent with the applicable CFR regulations as of July 30, 2015.
EPA is approving as a revision to the Indiana SIP an update of 326 IAC 1-1-3, “References to the Code of Federal Regulations.”
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
This rule 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, 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 25, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52, is amended as follows:
42 U.S.C. 7401
(c) * * *
In rule document 2017-12338, beginning on page 27154, in the issue of Wednesday, June 14, 2017, make the following correction:
On page 27177, in the second column, in the 18th line of paragraph (iii), “June 14, 2017” should read “June 14, 2027”.
Office of the Secretary, Interior.
Final rule.
In 2016, Congress passed the Indian Trust Asset Reform Act (ITARA), which requires the Secretary of the Interior to establish and publish in the
This rule is effective on July 26, 2017.
Ms. Elizabeth Appel, Office of Regulatory Affairs and Collaborative Action—Indian Affairs at
On June 22, 2016, the Indian Trust Asset Reform Act, Public Law 114-178, was signed into law. Title III of the Act requires the Department of the Interior (Interior) to establish minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allow an appraisal or valuation by a qualified person to be considered final without being reviewed or approved by Interior.
On September 22, 2016, Interior published a proposed rule (81 FR 65319) to implement ITARA and requested public comments for 60 days. This final rule implements ITARA and responds to the comments received on the proposed rule. This rule establishes the minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allows an appraisal or valuation by a qualified appraiser to be considered final without being reviewed or approved by Interior.
The Act also requires appraisals and valuations of Indian trust property to be administered by a single administrative entity within Interior. This rule is finalized under the Office of the Secretary within the Department of the Interior to allow for flexibility if another entity or agency within Interior is designated the single entity to administer appraisals and valuations of Indian trust property.
This rule establishes a new Code of Federal Regulations (CFR) part to establish the minimum qualifications for appraisers, employed by or under contract with an Indian tribe or individual Indian, to become qualified appraisers who may prepare an appraisal or valuation of Indian property that will, in certain circumstances, be accepted by the Department without further review or approval. The final rule clarifies that, because the Department is not reviewing and approving the appraisal or valuation, it is not liable for any deficiency or inaccuracy in the appraisal or valuation.
Subpart A, General Provisions, defines terms used in the regulation, describes the purpose of the regulation, and provides the standard Paperwork Reduction Act compliance statement. The terms are defined to include, in the context of this regulation, any property that the U.S. Government holds in trust or restricted status for an Indian tribe or individual Indian, to include not just land, but also natural resources or other assets. Other important terms include “appraisal,” “valuation,” and “qualified appraiser.” Consistent with the statutory direction, the purpose of the regulations is written broadly, to include appraisals or valuations of any Indian trust property, including:
• Appraisals and valuations of real property;
• Appraisals and valuations of timber, minerals, or other property to the extent they contribute to the value of the whole property (for use in appraisals and valuations of real property); and
• Appraisals and valuations of timber, minerals, or other property separate from appraisals and valuations of real property.
Subpart B, Appraiser Qualifications, establishes the minimum qualifications an appraiser must meet to be considered a “qualified appraiser” and establishes that the Secretary must verify that the appraiser meets those minimum qualifications.
This subpart requires that the verification information be submitted contemporaneously with the appraisal or valuation so that the Secretary can verify that the appraiser is a qualified appraiser at that point in time.
Subpart C, Appraisals and Valuations, notes that some transactions requiring Secretarial approval under titles 25 and 43 of the Code of Federal Regulations (
The rule requires the Department to forego review and approval of the appraisal or valuation and consider the appraisal or valuation final if three conditions are met: (1) The appraisal or valuation was completed by a qualified appraiser; (2) the Indian tribe or individual Indian expressed their intent to waive Departmental review and approval; and (3) no owner of any interest in the Indian property objects to the use of the appraisal or valuation without Departmental review and approval. The first condition is clearly required by ITARA. The second condition is implied by ITARA. The number of individual Indian owners of fractionated tracts that must express their intent to waive Departmental review and approval, under the second condition, would depend upon the underlying title 43 or title 25 requirements. For example, if the underlying transaction is a right-of-way, then the owners of a majority of the interests in the tract must express their intent to waive Departmental review and approval, consistent with the general consent requirements in 25 CFR part 169. The third condition, that no Indian property owner objects, is necessary to address situations where one or more owners of the tract still want Departmental review and approval of the appraisal or valuation, consistent with our trust responsibility to all owners of the Indian trust property.
This subpart exempts certain transactions, thereby requiring Departmental review of the appraisal or valuation. The exempted transactions include transactions under any legislation expressly requiring the Department to review and approve an appraisal or valuation, such as the Land Buy Back Program under the Claims Resolution Act of 2010 (Pub. L. 111-291), and purchase at probate under 43 CFR part 30, because the judge will not be in a position to verify an appraiser's qualifications. The Department will also review any appraisal for an acquisition by the United States.
Several tribes stated their support of the ITARA provision to eliminate the current requirement for Office of Appraisal Services review to reduce delays. One tribe noted the importance of the Department accepting and approving, without further review or delay, any appraisal or valuation that complies with the appraiser's qualification standards and is satisfactory to the Indian property owner. Another tribe stated its support for the minimum qualifications for appraisal services.
One tribe stated that the qualifications for individuals to prepare appraisals and valuations of Indian property should be the same that apply to professional appraisers in the private sector.
One tribe stated the procedures should require: (1) Departmental approval of appraisers who satisfy minimum qualifications; (2) Departmental review within a specified period with a default of automatic approval; (3) minimum requirements for qualifications of review appraisers.
One commenter stated that the rule's minimum qualifications for appraisers should be more stringent and the rule should require appraisals to be performed by a multidisciplinary group of experts who: (1) Meet all the criteria in the rule; (2) have completed a mandatory valuation ethics training course; and (3) have collaborated with Native American groups to better understand the cultural value of the lands in question. This commenter stated that the appraisal must account for cultural values of those with sacred ties to the ecosystems and lands. The commenter reasoned that the process of assigning value to an area is subjective, and using the knowledge and methodologies of a diverse group of experts and stakeholders would prevent a single individual from the power to assign a monetary value to sacred land.
The Appraisal Institute stated that requiring generally accepted standards in the appraiser qualification criteria would enhance credibility and reliability of the appraisals being performed.
Several tribes strongly objected to relying on State licensing for appraisers and a determination of good standing by State regulatory agencies, and asserted that the rule should instead rely on tribal licensing and require compliance with tribal laws and regulations.
The DOI Self-Governance Advisory Committee and several tribes stated that tribes should be permitted to adopt their own standards consistent with USPAP and Federal law to meet the unique needs tribal Nations have in assuming appraisal responsibilities.
A tribal member suggested that tribes should have their own appraisal process so they don't have to pay $2,500 for an appraisal that reveals a property value of much less.
One tribe stated that not all appraisers have the General Appraiser certification (
A tribe stated that the appraiser should have expertise in valuation of resources involved in the appraisal. Likewise, the Indian Land Tenure Foundation noted that the appraiser performing specialty appraisals (timber and minerals) must have demonstrated the specialized skills.
A tribal commenter stated that the rule should require appraisers to have an understanding of general Federal Indian law and special obligations under tribe-specific relationships.
A tribal member suggested requiring appraisers to be certified under the Certified Federal Surveyor Program from the Bureau of Land Management.
The Appraisal Institute urged the Department to include in the minimum qualifications for appraisers recognition of professional designations from nationally recognized appraisal organizations that confer competency-based designations. The commenter suggested that a professional designation is necessary to ensure appraisers have experience with appraisal review because the Department will not be reviewing the appraiser's appraisals. The Appraisal Institute stated that eliminating Departmental review of the appraisal dramatically increases risks and likened the practice to performing accounting functions without any audit processes.
A tribe suggested having appraisers register online for searchability by those who would like to hire them to do appraisals and valuations.
One tribe stated that periodic review of qualifications should be required as standards and experience with individual appraisers change over time.
A tribal member stated that there is a fundamental misunderstanding as to what an appraisal is: Specifically, that an appraisal is not equivalent to value; rather, it is an expert opinion to inform the owners (the beneficiary) and trustee as to what somebody's opinion of fair market value is.
A tribal member asked whether an appraisal and a valuation are different, and whether either evaluates tribal rights such as water rights or gathering rights for medicine.
Another tribal member stated that allotted land makes up most of the workload for appraisals, but under ILCA, only an “estimate of value” rather than an appraisal, is needed for a gift, sale, or exchange. He suggested instead defining what an “estimate of value” is.
Several tribes recommended that any appraisal or valuation of Indian property be in accordance with authority in title 25 of the CFR, appraisal standards in the current edition of USPAP, and use of appraisal industry-recognized valuation methods and techniques.
Several tribes suggested requiring adherence to the Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA) if the transaction is to the United States.
The Appraisal Institute stated that the proposed regulations should include a requirement that the appraisal or valuation reflect market value (as opposed to another value, such as “use value”) because market value is most appropriate to determine “just
One commenter stated that there is no rule that could guarantee a credible appraisal because the client may dictate conditions and instructions to an appraiser that affects the result, so the appraisal review serves as a check and ensures the client's instructions adequately support approval for the conveyance.
One tribe stated requirements for formal appraisals for transactions for negotiated sales involving informed consent of owners should be clarified.
The Indian Land Tenure Foundation stated that a waiver of Departmental review should come after the appraisal is complete and not in the submission of the appraisal request.
The Foundation also stated that the practice of requiring the appraiser to attach a certificate of qualifications to each appraisal is not a burden and should be required.
The American Gas Association, Interstate Gas Association of American, and the Utilities Group stated that ITARA was limited to those transactions where statutes expressly require an appraisal or valuation (such as the Indian Land Consolidation Act) and should not apply to all potential transactions under titles 25 and 43 (
Several utilities and utility associations expressed concerns about the effect of the rule on projects and rights-of-way that serve the public's energy needs. Some stated that the rule should not apply to rights-of-way transactions because those transactions have their own statutory scheme. Some also stated that the rule conflicts with existing statutes governing rights-of-way across Indian land, and specifically the statutory requirement for “the payment of such compensation as the Secretary of the Interior shall determine to be just,” because the rule would allow an appraisal to be deemed final without the Secretary assuring just compensation.
Several of these utility group commenters stated that, if the rule does apply to rights-of-way transactions, then the rule should require a fair market value as just compensation for rights-of-way and renewals to public entities and utilities that benefit the public interest. Commenters stated that allowing above-market valuations would allow tribes, without monitoring by the Secretary, to attempt to take advantage of the public interest by exploiting the public entities' and utilities' presence on Federal trust land. One commenter likewise stated its concern that the rule will permit tribes to demand in excess of fair market value for renewals of rights-of-way for public entities and public utilities that benefit the public interest. The commenter stated that it made investments in infrastructure in reliance on use of fair market value as the standard for the rights-of-way and renewals under the right-of-way statutory framework requiring just compensation to be fair market value.
One tribe opposed the provision in the preamble and discussed at tribal consultation sessions that would have
A tribal member suggested having an online training program for appraisers.
A utilities group and gas associations stated their belief that the rule is a major rule under 5 U.S.C. 804(2) and a significant regulatory action under E.O. 12866. These commenters stated that a cost-benefit analysis is required because the rule: (1) Will result in a major increase in the costs of rights-of-way for state and local governments and public utilities, which will adversely affect industry and millions of consumers and taxpayers nationwide; and (2) will have an aggregate effect of over $100 million on the economy because of staggering renewal rates and the thousands of miles of rights-of-way across the nation. One gas company commenter also noted the escalating costs of rights-of-way through Indian lands and that the rule exacerbates the issue by failing to make clear that fair market value is the appropriate standard for appraising and valuing rights-of-way for public entities and utilities.
One commenter stated that if the proposed rule violates a treaty, then it should not go into effect.
A few commenters noted there has been, and will be, an increase in the demand for appraisals due to the Land Buy-Back Program and the purchase at probate provision.
One tribe stated that development and use of mass appraisal systems and use of qualified third-party appraisers should be encouraged because there is a delay in Departmental review and approval of appraisals that has resulted in lost opportunities and repetitive appraisals because their longevity is limited.
A tribal attorney stated that the rule should add a requirement to allow beneficiaries to view the work papers in appraisal reports.
A tribal attorney stated that the rule should include language that appraisals will not expire.
A tribal member suggested a central Web site for value of the land.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required.
Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.
This rule complies with the requirements of E.O. 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have identified substantial direct effects on federally recognized Indian tribes that will result from this rulemaking. Tribes may be substantially and directly affected by this rulemaking because it allows for the submission of appraisals for transactions involving Indian property without Departmental review and approval. As such, the Department consulted with tribes on this rule as part of the consultation sessions addressing ITARA and hosted listening sessions with Indian tribes and trust beneficiaries at:
This rule contains an information collection that requires approval by OMB. The Department is seeking approval of a new information collection and a revision to an existing regulation, as follows.
A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless the form or regulation requesting the information displays a currently valid OMB Control Number.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
This action is not an E.O. 13771 regulatory action because it imposes no more than
Indians, Indians—claims, Indians—lands, Mineral resources.
For the reasons given in the preamble, the Department of the Interior amends 43 CFR subtitle A, by adding part 100 to read as follows:
5 U.S.C. 301; Pub. L. 114-178.
(1) Any person who is a member of any Indian tribe, is eligible to become a member of any Indian tribe, or is an owner as of October 27, 2004, of a trust or restricted interest in land;
(2) Any person meeting the definition of Indian under the Indian Reorganization Act (25 U.S.C. 479) and the regulations promulgated thereunder; or
(3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or restricted interest in a parcel of such land in that State.
This part describes the minimum qualifications for appraisers, employed by or under contract with an Indian tribe or individual Indian, to become qualified appraisers who may prepare an appraisal or valuation of Indian property that will be accepted by the Department without further review or approval when the Indian tribe or individual Indian waives Departmental review and approval.
This part applies to anyone preparing or relying upon an appraisal or valuation of Indian property.
The collections of information contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501
(a) An appraiser must meet the following minimum qualifications to be a qualified appraiser under this part:
(1) The appraiser must hold a current Certified General Appraiser license in the State in which the property appraised or valued is located;
(2) The appraiser must be in good standing with the appraiser regulatory agency of the State in which the property appraised or valued is located; and
(3) The appraiser must comply with the Uniform Standards of Professional Appraisal Practice (USPAP) rules and provisions applicable to appraisers (including but not limited to Competency requirements applicable to the type of property being appraised or valued and Ethics requirements). This includes competency in timber and mineral valuations if applicable to the subject property.
All qualified appraisers of Indian property must meet the Competency requirements of USPAP for the type of property being appraised or valued. Competency can be demonstrated by previous completed assignments on the type of properties being appraised, additional education or training in specific property types, or membership and/or professional designation by a related professional appraisal association or group.
The Secretary will verify the appraiser's qualifications to determine
The tribe or individual Indian must submit the following with the appraisal or valuation:
(a) A copy of the appraiser's current Certified General Appraiser license;
(b) A copy of the appraiser's qualifications statement;
(c) The appraiser's self-certification that the appraiser meets the criteria in § 100.200; and
(d) If the property contains natural resource elements that contribute to the value of the property, such as timber or minerals, a list of the appraiser's additional qualifications for the specific type of property being valued in the appraisal report.
The tribe or individual Indian must submit the package of appraiser qualifications to the Secretary with the appraisal or valuation.
Appraisals and valuations of Indian property must be submitted to us if relied upon or required for transactions requiring Secretarial approval under titles 25 and 43 of the CFR (other than those under the Federal Land Policy and Management Act).
(a) The Department will not review the appraisal or valuation of Indian property and the appraisal or valuation will be considered final as long as:
(1) The submission acknowledges the intent of the Indian tribe or individual Indian to waive Departmental review and approval;
(2) The appraisal or valuation was completed by a qualified appraiser meeting the requirements of this part; and
(3) No owner of any interest in the Indian property objects to use of the appraisal or valuation without Departmental review and approval.
(b) The Department must review and approve the appraisal or valuation if:
(1) Any of the criteria in paragraph (a) of this section are not met; or
(2) The appraisal or valuation was submitted for:
(i) Purchase at probate under 43 CFR part 30;
(ii) The Land Buy-Back Program for Tribal Nations;
(iii) An acquisition by the United States to which the Uniform Appraisal Standards for Federal Land Acquisitions applies; or
(iv) Specific legislation requiring the Department to review and approve an appraisal or valuation.
If you do not specifically request waiver of Departmental review and approval under § 100.300(a)(1), the Department will review the appraisal or valuation.
If the Indian tribe or individual Indian does not agree with the appraisal or valuation prepared by their qualified appraiser, the Indian tribe or individual Indian should not submit the appraisal or valuation under this part.
The Department is not liable for any deficient or inaccurate appraisal or valuation provided by the tribe or individual Indian that it did not review or approve, even if the Department approved a transaction for Indian property (including but not limited to a lease, grant, sale, or purchase) based on the appraisal or valuation.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Modification of fishing seasons; request for comments.
NMFS announces four inseason actions in the ocean salmon fisheries. These inseason actions modified the commercial salmon fisheries in the area from Cape Falcon, OR, to Point Arena, CA.
The effective dates for the inseason actions are set out in this document under the heading Inseason Actions. Comments will be accepted through July 11, 2017.
You may submit comments, identified by NOAA-NMFS-2016-0007, by any one of the following methods:
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Peggy Mundy at 206-526-4323.
In the 2016 annual management measures for ocean salmon fisheries (81 FR 26157, May 2, 2016), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, beginning May 1, 2016, and 2017 salmon fisheries opening earlier than May 1, 2017. NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409).
Management of the salmon fisheries is generally divided into two geographic areas: North of Cape Falcon (U.S./Canada border to Cape Falcon, OR) and south of Cape Falcon (Cape Falcon, OR, to the U.S./Mexico border). The inseason actions reported in this document affected fisheries south of Cape Falcon. Within the south of Cape Falcon area, the Klamath Management Zone (KMZ) extends from Humbug Mountain, OR, to Humboldt South Jetty, CA, and is divided at the Oregon/California border into the Oregon KMZ to the north and California KMZ to the south. All times mentioned refer to Pacific daylight time.
All other restrictions and regulations remained in effect as announced for the 2016 ocean salmon fisheries and 2017 salmon fisheries opening prior to May 1, 2017 (81 FR 26157, May 2, 2016) and as modified by prior inseason actions.
The RA determined that the best available information indicated that Chinook salmon abundance forecasts and expected fishery effort supported the above inseason actions recommended by the states of Oregon and California. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.
The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (81 FR 26157, May 25, 2016), the FMP, and regulations implementing the FMP, 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon catch and effort projections were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, ensuring that conservation objectives and Endangered Species Act consultation standards are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.
These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Safran Aircraft Engines (SAE), Silvercrest-2 SC-2D engine model. This engine will have a novel or unusual design feature associated with an additional takeoff rating that increases the exhaust gas temperature (EGT) limit to maintain takeoff thrust in certain high ambient temperature conditions for a maximum accumulated usage of 20 minutes in any one flight. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before July 6, 2017.
Certification of the Silvercrest-2 SC-2D engine model is currently scheduled for August 2018. The substance of these special conditions has been subject to the notice and public comment procedure. Therefore, because a delay would significantly affect the applicant's certification of the engine, we are shortening the public comment period from 45 days to 10 days.
Send comments identified by docket number [FAA-2017-0586] using any of the following methods:
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Tara Fitzgerald, ANE-112, Engine and Propeller Directorate, Aircraft Certification Service, 1200 District Avenue, Burlington, Massachusetts, 01803-5213; telephone (781) 238-7130; facsimile (781) 238-7199; email
We invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposed special conditions, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this special condition, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
On April 19, 2011, SNECMA, now known as SAE, applied for a type certificate for the Silvercrest-2 SC-2D engine model. On April 30, 2014, SAE requested an extension to their original type certificate application, which the FAA granted through June 30, 2015. On May 26, 2015, SAE requested another extension to their type certificate application, which the FAA granted through September 30, 2018.
SAE proposed an additional takeoff rating to maintain takeoff thrust in certain high ambient temperature conditions with all engines operating (AEO) for the Silvercrest-2 SC-2D engine model. Therefore, the Silvercrest-2 SC-2D engine model would have two different takeoff ratings. The first rating corresponds with the rated takeoff thrust of the engine. The second takeoff rating maintains the takeoff thrust in certain high ambient temperature conditions. This additional takeoff rating is named “Rated Takeoff Thrust at High Ambient Temperature” (Rated TOTHAT). The Rated TOTHAT is an approved engine thrust developed under specified altitudes and temperatures within the operating limitations established for the engine during takeoff operation for a maximum usage of 20 minutes in any one flight.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, SAE must show that the Silvercrest-2 SC-2D meets the applicable provisions of 14 CFR part 33, as amended by
If the FAA finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the Silvercrest-2 SC-2D engine model, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to complying with the applicable product airworthiness regulations and the requirements of the special conditions, the Silvercrest-2 SC-2D engine model must comply with the fuel venting and exhaust emission requirements of 14 CFR part 34.
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 § 21.17(a)(2).
The Silvercrest-2 SC-2D engine model will incorporate a novel or unusual design feature, referred to as “Rated TOTHAT”. This additional takeoff rating increases the EGT limit to maintain takeoff thrust in certain high ambient temperature conditions for a maximum of 20 minutes in any one flight.
The Rated TOTHAT is designed for use during takeoff in specified high altitudes and high ambient temperature conditions to maintain thrust during takeoff for a maximum of 20 minutes in any one flight. These proposed special conditions contain additional mandatory post-flight inspection and maintenance action requirements associated with any use of the Rated TOTHAT. These requirements add a rating definition in part 1.1 and mandate mandatory inspections in the instructions for continued airworthiness (ICA); instructions for installing and operating the engine; engine rating and operating limitations; instrument connection; and endurance testing.
The current requirements of the endurance test under § 33.87 represent a typical airplane flight profile and the severity of the takeoff rating. Therefore, the endurance test under § 33.87 covers normal, all-engines-operating takeoff conditions for which the engine control system limits the engine to the takeoff thrust rating. It is intended to represent the airplane flight profile during takeoff under specified ambient temperatures for a time until the mandatory inspection and maintenance actions can be performed.
These proposed special conditions require additional test cycles that include at least a 150 hours of engine operation as specified in § 33.87(a), to demonstrate the engine is capable of performing the Rated TOTHAT rating during AEO conditions without disassembly or modification.
The associated engine deterioration, after use of the Rated TOTHAT, is not known without the intervening mandatory inspections in these special conditions. These mandatory inspections ensure the engine will continue to comply with its certification basis, which includes these proposed special conditions, after any use of the Rated TOTHAT. The applicant is expected to assess the deterioration from use of the Rated TOTHAT. The airworthiness limitations section (ALS) must prescribe the mandatory post-flight inspections and maintenance actions associated with any use of the Rated TOTHAT.
These requirements maintain a level of safety equivalent to the level intended by the applicable airworthiness standards in effect on the date of application.
As discussed above, these proposed special conditions are applicable to the Silvercrest-2 SC-2D engine model. Should SAE apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only the Rated TOTHAT features on the Silvercrest-2 SC-2D engine model. It is not a rule of general applicability and applies only to SAE, who requested FAA approval of this engine feature.
Aircraft, Engines, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, and 44704.
Accordingly, the FAA proposes, the following special conditions as part of the type certification basis for SAE, Silvercrest-2 SC-2D engine model.
“Rated Take-off Thrust at High Ambient Temperature” (Rated TOTHAT) means the approved engine thrust developed under specified altitudes and temperatures within the operating limitations established for the engine during takeoff operation. Use is limited to two periods, no longer than 10 minutes each under one engine inoperative (OEI) conditions or 5 minutes each under AEO conditions in any one flight for a maximum accumulated usage of 20 minutes in any one flight. Each flight where the Rated TOTHAT is used must be followed by mandatory inspection and maintenance actions.
In addition to the airworthiness standards in 14 CFR part 33, effective February 1, 1965, amendments 33-1 through 33-34 applicable to the engine and the Rated TOTHAT, the following special conditions apply:
(a) Section 33.4, Instructions for Continued Airworthiness.
(1) The ALS must prescribe the mandatory post-flight inspections and maintenance actions associated with any use of the Rated TOTHAT.
(2) The applicant must validate the adequacy of the inspections and maintenance actions required under paragraph 2(a)(1) of these special conditions.
(3) The applicant must establish an in-service engine evaluation program to ensure the continued adequacy of the instructions for mandatory post-flight inspections and maintenance actions prescribed under paragraph 2(a)(1) of these special conditions, and of the data for thrust assurance procedures required by paragraph 2(b)(2) of these special conditions. The program must include service engine tests or equivalent service engine test experience on engines of similar design and evaluations of service usage of the Rated TOTHAT.
(b) Section 33.5, Instruction manual for installing and operating the engine.
(1) Installation Instructions:
(i) The applicant must identify the means, or provisions for means, provided in compliance with the requirements of paragraph 2(e) of these special conditions.
(ii) The applicant must specify that the engine thrust control system automatically resets the thrust on the operating engine to the Rated TOTHAT level when one engine fails during
(iii) The applicant must specify that the Rated TOTHAT is available by manual crew selection at specified altitudes and temperatures in AEO conditions.
(2) Operating Instructions: The applicant must provide data on engine performance characteristics and variability to enable the airplane manufacturer to establish airplane thrust assurance procedures.
(c) Section 33.7, Engine ratings and operating limitations.
(1) Rated TOTHAT and the associated operating limitations are established as follows:
(i) The thrust is the same as the engine takeoff rated thrust with extended flat rating corner point.
(ii) The rotational speed limits are the same as those associated with the engine takeoff rated thrust.
(iii) The applicant must establish a gas temperature steady-state limit and, if necessary, a transient gas over temperature limit for which the duration is no longer than 30 seconds.
(iv) The use is limited to two periods of no longer than 10 minutes each under OEI conditions or 5 minutes each under AEO conditions in any one flight, for a maximum accumulated usage of 20 minutes in any one flight. Each flight where the Rated TOTHAT is used must be followed by mandatory inspections and maintenance actions prescribed by paragraph 2(a)(1) of these special conditions.
(2) The applicant must propose language to include in the type certificate data sheet specified in § 21.41 for the following:
(i) Rated TOTHAT and associated limitations.
(ii) As required by § 33.5(b), Operating instructions, include a note stating that “Rated Takeoff Thrust at High Ambient Temperature (Rated TOTHAT) means the approved engine thrust developed under specified altitudes and temperatures within the operating limitations established for the engine. Use is limited to two periods, no longer than 10 minutes each under OEI conditions or 5 minutes each under AEO conditions in any one flight, for a maximum accumulated usage of 20 minutes in any one flight. Each flight where the Rated TOTHAT is used must be followed by mandatory inspection and maintenance actions.”
(iii) As required by § 33.5(b), Operating instructions, include a note stating that the engine thrust control system automatically resets the thrust on the operating engine to the Rated TOTHAT level when one engine fails during takeoff at specified altitudes and temperatures, and the Rated TOTHAT is available by manual selection when all engines are operational during takeoff at specified altitudes and temperatures.
(d) Section 33.28, Engine Control Systems.
The engine must incorporate a means, or a provision for a means, for automatic availability and automatic control of the Rated TOTHAT under OEI conditions and must permit manual activation of the Rated TOTHAT under AEO conditions.
(e) Section 33.29, Instrument connection.
The engine must:
(1) Have means, or provisions for means, to alert the pilot when the Rated TOTHAT is in use, when the event begins and when the time interval expires.
(2) Have means, or provision for means, which cannot be reset in flight, to:
(i) Automatically record each use and duration of the Rated TOTHAT, and
(ii) Alert maintenance personnel that the engine has been operated at the Rated TOTHAT and permit retrieval of recorded data.
(3) Have means, or provision for means, to enable routine verification of the proper operation of the means in paragraph 2(e)(1) and (e)(2) of these special conditions.
(f) Section 33.85(b), Calibration tests.
The applicant must base the calibration test on the thrust check at the end of the endurance test required by § 33.87 of these special conditions.
(g) Section 33.87, Endurance test.
(1) In addition to the applicable requirements of § 33.87(a):
(i) The § 33.87 endurance test must be modified as follows:
(A) Modify the thirty minute test cycle at the rated takeoff thrust in § 33.87(b)(2)(ii) to run one minute at rated takeoff thrust, followed by five minutes at the Rated TOTHAT, followed by the rated takeoff thrust for the remaining twenty-four minutes.
(B) The modified thirty minute period described above in paragraph 2(g)(1)(i)(A) must be repeated ten times in cycles 16 through 25 of the § 33.87 endurance test.
(2) After completion of the tests required by § 33.87(b), as modified in paragraph 2(g)(1)(i) above, and without intervening disassembly, except as needed to replace those parts described as consumables in the ICA, the applicant must conduct the following test sequence for a total time of not less than 120 minutes:
(i) Ten minutes at Rated TOTHAT.
(ii) Eighty-eight minutes at rated maximum continuous thrust.
(iii) One minute at 50 percent of rated takeoff thrust.
(iv) Ten minutes at Rated TOTHAT.
(v) Ten minutes at rated maximum continuous thrust.
(vi) One minute at flight idle.
(3) The test sequence of §§ 33.87(b)(1) through (b)(6) of these special conditions must be run continuously. If a stop occurs during these tests, the interrupted sequence must be repeated unless the applicant shows that the severity of the test would not be reduced if the current tests were continued.
(4) Where the engine characteristics are such that acceleration to the Rated TOTHAT results in a transient over temperature in excess of the steady-state temperature limit identified in paragraph 2(c)(1)(iii) of these special conditions, the transient gas overtemperature must be applied to each acceleration to the Rated TOTHAT of the test sequence in paragraph 2(g)(2) of these special conditions.
(h) Section 33.93, Teardown inspection.
The applicant must perform the teardown inspection required by § 33.93(a), after completing the endurance test prescribed by § 33.87 of these special conditions.
(i) Section 33.201, Design and test requirements for Early ETOPS eligibility.
In addition to the requirements of § 33.201(c)(1), the simulated ETOPS mission cyclic endurance test must include two cycles of 10 minute duration, each at the Rated TOTHAT; one before the last diversion cycle and one at the end of the ETOPS test.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the General Electric turbofan engine models GE9X-105B1A, -105B1A1, -105B1A2, -105B1A3, -102B1A, -102B1A1, -102B1A2, -102B1A3, and -93B1A. These engine models will be referred to as “GE9X” in these special conditions. The engines will have a novel or unusual design features associated with the engine design. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before August 10, 2017.
Send comments identified by docket number FAA-2017-0537 using any of the following methods:
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Dorina Mihail, ANE-111, Engine and Propeller Directorate, Aircraft Certification Service, 1200 District Avenue, Burlington, Massachusetts, 01803-5213; telephone (781) 238-7153; facsimile (781) 238-7199; email
We invite interested people to participate in this rulemaking by sending written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposed special conditions, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
On January 29, 2016, General Electric Company (GE) applied for type certificate application for GE's GE9X turbofan engine models. The GE9X engine models are high-bypass-ratio engines that incorporate novel and unusual design features. The GE9X engine models incorporate new technologies such that it cannot run the endurance test conditions prescribed in § 33.87 without significant test-enabling modifications, making the test vehicle non-representative of the proposed type design. An alternative endurance test cycle has been developed that provides a level of safety equivalent with that intended by § 33.87. The proposed alternate endurance test provides the test conditions that allow the engine to be run in type design configuration and demonstrate engine operability and durability as well as systems functionality to a level intended by the current § 33.87 rule.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, GE must show that the GE9X engine models meet the applicable provisions of part 33, as amended by Amendments 33-1 through 33-34.
If the FAA finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the GE9X engine models because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the engine model for which they are issued. Should the type certificate for that engine model be amended later to include any other engine models that incorporate the same or similar novel or unusual design features, the special conditions would also apply to the other engine models under § 21.101.
In addition to complying with the applicable product airworthiness regulations and special conditions, the GE9X engine models must comply with the fuel venting and exhaust emission requirements of 14 CFR part 34.
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 § 21.17(a)(2).
The GE9X engine models will incorporate the following novel or unusual design features: Technological advances that reduce noise and emissions while improving fuel
The GE9X series engine type design incorporates new technologies such that it cannot run the endurance test conditions prescribed in § 33.87 without significant test-enabling modifications, making the test vehicle non-representative of the proposed type design. The modifications needed to run the § 33.87 endurance test have become increasingly complex over time, and reconciling the test results to the proposed type design has also become increasingly difficult.
For past certifications, GE has shown that the proposed engine design, as modified, still represented the durability and operating characteristics of the intended type design but the modifications needed to the GE9X engine model to run the § 33.87 endurance test cannot be reconciled and would affect the test outcome.
These proposed special conditions provide the necessary conditions for verification of engine-level and component-level effects as intended by the current § 33.87 endurance test. The special conditions include a demonstration for the oil, fuel, air bleed, and accessory drive systems as required in the current § 33.87 endurance test.
The level of severity is provided by an engine test demonstration at the gas path limiting temperature and at shaft speed redlines and at the most extreme shaft speeds as determined through a critical point analysis (CPA). In addition, times on condition and cycle counts were developed to allow additional challenges to the new and novel features that would not have been as challenged by the current § 33.87 test schedule. The alternate test demonstrates no potential safety issue will develop while operating in service.
The proposed cycles dwell time duration reflect that GE9X does not have a 10-minute OEI extension for the takeoff rating.
The special conditions for § 33.4 and § 33.29 are added to support an equivalent compliance by means of mandatory inspections prescribed in paragraph (b)(3) of the § 33.87 special conditions.
These special condition requirements maintain a level of safety equivalent to the level intended by the applicable airworthiness standards in effect on the date of application.
As discussed above, the proposed special conditions are applicable to the GE9X engine model(s). Should GE apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on the GE9X turbofan engine models. It is not a rule of general applicability and applies only to GE, who requested FAA approval of this engine feature.
Aircraft, Engines, Aviation Safety, Reporting and Recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
(a) The Airworthiness Limitations section must prescribe the mandatory post-flight inspections and maintenance actions associated with any exceedance required by § 33.87, paragraph (b)(3), of these special conditions.
(a) The engine must have means, or provisions for means, to automatically record and alert maintenance personnel for each occurrence of any exceedance required by § 33.87 paragraph (b)(3), of these special conditions.
(a) General: The applicant must show that the endurance test schedule in combination with any prescribed mandatory actions provide an equivalent level of severity and demonstration of durability and operability as that intended by § 33.87(a) and (b) for a turbofan engine. When showing that the level of durability is equivalent with that intended by the rule, the applicant must consider the damage accumulated during the test for the limiting damage mechanisms for components and engine systems, up to and including the applicable limitations declared in the Type Certificate Data Sheets (TCDS). The test cycle content must create conditions in the engine for a sufficient amount of time to demonstrate no potential safety issue will develop from the limiting damage mechanisms while operating in service. The following minimum requirements apply:
(1) The tests in paragraphs (b), (c), and (d) of these special conditions, for total cumulative and dwell time duration between ground idle and the takeoff thrust prescribed in these special conditions. The test cycle durations must include all maximums allowed in the TCDS and expected service operation.
(2) Requirements of § 33.87(a)(1), (2), (4), and (6) applicable to turbofan engines.
(3) Requirements of § 33.87(a)(3) applicable to the temperature of external surfaces of the engine, if limited.
(4) Testing for maximum air bleed must be at least equal with the prescribed test required in § 33.87(a)(5). However, for these cycles, the thrust or the rotor shaft rotational speed may be less than 100 percent of the value associated with the particular operation being tested if the FAA finds that the validity of the endurance test is not compromised.
(5) Testing for engine fuel, oil, and hydraulic fluid pressure and oil temperature must be at least equal with the prescribed test required in § 33.87(a)(7).
(6) If the number of occurrences of either transient rotor shaft overspeed or transient gas over temperature is not limited, at least 155 accelerations must be made at the limiting overspeed or over temperature. If the number of occurrences is limited, that number of accelerations must be made at the limiting overspeed or over temperature.
(7) One hundred starts must be made, of which 25 starts must be preceded by at least a two-hour engine shutdown. There must be at least 10 false engine starts, pausing for the applicant's specified minimum fuel drainage time, before attempting a normal start. There must be at least 10 normal restarts with not longer than 15 minutes since engine shutdown. The remaining starts may be made after completing the endurance testing prescribed by these special conditions.
(8) Unless otherwise specified (
(i) When operating with max oil temperatures the throttle movement may be `stair-stepped' to allow for oil temperature stabilization for durations greater than two seconds.
(9) The applicant must validate any analytical methods used for compliance with these special conditions. Validation includes the ability to accurately predict an outcome applicable to the engine being tested.
(10) The applicant must perform the endurance test on an engine that substantially conforms to its type design. Modifications may be made as needed to achieve test conditions and/or engine operating conditions representative of the type design.
(b) Conduct the endurance test at or above the declared shaft speeds and gas temperatures limits, and at or above conditions representative of critical points (speeds, temperatures, rated thrust) in the operating envelope.
(1) Conduct the endurance test at or above the rated takeoff thrust and rated maximum continuous thrust and with the associated limits for rotor speeds and gas temperature (redlines), as follows:
(i) Either rotor speed or gas temperature, or concurrent rotor speed and gas temperature if analysis indicates a combination of redline operational conditions is possible to occur in service, must be at least 100 percent of the values associated with the engine rating being tested.
(ii) The cumulative test time duration and number of cycles must be representative of the rotor speed and gas temperature excursions to redlines that can be expected to occur in between overhauls.
(iii) The time durations for each takeoff or maximum continuous segment must include all maximums allowed in the TCDS and expected service operation and must include the following cycles:
(A) At least one (1) takeoff cycle of 5 minutes time duration at the low pressure rotor speed limit and gas temperature limit (redlines).
(B) At least one (1) takeoff cycle of 5 minutes time duration at the high pressure rotor speed limit and gas temperature limit (redlines).
(C) In lieu of the separate cycles specified in paragraphs (A) and (B) of this section, the applicant may run the low pressure and high pressure rotor speeds and gas temperature limits (redlines) in the same cycle. However in this case, the applicant must run at least 2 cycles of 5 minutes time duration each.
(2) Conduct the endurance test at or above the rated takeoff thrust and the rated maximum continuous thrust with rotor speeds at or above those determined by a critical point analysis (CPA) and with gas temperature redline conditions as follows:
(i) The applicant must determine through a CPA the highest rotor shaft rotational speeds (CPA speeds) expected to occur for each rotor shaft system within the declared operating envelope. The CPA must be conducted for the takeoff and maximum continuous rated thrust and must consider the declared operating envelope, engine deterioration, engine-to-engine variability, and any other applicable variables that can cause the engine to operate at the extremes of its performance ratings.
(ii) Except as provided in paragraph (b)(3)(ii) of these special conditions, conduct a cyclic test between ground idle and combined takeoff and maximum continuous thrust ratings, as follows:
(A) Eighteen hours and forty five minutes (18.75 hours) cumulated time duration at or above the rated takeoff thrust, the gas temperature limit for takeoff (redline), and the CPA rotor speeds for takeoff determined per paragraph (b)(2)(i) of these special conditions.
(B) Forty five (45) hours cumulated time duration at or above the rated maximum continuous thrust, the gas temperature limit for maximum continuous (redline), and the CPA rotor speeds for maximum continuous determined per paragraph (b)(2)(i) of these special conditions.
(C) The time durations for each takeoff or maximum continuous segments must include all maximums allowed in the TCDS and expected service operation, and must include at least one maximum continuous cycle of 30 minutes run continuously.
(3) If the cyclic shaft speed excursions specified in paragraphs (b)(1) or (b)(2) of these special conditions cannot be demonstrated in the test, then an alternative equivalent with the rule intent must be provided. Alternatives may include alternate means of test demonstration, mandatory actions, or other means found acceptable to the FAA. The applicant must prescribe a mandatory action plan for engine operation between the shaft speeds demonstrated for a minimum of cumulated 18.75 hours at or above rated takeoff and 45 hours at or above rated maximum continuous, respectively, and the declared speed limits (redlines), as follows:
(i) Prescribe post-event actions or operating limitations acceptable to the FAA for operation below the declared speed limits (redlines) and above the CPA speeds.
(ii) If the test required by (b)(2)(ii) of these special conditions can only be accomplished at a rotor shaft speed lower than the CPA speed, prescribe post-event actions or operating limitations acceptable to the FAA for operation below that CPA speed and above the value demonstrated during the test.
(c) Conduct the endurance test at the incremental cruise thrust that must be at least equal with the prescribed test required in § 33.87(b)(4). The 25 incremental test cycles must be uniformly distributed throughout the entire endurance test.
(d) Conduct at least 300 cycles between ground idle and combined takeoff and maximum continuous thrust, as follows:
(1) Each cycle to include acceleration to or above rated takeoff thrust, deceleration from takeoff to ground idle, followed by 5 to 15 seconds at ground idle, acceleration to or above rated maximum continuous thrust, and deceleration to ground idle.
(2) The throttle movement from ground idle to rated takeoff or maximum continuous thrust and from rated takeoff thrust to ground idle should be not more than one (1) second, except that, if different regimes of control operations are incorporated necessitating scheduling of the thrust-control lever motion in going from one extreme position to the other, a longer period of time is acceptable, but not more than two seconds. The throttle move from rated maximum continuous thrust to ground idle should not be more than five (5) seconds.
(3) The time durations for each cycle associated with either takeoff or maximum continuous thrust segments must include all maximums allowed in the TCDS and expected service operation, and must include the following cycles:
(i) Three (3) cycles of 5 minutes each and one (1) cycle of 10 minutes at the takeoff thrust.
(ii) Three (3) cycles of 30 minutes each at the maximum continuous thrust.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to: Remove Class D airspace for Enid Woodring Municipal Airport, OK, and Enid Vance AFB, OK; establish Class D airspace for Enid Woodring Regional Airport, Enid, OK, and Vance AFB, Vance AFB, OK; amend Class E airspace designated as a surface area for Enid Woodring Regional Airport; establish Class E airspace designated as a surface area for Vance AFB; remove Class E airspace designated as an extension of Class D and E surface area at Enid Woodring Municipal Airport, OK, and Enid Vance AFB, OK; establish Class E airspace designated as an extension of Class D and E surface area at Enid Woodring Regional Airport and Vance AFB; and amend Class E airspace extending upward from 700 feet above the surface at Enid Woodring Regional Airport. Due to the differing operating hours of the two airports, the airspace descriptions would be separated for safety and management of instrument flight rules (IFR) operations at these airports. Also, airspace redesign is necessary to accommodate new standard instrument approach procedures (SIAPS) at Woodring Regional Airport.
Comments must be received on or before August 10, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826, or 1-800-647-5527. You must identify FAA Docket No. FAA-2016-9378; Airspace Docket No. 16-ASW-16, 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.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
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 E airspace in the Enid, OK, area.
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. Commenters 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-2016-9378/Airspace Docket No. 16-ASW-16.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded 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, 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:
Removing Class D airspace at Enid Woodring Municipal Airport, OK;
Removing Class D airspace at Enid Vance AFB, OK;
Establishing Class D airspace at Enid Woodring Regional Airport, Enid, OK, within a 4.5-mile radius of the airport;
Establishing Class D airspace at Vance AFB, Vance AFB, OK, within a 5.1-mile radius of the airport;
Amending Class E airspace designated as a surface area within a 4.5-mile radius (increased from a 4.1-mile radius) of Enid Woodring Regional Airport, Enid, OK, removing the portion within a 5.1-mile radius of Vance AFB, and removing Vance AFB from the airspace description;
Establishing Class E airspace designated as a surface area within a 5.1 mile radius of Vance AFB, Vance AFB, OK;
Removing Class E airspace designated as an extension to Class D or E surface area at Enid Vance AFB, OK;
Removing Class E airspace designated as an extension to Class D or E surface area at Enid Woodring Municipal Airport, OK;
Establishing Class E airspace designated as an extension to Class D or E surface area at Enid Woodring Regional Airport, Enid, OK, with a segment each side of the VOR/DME extending from the 4.5-mile radius of the airport to 7 miles north and 7 miles south of the airport;
Establishing Class E airspace designated as an extension to Class D or E surface area at Vance AFB, Vance AFB, OK, with a segment each side of the Vance VORTAC extending from the 5.1-mile radius to 6.1 miles south of the airport; and
Amending Class E airspace extending upward from 700 feet above the surface at Enid, OK, within a 7-mile radius (increasing from a 6.6-mile radius) of Woodring Regional Airport, removing the Woodring VOR/DME extensions, and updating the name of the airport to coincide with the FAA's aeronautical database.
The FAA determined that due to the differing operating hours of the two airports, the airspace descriptions should be separated for safety and management of IFR operations at these airports. Also, after an airspace review of the Woodring Regional Airport, the FAA found airspace redesign necessary at Enid Woodring Regional Airport to accommodate new SIAPs at the airport and for the safety and management of IFR operations at these airports. The part-time NOTAM information would be included in the airspace descriptions for the new airspace and would be retained in the legal descriptions for the amended airspace.
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, 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 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 3,800 feet within a 4.5-mile radius of Enid Woodring Regional Airport, excluding that portion of airspace west of long. 97°51′01″ W. 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 to and including 3,800 feet within a 5.1-mile radius of Vance AFB excluding that portion east of long. 97°51′01″ W., and excluding within a 4.5-mile radius of Enid Woodring Regional 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 within a 4.5-mile radius of Enid Woodring Regional Airport excluding that portion of airspace west of long. 97°51′01″ W. 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 within a 5.1-mile radius of Vance AFB excluding that portion east of the long. 97°51'01″ W., and excluding within a 4.5-mile radius of Enid Woodring Regional 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 the surface within 2.4 miles each side of the 347° radial of the Woodring VOR/DME extending from the 4.5-mile radius of the airport to 7 miles north of the airport, and within 2.4 miles each side of the 177° radial of the Woodring VOR/DME extending from the 4.5-mile radius of the airport to 7 miles south of the airport.
That airspace extending upward from the surface within 1.3 miles each side of the 188° radial of the Vance VORTAC extending from the 5.1-mile radius of Vance AFB to 6.1 miles south of the airport.
That airspace extending upward from 700 feet above the surface within 8.7 miles east and west of Vance AFB extending to 15.2 miles north and south of Vance AFB, and that airspace extending upward from 700 feet above the surface within a 7-mile radius of Enid Woodring Regional Airport.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish temporary safety zones in portions of Billingsport Range, on the Delaware River, to facilitate the removal of existing pipelines along the river bed of the Federal Navigation Channel. The safety zones would be established for the waters of Billingsport Range, on the Delaware River, in the vicinity of working vessels and associated equipment. At times the working vessels and equipment may be in close proximity or impede the navigation channel. This regulation is necessary to provide for the safety of life on navigable waters of the Delaware River, in the vicinity of pipeline-removal operations, and is intended to protect mariners from the associated hazards.
Comments and related material must be received by the Coast Guard on or before July 11, 2017.
You may submit comments identified by docket number USCG-2017-0400 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or if email Petty Officer Amanda Boone, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215) 271-4889, email
Paulsboro Natural Gas Pipeline Company and Buckeye Partners, L.P. notified the Coast Guard that removal of portions of old natural gas pipelines will need to be conducted in compliance with the Army Corps of Engineers request for removal due to the upcoming widening and deepening of the Delaware River, main navigational channel, in which the depth of the channel will be taken to 45 feet. The Captain of the Port Delaware Bay has determined that potential hazards associated with the pipe-removal operational would be a safety concern for anyone within a 150-yard radius of the working vessels.
The Coast Guard is proposing to issue this rule under authority in 33 U.S.C. 1231; 33 CFR 1.05-1 and 160.5; and Department of Homeland Security Delegation No. 0170.1. The Captain of the Port, Delaware Bay, has determined that potential hazards associated with pipe-removal operations, beginning on or about July 29, 2017, will be a safety concern for vessels attempting to transit the Delaware River, along Billingsport Range. This rule is needed to protect personnel, vessels, and the marine environment on the navigable waters within the safety zone while removal of the pipeline is being conducted.
The Coast Guard Captain of the Port is proposing to establish temporary safety zones on portions of the Delaware River on or about July 29, 2017, until October 31, 2017, unless cancelled earlier by the Captain of the Port, to facilitate the removal of existing pipeline on the river bed of the Delaware River, along the Billingsport Range.
With plans to widen the commercial shipping channel in the Delaware River, the U.S. Army Corp of Engineers (ACOE) has requested both Paulsboro Natural Gas Pipeline Company, LLC (PBF) and Buckeye Partners, L.P. (BPL) modify their existing pipelines across the river that could cause hazards to mariners in the expanded shipping channel. This specifically pertains to PBF's 8″ natural gas pipeline and BPL's 10″ and 12″ pipelines that run adjacent
The proposed safety zones will be established for the duration of the pipe-removal operation. Vessels that desire to enter or transit through the safety zones will be required to contact working vessels on VHF-FM marine band channel 13 or 16, at least 1 hour prior to arrival.
Entry into, transiting, or anchoring within the safety zones is prohibited unless vessels obtain permission from the Captain of the Port or make satisfactory passing arrangements with the working vessels on scene per this rule and the Rules of the Road (33 CFR subchapter E).
The Captain of the Port will implement and terminate the safety zone once all pipelines have been recovered and removal operations are completed. Notice of the implementation and the termination of the safety zone will be made in accordance with 33 CFR 165.7.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders 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 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the safety zones. Although this regulation will restrict access to regulated areas, the effect of this rule will not be significant because vessels may be permitted to transit through the safety zone with the permission of the Captain of the Port or make satisfactory passing arrangements with the working vessels on scene in accordance with this rule and the Rules of the Road (33 CFR subchapter E). Extensive notification of the safety zone to the maritime public will be made via maritime advisories to allow mariners to alter their plans accordingly.
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 proposed rule would 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 IV.A above, this rule will not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone which is limited in size and duration. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary Record of Environmental Consideration 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact the person named in the
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 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)
(2)
(c)
(2) Entry into, transiting, or anchoring within the safety zones is prohibited unless vessels obtain permission from the Captain of the Port (COTP) or make satisfactory passing arrangements, via VHF-FM marine band channel 13 or 16, with the working vessel on scene per this rule and the Rules of the Road (33 CFR subchapter E).
(3) To request permission to enter a safety zone, the Captain of the Port's representative can be contact via VHF-FM channel 16. Vessels granted permission to enter and transit through a safety zone must do so in accordance with the directions provided by the Captain of the Port or designated representative. No person or vessel may enter or remain in a safety zone without permission from the Captain of the Port. All persons and vessels within a safety zone shall obey the directions or orders of the Captain of the Port or their designated representative.
(4) At least one side of the main navigational channel will be kept clear for safe passage of vessels in the vicinity of the safety zone. At no time will the main navigational channel be closed to vessel traffic. Vessels that desire to enter or transit through a safety zone shall contact the working vessels on scene on VHF-FM marine band channel 13 or 16, at least 1 hour prior to arrival.
(5) This section applies to all vessels that intend to transit through a safety zone except vessels that are engaged in the following operations: Enforcement of laws; service of aids to navigation, and emergency response.
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a safety zone on the waters of Beach Thorofare in Ocean City, NJ on July 22, 2017. The safety zone will restrict vessel traffic from operating on a portion of Beach Thorofare while a fireworks event is taking place. This safety zone is necessary to protect the public, spectators and vessels from the hazards associated with a fireworks display. The safety zone restricts vessels from transiting the zone during the effective period, unless authorized by the Captain of the Port Delaware Bay or a designated representative.
Comments and related material must be received by the Coast Guard on or before July 11, 2017.
You may submit comments identified by docket number USCG-
If you have questions about this proposed rulemaking, call or if email Petty Officer Amanda Boone, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215) 271-4889, email
On June 8, 2017 the Coast Guard was notified of Ocean City Nights in Venice fireworks event scheduled for July 22, 2017. The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay has determined that a temporary safety zone is necessary to provide safety on navigable waters during the fireworks event, and to enhance safety of the public, spectators and vessels.
On July 22, 2017 a fireworks display event will take place on the waters of Beach Thorofare in Ocean City, NJ. The Coast Guard is establishing a temporary safety zone in a portion of the waterway known as Beach Thorofare in Ocean City, NJ to ensure the safety of persons, vessels and the public during the event. The safety zone includes all navigable waters of Beach Thorofare within a 600 foot radius of the fireworks launch platform in approximate position 39°17′23″ N., 074°34′31″ W. near Ocean City, NJ. The fireworks displays are expected to occur between 9:30 p.m. and 10:30 p.m. In order to coordinate the safe movement of vessels within the area and to ensure that the area is clear of unauthorized persons and vessels before, during, and immediately after the fireworks launch, this zone will be enforced from 9:30 p.m. to 11:30 p.m.
Access to this safety zone will be restricted during the specified date and time period. Only vessels or persons specifically authorized by the Captain of the Port Delaware Bay or designated representative may enter or remain in the regulated area.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders 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 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This safety zone will impact the waters affected by this rule from 9:30 p.m. to 11:30 p.m. on July 22, 2017, during a time of day when commercial and recreational vessels traffic is normally low. Notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly. Notifications will be updated as necessary, to keep the maritime community informed of the status of the safety 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 proposed rule would 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 IV.A above, this rule will not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone which is limited in size and duration. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary Record of Environmental Consideration 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 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)
(1) The general safety zone regulations found in § 165.23 apply to the safety zone created by this temporary section.
(2) Under the general safety zone regulations in § 165.23, persons may not enter the safety zone described in paragraph (b) of this section unless authorized by the COTP or the COTP's designated representative.
(3) To request permission to enter the safety zone, contact the COTP or the COTP's representative on marine band radio VHF-FM channel 16 (156.8 MHz). All persons and vessels in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d) Effective and
Copyright Royalty Board, Library of Congress.
Proposed rule.
The Copyright Royalty Judges seek reply comments regarding a proposed new Copyright Royalty Board rule that would authorize the Judges to bar, either temporarily or permanently, certain individuals and entities from participating in proceedings before the Judges.
Comments are due no later than July 26, 2017.
The proposed rule is posted on the agency's Web site (
Anita Blaine, Program Specialist, at (202) 707-7658 or
On April 20, 2017, the Copyright Royalty Judges (Judges) published a notice in the
While some of the comments were supportive of the proposal or certain aspects of it, others were critical and raised a number of issues with the proposal, including the scope of the proposal, potential abuses of the proposed provisions, the Constitutionality of some of the proposed provisions, and whether the proposal is even necessary. The Judges seek reply comments responding directly to issues that commenters raised regarding the proposal. While the Judges will review and consider all comments they receive on the proposal, they request that commenters limit their comments at this point to issues that other commenters raised in the initial round of comments, including ways to address criticisms that some commenters raised with respect to the proposal. Some commenters that criticized the proposal suggested alternative language that might remedy perceived shortfalls in the Judges' proposal. The Judges request comments on those proposals, or welcome alternative suggestions the Judges might adopt to address those perceived shortfalls, including the pros and cons of choosing any proposed alternative approach. In light of some of the negative comments, the Judges also seek comment on whether, on balance, the remedies currently available to the Judges for addressing ethical lapses of participants and counsel are adequate or preferable to the remedial rule the Judges proposed. In particular, the Judges seek detailed comments regarding the incidents to which the Judges referredin the notice proposing the provision (or others that commenters are aware of to which the Judges did not refer) and how remedies currently available were used to address those incidents and whether or not the extant remedies (
The Judges seek reply comments on the proposed new rule that respond to comments that the Judges received in response to the initial notice of proposed rulemaking.
Interested members of the public must submit comments to only one of the following addresses. If not submitting online, commenters must submit an original of their comments, five paper copies, and an electronic version in searchable PDF format on a CD.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a request submitted by the Indiana Department of Environmental Management on December 13, 2016, to revise the Indiana state implementation plan (SIP). The submission revises and updates the Indiana Administrative Code definition of “References to the Code of Federal Regulations,” from the 2013 edition to the 2015 edition.
Comments must be received on or before July 26, 2017.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0760 at
Charles Hatten, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
In the Final Rules section of this
EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule, and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, NMFS, have completed a comprehensive status review under the Endangered Species Act (ESA) for the Taiwanese humpack dolphin (
Comments on this proposed rule must be received by August 25, 2017. Public hearing requests must be requested by August 10, 2017.
You may submit comments on this document, identified by NOAA-NMFS-2016-0041, by either of the following methods:
•
•
You can find the petition, status review report,
Chelsey Young, NMFS, Office of Protected Resources, (301) 427-8403.
On March 9, 2016, we received a petition from the Animal Welfare Institute, Center for Biological Diversity and WildEarth Guardians to list the Taiwanese humpback dolphin (
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, in the context of the ESA, the Services interpret an “endangered species” to be one that is presently at risk of extinction. A “threatened species,” on the other hand, is not currently at risk of extinction, but is likely to become so in the foreseeable future. In other words, a key statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either now (endangered) or in the foreseeable future (threatened). The statute also requires us to determine whether any species is endangered or threatened as a result of any of the following five factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence (ESA, section 4(a)(1)(A)-(E)). Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any State or foreign nation or political subdivision thereof to protect the species.
The status review for the Taiwanese humpback dolphin was completed by NMFS staff from the Office of Protected Resources. To complete the status review, we compiled the best available data and information on the subspecies' biology, ecology, life history, threats, and conservation status by examining the petition and cited references, and by conducting a comprehensive literature search and review. We also considered information submitted to us in response to our petition finding. The draft status review report was subjected to independent peer review as required by the Office of Management and Budget Final Information Quality Bulletin for Peer Review (M-05-03; December 16, 2004). The draft status review report was peer reviewed by three independent specialists selected from the academic and scientific community, with expertise in cetacean biology, conservation and management, and specific knowledge of the Taiwanese humpback dolphin. The peer reviewers were asked to evaluate the adequacy, appropriateness, and application of data used in the draft status review report as well as the findings made in the “Assessment of Extinction Risk” section of the report. All peer reviewer comments were addressed prior to finalizing the draft status review report.
We subsequently reviewed the status review report, and its cited references, and we believe the status review report, upon which this proposed rule is based, provides the best available scientific and commercial information on the Taiwanese humpback dolphin. Much of the information discussed below on the dolphin's biology, distribution, abundance, threats, and extinction risk is attributable to the status review report. However, we have independently applied the statutory provisions of the ESA, including evaluation of the factors set forth in section 4(a)(1)(A)-(E), our regulations regarding listing determinations, and our DPS policy in making the 12-month finding determination. The draft status review report (cited as Whittaker and Young 2017) is available on our Web site (see
The Taiwanese humpback dolphin (
In terms of distinctive physical characteristics, the Indo-Pacific humpback dolphin is generally easy to distinguish from other dolphin species in its range. In general, the Indo-Pacific humpback dolphin is medium-sized, up to 2.8 m in length, and weighs 250-280 kg (Ross
When young, humpback dolphins appear dark grey with no or few light-colored spots, and transform to mostly white (appearing pinkish) as dark spots decrease with age. However, the developmental transformation of pigment differs between Taiwanese and Chinese humpback dolphin populations, and the spotting intensity on the dorsal fin of the Taiwanese population is significantly greater than that in other nearby populations in the Pearl River estuary (PRE) or Jiulong River estuaries of the Chinese mainland (Wang
The Taiwanese humpback dolphin has a very restricted range, residing in the shallow coastal waters of central western Taiwan throughout the year (Wang
Rarely, individuals have been sighted and strandings have occurred in near-shore habitat to the north and south of its current confirmed habitat; some of these incidents are viewed as evidence that the historical range of the population extended farther than its current range (Dungan
Overall, water depth and the subspecies' need for access to inshore, estuarine waters, as well as the estuarine distribution of prey species, are likely the main factors underpinning habitat use and distribution of Taiwanese humpback dolphins (Dares
Information on this Taiwanese humpback dolphin's foraging behavior and specific diet is limited, but the dolphins seem to have an opportunistic diet comprised primarily of estuarine fish (
Little is known about the life history and reproduction of the Taiwanese humpback dolphin, and estimating life history parameters for the subspecies has proven difficult due to the lack of carcasses available for study (Wang
Maximum longevity for PRE and South African populations is 39 and 40 years, respectively (Jefferson
No genetic data exist for the Taiwanese humpback dolphin; therefore, the genetic connectivity within the population cannot be directly assessed. However, in such a small population, social behavior and habitat connectivity may provide clues to the connectivity of the population as a whole. In general, humpback dolphin (
There are only two formal estimates of abundance for the Taiwanese humpback dolphin. The first study estimated a population size of 99 individuals (coefficient of variation (CV) = 52 percent, 95 percent confidence interval (CI) = 37-266) based on surveys that used line transects to count animals from 2002 to 2004 (Wang
An analysis of potential biological removal (PBR), which, under the Marine Mammal Protection Act (MMPA), is a measure of the maximum number of individuals that can be removed from a population without depleting it (Wade, 1998), was conducted to assess the sustainability and stability of the Taiwanese humpback dolphin in the face of present threats, and their projected future trends (Slooten
An extremely low population size estimate (fewer than 100 individuals) is well supported by current available data, and recent population viability analyses (PVAs) suggest that the population is declining due to the synergistic effects of habitat degradation and detrimental fishing interactions (Araújo
Overall, although the two PVA studies differed in their findings with regard to the relative importance of bycatch and habitat loss threats, both assessments concluded that the subspecies is in serious danger of going extinct (Wang
The ESA (section 3) defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Neither we nor the USFWS have developed formal policy guidance about how to interpret the definitions of threatened and endangered with respect to what it means to be “in danger of extinction.” We consider the best available information and apply professional judgment in evaluating the level of risk faced by a species in deciding whether the species is threatened or endangered. We evaluate demographic risks, such as low abundance and productivity, and threats to the species, including those related to the factors specified in ESA section 4(a)(1)(A)-(E).
For purposes of assessing extinction risk for the Taiwanese humpback dolphin, we reviewed the best available information on the species and evaluated the overall risk of extinction facing the Taiwanese humpback dolphin, now and in the foreseeable future. The term “foreseeable future” was discussed qualitatively in the status review report and defined as the timeframe over which threats could be projected with a reasonable amount of confidence. After considering the life history of the Taiwanese humpback dolphin, availability of data, and types of threats, we determined that a reasonable foreseeable future should extend out several decades (>50 years). The foreseeable future timeframe is also a function of the reliability of available data regarding the identified threats and extends only as far as the data allow for making reasonable predictions about the species' response to those threats. Given the Taiwanese humpback dolphin's life history traits, including longevity estimated to be upwards of 40 years, estimated maturity range of 12-14 years, low reproductive rates and long calving intervals of >3 years, it would likely take more than a few decades (
In determining the extinction risk of a species (and in this case, a subspecies), it is important to consider both the demographic risks facing the species as well as current and potential threats that may affect the species' status. To this end, a demographic risk analysis was conducted for the Taiwanese humpback dolphin. A demographic risk analysis is an assessment of the manifestation of past threats that have contributed to the species' current status and informs the consideration of the biological response of the species to present and future threats. This analysis evaluated the population viability characteristics and trends available for the dolphin, such as abundance, growth rate/productivity, spatial structure and connectivity, and diversity, to determine the potential risks these demographic factors pose to the subspecies. The information from this demographic risk analysis was considered alongside the information previously presented on threats to the subspecies, including those related to the factors specified by the ESA section 4(a)(1)(A)-(E) (and summarized in a separate Threats Assessment section below) and used to determine an overall risk of extinction for the Taiwanese humpback dolphin. Thus, scientific conclusions about the overall risk of extinction faced by the Taiwanese humpback dolphin under present conditions and in the foreseeable future are based on our evaluation of the subspecies' demographic risks and section 4(a)(1) threat factors. Our assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative impact of all demographic risks and threats on the subspecies.
Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect the species. Therefore, prior to making a listing determination, we also assess such protective efforts to determine if they are adequate to mitigate the existing threats.
We identified the critically low population abundance of the Taiwanese humpback dolphin as the demographic factor contributing most heavily to the subspecies' risk of extinction. With fewer than 100 individuals and low productivity, even a single human-caused mortality per year is expected to negatively impact the subspecies' continued viability. For example, current annual mortality is estimated at 1.5 percent (Wang
The Taiwanese humpback dolphin is associated with a slow rate of reproduction, long calving intervals, low recruitment rates and a long period of female-calf association. A recent study on the reproductive parameters of
As previously discussed, genetic data are not available for the Taiwanese humpback dolphin; therefore, the genetic connectivity within the population cannot be directly assessed. In such a small population, however, social behavior and habitat connectivity may provide clues to the connectivity of the population as a whole. For the Taiwanese humpback dolphin, habitat includes a very narrow strip of near shore waters. Analysis of social behavior of the population has revealed significant and high levels of interconnectedness and gregarious behavior across this habitat range (Dungan, 2011; Dungan
As previously discussed, the high social cohesion observed in the Taiwanese humpback dolphin is most likely related to cooperative calf rearing; this behavior is thought to be an adaptive response to the dolphin's degraded, geographically restricted environment (which makes it difficult for mothers to support offspring on their own), and to their small population size (which has likely increased the relatedness of individuals) (Dungan, 2011). The social structure of this small population may be disrupted by several factors. For instance, damming of freshwater input or construction and land reclamation preventing the transit of individuals across its near shore range may lead to genetic and social fragmentation. Currently, the direct impact of habitat alteration on the genetic and social connectivity of the Taiwanese humpback dolphin is based on limited data. Disruption of social structure through mortality or habitat fragmentation may hinder the transfer of information and destabilize the community structure that aids in the adaptability of the small population in the future. Current threats to habitat, fishing entanglement, and direct mortality continue to increase, and may disrupt the social stability and physical connectivity among individuals of the subspecies, particularly through the deaths of breeding females. However, the extent to which these effects directly impact the connectivity of the small and isolated population remains uncertain. Based on the narrow habitat range and isolated nature of the population, with high within-population connectivity, continued alteration and fragmentation of this connectivity due to increasingly constricted habitat may hinder its future ability to adapt to threats, and, therefore, contributes moderately to the subspecies' risk of extinction.
While data do not exist to address the genetic diversity of the Taiwanese humpback dolphin, there are several reasons to believe that diversity is reduced in the subspecies. First, with fewer than 100 and possibly fewer than 75 individuals in this reproductively isolated subspecies (which is well below the minimum population size (
As described above, section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424.11(c)) state that we must determine whether a species (or in this case, a subspecies) is endangered or threatened because of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We evaluated whether and the extent to which each of the foregoing factors contributed to the overall extinction risk of the Taiwanese humpback dolphin. We summarize information regarding each of these threats below according to the factors specified in section 4(a)(1) of the ESA. The best available information indicates that habitat destruction, modification, or curtailment of the subspecies' habitat or range (
As previously discussed in the
Land reclamation due to industrial activity and coastal development contributes to widespread loss and degradation of Taiwanese humpback dolphin habitat. Over the past three decades, the west coast of Taiwan has undergone large alterations of coastal environments due to embankment, land reclamation, coastal construction, and shoreline development, including the construction of break-walls and dredging activities. These activities have increased over the last 50 years and are expected to continue into the future, largely unchecked (Wang
Another study estimated that land reclamation activities since 1972 have destroyed over 222 km
In contrast, Dares
Despite the differences in distribution and habitat use observed in these recent studies, the large elimination of suitable habitat negatively affects the Taiwanese humpback dolphin in several ways. First, habitat fragmentation due to high levels of industrial development may reduce connectivity among estuaries along the narrowly distributed range of the population. This can physically limit the ability of individuals to associate with each other, which could have detrimental impacts on the dolphin's reproductive output and calf survivorship, particularly given the subspecies' high social cohesion and dependence on cooperative calf-rearing behaviors (Dungan
In addition to land reclamation, fresh water diversion likely has significant impacts to the Taiwanese humpback dolphin, as the subspecies is dependent upon freshwater inflow to support the productivity and ecosystem health of its estuarine habitat. This habitat need of freshwater inflow for the Taiwanese humpback dolphin is similar to that shown for the PRE population of humpback dolphins in mainland China, where freshwater inflow has been shown to support steady estuarine ecosystem production upon which the dolphin relies for prey (Jefferson and Hung, 2004). This freshwater flow is drastically reduced by dams, flood control, and river diversions related to industrial development and diversion for agricultural and municipal purposes (Dungan
Pollution can affect the Taiwanese humpback dolphin in two ways: Directly influencing the health of the animal or influencing prey that the dolphin later ingests, thus leading to bioaccumulation of toxins in the dolphin. To date, only one study has analyzed the potential bioaccumulation of toxins specifically for the Taiwanese humpback dolphin population. Riehl
We assessed two factors that may contribute to the overutilization of the subspecies: Whale watching and scientific research. While some whale watching and recreational observation of marine mammals occurs off the coast of Taiwan, it is unlikely that these activities contribute heavily to the extinction risk for the Taiwanese humpback dolphin relative to other threats. However, some tours targeting the Taiwanese humpback dolphin have been permitted to operate despite recommendations against any boat-based dolphin watch tour targeting the subspecies (Wang, pers. comm., 2017; Wang
It is also unlikely that scientific monitoring has a negative impact on the Taiwanese humpback dolphin. The dolphin was only first observed in 2002, and since then several scientific surveys have sought to characterize its status and abundance. The low frequency of these surveys, and reliance on non-invasive photo identification, are unlikely to pose serious threats to the subspecies.
There are few regulations in place for the protection of the Taiwanese humpback dolphin. For example, the Taiwanese humpback dolphin is listed under Taiwan's Wildlife Conservation Act as a Level I protected species, which grants species the highest level of legal protection. Article 4 of the Act designates humpback dolphins as “protected wildlife”, and Article 18 states that these animals are “not to be disturbed, abused, hunted [or] killed” (Wang
While many recommendations have been made to guide the future conservation and recovery of the
Therefore, based on the foregoing information, we conclude that existing regulations for the Taiwanese humpback dolphin are inadequate. That is, the laws that are in place currently are not effectively controlling for the main identified threats to the species (
We assessed several potential threats that fall under the category of Other Natural or Manmade Factors, including bycatch and entanglement in fishing gear, vessel strikes, acoustic disturbance, and climate change. Among these threats, injury and mortality due to bycatch and entanglement in fishing gear and vessel strikes were by far the most significant threats to the continued existence of the Taiwanese humpback dolphin. We discuss these threats in detail below. Detailed information on the other threats (
As noted previously, entanglement and mutilation due to interactions with fishing gear are likely the most serious direct and immediate threat to the Taiwanese humpback dolphin (Wang
Injury due to entanglement is evident in the Taiwanese humpback dolphin population, identified by characteristic markings on the body, including constrictive line wraps, and direct observation of gear wrapped around the dolphin (Slooten
In addition to direct effects of fishing activity on the Taiwanese humpback dolphin, indirect effects of fishing include: Depletion of prey resources, pollution, noise disturbance, altered behavioral responses to prey aggregation in fishing gear, and potential changes to social structure arising from the deaths of individuals. Individuals of the Taiwanese humpback dolphin have shown potential evidence of disturbance due to such effects (Slooten
In addition to bycatch and entanglement, fishing activities can affect dolphins by increasing the likelihood of vessel strikes due to increased boat traffic. The waters off Taiwan are highly concentrated with human boat activity, including transportation, industrial shipping, commercial fishing, sand extraction, harbor dredging, and commercial dolphin watching. This activity is unmitigated, and its concentration has increased dramatically over the past few decades. In fact, the trend in boating and fishing activity in the region has increased by more than 750 percent since the 1950s, and its increase is expected to continue into the foreseeable future (Huang and Chuang, 2010). Fishing vessels alone contribute a large fraction of this boating activity; an estimated 6,300 fishing vessels are currently active inside the dolphins' habitat (operating from ports in the six coastal counties fronting the dolphins' habitat), and 45 percent of them are regularly engaged in fishing coastal waters (Slooten
Aside from direct mortality, interaction with vessel traffic may alter behavior of the dolphin, causing stress, reducing foraging efficiency, increasing the threat of predation, and altering behaviors that support its productivity. For instance, in individuals off the coast of Hong Kong, mother-calf pairs demonstrated the greatest level of disturbance by vessel traffic; it has been hypothesized that separation of the calf due to vessel disturbance could easily increase risk of predation, aside from the direct injury of a vessel strike (Van Parijs and Corkeron, 2001).
We identified several threats that likely affect the continued survival of the Taiwanese humpback dolphin, including destruction, modification, and curtailment of its habitat (
Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into account those efforts, if any, being made by any State or foreign nation to protect the species.
Non-governmental organizations (NGOs), scientists, activists and residents of Taiwan have invested significant amounts of time and resources into the conservation of the Taiwanese humpback dolphin (Wang
Section 4(b)(1) of the ESA requires that we make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information, including the petition, public comments submitted on the 90-day finding (81 FR 1376; January 12, 2016), the draft status review report (Whittaker and Young, 2017), and other published and unpublished information, and we have consulted with species experts and individuals familiar with the Taiwanese humpback dolphin subspecies. We considered each of the section 4(a)(1) factors to determine whether it contributed significantly to the extinction risk of the species on its own. We also considered the combination of those factors to determine whether they collectively contributed significantly to the extinction risk of the species. Therefore, our determination set forth below is based on a synthesis and integration of the foregoing information, factors and considerations, and their effects on the status of the subspecies throughout its range.
We conclude that the Taiwanese humpback dolphin is presently in danger of extinction throughout its range. We summarize the factors supporting this conclusion as follows: (1) The best available information indicates that the subspecies has a critically small population of less than 100 individuals, which is likely declining; (2) the Taiwanese humpback dolphin has a very restricted range, occurring only in the shallow waters off the western coast of Taiwan; (3) the subspecies possesses life history characteristics that increase its vulnerability to threats, including that it is long-lived and has a late age of maturity, slow population growth, and low rate of reproduction and fecundity; (4) the subspecies is confined to limited habitat in a heavily impacted area of coastline where ongoing habitat destruction (including coastal development, land reclamation, and fresh water diversion) contributes to a high risk of extinction; (5) the Taiwanese humpback dolphin is
As a result of the foregoing findings, which are based on the best scientific and commercial data available, we conclude that the Taiwanese humpback dolphin is presently in danger of extinction throughout all of its range. Accordingly, the Taiwanese humpback dolphin meets the definition of an endangered species, and thus warrants listing as an endangered species at this time.
Conservation measures provided for species listed as endangered or threatened under the ESA include the development and implementation of recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); a requirement that Federal agencies consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of designated critical habitat (16 U.S.C. 1536); and, for endangered species, prohibitions on the import and export of any endangered species; the sale and offering for sale of such species in interstate or foreign commerce; the delivery, receipt, carriage, shipment, or transport of such species in interstate or foreign commerce and in the course of a commercial activity; and the “take” of such species within the U.S., within the U.S. territorial sea, or on the high seas (16 U.S.C. 1538). Recognition of the species' imperiled status through listing may also promote conservation actions by Federal and state agencies, foreign entities, private groups, and individuals.
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/FWS regulations require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing, or that result in the destruction or adverse modification of proposed critical habitat. If a proposed species is ultimately listed, Federal agencies must consult on any action they authorize, fund, or carry out if those actions may affect the listed species or its critical habitat and ensure that such actions are not likely to jeopardize the continued existence of the species or result in adverse modification or destruction of critical habitat should it be designated. It is unlikely that the listing of this subspecies under the ESA will increase the number of section 7 consultations because the subspecies occurs outside of the United States and is unlikely to be affected by Federal actions.
Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(3)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat cannot be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)). The Taiwanese humpback dolphin is endemic to Taiwan and does not occur within areas under U.S. jurisdiction. There is no basis to conclude that any unoccupied areas under U.S. jurisdiction are essential for the conservation of the subspecies. Therefore, we do not intend to propose any critical habitat designations for the subspecies.
To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we solicit comments and suggestions from the public, other governmental agencies, the scientific community, industry, environmental groups, and any other interested parties. Comments are encouraged on this proposal (See
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential scientific information or highly influential scientific assessments disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the status review report. Independent specialists were selected from the academic and scientific community for this review. All peer reviewer comments were addressed prior to dissemination of the final status review report and publication of this proposed rule.
A complete list of all references cited herein is available upon request (see
Section 4(b)(1)(A) of the ESA restricts the information that may be considered when assessing species for listing and sets the basis upon which listing determinations must be made. Based on the requirements in section 4(b)(1)(A) of the ESA and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered
In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In accordance with E.O. 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. Given that this subspecies occurs entirely outside of U.S. waters, there will be no federalism impacts because listing the subspecies will not affect any state programs.
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set out in the preamble, 50 CFR part 224 is proposed to be amended as follows:
16 U.S.C. 1531-1543 and 16 U.S.C 1361
(h) * * *
Agricultural Research Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blueberry described in U.S. Plant Patent Application Serial No. 15/530,947, “BLUEBERRY CULTIVAR NAMED `ECHO',” filed on March 28, 2017.
Comments must be received on or before July 26, 2017.
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4-1174, Beltsville, Maryland 20705-5131.
Brian T. Nakanishi of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5989.
The Federal Government's patent rights in this plant variety are assigned to the United States of America, as represented by the Secretary of Agriculture. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Agricultural Research Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blackberry described in U.S. Plant Patent Application Serial No. 15/530,950, “BLACKBERRY NAMED `HALL'S BEAUTY',” filed on March 28, 2017.
Comments must be received on or before July 26, 2017.
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4-1174, Beltsville, Maryland 20705-5131.
Brian T. Nakanishi of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5989.
The Federal Government's patent rights in this plant variety are assigned to the United States of America, as represented by the Secretary of Agriculture. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the 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 burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by July 26, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intent of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Livestock Slaughter Survey. Revision to burden hours may be needed due to changes in the size of the target population, sampling design, and/or questionnaire length.
Comments on this notice must be received by August 25, 2017 to be assured of consideration.
You may submit comments, identified by docket number 0535-0005, by any of the following methods:
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R. Renee Picanso, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at (202) 690-2388 or at
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Louisiana Advisory Committee (Committee) will hold a meeting on Thursday, July 6, 2017, at 3:00 p.m. Central for the purpose of a discussion on civil rights topics affecting the state.
The meeting will be held on Thursday, July 6, 2017, at 3:00 p.m. CDT
Dial: 877-718-5108, Conference ID: 1009990
David Barreras, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 877-718-5108, conference ID: 1009990. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. 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 also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the proposed 2018 National Sample Survey of Registered Nurses, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before August 25, 2017.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Daniel Doyle, U.S. Census Bureau, ADDP, HQ-7H051, 4600 Silver Hill Road, Washington, DC 20233-0001, (301) 763-5304 (or via the Internet at
Sponsored by the U.S. Department of Health and Human Services' (HHS') Health Resources Services Administration's (HRSA) National Center for Health Workforce Analysis (NCHWA), the National Sample Survey of Registered Nurses (NSSRN) is conducted to assist in fulfilling the Congressional mandates of the Public Health Service Act 42 U.S.C. Section 294n(b)(2)(A), foster the development of information describing and analyzing the health care workforce and workforce related issues and provide necessary information for decision-making regarding future directions in health professions and nursing programs in response to societal and professional needs. In addition, Public Health Service Act 42 U.S.C. Section 295k(a)-(b), the Secretary shall establish a program, including a uniform health professions data reporting system, to collect, compile, and analyze data on health professions personnel. The Secretary is authorized to expand the program to include, whenever he determines it necessary, the collection, compilation, and analysis of data, health care administration personnel, nurses, allied health personnel in States designated by the Secretary to be included in the program. The NSSRN is designed to obtain the necessary data to determine the characteristics and distribution of Registered Nurses (RNs) throughout the United States, as well as emerging patterns in their employment characteristics. These data will provide the means for the evaluation and assessment of the evolving demographics, educational qualifications, and career employment patterns of RNs, consistent with the goals of congressional mandates of the Public Health Service Act 42 U.S.C. Section 294n(b)(2)(A) and Section 295k(a)-(b). Such data have become particularly important for the need to better understand workforce issues given the recent dynamic change in the RN population and, the transformation of the healthcare system.
The proposed survey design for the 2018 NSSRN will include a probability sample (100,000 RNs) selected from a sampling frame compiled from files provided by the State Boards of Nursing and the National Council of the State Boards of Nursing (NCSBN). These files constitute a sampling frame of all RNs licensed in the 50 States and the District of Columbia. Sampling rates are set for each state based on considerations of statistical precision of the estimates and the costs involved in obtaining reliable national and state-level estimates. The survey will be multi-mode offering respondents the opportunity to participate via a web instrument and a paper questionnaire.
The 2018 NSSRN project includes plans to experimentally test the efficacy of a non-monetary incentive (that is, whether offering a pen and lanyard as a token of appreciation increases response, thus reducing non-response bias and reducing costs associated with follow-up). Additionally, the project will test contact materials, and test modifications to data collection strategies based on response from prior contact strategies.
In addition to testing non-monetary incentives, the 2018 NSSRN will evaluate different non-response follow-up mailing strategies by testing for response improvements using different envelopes to deliver the survey materials. One of these strategies utilizes testing a pressure-sealed reminder postcard scheduled to be mailed approximately one week after the initial survey invite mailing. This strategy is being implemented to decrease the time gap during mailings and is more cost-effective than sending an additional paper questionnaire packet. The ability to send reminders enclosed with the pressure-seal system allows for the secure delivery of login information for the NSSRN web instrument as well as specific information about the survey.
Third, we plan to experimentally evaluate the impact of adding a supplemental fact sheet with important statistics from prior NSSRN administrations. During the initial mailing, inserts with important NSSRN facts will be tested.
Finally, for respondents who experience technical problems with the web instrument, have questions about the survey, or need other forms of assistance, the 2018 NSSRN will have a Telephone Questionnaire Assistance (TQA) line available. TQA staff will not only be able to answer respondent questions and concerns, but also they will have the ability to collect survey responses over the phone, using an administrative access to the web instrument, if the respondent calls in and would like to have interviewer assistance in completing the interview.
The production 2018 NSSRN plan for the web-push data collection design includes 80% of the 100,000 RNs receiving an initial invite with instructions on how to complete the questionnaire via the web. The web-
The remaining 20% of the sampled RNs will be mailed an initial invite with instructions on how to complete the questionnaire via the web, in addition to a paper questionnaire in the packet. This group of 20,000 RNs is broken out so that 10,000 receive a lanyard and pen, and a smaller group, 10,000 RNs, receive no incentive so that the effectiveness of the non-monetary incentive can be evaluated.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of Economic Analysis, Department of Commerce.
Advance notice of development of satellite account to define and measure the outdoor recreation economy; request for comments.
The Bureau of Economic Analysis (BEA) and Federal Recreation Council (FRC) are soliciting comments from the public on the development of a new set of national statistics that would provide information on the economic activity generated by outdoor recreation in the United States as authorized by the Outdoor Recreation Jobs and Impact Act of 2016, Public Law 114-249.
Comments must be received no later than 30 days after publication of this notice.
You may submit comments via email to
Thomas Howells, Chief, Industry Analysis Division (BE-53), Bureau of Economic Analysis, Department of Commerce, 4600 Silver Hill Road, Washington, DC 20233; phone: (301) 278-9586 or via email at
In September 2016, the Bureau of Economic Analysis (BEA) entered an interagency agreement with agencies of the Federal Recreation Council (FRC). The FRC is composed of the National Park Service, U.S. Forest Service, U.S. Fish and Wildlife Service, Bureau of Land Management, Bureau of Reclamation, National Oceanic and Atmospheric Administration, and U.S. Army Corps of Engineers. The interagency agreement seeks to develop an Outdoor Recreation Satellite Account (ORSA). The seven agencies that make up the FRC are prominent stewards of federal public lands and waters for outdoor recreation, and BEA is one of the U.S. government's premier producers of official economic statistics.
The ORSA will provide a first-of-its-kind look at the outdoor recreation economy. While BEA's current gross domestic product (GDP) statistics already embed economic activity associated with outdoor recreation, the new satellite account will allow these activities to be separately identified and highlighted in a way not possible with current statistics. Ultimately, creation of the ORSA will provide detailed data that will deepen the public's understanding of the economic impact of outdoor recreation. This will inform decision making and improve governance and long-term management of public lands and waters. The first major step in this effort is to define the range of activities encompassed by the outdoor recreation economy. In evaluating potential definitions, BEA and FRC will consider public comment as well as input from subject matter experts in the field of outdoor economics. The ORSA research team will then develop two or three potential definitions ranging in scope from narrow to broad. The range of activities in each definition will determine which industries and detailed goods and services measured by BEA will be classified as in scope, out of scope, or partially in scope for the outdoor recreation economy.
Once these initial definitions have been established, the second major step will be to review the list of partially-in-scope goods and services, and identify data sources and methodologies by which the in-scope share of these “partial” items can be estimated. Finally, using the information collected in the first two steps, prototype national-level estimates of economic activity will be developed that could include measures of output, value added, compensation of employees, and employment in the outdoor recreation economy. BEA invites email comments from the general public, private industry, state and local governments, non-profit organizations, and other interested parties. In particular, we are interested in feedback regarding the following:
1. What recreation-related activities should be considered as in scope for the ORSA;
2. What types of statistics that potential users of the ORSA would like to see presented in the account in addition to output, value added, employment, and compensation;
3. What datasets could supplement BEA's core statistics in estimating shares for partially in-scope goods and services; and,
4. What datasets could be used for possible future regionalization of the account.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;
Whereas, the West Virginia Economic Development Authority, grantee of Foreign-Trade Zone 229, submitted an application to the Board (FTZ Docket B-23-2016, docketed on April 22, 2016 and amended on September 27, 2016 and January 18, 2017) for authority to reorganize under the ASF with a service area of the Counties of Boone, Cabell, Calhoun, Clay, Fayette, Jackson, Kanawha, Lincoln, Logan, Mason, Mingo, Putnam, Raleigh, Roane, Wayne, Wirt, Wood and Wyoming, within and adjacent to the Charleston Customs and Border Protection port of entry, and FTZ 229's existing Site 1 would be categorized as a magnet site;
Whereas, notice inviting public comment was given in the
Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied (except with regard to the request to exempt Site 1 from sunset limits);
The application, as amended, to reorganize FTZ 229 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, and to an ASF sunset provision for magnet sites that would terminate authority for Site 1 if not activated within five years from the month of approval.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (the Department) determines to rescind this new shipper review (NSR) of the countervailing duty (CVD) order on passenger vehicle and light truck tires (passenger tires) from the People's Republic of China (the PRC). The period of review (POR) is December 1, 2014, through January 31, 2016. The NSR covers one exporter/producer of subject merchandise, Shandong Xinghongyuan Tire Co., Ltd. (SXT).
Effective June 26, 2017.
Kaitlin Wojnar, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3857.
On January 31, 2017, the Department published notice of its preliminary rescission of this NSR pertaining to SXT for the period December 1, 2014, through January 31, 2016.
The scope of this order covers passenger tires from the PRC. For a complete description of the scope, see “Scope of the Order” section of the Issues and Decision Memorandum.
The Department received case and rebuttal briefs following publication of the
In the
Because the Department is rescinding this NSR, we have not calculated a company-specific countervailing subsidy rate for SXT. SXT's entries during the POR will be assessed at the cash deposit rate required at the time of entry, which is the “all-others” rate (
Effective upon publication of this notice of the final rescission of this NSR, the Department will instruct U.S. Customs and Border Protection to require a cash deposit for entries of subject merchandise from SXT. The following cash deposit requirements will be effective upon publication of this rescission for all shipments of subject merchandise from SXT entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act): (1) For subject merchandise produced and exported by SXT, the cash deposit rate will continue to be the all-others rate (
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of countervailing duties occurred and the subsequent assessment of double countervailing duties.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This Department is issuing and publishing these results in accordance with sections 751(a)(2)(B) and 771(i)(1) of the Act and 19 CFR 351.214 and 19 CFR 351.221(b)(5).
International Trade Administration, U.S. Department of Commerce.
Notice of revised fee schedule with request for comments.
Consistent with the guidelines in OMB Circular A-25, federal agencies are responsible for conducting a biennial review of all programs to determine the types of activities subject to user fees and the basis upon which user fees are to be set. The U.S. Department of Commerce, International Trade Administration (ITA), National Travel and Tourism Office (NTTO) is raising the fees for 2017 data for the monthly, quarterly or annual data from the APIS/I-92 Program, the I-94 International Arrivals Program, and the annual custom reports, data tables or files from the Survey of International Air Travelers Program.
As part of the fee review process, the NTTO is providing industry with the opportunity to comment on the fee schedule and to provide any suggestions for reducing the costs of NTTO programs. NTTO may reassess the fees as appropriate.
Comments must be received by July 26, 2017.
You may submit comments by either of the following methods:
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•
Richard Champley at (202) 482-4753 or
In addition to OMB Circular A-25, the NTTO also follows OMB Circular A-130, which mandates federal agencies to develop and to maintain a comprehensive set of information management policies for use across the government, and to promote the application of information technology to improve the use and dissemination of information in the operation of Federal programs. The role of NTTO is to enhance the international competitiveness of the U.S. travel and tourism industry and to increase its exports, thereby creating U.S. employment and economic growth. The primary functions of the NTTO are: (1) Management of the travel and tourism statistical system for assessing the economic contribution of the industry and providing the sole source for characteristic statistics on international travel to and from the United States; (2) design and administration of export expansion activities; (3) development and management of tourism policy, strategy and advocacy; and (4) technical assistance for expanding this key export (international tourism) and assisting in domestic economic development.
The NTTO has provided this data for many years and has developed a subscriber base for each of these programs. The fees collected for these reports go to pay for ITA costs to develop the reports as well as to support research for the continuation and expansion of improvements to the data provided by NTTO. In 2016, the NTTO issued a request for proposal for the 2017-2019 SIAT and I-94 data. The contractor prices for the SIAT base program are six percent greater than the 2016 contract prices and 27 percent greater for the I-94 program. This increase is due in part to increased quality management checks associated with this program. Additionally, there is a nearly 30 percent increase in the cost for custom reports for both programs. This was due to the additional work required by the contractor due to the additional sample and additional time the contractor took to finalize report formats and then issue them. Thus, the Department must increase fees to fulfill its Congressional mandate to continue and expand its market research under the Travel Promotion Act of 2009 [P.L. 111-145].
Additionally, for 2017, to help ameliorate the increased costs while keeping the program fees as low as possible, the SIAT sample for 2017 will be cut from 96,000 surveys in 2016 to 77,000 surveys in 2017. It is anticipated that the 2018 sample level will be similar depending upon the FY2018 budget. The increased fees for 2017 are necessary to avoid additional cuts. However, the NTTO would also be interested in the industry's preference on a cut in sample as a method to keep the fee increases lower versus higher fees.
There are three main research programs in which the public may obtain additional data on international travelers to and from the United States in addition to the free information already posted to the NTTO Web site. The proposed 2017 fees are for the monthly, quarterly or annual data from the APIS/I-92 Program, the I-94 International Arrivals Program, and the annual custom reports, data tables or files from the Survey of International Air Travelers Program.
The APIS/I-92 program is a joint effort between the Department of Homeland Security Customs and Border Protection (CBP) and the NTTO to provide international air traffic statistics data to the government and the travel industry. The system is a source of data on all international flights to and from the United States, including flights with fewer than 10 passengers. It reports the total volume of air traffic and various subsets of traffic. A differentiating feature of the I-92, compared to the T-100 (international nonstop segment and on-flight market data), is that the I-92 reports the number of U.S. citizens vs. “all other citizens.”
The information collected from this program has been based upon the Advance Passenger Information System (APIS) since July 2010. All carriers serving the United States must transmit APIS data (from their automated flight manifests) to CBP for each flight coming to or departing from the United States, including Canada. The information collected provides non-stop point-to-point air traffic totals between the United States and all other countries and between U.S. and foreign airports. Subsets of this information regarding the number of passengers on U.S. flag or foreign flag carriers are also made available. In addition, there is a breakout of scheduled or charter flight passengers.
In the monthly, quarterly and annual I-92 reports, there are four sets of tables. The first three sets have an arrivals portion (Ia, IIa, and IIIa), as well as a departures section (Id, IId, and IIId). The fourth table is a summary of traffic by flag of carrier. To learn more about this program, go to:
The I-94 International Arrivals Program is a core part of the U.S. travel and tourism statistical system. This program provides the U.S. government and the public with the official U.S. monthly and annual overseas visitor arrivals to the United States along with select Mexican and Canadian visitor statistics. The NTTO manages the program in cooperation with the CBP. The program collects and reports overseas non-U.S. resident visitor arrivals to the United States. U.S. government data consists of the DHS I-94 data, which non-U.S. citizens from overseas and Mexico (Canada is excluded) must complete to enter the United States. All visitation data is processed by residency (world region and country), for total arrivals, type of visa, mode of transportation, age of traveler, address (state level only) while in the United States port of entry, and select percentage change comparisons year-over-year. The information is presented in a report entitled the
As stated above, each fee service will be provided at a 15 percent fee increase from 2016 to 2017.
The Survey of International Air Travelers Program is a primary research program which gathers statistical data about air passenger travelers in U.S.—overseas and Mexican air markets (Canada is excluded). The program also serves as the cornerstone for NTTO's efforts to assist U.S. businesses to improve their competitiveness and effectiveness in the international travel market.
The Survey is conducted on selected flights which have departed, or are about to depart, from the major U.S. international gateway airports. The Survey is administered either aboard flights or in the airport gate area, of the over 100 participating airlines (foreign and U.S.) departing 27 U.S. international gateways. The Survey data is “weighted” to census data. For example, non-resident inbound survey responses are weighted to the “100%” population of DHS I-94 arrival records to adjust for over and under sampling. Resident outbound data is weighted based on DHS I-92 U.S. departure data. Data are available on a quarterly and annual basis for either non-resident inbound or resident outbound. It can be delivered in a standard national report format or as a custom report, data table, or excel. Data files are also available. To learn more about this program, go to:
Fee Schedule increases for the APIS/I-92 program, the I-94 International Arrivals Program and the Survey of International Air Travelers (SIAT) Program are shown in the tables below. All fees shown are 15 percent greater in 2017 than in 2016, except for certain SIAT reports as explained above. For the I-94 program, the NTTO is eliminating the print files and will only provide a PDF and Excel file to save costs. The custom reports, data tables and files will also see a 15 percent fee increase in 2017.
Last year as part of a fee review in compliance with Office of Management and Budget Circular No. A-25, the International Trade Administration assessed the costs of its programs and the fees it collects. In 2016, NTTO increased fees by five percent, explaining the increased fees were necessary for NTTO to be in compliance with Circular A-25 (81 FR 39895, June 20, 2016). In 2016, and the NTTO sold a few more reports in 2016 than it did in previous years.
For each program, NTTO has a set of subscribers who have been using this data, some for decades. Since 2000, fees have increased by 10 percent or more six times. Most rely upon this data as the only federal source to define the international travel market to this country. Additionally, the power of the SIAT program is that it can provide estimates by world region and country
Fees are set considering the cost of providing this data. Most of the NTTO research is implemented from fixed price contacts. Within the contracts are built-in cost adjustments. The NTTO considers the current demand for each program by comparing changes from one year to the next before setting fees. We also consider if there have been decreases in timeliness or quality of service delivery or improvements made to the programs like new report formats, more travelers surveyed, or other enhancements to the research data provided. The NTTO staff considered the purchasing constraints experienced by current or potential subscribers (such as limits to purchase by credit card, or sole source/open bid requirements) and factored in the annual percentage change in the Consumer Price Index (used to determine rate of inflation).
In the analysis of these fees, it was determined that the services provided from this report offer special benefits to an identifiable recipient beyond those that accrue to the public.
ITA completed an analysis that calculated the actual cost of providing its data services to develop a basis for setting the fee. Full cost incorporates direct and indirect costs (including operations and maintenance), overhead, and charges for the use of capital facilities. ITA also considered additional factors when pricing goods and services, including adequacy of cost recovery, affordability, available efficiencies, inflation, pricing history, fee elasticity, and service delivery alternatives.
Finally, the NTTO staff members watch what is happening in the industry. If our clients' budgets are being cut or increased, this too is considered. We watch what is happening in terms of international travel to the country as well. If there are large increases in travel to the United States, there tends to be corresponding increases in the international market. In contrast, in years international travel slows or declines, we factor this in when determining fees. Based upon all this input, we develop several options for cost increases or decreases and determine fees.
Based on the information provided above, the NTTO believes its revised fees are consistent with the objective of OMB Circular A-25 to “promote efficient allocation of the nation's resources by establishing charges for special benefits provided to the recipient that are at least as great as the cost to the U.S. Government of providing the special benefits . . . ” OMB Circular A-25(5)(b). However, as stated above, we are providing the public with the opportunity to comment and will reassess the revised fees as appropriate.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (the Department) determines to rescind this new shipper review (NSR) of the antidumping duty (AD) order on passenger vehicle and light truck tires (passenger tires) from the People's Republic of China (the PRC). The period of review (POR) is August 1, 2015, through January 31, 2016. The NSR covers one exporter/producer of subject merchandise, Shandong Xinghongyuan Tire Co., Ltd. (SXT).
Effective June 26, 2017.
Kaitlin Wojnar, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3857.
On January 31, 2017, the Department published notice of its preliminary rescission of this NSR pertaining to SXT for the period August 1, 2015, through January 31, 2016.
The scope of this order covers passenger tires from the PRC. For a complete description of the scope, see the “Scope of the Order” section of the Issues and Decision Memorandum.
The Department received case and rebuttal briefs following publication of the
In the
Because the Department is rescinding this NSR, we have not calculated a company-specific dumping margin for SXT. SXT's entries during the POR will be assessed at the cash deposit rate required at the time of entry, which is the “PRC-wide” rate (
Effective upon publication of this notice of the final rescission of this NSR, the Department will instruct U.S. Customs and Border Protection to require a cash deposit for entries of subject merchandise from SXT. The following cash deposit requirements will be effective upon publication of this rescission for all shipments of subject merchandise from SXT entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act): (1) For subject merchandise produced and exported by SXT, the cash deposit rate will continue to be the all-others rate (
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This Department is issuing and publishing these results in accordance with sections 751(a)(2)(B) and 771(i)(1) of the Act and 19 CFR 351.214 and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) determines that dioctyl terephthalate (DOTP) from the Republic of Korea (Korea) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2015, through March 31, 2016. For information on the estimated weighted-average dumping margins of sales at LTFV,
Effective June 26, 2017.
Laurel LaCivita or Shanah Lee, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4243 or (202) 482-6386, respectively.
On February 3, 2017, the Department published the
The Issues and Decision Memorandum is a public document and is available electronically
The product covered by this investigation is DOTP from Korea. For a complete description of the scope of this investigation,
All issues raised in the case briefs and rebuttal briefs submitted by interested parties in this proceeding are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties and responded to by the Department in the Issues and Decision Memorandum is attached at Appendix II.
As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), the Department verified the sales and cost data reported by AKP and LG Chem for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by the respondents.
Based on our analysis of the comments received and our findings at verification, we made certain changes to the margin calculations for AKP and LG Chem since the
On November 15, 2016, the petitioner timely filed a critical circumstances allegation, pursuant to section 733(e)(1) of the Act and 19 CFR 351.206(c)(1), alleging that critical circumstances exist with respect to imports of DOTP from Korea.
In accordance with section 735(c)(1)(B)(i)(I) of the Act, the Department calculated a dumping margin for the individually investigated exporters/producers of the subject merchandise. Consistent with sections 735(c)(1)(B)(i)(II) and 735(c)(5) of the Act, the Department also calculated an estimated “all-others” rate for exporters and producers not individually investigated. Section 735(c)(5)(A) of the Act provides that the “all-others” rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for individually investigated exporters and producers, excluding any margins that are zero or
The Department determines that the weighted-average dumping margins to be:
In accordance with 19 CFR 351.224(b), we intend to disclose the calculations performed to parties in this proceeding within five days of any public announcement of this notice.
In accordance with section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (CBP) to continue the suspension of liquidation of all appropriate entries of DOTP from Korea, as described in Appendix I of this notice, which were entered, or withdrawn from warehouse, for consumption on or after February 3, 2017, the date of publication of the
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation of DOTP from Korea no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all cash deposits will be refunded. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as the only reminder to parties subject to an APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
This determination and this notice are issued and published pursuant to sections 735(d) and 777(i)(1) of the Act.
The merchandise covered by this investigation is dioctyl terephthalate (DOTP), regardless of form. DOTP that has been blended with other products is included within this scope when such blends include constituent parts that have not been chemically reacted with each other to produce a different product. For such blends, only the DOTP component of the mixture is covered by the scope of this investigation.
DOTP that is otherwise subject to this investigation is not excluded when commingled with DOTP from sources not subject to this investigation. Commingled refers to the mixing of subject and non-subject DOTP. Only the subject component of such commingled products is covered by the scope of the investigation.
DOTP has the general chemical formulation C
Subject merchandise is currently classified under subheading 2917.39.2000 of the Harmonized Tariff Schedule of the United States (HTSUS). Subject merchandise may also enter under subheadings 2917.39.7000 or 3812.20.1000 of the HTSUS. While the CAS registry number and HTSUS classification are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Notice of Issuance of an Amended Export Trade Certificate of Review to California Almond Export Association, LLC (CAEA), Application No. 99-11A05.
The Secretary of Commerce, through the Office of Trade and Economic Analysis (OTEA), issued an amended Export Trade Certificate of Review to CAEA on June 12, 2017. A previous amended Export Trade Certificate of Review was issued to CAEA on November 24, 2015, and a notice of its issuance was published in the
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) (the Act) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2015). OTEA is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Secretary of Commerce to publish a summary of the certification in the
The effective date of the amended certificate is March 13, 2017, the date on which CAEA's application to amend was deemed submitted.
National Institute of Standards and Technology, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before August 25, 2017.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Mary Clague, NIST SBIR Program Office, 100 Bureau Drive, MS 2200, Gaithersburg, MD 20899, 301-975-4188,
The SBIR program was originally established in 1982 by the Small Business Innovation Development Act (Pub. L. 97-219), codified at 15 U.S.C. 638. It was then expanded and extended by the Small Business Research and Development (R&D) Enhancement Act of 1992 (Pub. L. 102-564), and received subsequent reauthorization and extensions that include Public Law 112-81, extending SBIR through September 30, 2022. The US Small Business Administration (SBA) serves as the coordinating agency for the SBIR program. It directs the agency implementation of SBIR, reviews progress, and reports annually to Congress on its operation.
The NIST SBIR Cover Sheet is the first page of each application that responds to the annual NIST SBIR Federal Funding Opportunity (FFO). The information collected in the Cover Sheet provides identifying information and demographic data for use in NIST's annual report to the SBA on the program.
The information will be collected as part of the application process and will be submitted either through
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA).
Notice; request for public comments.
Pursuant to Executive Order 13795—Implementing an America-First Offshore Energy Strategy, signed on April 28, 2017, the Department of Commerce is conducting a review of all designations and expansions of National Marine Sanctuaries and Marine National Monuments since April 28, 2007. The Secretary of Commerce will use the review to inform the preparation of a report under Executive Order 13795, Sec. 4(b)(ii). This Notice identifies 11 National Marine Sanctuaries and Marine National Monuments subject to the review and invites comments to inform the review.
Written comments must be submitted no later than July 26, 2017.
You may submit comments, identified by docket ID NOAA-NOS-2017-0066 by one of the following methods:
•
•
William Douros, 831-647-1920, National Oceanic and Atmospheric Administration, Silver Spring Metro Campus Building 4 (SSMC4), Eleventh Floor, 1305 East-West Highway, Silver Spring, MD 20910.
Executive Order 13795 of April 28, 2017 directs the Secretary of Commerce to review National Marine Sanctuaries and Marine National Monuments designated or expanded since April 28, 2007. Specifically, section 4(b)(i) of Executive Order 13795 directs the Secretary to conduct, in consultation with the Secretary of Defense, Secretary of the Interior, and Secretary of Homeland Security, a review to include:
(A) An analysis of the acreage affected and an analysis of the budgetary impacts of the costs of managing each National Marine Sanctuary or Marine National Monument designation or expansion;
(B) An analysis of the adequacy of any required Federal, State and tribal consultations conducted before the designations or expansions; and
(C) The opportunity costs associated with potential energy and mineral exploration and production from the Outer Continental Shelf, in addition to any impacts on production in the adjacent region.
The Secretary shall complete this review and, in consultation with the Secretary of Defense and the Secretary of the Interior, prepare and submit a report on the results of the review to the Director of the Office of Management and Budget, the Chairman of the Council on Environmental Quality and the Assistant to the President for Economic Policy within 180 days (by October 25, 2017).
Pursuant to Executive Order 13795, Sec. 4(b), the Department of Commerce's review of National Marine Sanctuary and Marine National Monument designations and expansions is limited to those designations or expansions listed in the table below.
The area of the original designations for the five listed National Marine Sanctuaries
The Department of Commerce seeks public comments related to the application of factors in Sec. 4(b)(i)(A), (B) and (C), as stated in Executive Order 13795, to the National Marine Sanctuary expansions and designation and expansions of the Marine National Monuments indicated above.
Under Executive Order 13792—Review of Designations Under the Antiquities Act (signed April 26, 2017), the Department of the Interior is conducting a review of National Monuments pursuant to a separate set of factors (See the Department of the Interior's
Accordingly, identical or substantively similar comments submitted as a part of the Department of the Interior's public comment period should not be re-submitted to the Department of Commerce in response to this
Executive Order 13795.
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995, the Consumer Product Safety Commission (CPSC or Commission) requests comments on a proposed extension of approval of a generic collection of information for CPSC-sponsored contests, challenges, and awards approved previously under OMB Control No. 3041-0151. The Commission will consider all comments received in response to this notice before requesting an extension of this collection of information from the Office of Management and Budget (OMB).
Submit written or electronic comments on the collection of information by August 25, 2017.
You may submit comments, identified by Docket No. CPSC-2010-0112, by any of the following methods:
Charu Krishnan, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; (301) 504-7221, or by email to:
CPSC seeks to renew the following currently approved generic collection of information:
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
• Whether the collection of information described above is necessary for the proper performance of the Commission's functions, including whether the information would have practical utility;
• Whether the estimated burden of the proposed collection of information is accurate;
• Whether the quality, utility, and clarity of the information to be collected could be enhanced; and
• Whether the burden imposed by the collection of information could be minimized by use of automated, electronic or other technological collection techniques, or other forms of information technology.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance 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 requirement on respondents can be properly assessed.
Currently, CNCS is soliciting comments concerning its proposed renewal of the Award Transfer forms: Request to Transfer a Segal Education Award Amount, Accept/Decline Award Transfer Form, Request to Revoke Transfer of Education Award Form, and Rescind Acceptance of Award Transfer Form. These forms enable AmeriCorps members and recipients to meet the legal requirements of the award transfer process.
Copies of the information collection request can be obtained by contacting
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) By mail sent to: Corporation for National and Community Service, National Service Trust, Attention: Nahid Jarrett, 250 E St. SW., Washington, DC 20525.
(2) By hand delivery or by courier to the CNCS mailroom at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except Federal holidays.
(3) Electronically through
Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.
Nahid Jarrett, 202-606-6753, or by email at
CNCS is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• 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 expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
AmeriCorps members may offer to transfer all or part of their qualified education awards to certain family members. Provision is made to accept the transfer or not, to rescind acceptance or revoke the transfer. These processes are implemented electronically where possible but paper forms are available if necessary.
CNCS seeks to renew the current information. Except to add the categories of stepchild and step grandchild to the list of qualified recipients of the award transfer, only slight formatting and editing changes have been made.
The information collection will otherwise be used in the same manner as the existing application. CNCS also seeks to continue using the current application until the revised application is approved by OMB. The current application is due to expire on September 30, 2017.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance 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 requirement on respondents can be properly assessed.
Currently, CNCS is soliciting comments concerning its proposed renewal of the following proposed Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” for approval under the Paperwork Reduction Act (PRA). This collection was developed as part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery. This notice announces our intent to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection.
Copies of the information collection request can be obtained by contacting the office listed in the Addresses section of this Notice or on
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1)
(2) By hand delivery or by courier to the CNCS mailroom at the address above between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except federal holidays.
(3) Electronically through
Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.
Comments submitted in response to this Notice may be made available to the public through
Amy Borgstrom, 202-606-6930, or by email at
CNCS is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• 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 expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
CNCS seeks to continue to use this information collection to seek feedback on the agency's service delivery from grantees and other stakeholders.
The proposed information collection activity provides a means to elicit qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable.
CNCS will only submit a collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are non-controversial and do not raise issues of concern to other Federal agencies;
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary and is not retained;
• Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
The information collection will be used in the same manner as the current information collection.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of filing.
On April 24, 2017, PSEG Fossil, LLC, as owner and operator of a new baseload electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE) pursuant to § 201(d) of the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations. The FUA and regulations thereunder require DOE to publish a notice of filing of self-certification in the
Copies of coal capability self-certification filings are available for public inspection, upon request, in the Office of Electricity Delivery and Energy Reliability, Mail Code OE-20, Room 8G-024, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585.
Christopher Lawrence at (202) 586-5260.
On April 24, 2017, PSEG Fossil, LLC, as owner and operator of a new baseload electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE) pursuant to § 201(d) of the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations in 10 CFR 501.60, 61. The FUA and regulations thereunder require DOE to publish a notice of filing of self-certification in the
The following owner of a proposed new baseload electric generating powerplant has filed a self-certification of coal-capability with DOE pursuant to FUA section 201(d) and in accordance with DOE regulations in 10 CFR 501.60, 61:
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of filing.
On May 5, 2017, St. Joseph Energy Center, LLC, as owner and operator of a new baseload electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE) pursuant to the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations. The FUA and regulations thereunder require DOE to publish a notice of filing of self-certification in the
Copies of coal capability self-certification filings are available for public inspection, upon request, in the Office of Electricity Delivery and Energy Reliability, Mail Code OE-20, Room 8G-024, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585.
Christopher Lawrence at (202) 586-5260.
On May 5, 2017, St. Joseph Energy Center, LLC, as owner and operator of a new baseload electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE) pursuant to § 201(d) of the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations in 10 CFR 501.60, 61. The FUA and regulations thereunder require DOE to publish a notice of filing of self-certification in the
The following owner of a proposed new baseload electric generating powerplant has filed a self-certification of coal-capability with DOE pursuant to FUA section 201(d) and in accordance with DOE regulations in 10 CFR 501.60, 61:
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
MAG Energy Solutions, Inc. (Applicant or MAG) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before July 26, 2017.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On April 25, 2017, DOE received an application from MAG for authority to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities.
In its application, MAG states that it does not own or control any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that MAG proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning MAG's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-436. An additional copy is to be provided to both Ruta Kalvaitis Skučas, Pierce Atwood LLC, 1875 K St., Suite 700, Washington, DC 20006 and Simon Pelletier, CEO, MAG Energy Solutions Inc., 999 de Maisonneuve Boulevard West, Suite 875, Montreal, Quebec H3A 3L4.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Talen Energy Marketing, LLC (Applicant or Talen Energy) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before July 26, 2017.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On August 18, 2012, DOE issued Order No. EA-210-C to PPL Energy Plus, LLC, which authorized the Applicant to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. On October 16, 2015, PPL Energy Plus, LLC changed its name to Talen Energy Marketing, LLC in Order No. EA-210-D. That authority expires on August 18, 2017. On May 5, 2017, Talen Energy filed an application with DOE for renewal of the export authority contained in Order No. EA-210 for an additional five-year term.
In its application, Talen Energy states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that Talen Energy proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by Talen Energy have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning Talen Energy's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-210-E. An additional copy is to be provided directly to both Sandra Rizzo, Arnold & Porter Kaye Scholer LLP, 601 Massachusetts Ave. NW., Washington, DC 20001 and Debra L. Raggio, Talen Energy Corporation, 117 Oronoco Street, Alexandria, VA 22302.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Rainbow Energy Marketing Corporation (Applicant or Rainbow) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before July 26, 2017.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On September 20, 2012, DOE issued Order No. EA-296-B to Rainbow, which authorized the Applicant to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. That authority expires on September 18, 2017. On May 25, 2017, Rainbow filed an application with DOE for renewal of the export authority contained in Order No. EA-296 for an additional five-year term.
In its application, Rainbow states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that Rainbow proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by Rainbow have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning Rainbow's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-296-C. An additional copy is to be provided directly to Joseph A. Wolfe, Rainbow Energy Marketing Corporation, Kirkwood Office Tower, 919 South 7th Street, Suite 405, Bismarck, ND 58504.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Fossil Energy, Department of Energy.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during April 2017, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), and vacating authority. These orders are summarized in the attached appendix and may be found on the FE Web site at
They are also available for inspection and copying in the U.S. Department of Energy (FE-34), Division of Natural Gas Regulation, Office of Regulation and International Engagement, Office of Fossil Energy, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
This is a supplemental notice in the above-referenced proceeding of HD Project One LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 10, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will discuss the impacts of the planned Jordan Cove LNG Terminal and Pacific Connector Pipeline Projects (collectively referred to as the Project). The FERC is the lead federal agency for the preparation of the EIS. The U.S. Army Corps of Engineers (USACE), U.S. Department of Energy (DOE), Bureau of Land Management (BLM), Bureau of Reclamation (Reclamation), U.S. Forest Service (Forest Service), and the Bonneville Power Administration (BPA) are Cooperating Agencies and can adopt the EIS for their respective purposes and permitting actions.
Jordan Cove Energy Project, L.P. (JCEP) plans to construct and operate a liquefied natural gas (LNG) production, storage, and export facility in Coos County, Oregon. Pacific Connector Gas Pipeline, L.P. (PCGP) plans to construct and operate an interstate natural gas transmission pipeline and associated facilities in Coos, Douglas, Jackson, and Klamath Counties, Oregon. The Commission will use this EIS in its decision-making process to determine whether the Jordan Cove LNG Terminal is in the public interest and the Pacific Connector Pipeline is in the public convenience and necessity. Other federal agencies may adopt the EIS when making their respective determinations or decisions.
This notice announces the opening of the public comment period, commonly referred to as scoping. You can make a difference by providing your comments. Your comments should focus on potential environmental impacts, reasonable alternatives, and measures to avoid or lessen environmental impacts. This scoping opportunity is for the entire Project, including actions and proposed plan amendments of the Cooperating Agencies listed above. The Forest Service also seeks comments specific to the 2012 planning rule requirements at §§ 219.8 through 219.11 that are likely to be directly related to the proposed amendments. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before July 10, 2017.
If you submitted comments on this project before February 10, 2017, you will need to refile those comments in FERC Docket No. PF17-4-000 to ensure they are considered as part of this proceeding. If you sent comments on a previous iteration of this project, you will also need to refile those comments in FERC Docket No. PF17-4-000.
This notice is being sent to the Commission's current environmental mailing list for the Project. State and local government representatives should notify their constituents of this project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a PCGP company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned pipeline. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled An Interstate Natural Gas Facility On My Land? What Do I Need To Know? is available for viewing on the FERC Web site (
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you by phone at (202) 502-8258 or via email at
You can file your comments electronically using the
You can file your comments electronically by using the
You can file a paper copy of your comments by mailing them to the following address. Be sure to include docket number PF17-4-000 with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
In lieu of sending written or electronic comments, the Commission invites you to attend one the public scoping sessions its staff will conduct in the project area, scheduled as follows:
The primary goal of these scoping sessions is to have you identify the specific environmental issues and concerns that should be considered in the EIS to be prepared for this project. Individual verbal comments will be taken on a one-on-one basis with a court reporter. This format is designed to receive the maximum amount of verbal comments in a convenient way during the timeframe allotted.
Each scoping session is scheduled from 4:00 p.m. to 7:00 p.m. Pacific Daylight Time. There will be no formal presentation by Commission staff when the session opens. If you wish to provide comments, the Commission staff will issue numbers in the order of your arrival. Please see Appendix 2
Your comments will be recorded by the court reporter (with FERC staff or representative present) and become part of the public record for this proceeding. Transcripts will be publicly available through the FERC's eLibrary system (see below for instructions on using eLibrary). If a significant number of people are interested in providing verbal comments, a time limit of 5 minutes may be implemented for each commenter.
Verbal comments hold the same weight as written or electronically submitted comments. Although there will not be a formal presentation, Commission staff will be available throughout the comment session to answer your questions about the environmental review process.
The submission of timely and specific comments, whether submitted in writing or orally at a scoping session, can affect a reviewer's ability to participate in a subsequent administrative or judicial review of BLM and/or Forest Service decisions. Comments concerning BLM and Forest Service actions submitted anonymously will be accepted and considered; however such anonymous submittals would not provide the commenters with standing to participate in administrative or judicial review of BLM and Forest Service decisions.
JCEP plans to construct and operate an LNG export terminal on the North Spit of Coos Bay in Coos County, Oregon. The terminal would include gas inlet facilities, a metering station, a gas conditioning plant, five liquefaction trains and associated equipment, two full-containment LNG storage tanks, an LNG transfer line, LNG ship loading facilities, a marine slip, a marine offloading facility, a new access channel between the Coos Bay Navigation Channel and the new marine slip, and enhancements to the existing Coos Bay Navigation Channel at four turns. In addition, the terminal would include emergency and hazard, electrical, security, control, and support systems, administrative buildings, and a temporary workforce housing facility. The LNG terminal would be designed to liquefy about 1.04 billion cubic feet per day of LNG for export to markets across the Pacific Rim.
PCGP plans to construct and operate an approximately 235-mile-long, 36-inch-diameter interstate natural gas transmission pipeline and associated aboveground facilities. The pipeline would originate near Malin in Klamath County, Oregon, traverse Douglas and Jackson Counties, and terminate (at the LNG Terminal) in Coos County, Oregon. The pipeline would be capable of transporting about 1.2 billion cubic feet per day of natural gas. The associated aboveground facilities would include the new Klamath Compressor Station (61,500 horsepower) near Malin, Oregon; 3 new meter stations; 5 new pig launchers and receivers; 17 mainline block valves; and a gas control communication system.
The general locations of the Project facilities are shown on maps included in Appendix 1. In addition, PCGP provides detailed mapping of its pipeline route on its Web page at
About 530 acres of land would be disturbed by construction of the LNG Terminal. JCEP owns about 300 acres of this land, and the remaining 230 acres would be leased from private landowners. Following construction, about 170 acres would be retained for operation of the LNG terminal facilities.
About 5,060 acres of land would be disturbed by construction of the Pacific Connector Pipeline Project. Following construction, a 50-foot-wide easement, totaling about 1,415 acres, would be permanently maintained for operation of the pipeline. The majority of the remaining 3,620 acres disturbed by pipeline construction would be restored and returned to previous use, while about 25 acres would be maintained for a new compressor station and other new aboveground facilities. Land ownership of the approximately 235 miles of permanent pipeline operational easement is approximately 162 miles private land, 40 miles BLM, 31 miles Forest Service, and 2 miles Reclamation.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the authorization of LNG facilities under Section 3 of the Natural Gas Act and pipeline facilities under Section 7 of the Natural Gas Act. NEPA also requires the Commission to discover and address concerns the public may have about proposals. This process is commonly referred to as scoping. The main goal of the scoping process is to identify the important environmental issues the Commission's staff should focus on in the EIS. By this notice, the Commission requests public comments on the scope of issues to be addressed in the EIS. The FERC and the Cooperating Agencies will consider all filed comments during the preparation of the EIS.
The EIS will discuss the impacts that could occur as a result of the construction and operation of the planned Project under these general headings:
• Geology and soils;
• water resources and wetlands;
• vegetation, fisheries, and wildlife;
• protected species;
• land use;
• socioeconomics;
• cultural resources;
• air quality and noise;
• public safety and reliability; and
• cumulative impacts.
The FERC and the Cooperating Agencies will also evaluate reasonable alternatives to the planned project or portions thereof; and make recommendations on how to avoid or minimize impacts on the various resource areas.
Although no formal application has been filed with FERC, FERC has already initiated a review of the project under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of its pre-filing review, FERC has begun to contact interested federal and state agencies to discuss their involvement in the scoping process and the preparation of the EIS.
As stated previously, the FERC will be the lead federal agency for the
The EIS will present the FERC's and the Cooperating Agencies' independent analysis of the issues. The FERC will publish and distribute the draft EIS for public comment. After the comment period, the FERC and the Cooperating Agencies will consider all timely comments and revise the document, as necessary, before issuing a final EIS. To ensure the FERC and the Cooperating Agencies have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section.
With this notice, the FERC is asking agencies with jurisdiction by law and/or special expertise with respect to environmental issues related to this project to formally cooperate with us in the preparation of the EIS.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, this notice initiates consultation with Oregon's State Historic Preservation Office (SHPO), and solicits its views and those of other government agencies, interested Indian tribes, and the public on the Project's potential effects on historic properties.
The Commission's environmental staff has already identified several issues that merit attention based on a preliminary review of the planned facilities, the environmental information provided by the applicants, analysis conducted previously, and early comments filed with FERC. This preliminary list of issues may change based on your comments and further analysis. Preliminary issues include:
Reliability and safety of LNG carrier traffic in Coos Bay, the LNG terminal, and natural gas pipeline;
impacts on aquatic resources from dredging the LNG terminal access channel and slip, and from multiple pipeline crossings of surface waters;
potential impacts on the LNG Terminal resulting from an earthquake or tsunami;
impacts of pipeline construction on federally listed threatened and endangered species, including salmon, marbled murrelet, and northern spotted owl; and
impacts of pipeline construction on private landowners, including use of eminent domain to obtain right-of-way.
The BLM Preliminary Planning Criteria for its proposed land management plan amendments include:
Impacts to stand function for listed species, specifically northern spotted owl and marbled murrelet in BLM-managed Late Successional Reserves (LSR); and
consent by the Federal surface managing agencies, Forest Service and Reclamation.
The Forest Service has identified preliminary issues for its proposed land and resource management plan (LRMP) amendments. The issues include:
Effects of proposed amendments on Survey and Manage species and their habitat;
effects of the proposed amendments on LSRs; and
effects of the proposed amendments on Riparian Reserves, detrimental soil conditions, and Visual Quality Objectives.
The Forest Service seeks public input on issues and planning rule requirements on proposed amendments of their Forest land management plans related to the Pacific Connector Pipeline Project. Additional information regarding the proposed amendments is included at the end of this NOI.
The purpose of and need for the proposed action by the BLM is to respond to a right-of-way grant application originally submitted by Pacific Connector L.P. to construct, operate, maintain, and eventually decommission a natural gas pipeline that crosses lands and facilities administered by the BLM, Reclamation, and Forest Service. In addition, there is a need for the BLM to consider amending affected District land management plans to make provision for the Pacific Connector right-of-way. Additional detail on proposed actions by the BLM is provided at the end of this NOI.
The purpose of and need for the proposed action by the Forest Service is to consider amending affected National Forest land management plans to make provision for the Pacific Connector right-of-way. The Responsible Official for amendment of Forest Service LRMPs is the Forest Supervisor of the Umpqua National Forest. If the Forest Service adopts the FERC EIS for the Pacific Connector Pipeline Project (in FERC Docket No. PF17-4-000), the Forest Supervisor of the Umpqua National Forest will make the following decisions and determinations:
Decide whether to amend the LRMPs of the Umpqua, Rogue River, and Winema National Forests as proposed or as described in an alternative.
Additional detail on proposed actions by the Forest Service is provided at the end of this NOI.
The environmental mailing list includes Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries
Copies of the draft EIS will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of a compact disc or would like to remove your name from the mailing list, please return the attached Information Request (Appendix 2).
Once JCEP and PCGP file applications with the Commission, you may want to become an “intervenor,” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Motions to intervene are more fully described at
Under the provisions of 43 CFR 1610.5-2, proposed decision(s) of the BLM to amend land management plans are subject to protest with the Director of the BLM following publication of the Final EIS. In accordance with 43 CFR, part 4, the BLM's decision on the application for a right-of-way grant will be subject to appeal to the Interior Board of Land Appeals.
The proposed Forest Service plan amendments are being developed in accordance with the planning regulations at 36 CFR 219 (2012). Decisions by the Forest Service to approve “plan level” amendments to Land Management Plans (proposed amendments UNF-4 and RRNF-7 in this Notice) are subject to the Pre-Decisional Administrative Review Process Regulations at 36 CFR 219 subpart B. The term “plan level” refers to plan amendments that would apply to future management actions.
Decisions by the Forest Service to approve “project-specific” plan amendments (proposed amendments UNF-1 thru 3, RRNF-2 thru 6, and WNF-1 thru 5 in this Notice) are subject to the Administrative Review Process of 36 CFR 218 Subpart A and B, in accordance with 36 CFR 219.59 (b). The term “project specific” refers to amendments that would only apply to the proposed project and would not apply to any future management actions.
The Forest Service concurrence to BLM to issue a right-of-way grant would not be a decision subject to the NEPA and, therefore, would not be subject to the Forest Service administrative review procedures.
Additional information about the Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The Forest Service seeks public input on issues and planning rule requirements on proposed amendments of their Forest land management plans related to the Pacific Connector Pipeline Project. On December 15, 2016 the Department of Agriculture Under Secretary for Natural Resources and Environment issued a final rule that amended the 36 CFR 219 regulations pertaining to National Forest System Land Management Planning (the planning rule) (81 FR 90723, 90737). The amendment to the 219 planning rule clarified the Department's direction for amending LRMPs. The Department also added a requirement for amending a plan for the responsible official to provide in the initial notice “which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment” (36 CFR 219.13(b)(2), 81 FR at 90738). Whether a rule provision is directly related to an amendment is determined by any one of the following: The purpose for the amendment, a beneficial effect of the amendment, a substantial adverse effect of the amendment, or a lessening of plan protections by the amendment. The proposed Forest Service plan amendments described below (under Amendments of Forest Service Land Management Plans), include a description of the “substantive requirements of §§ 219.8 through 219.11” that are likely to be directly related to each amendment.
The purpose of and need for the proposed action by the BLM is to respond to a right-of-way grant application originally submitted by Pacific Connector L.P. to construct, operate, maintain, and eventually decommission a natural gas pipeline that crosses lands and facilities administered by the BLM, Reclamation, and Forest Service. In addition, there is a need for the BLM to consider amending affected District land management plans to make provision for the Pacific Connector right-of-way.
The proposed action of the BLM has two components. First, the BLM would amend the Northwestern and Coastal Oregon ROD/RMP and the Southwestern Oregon ROD/RMP. The
Make changes to land use allocations along the Pacific Connector Gas Pipeline route;
Make changes to the management direction for Late Successional Reserves (LSR) specifically where the Pacific Connector Gas Pipeline route crosses LSR, for this project only;
Consider designating a utility corridor coinciding with the Pacific Connector Gas Pipeline route;
Make changes to the right-of-way Avoidance Areas specifically where the Pacific Connector Gas Pipeline route would cross these areas.
Second, in accordance with 43 CFR 2882.3(i), the BLM would consider a right-of-way grant in response to Pacific Connector's application for the project to occupy federal lands, with the written concurrence of the Forest Service and Reclamation. Each agency may submit specific stipulations, including mitigation measures, for inclusion in the right-of-way grant related to lands, facilities, and easements within their respective jurisdictions.
The Secretary of the Interior has delegated to the BLM the authority, under the Mineral Leasing Act of 1920, to grant a right-of-way in response to Pacific Connector's application for a natural gas transmission pipeline across federal lands, with consent of affected surface managing agencies. The Responsible Official for amendments of BLM RMPs and issuance of the right-of-way grant, should one be issued, is the BLM Oregon/Washington State Director. Reclamation's Responsible Official for concurrence of the right-of-way grant, if issued by BLM, is the Area Manager of the Mid-Pacific Region's Klamath Basin Area Office.
If the BLM adopts the FERC EIS for the Pacific Connector Pipeline Project (in FERC Docket No. PF17-4-000), the Oregon/Washington State Director of the BLM would use this EIS in the decision-making process to:
Grant, grant with conditions, or deny the right-of-way application, and;
Consider associated amendments to the Northwestern and Coastal Oregon ROD/RMP and the Southwestern Oregon ROD/RMP where the Project does not conform to these plans.
The purpose of and need for the proposed action by the Forest Service is to consider amending affected National Forest land management plans to make provision for the Pacific Connector right-of-way. The Responsible Official for amendment of Forest Service LRMPs is the Forest Supervisor of the Umpqua National Forest. If the Forest Service adopts the FERC EIS for the Pacific Connector Pipeline Project (in FERC Docket No. PF17-4-000), the Forest Supervisor of the Umpqua National Forest will make the following decisions and determinations:
Decide whether to amend the LRMPs of the Umpqua, Rogue River, and Winema National Forests as proposed or as described in an alternative.
Applicable National Forest LRMPs would be amended to exempt certain known sites within the area of the proposed Pacific Connector right-of-way grant from the Management Recommendations required by the 2001 “Record of Decision and Standards and Guidelines for Amendments to the Survey and Manage, Protection Buffer, and other Mitigation Measures Standards and Guidelines. For known sites within the proposed right-of-way that cannot be avoided, the 2001 Management Recommendations for protection of known sites of Survey and Manage species would not apply. For known sites located outside the proposed right-of-way but with an overlapping protection buffer only that portion of the buffer within the right-of-way would be exempt from the protection requirements of the Management Recommendations. Those Management Recommendations would remain in effect for that portion of the protection buffer that is outside of the right of way. The proposed amendment would not exempt the Forest Service from the requirements of the 2001 Survey and Manage Record of Decision, as modified, to maintain species persistence for affected Survey and Manage species within the range of the northern spotted owl. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project. The amendment would provide an exception from these standards for the Pacific Connector Project and include specific mitigation measures and project design requirements for the project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.9(a)(2)(ii)—[the plan must include plan components to maintain or restore] “Rare aquatic and terrestrial plant and animal communities.”
§ 219.9(b)(1)—The responsible official shall determine whether or not the plan components required by paragraph (a) provide ecological conditions necessary to: . . . maintain viable populations of each species of conservation concern within the plan area.
If this proposed amendment is determined to be directly related to the substantive rule requirements, the Responsible Official must apply those requirements within the scope and scale of the amendment and, if necessary, make adjustments to the amendment to meet these rule requirements (36 CFR 219.13 (b)(5) and (6)).
The Umpqua National Forest LRMP would be amended to exempt the Standards and Guidelines for Fisheries (Umpqua National Forest LRMP, page IV-33, Forest-Wide) to allow the removal of effective shading vegetation where perennial streams are crossed by the Pacific Connector right-of-way. This change would potentially affect an estimated total of three acres of effective shading vegetation at approximately five perennial stream crossings in the East Fork of Cow Creek subwatershed from pipeline mileposts (MP) 109 to 110 in Sections 16 and 21, T.32S., R.2W., W.M., OR. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include: § 219.8(a)(3)(i)—The plan must include plan components “to maintain or restore the ecological integrity of riparian areas in the plan area, including plan components to maintain or restore structure, function, composition, and connectivity.”
The Umpqua National Forest LRMP would be amended to change prescriptions C2-II (LRMP IV-173) and C2-IV (LRMP IV-177) to allow the Pacific Connector pipeline route to run parallel to the East Fork of Cow Creek for approximately 0.1 mile between about pipeline MPs 109.5 and 109.6 in Section 21, T.32S., R.2W., W.M., OR. This change would potentially affect approximately one acre of riparian vegetation along the East Fork of Cow Creek. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include: § 219.8(a)(3)(i)—The plan must include plan components to ``maintain or restore the ecological integrity of riparian areas in the plan area, including plan components to maintain or restore structure, function, composition, and connectivity.''
The Umpqua National Forest LRMP would be amended to exempt limitations on the area affected by detrimental soil conditions from displacement and compaction within the Pacific Connector right-of-way. Standards and Guidelines for Soils (LRMP page IV-67) requires that not more than 20 percent of the project area have detrimental compaction, displacement, or puddling after completion of a project. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include: § 219.8(a)(2)(ii)—[The plan must include plan components to maintain or restore] soils and soil productivity, including guidance to reduce soil erosion and sedimentation.
The Umpqua National Forest LRMP would be amended to change the designation of approximately 588 acres from Matrix land allocations to the LSR land allocation in Sections 7, 18, and 19, T.32S., R.2W.; and Sections 13 and 24, T.32S., R.3W., W.M., OR. This change in land allocation is proposed to partially mitigate the potential adverse impact of the Pacific Connector Pipeline Project on LSR 223 on the Umpqua National Forest. This is a plan level amendment that would change future management direction for the lands reallocated from Matrix to LSR.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.8(a)(1)(i)—[the plan must include plan components to maintain or restore] Interdependence of terrestrial and aquatic ecosystems in the plan area.
§ 219.8(b)(1)—[the plan must include plan components to guide the plan area's contribution to social and economic sustainability] social, cultural and economic conditions relevant to the area influenced by the plan.
§ 219.9(b)(1) “The responsible official shall determine whether or not the plan components required by paragraph (a) of this section provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of conservation concern within the plan area,” and
§ 219.9(a)(2)(ii)—[the plan must include plan components to maintain or restore] “Rare aquatic and terrestrial plant and animal communities.”
If any of the proposed amendments to the Umpqua NF LRMP described above are determined to be “directly related” to a substantive rule requirement, the Responsible Official must apply that requirement within the scope and scale of the proposed amendment and, if necessary, make adjustments to the proposed amendment to meet the rule requirement (36 CFR 219.13 (b)(5) and (6)).
The Rogue River National Forest LRMP would be amended to change the VQO where the Pacific Connector pipeline route crosses the Big Elk Road at about pipeline MP 161.4 in Section 16, T.37S., R.4E., W.M., OR, from Foreground Retention (Management Strategy 6, LRMP page 4-72) to Foreground Partial Retention (Management Strategy 7, LRMP page 4-86) and allow 10-15 years for amended VQO to be attained. The existing Standards and Guidelines for VQO in Foreground Retention where the Pacific Connector pipeline route crosses the Big Elk Road require that VQOs be met within one year of completion of the project and that management activities not be visually evident. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment that would apply only to the Pacific Connector Pipeline Project in the vicinity of Big Elk Road and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.10(a)(1)—[. . .the responsible official shall consider: . . .] (1) Aesthetic values,. . . scenery,. . . viewsheds. . . .
§ 219.10(b)(i)—[the responsible official shall consider] Sustainable recreation; including recreation settings, opportunities, . . . and scenic character. . . .
The Rogue River National Forest LRMP would be amended to change the VQO where the Pacific Connector pipeline route crosses the Pacific Crest Trail at about pipeline MP 168 in Section 32, T.37S., R.5E., W.M., OR, from Foreground Partial Retention (Management Strategy 7, LRMP page 4-86) to Modification (USDA Forest Service Agricultural Handbook 478) and to allow 15-20 years for amended VQOs to be attained. The existing Standards and Guidelines for VQOs in Foreground Partial Retention in the area where the Pacific Connector pipeline route crosses the Pacific Crest Trail require that visual
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.10(a)(1)—[. . .the responsible official shall consider: . . .] (1) Aesthetic values,. . . scenery,. . . viewsheds. . . .
§ 219.10(b)(i)—[the responsible official shall consider] Sustainable recreation; including recreation settings, opportunities, . . . and scenic character. . . .
The Rogue River National Forest LRMP would be amended to allow 10-15 years to meet the VQO of Middleground Partial Retention between Pacific Connector pipeline MPs 156.3 to 156.8 and 157.2 to 157.5 in Sections 11 and 12, T.37S., R.3E., W.M., OR. Standards and Guidelines for Middleground Partial Retention (Management Strategy 9, LRMP Page 4-112) require that VQOs for a given location be achieved within three years of completion of the project. Approximately 0.8 miles or 9 acres of the Pacific Connector right-of-way in the Middleground Partial Retention VQO visible at distances of 0.75 to 5 miles from State Highway 140 would be affected by this amendment. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment that would apply only to the Pacific Connector Pipeline Project in Sections 11 and 12, T.37S., R.3E., W.M., OR, and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.10(a)(1)—[. . .the responsible official shall consider: . . .] (1) Aesthetic values,. . . scenery,. . . viewsheds. . . .
§ 219.10(b)(i)—[the responsible official shall consider] Sustainable recreation; including recreation settings, opportunities, . . . and scenic character. . . .
The Rogue River National Forest LRMP would be amended to allow the Pacific Connector right-of-way to cross the Restricted Riparian land allocation. This would potentially affect approximately 2.5 acres of the Restricted Riparian Management Strategy at one perennial stream crossing on the South Fork of Little Butte Creek at about pipeline MP 162.45 in Section 15, T.37S., R.4E., W.M., OR. Standards and Guidelines for the Restricted Riparian land allocation prescribe locating transmission corridors outside of this land allocation (Management Strategy 26, LRMP page 4-308,). The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a site-specific amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.8(a)(3)(i)—The plan must include plan components to maintain or restore the ecological integrity of riparian areas in the plan area, including plan components to maintain or restore structure, function, composition, and connectivity
The Rogue River National Forest LRMP would be amended to exempt limitations on areas affected by detrimental soil conditions from displacement and compaction within the Pacific Connector right-of-way in all affected Management Strategies. Standards and Guidelines for detrimental soil impacts in affected Management Strategies require that no more than 10 percent of an activity area should be compacted, puddled or displaced upon completion of project (not including permanent roads or landings). No more than 20 percent of the area should be displaced or compacted under circumstances resulting from previous management practices including roads and landings. Permanent recreation facilities or other permanent facilities are exempt (RRNF LRMP 4-41, 4-83, 4-97, 4-123, 4-177, 4-307). The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
219.8(a)(2)(ii)—[The plan must include plan components to maintain or restore] soils and soil productivity, including guidance to reduce soil erosion and sedimentation.
The Rogue River National Forest LRMP would be amended to change the designation of approximately 512 acres from Matrix land allocations to the LSR land allocation in Section 32, T.36S., R.4E. W.M., OR. This change in land allocation is proposed to partially mitigate the potential adverse impact of the Pacific Connector Pipeline Project on LSR 227 on the Rogue River National Forest. This is a plan level amendment that would change future management direction for the lands reallocated from Matrix to LSR.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.8(a)(1)(i)—[the plan must include plan components to maintain or restore] Interdependence of terrestrial and aquatic ecosystems in the plan area.
§ 219.8(b)(1)—[the plan must include plan components to guide the plan area's contribution to social and economic sustainability] Social, cultural and economic conditions relevant to the area influenced by the plan.
§ 219.9(b)(1) The responsible official shall determine whether or not the plan components required by paragraph (a) of this section provide the ecological conditions necessary to: Contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of
§ 219.9(a)(2)(ii)- [the plan must include plan components to maintain or restore: . . .] (ii) Rare aquatic and terrestrial plant and animal communities.
If any of the proposed amendments to the Rogue River NF LRMP described above are determined to be “directly related” to a substantive rule requirement, the Responsible Official must apply that requirement within the scope and scale of the proposed amendment and, if necessary, make adjustments to the proposed amendment to meet the rule requirement (36 CFR 219.13 (b)(5) and (6)).
The Winema National Forest LRMP would be amended to change the Standards and Guidelines for Management Area 3 (MA-3) (LRMP page 4-103-4, Lands) to allow the 95-foot-wide Pacific Connector pipeline project in MA-3 from the Forest Boundary in Section 32, T.37S., R.5E., W.M., OR, to the Clover Creek Road corridor in Section 4, T.38S, R.5. E., W.M., OR. Standards and Guidelines for MA-3 state that the area is currently an avoidance area for new utility corridors. This proposed Pacific Connector Pipeline Project is approximately 1.5 miles long and occupies approximately 17 acres within MA-3. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.10(a)(1)—[the responsible official shall consider] Aesthetic values,. . . scenery,. . . viewsheds. . ..
§ 219.10(b)(i)—[the responsible official shall consider] Sustainable recreation; including recreation settings, opportunities, . . . and scenic character . . . .
The Winema National Forest LRMP would be amended to allow 10-15 years to achieve the VQO of Foreground Retention where the Pacific Connector right-of-way crosses the Dead Indian Memorial Highway at approximately pipeline MP 168.8 in Section 33, T.37S., R.5E., W. M., OR. Standards and Guidelines for Scenic Management, Foreground Retention (LRMP 4-103, MA 3A, Foreground Retention) requires VQOs for a given location be achieved within one year of completion of the project. The Forest Service proposes to allow 10-15 years to meet the specified VQO at this location. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment that would apply only to the Pacific Connector Pipeline Project in the vicinity of the Dead Indian Memorial Highway and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.10(a)(1)—[. . .the responsible official shall consider: . . .] (1) Aesthetic values,. . . scenery,. . . viewsheds . . . .
§ 219.10(b)(i)—[the responsible official shall consider] Sustainable recreation; including recreation settings, opportunities, . . . and scenic character . . . .
The Winema National Forest LRMP would be amended to allow 10-15 years to meet the VQO for Scenic Management, Foreground Partial Retention, where the Pacific Connector right-of-way is adjacent to the Clover Creek Road from approximately pipeline MP 170 to 175 in Sections 2, 3, 4, 11, and 12, T.38S., R.5E., and Sections 7 and 18, T.38S., R.6E., W.M., OR. This change would potentially affect approximately 50 acres. Standards and Guidelines for Foreground Partial Retention (LRMP, page 4-107, MA 3B) require that VQOs be met within three years of completion of a project. The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment that would apply only to the Pacific Connector Pipeline Project in the vicinity of Clover Creek Road and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.10(a)(1)—[. . .the responsible official shall consider: . . .] (1) Aesthetic values,. . . scenery,. . . viewsheds . . . .
§ 219.10(b)(i)—[the responsible official shall consider] Sustainable recreation; including recreation settings, opportunities, . . . and scenic character. . . .
The Winema National Forest LRMP would be amended to exempt restrictions on detrimental soil conditions from displacement and compaction within the Pacific Connector right-of-way in all affected management areas. Standards and Guidelines for detrimental soil impacts in all affected management areas require that no more than 20 percent of the activity area be detrimentally compacted, puddled, or displaced upon completion of a project (LRMP page 4-73, 12-5). The amendment would provide an exception from these standards for the Pacific Connector Pipeline Project and include specific mitigation measures and project design requirements for the project. This is a project-specific plan amendment applicable only to the Pacific Connector Pipeline Project and would not change future management direction for any other project.
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.8(a)(2)(ii)—[The plan must include plan components to maintain or restore . . .] Soils and soil productivity, including guidance to reduce soil erosion and sedimentation
The Winema National Forest LRMP would be amended to exempt restrictions on detrimental soil conditions from displacement and compaction within the Pacific Connector right-of-way within the Management Area 8, Riparian Area (MA-8). This change would potentially affect approximately 0.5 mile or an
The 36 CFR 219 planning rule requirements that are likely to be directly related to this amendment include:
§ 219.8(a)(2)(ii)—[The plan must include plan components to maintain or restore . . .] “Soils and soil productivity, including guidance to reduce soil erosion and sedimentation”
If any of the proposed amendments to the Winema NF LRMP described above are determined to be directly related to a substantive rule requirement, the Responsible Official must apply that requirement within the scope and scale of the proposed amendment and, if necessary, make adjustments to the proposed amendment to meet the rule requirement (36 CFR 219.13 (b)(5) and (6)).
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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The Commission strongly encourages electronic filing. Please file scoping comments using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission
k. This application is not ready for environmental analysis at this time.
l. The existing Kaukauna City Plant Hydroelectric Project consists of: (1) A 3,527-foot-long, 14-foot-high dam that includes: (a) A 930-foot-long, 14-foot-high rubble masonry retaining wall section (left forebay dam) with a remnant concrete headwall structure and a trash sluice; (b) a 92-foot-long, 47.5-foot-high concrete intake and powerhouse section; (c) a 365-foot-long, 20-foot-high rubble masonry retaining wall section (right forebay dam) with a masonry abutment section and a concrete gravity section with a trash sluice; (d) a 66-foot-long gated spillway section with two 30-foot-wide, 8.8-foot-high spillway gates; and (e) a 2,074-foot-long, 10-foot-high overflow spillway section that includes a 1,305-foot-long concrete ogee section, a 75-foot-long natural rock section, a 125-foot-long concrete gravity section, and a 569-foot-long concrete gravity section; (2) a 19-acre 1.5-mile-long impoundment with a normal maximum elevation of 629.0 above mean seal level; (3) an intake structure with two head gates and two 25-foot-high, 88-foot-long trashracks with 5 inch clear-bar spacing; (4) a 92-foot-long, 47.5-foot-high concrete and brick powerhouse containing two 2.4-megawatt (MW) turbine-generator units for a total capacity of 4.8 MW; (5) a 440-foot-wide, 49-foot-deep, 1,200-foot-long excavated tailrace; (6) two 68-foot-long, 2.4-kilovolt generator leads that connect the turbine-generator units to the regional distribution line; and (7) appurtenant facilities.
Kaukauna Utilities operates the project in a run-of-river mode with an annual average generation of approximately 29,704 megawatt-hours. Kaukauna Utilities is not proposing any new project facilities or changes in project operation.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
n. You may also register online at
o. Scoping Process
The Commission staff intends to prepare a single Environmental Assessment (EA) for the Kaukauna City Plant Hydroelectric Project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action.
Commission staff does not propose to conduct any on-site scoping meetings at this time. Instead, we are soliciting comments, recommendations, and information, on Scoping Document 1 (SD1) issued on June 20, 2017.
Copies of SD1 outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list and the applicant's distribution list. Copies of SD1 may be viewed on the web at
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Bayshore Solar A, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 10, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Federal Accounting Standards Advisory Board.
Notice.
Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mailstop 6H19, Washington, DC 20548, or call (202) 512-7350.
The exposure draft is available on the FASAB Web site at
Respondents are encouraged to comment on any part of the exposure draft. Written comments are requested by July 21, 2017, and should be sent to
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on renewal of the information collections described below.
Comments must be submitted on or before August 25, 2017.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Jennifer Jones, at the FDIC address above.
Proposal to renew the following currently approved collections of information:
1.
There is no change in the method or substance of the collection. The overall reduction in burden hours is a result of (1) economic fluctuation and (2) an updated estimate (based on historical information) of state nonmember banks and state savings associations engaged in consumer leasing. In particular, the number of respondents has decreased while the hours per response remain the same.
2.
There is no change in the method or substance of the collection. The number of respondents and the hours per response remain the same.
Comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collections, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, 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. As part of a Broad Agency Announcement (BAA) issued for the competitive selection of research proposals, this notice invites comment on the proposed information collection project titled “Applied Research to Address Emerging Public Health Priorities.”
Written comments must be received on or before August 25, 2017.
You may submit comments, identified by Docket No. CDC-2017-0041 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
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. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Applied Research to Address Emerging Public Health Priorities—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
On March 27, 2017, CDC issued a Broad Agency Announcement (FY2017-OADS-01) available at
For this announcement, CDC has identified the following research areas of interest. Interested parties are invited to consider innovative approaches to support advanced research and development strategies in the following research areas of interest:
1. New diagnostic, sequencing and metagenomic tools for antibiotic detection and improved antibiotic use
2. International Transmission, colonization, and prevention of antibiotic resistance (AR) pathogens
3. Domestic transmission, colonization, and prevention of antibiotic resistance pathogens and Clostridium difficile infections (CDI)
4. Microbiome disruption
5. Antibiotic resistance pathogens and genes in water systems and the environment and their contribution to human infections
6. Medication safety and antibiotic stewardship
7. Improving the timeliness, accuracy, and usability of public health emergency management, surveillance and survey information data
Contracts that are awarded based on responses to this BAA are as a result of full and open competition and therefore in full compliance with the provisions of PL 98-369, “The Competition in Contracting Act of 1984.” CDC contracts with educational institutions, nonprofit organizations, state and local government, and private industry for research and development (R&D) in those areas covered in this BAA.
The public is invited to look at the BAA online for greater detail and more specific research areas falling under the seven topics listed above.
Authorizing legislation comes from Section 301 of the Public Health Service Act. Responses will be voluntary and it is not expected that there will be any
The total estimated burden for all of the information collections is not expected to exceed 1,500 hours (100 hours of burden for a maximum of 15 potentially PRA-applicable contracts).
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 26, 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
1.
2.
The Request for Certification or Update of Certification Information in
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 25, 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.
2.
Physicians who provide certain imaging services (MRI, CT, and PET) under the in-office ancillary services exception to the physician self-referral prohibition are required to provide the disclosure notice as well as the list of other imaging suppliers to the patient. The patient will then be able to use the disclosure notice and list of suppliers in making an informed decision about his or her course of care for the imaging service. CMS would use the collected information for enforcement purposes. Specifically, if we were investigating the referrals of a physician providing advanced imaging services under the in-office ancillary services exception, we would review the written disclosure in order to determine if it satisfied the requirement.
3.
The CAH conditions of participation and accompanying information collection requirements specified in the regulations are used by surveyors as a basis for determining whether a CAH meets the requirements to participate in the Medicare program. We, along with the healthcare industry, believe that the availability to the facility of the type of records and general content of records, which this regulation specifies, is standard medical practice and is necessary in order to ensure the well-being and safety of patients and professional treatment accountability.
Centers for Medicare and Medicaid Services, HHS.
Final notice.
This final notice announces our decision to approve the Center for Improvement in Healthcare Quality (CIHQ) for continued recognition as a national accrediting organization for hospitals that wish to participate in the Medicare or Medicaid programs.
This final notice is effective July 26, 2017 through July 26, 2023.
Lillian Williams (410) 786-8638, Monda Shaver, (410) 786-3410, or Patricia Chmielewski, (410) 786-6899.
A healthcare provider may enter into an agreement with Medicare to participate in the program as a hospital provided certain requirements are met. Section 1861(e) of the Social Security Act (the Act) establishes criteria for providers seeking participation in Medicare as a hospital. Regulations concerning Medicare provider agreements in general are at 42 CFR part 489 and those pertaining to the survey and certification for Medicare participation of providers and certain types of suppliers are at 42 CFR part 488. The regulations at 42 CFR part 482 specify the specific conditions that a provider must meet to participate in the Medicare program as a hospital. Hospitals that wish to be paid under the Medicaid program must be approved to participate in Medicare, in accordance with 42 CFR 440.10(a)(3)(iii).
Generally, to enter into a Medicare hospital provider agreement, a facility must first be certified as complying with the conditions set forth in part 482 and recommended to the Centers for Medicare & Medicaid Services (CMS) for participation by a State survey agency. Thereafter, the hospital is subject to periodic surveys by a State survey agency to determine whether it continues to meet these conditions. However, there is an alternative to certification surveys by State agencies. Accreditation by a nationally recognized Medicare accreditation program approved by CMS may substitute for both initial and ongoing state review.
Section 1865(a)(1) of the Act provides that, if the Secretary of the Department of Health and Human Services (the Secretary) finds that accreditation of a provider entity by an approved national accrediting organization meets or exceeds all applicable Medicare conditions, we may treat the provider entity as having met those conditions, that is, we may “deem” the provider entity to be in compliance. Accreditation by an accrediting organization is voluntary and is not required for Medicare participation.
Part 488 subpart A implements the provisions of section 1865 of the Act and requires that a national accrediting organization applying for approval of its Medicare accreditation program must provide CMS with reasonable assurance that the accrediting organization requires its accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning the approval of accrediting organizations are set forth at § 488.5. The regulations at § 488.5(e)(2)(i) require an accrediting organization to reapply for continued approval of its Medicare accreditation program every 6 years or sooner as determined by CMS. The Center for Improvement in Healthcare Quality's (CIHQ's) term of approval as a recognized Medicare accreditation program for hospitals expires July 26, 2017.
Section 1865(a)(3)(A) of the Act provides a statutory timetable to ensure that our review of applications for CMS approval of an accreditation program is conducted in a timely manner. The Act provides us 210 days after the date of receipt of a complete application, with any documentation necessary to make the determination, to complete our survey activities and application process. Within 60 days after receiving a complete application, we must publish a notice in the
On February 24, 2017, we published a proposed notice in the
• An onsite administrative review of CIHQ's: (1) Corporate policies; (2) financial and human resources available to accomplish the proposed surveys; (3) procedures for training, monitoring, and evaluation of its hospital surveyors; (4) ability to investigate and respond appropriately to complaints against accredited hospitals; and, (5) survey review and decision-making process for accreditation.
• A comparison of CIHQ's Medicare accreditation program standards to our current Medicare hospital Conditions of Participation (CoPs).
• A documentation review of CIHQ's survey process to do the following:
++ Determine the composition of the survey team, surveyor qualifications, and CIHQ's ability to provide continuing surveyor training.
++ Compare CIHQ's processes to those we require of State survey agencies, including periodic resurvey and the ability to investigate and respond appropriately to complaints against accredited hospitals.
++ Evaluate CIHQ's procedures for monitoring hospitals it has found to be out of compliance with CIHQ's program requirements. (This pertains only to monitoring procedures when CIHQ identifies non-compliance. If non-compliance is identified by a State survey agency through a validation survey, the State survey agency monitors corrections as specified at § 488.9(c)).
++ Assess CIHQ's ability to report deficiencies to the surveyed hospitals and respond to the hospital's plan of correction in a timely manner.
++ Establish CIHQ's ability to provide CMS with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ Determine the adequacy of CIHQ's staff and other resources.
++ Confirm CIHQ's ability to provide adequate funding for performing required surveys.
++ Confirm CIHQ's policies with respect to surveys being unannounced.
++ Obtain CIHQ's agreement to provide CMS with a copy of the most current accreditation survey together with any other information related to the survey as we may require, including corrective action plans.
In accordance with section 1865(a)(3)(A) of the Act, the February 24, 2017 proposed notice also solicited public comments regarding whether CIHQ's requirements met or exceeded the Medicare CoP for hospitals. There were no comments submitted.
We compared CIHQ's hospital accreditation requirements and survey process with the Medicare CoPs at part 482, and the survey and certification process requirements of parts 488 and 489. CIHQ's standards crosswalk, which maps CIHQ's standards with the corresponding requirements under the Medicare CoPs, was also examined to ensure that the appropriate CMS regulation was included in citations as appropriate. We reviewed and evaluated CIHQ's hospital application, conducted as described earlier. As a result, CIHQ has revised its materials, standards, and certification processes to reflect the following Medicare requirements:
• § 482.12: Updated the summary description of this provision in the crosswalk to be consistent with its accreditation standards.
• § 482.12(a)(1) through (10): Updated the summary description of this provision in the crosswalk to be consistent with its accreditation standards.
• § 482.12(a)(10): Revised its standards to address the hospital's responsibility to consult directly with the medical staff.
• § 482.12(c): Updated the summary description of this provision in the crosswalk to be consistent with its accreditation standards.
• § 482.12(c)(1)(ii): Updated the CFR citation to properly reference the regulatory requirement on its standards crosswalk.
• § 482.12(c)(2): Updated the CFR citation to properly reference the regulatory requirement on its standards crosswalk.
• § 482.12(c)(4)(i): Clarified the use of the word “develops” to indicate if the condition was present on admission or developed during the hospitalization on its standards crosswalk.
• § 482.12(f)(2): Revised its standards to ensure the medical staff have written policies and procedures for appraisals of emergencies, initial treatment and referral.
• § 482.13(a)(1) and § 482.13(a)(2): Updated the summary description of these provisions in the crosswalk to be consistent with its accreditation standards.
• § 482.13(a)(2)(i): Revised its standards to ensure the patient's right to submit “written or verbal” grievances.
• § 482.13(a)(2)(ii), § 482.13(b)(3), § 482.13(b)(4) and § 482.13(c)(2): Updated the summary description of these provisions in the crosswalk to be consistent with its accreditation standards.
• § 482.13(e)(5): Updated the CFR citation to properly reference the regulatory requirement.
• § 482.13(e)(6), § 482.13(f)(1)(ii), § 482.13(g), § 482.13(g)(2), § 482.13(h), § 482.21(b)(1), § 482.21(d)(2) and § 482.21(d)(4): Updated the summary description of these provisions in the crosswalk to be consistent with its accreditation standards.
• § 482.22(a)(2): Updated its standards to reflect that temporary practice privileges are granted by the governing body.
• § 482.22(b)(1): Updated the summary description of this provision in the crosswalk to be consistent with its accreditation standards.
• § 482.22(b)(3): Revised its standards to reflect CMS requirements for medical staff organization and accountability.
• § 482. 22(b)(4): Updated the summary description of this provision in the crosswalk to be consistent with its accreditation standards.
• § 482.23(c)(4): Updated its standards to fully address requirements for blood transfusions.
• § 482.24(b): Updated its standards to fully address requirements for the form and retention of medical records.
• § 482.24(c)(2) through (c)(4)(viii): Updated the Medicare regulatory language on its standards crosswalk to ensure that its accreditation standards are consistent with Medicare standards.
• § 482.25(b)(2)(ii): Updated the crosswalk and standard to add references to the Comprehensive Drug Abuse Prevention and Control Act of 1970.
• § 482.26: Updated the summary description of this provision in the crosswalk to be consistent with its accreditation standards.
• § 482.41: Revised its standards to reflect the requirements of the “Physical Environment”.
• § 482.43: Revised its standards to ensure that the hospital discharge planning process applies to all patients.
• § 482.51(b)(6) and § 482.56(a)(2): Updated the summary description of these provisions in the crosswalk to be consistent with its accreditation standards.
• § 482.56(b)(2): Revised its standards to address the requirements at § 409.17 related to physical therapy, occupational therapy, and speech language pathology services.
• § 482.57(b)(3): Updated the CFR citation to properly reference the regulatory requirement on its crosswalk.
• § 482.57(b)(4): Updated the CFR citation to properly reference the regulatory requirement on its crosswalk and in its accreditation standards.
• § 488.4(a)(6): Revised its standards to include a process to track and trend complaints received.
• § 488.5(a)(4)(ii): Revised its standards to ensure that an appropriate number of open, inpatient medical records are fully reviewed during the survey process.
• § 488.5(a)(4)(iv): Revised its standards to assure that findings of non-compliance are documented under all appropriate CMS standards where non-compliance is found; and that adverse findings for each CoP are reviewed for manner and degree of non-compliance and subsequently cited at the appropriate level (that is, condition versus standard level).
• § 488.5(a)(7) through (9): Revised its standards to ensure that newly hired surveyors receive orientation so as to ensure AO compliance with these provisions.
• § 488.26(b): Revised its standards to improve surveyor documentation to include the appropriately detailed deficiency statements that clearly support the determination of noncompliance and level of deficiency.
• § 489.13: Revised its standards to reflect CMS policy regarding effective dates of participation in the Medicare program and develop a plan for monitoring for sustained compliance.
• CIHQ revised its complaint policy and procedure to clearly identify the individual(s) that are responsible for triaging complaints submitted to the accrediting organization.
• CIHQ revised its policy to clarify that an “Immediate Jeopardy” finding remains cited at the Conditional level, even if abated while onsite.
Based on our review and observations described in section III of this final notice, we have determined that CIHQ's hospital program requirements meet or exceed our requirements. Therefore, we approve CIHQ as a national accreditation organization for hospitals that request participation in the Medicare program, effective July 26, 2017 through July 26, 2023.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
To further assist states collect child support, the federal Office of Child Support Enforcement (OCSE) worked with child support agencies and financial institutions to develop the Federally Assisted State Transmitted (
The MSFIDM/
The impact study will involve participants being randomly assigned to either a “program group,” who will be paired with a coach, or to a “control group,” who will not be paired with a coach. The effectiveness of the coaching will be determined by differences between members of the program and control groups in outcomes such as obtaining and retaining employment, earnings, measures of self-sufficiency, and measures of self-regulation.
The implementation study will document coaching practices, describe lessons learned from implementing coaching, and enhance interpretation of the impact study findings.
The proposed information collection activities are: (1) Baseline data collection: Collection of characteristics data on all study participants as they enroll in the study. Data will be entered into the Random Assignment, Participant Tracking Enrollment, and Reporting (RAPTER) system; (2) First follow-up survey: Collection of outcome data for a subset of study participants about 9 months after random assignment; (3) Semi-structured staff interviews: Collection of qualitative data on the design and implementation of the program; (4) Staff survey: Collection of information on staff members' professional backgrounds, training, coaching practices, and attitudes; (5) In-depth participant interviews: Collection of detailed information about the participants' backgrounds and experiences with coaching; (6) Staff reports of program service receipt: Collection of data on coaching and other program services received by study
A second follow-up survey will be administered approximately 21 months after random assignment. This data collection activity will be included under a separate OMB submission.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research, and Evaluation, 330 C Street SW., Washington, DC 20201, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by July 26, 2017.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA is requesting approval for the collection of information regarding reports of corrections and removals required under part 806 (21 CFR part 806), which implements section 519(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360i(g)), as amended by the Food and Drug Modernization Act of 1997 (FDAMA) (Pub. L. 105-115). A description of the information collection requirements are provided as follows:
Under § 806.10 (21 CFR 806.10), within 10 working days of initiating any action to correct or remove a device to reduce a risk to health posed by the device or to remedy a violation of the FD&C Act caused by the device that may present a risk to health, device manufacturers or importers must submit a written report to FDA of the correction or removal.
Under § 806.20(a), device manufacturers or importers that initiate a correction or removal that is not required to be reported to FDA must keep a record of the correction or removal.
The information collected in the reports of corrections and removals will be used by FDA to identify marketed devices that have serious problems and
Reports of corrections and removals may be submitted to FDA via mail or using FDA's Electronic Submission Gateway (ESG). We estimate that approximately 99 percent of submitters will use the ESG. Our estimate of the reporting and recordkeeping burden is based on Agency records and our experience with this program, as well as similar programs that utilize FDA's ESG.
For respondents who submit corrections and removals using the electronic process, the operating and maintenance costs associated with this information collection are approximately $30 per year to purchase a digital verification certificate (certificate must be valid for 1 to 3 years). This burden may be minimized if the respondent has already purchased a verification certificate for other electronic submissions to FDA. However, FDA is assuming that all respondents who submit corrections and removals using the electronic process will be establishing a new WebTrader account and purchasing a digital verification certificate. We therefore estimate the total operating and maintenance costs to be $30,660 annually (1,022 respondents × $30).
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by August 25, 2017.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before August 25, 2017. The
Submit electronic comments in the following way.
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Animal Medicinal Drug Use Clarification Act of 1994 allows a veterinarian to prescribe the extralabel use of approved new animal drugs. Also, it permits FDA, if it finds that there is a reasonable probability that the extralabel use of an animal drug may present a risk to the public health, to establish a safe level for a residue from the extralabel use of the drug, and to require the development of an analytical method for the detection of residues above that established safe level (21 CFR 530.22(b)). Although to date, we have not established a safe level for a residue from the extralabel use of any new animal drug and, therefore, have not required the development of analytical methodology, we believe that there may be instances when analytical methodology will be required. We are, therefore, estimating the reporting burden based on two methods being required annually. The requirement to establish an analytical method may be fulfilled by any interested person. We believe that the sponsor of the drug will be willing to develop the method in most cases. Alternatively, FDA, the sponsor, and perhaps a third party may cooperatively arrange for method development. The respondents may be sponsors of new animal drugs, State, or Federal and/or State Agencies, academia, or individuals.
FDA estimates the burden of this collection of information as follows:
The burden for this information collection has not changed since the last OMB approval.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of a priority review voucher to the sponsor of a rare pediatric disease product application. The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Food and Drug Administration Safety and Innovation Act (FDASIA), authorizes FDA to award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA is required to publish notice of the award of the priority review voucher. FDA has determined that Brineura (cerliponase alfa) manufactured by Biomarin Pharmaceuticals Inc., meets the criteria for a priority review voucher.
Althea Cuff, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6484, Silver Spring, MD 20993-0002, 301-796-4061, FAX: 301-796-9858, email:
FDA is announcing the issuance of a priority review voucher to the sponsor of an approved rare pediatric disease product application. Under section 529 of the FD&C Act (21 U.S.C. 360ff), which was added by FDASIA, FDA will award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA has determined that Brineura (cerliponase alfa) manufactured by Biomarin Pharmaceuticals Inc., meets the criteria for a priority review voucher. Brineura (cerliponase alfa) is indicated to slow the progression of loss of ambulation in symptomatic pediatric patients 3 years of age and older with late infantile neuronal ceroid lipofuscinosis type 2 (CLN2), also known as tripeptidyl peptidase 1 (TPP1) deficiency.
For further information about the Rare Pediatric Disease Priority Review Voucher Program and for a link to the full text of section 529 of the FD&C Act, go to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by July 26, 2017.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The custom device exemption is set forth at section 520(b)(2)(B) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360j(b)(2)(B)). A custom device is in a narrow category of device that, by virtue of the rarity of the patient's medical condition or physician's special need the device is designed to treat, it would be impractical for the device to comply with premarket review regulations and performance standards.
The Food and Drug Administration Safety and Innovation Act (FDASIA) implemented changes to the custom device exemption contained in section 520(b) of the FD&C Act. The new provision amended the existing custom device exemption and introduced new concepts and procedures for custom devices, such as:
• Devices created or modified in order to comply with the order of an individual physician or dentist;
• The potential for multiple units of a device type (limited to no more than five units per year) qualifying for the custom device exemption; and
• Annual reporting requirements by the manufacturer to FDA about devices manufactured and distributed under section 520(b) of the FD&C Act.
Under FDASIA, “devices” that qualify for the custom device exemption contained in section 520(b) of the FD&C Act were clarified to include no more than “five units per year of a particular device type” that otherwise meet all the requirements necessary to qualify for the custom device exemption.
In the
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Arthritis Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on August 2, 2017, from 8 a.m. to 5 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2017-N-3331. The docket will close on August 1, 2017. Submit either electronic or written comments on this public meeting by August 1, 2017. Late, untimely filed comments will not be considered. Electronic comments must be submitted on or before August 1, 2017. The
Comments received on or before July 19, 2017, will be provided to the committee.
Comments received after that date will be taken into consideration by the Agency.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Philip Bautista, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Philip Bautista at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is updating income levels used to identify a “low-income family” for the purpose of determining eligibility for programs that provide health professions and nursing training to individuals from disadvantaged backgrounds. These various programs are authorized in Titles III, VII, and VIII of the Public Health Service Act.
HHS periodically publishes in the
Many health professions and nursing grant and cooperative agreement awardees use these low-income levels to determine whether potential program participants are from an economically-disadvantaged background and would be eligible to participate in the program, as well as to determine the amount of funding the individual receives. Awards are generally made to accredited schools of medicine, osteopathic medicine, public health, dentistry, veterinary medicine, optometry, pharmacy, allied health, podiatric medicine, nursing, and chiropractic; public or private nonprofit schools which offer graduate programs in behavioral health and mental health practice; and other public or private nonprofit health or education entities to assist the disadvantaged to enter and graduate from health professions and nursing schools. Some programs provide for the repayment of health professions or nursing education loans for disadvantaged students.
A “low-income family/household” for programs included in Titles III, VII, and VIII of the Public Health Service Act is defined as having an annual income that does not exceed 200 percent of the Department's poverty guidelines. A family is a group of two or more individuals related by birth, marriage, or adoption who live together.
Most HRSA programs use the income of a student's parent(s) to compute low-income status. However, a “household” may potentially be only one person. Other HRSA programs, depending upon the legislative intent of the program, the programmatic purpose related to income level, as well as the age and circumstances of the participant, will apply these low-income standards to the individual student to determine eligibility, as long as he or she is not listed as a dependent on the tax form of his or her parent(s). Each program announces the rationale and choice of methodology for determining low-income levels in program guidance.
Low-income levels are adjusted annually based on HHS's poverty guidelines. HHS's poverty guidelines are based on poverty thresholds published by the U.S. Census Bureau, adjusted annually for changes in the Consumer Price Index. The income figures below have been updated to reflect HHS's 2017 poverty guidelines as published in 82 FR 8831 (January 31, 2017).
Separate poverty guidelines figures for Alaska and Hawaii reflect Office of Economic Opportunity administrative practice beginning in the 1966-1970 period since the U.S. Census Bureau poverty thresholds do not have separate figures for Alaska and Hawaii. The poverty guidelines are not defined for Puerto Rico and other outlying jurisdictions. Puerto Rico and other outlying jurisdictions must use the low-income levels table for the 48 contiguous states and the District of Columbia.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
This notice informs the public of the availability of the complete lists of all geographic areas, population groups, and facilities designated as primary medical care, mental health, and dental health professional shortage areas (HPSAs) as of May 1, 2017. The lists are available on HRSA's HPSAFind Web site.
The complete lists of HPSAs designated as of May 1, 2017, are available on the HPSAFind Web site at
For further information on the HPSA designations listed on the HPSAFind Web site or to request an additional designation, withdrawal, or reapplication for designation, please contact Melissa Ryan, Operations Director, Division of Policy and Shortage Designation, Bureau of Health Workforce, HRSA, 11SWH03, 5600 Fishers Lane, Rockville, Maryland 20857, (301) 594-5168 or
Section 332 of the Public Health Services (PHS) Act, 42 U.S.C. 254e, provides that the Secretary shall designate HPSAs based on criteria established by regulation. HPSAs are defined in section 332 to include (1) urban and rural geographic areas with shortages of health professionals, (2) population groups with such shortages, and (3) facilities with such shortages. Section 332 further requires that the
Final regulations (42 CFR part 5) were published in 1980 that include the criteria for designating HPSAs. Criteria were defined for seven health professional types: Primary medical care, dental, psychiatric, vision care, podiatric, pharmacy, and veterinary care. The criteria for correctional facility HPSAs were revised and published on March 2, 1989 (54 FR 8735). The criteria for psychiatric HPSAs were expanded to mental health HPSAs on January 22, 1992 (57 FR 2473). Currently-funded PHS Act programs use only the primary medical care, mental health, or dental HPSA designations.
HPSA designation offers access to potential federal assistance. Public or private nonprofit entities are eligible to apply for assignment of National Health Service Corps (NHSC) personnel to provide primary medical care, mental health, or dental health services in or to these HPSAs. NHSC health professionals enter into service agreements to serve in federally-designated HPSAs. Entities with clinical training sites located in HPSAs are eligible to receive priority for certain residency training program grants administered by HRSA's Bureau of Health Workforce (BHW). Other federal programs also utilize HPSA designations. For example, under authorities administered by the Centers for Medicare & Medicaid Services, certain qualified providers in geographic area HPSAs are eligible for increased levels of Medicare reimbursement.
The three lists of designated HPSAs are available on the HPSAFind Web site and include a snapshot of all geographic areas, population groups, and facilities that were designated HPSAs as of May 1, 2017. This notice incorporates the most recent annual reviews of designated HPSAs and supersedes the HPSA lists published in the
In addition, all Indian Tribes that meet the definition of such Tribes in the Indian Health Care Improvement Act of 1976, 25 U.S.C. 1603(d), are automatically designated as population groups with primary medical care and dental health professional shortages. Further, the Health Care Safety Net Amendments of 2002 provides eligibility for automatic facility HPSA designations for all federally qualified health centers (FQHCs) and rural health clinics that offer services regardless of ability to pay. Specifically, these entities include FQHCs funded under section 330 of the PHS Act, FQHC Look-Alikes, and Tribal and urban Indian clinics operating under the Indian Self-Determination and Education Act of 1975 (25 U.S.C. 450) or the Indian Health Care Improvement Act. Many, but not all, of these entities are included on this listing. Absence from this list does not exclude them from HPSA designation; facilities eligible for automatic designation are included in the database when they are identified.
Each list of designated HPSAs is arranged by state. Within each state, a list is presented by county. If only a portion (or portions) of a county is (are) designated, a county is part of a larger designated service area, or a population group residing in a county or a facility located in a county has been designated, the name of the service area, population group, or facility involved is listed under the county name. A county that has a whole county geographic HPSA is indicated by the phrase “Entire county HPSA” following the county name.
Requests for designation or withdrawal of a particular geographic area, population group, or a facility as a HPSA are received continuously by BHW. Under a Cooperative Agreement between HRSA and the 54 state and territorial Primary Care Offices (PCOs), PCOs conduct needs assessments and submit the majority of the applications to HRSA to designate areas as HPSAs. Requests that come from other sources are referred by BHW to PCOs for review. In addition, interested parties, including Governors, state Primary Care Associations, and state professional associations, are notified of requests so that they may submit comments and recommendations.
BHW reviews each recommendation for possible addition, continuation, revision, or withdrawal. Following review, BHW notifies the appropriate agency, individuals, and interested organizations of each designation of a HPSA, rejection of recommendation for HPSA designation, revision of a HPSA designation, and/or advance notice of pending withdrawal from the HPSA list. Designations (or revisions of designations) are effective as of the date on the notification from BHW and are updated daily on the HPSAFind Web site. The effective date of a withdrawal will be the next publication of a notice regarding the lists in the
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the program in general, contact Lisa L. Reyes, Acting Clerk, United States Court of Federal Claims, 717 Madison Place NW., Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, MD 20857; (301) 443-6593, or visit our Web site at:
The program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to Public Law 92-463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA's) Center for Substance Abuse Treatment (CSAT) National Advisory Council will meet on August 11, 2017, 11:00 a.m.-12:00 p.m. (EDT) in a closed teleconference meeting.
The meeting will include discussions and evaluations of grant applications reviewed by SAMHSA's Initial Review Groups, and involve an examination of confidential financial and business information as well as personal information concerning the applicants. Therefore, the meeting will be closed to the public as determined by the SAMHSA Acting Deputy Assistant Secretary for Mental Health and Substance Use in accordance with Title 5 U.S.C. 552b(c)(4) and (6) and Title 5 U.S.C. App. 2, 10(d).
Meeting information and a roster of Council members may be obtained by accessing the SAMHSA Committee Web site at
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
SAMHSA is conducting the federally mandated Evaluation of the PATH program. The PATH grant program, created as part of the Stewart B. McKinney Homeless Assistance Amendments Act of 1990, is administered by SAMHSA's CMHS' Homeless Programs Branch. The PATH program is authorized under Section 521
The SAMHSA Administrator is required under Section 528 of the PHS Act to evaluate the expenditures of PATH grantees at least once every three years to ensure they are consistent with legislative requirements and to recommend changes to the program design or operations. The primary task of the PATH evaluation is to meet the mandates of Section 528 of the PHS Act. The second task of the PATH evaluation is to conduct additional data collection and analysis to further investigate the sources of variation in key program output and outcome measures that are important for program management and policy development. The PATH evaluation builds on the previous evaluation which was finalized in 2016 and was conducted as part of the National Evaluation of SAMHSA Homeless Programs. The PATH evaluation will use web surveys, telephone interviews and site visits to facilitate the collection of information regarding the structures and processes in place at the grantee and provider level. Data regarding the outputs and outcomes of the PATH program will be obtained from grantee applications, providers' intended use plans (IUPs) and from PATH annual report data, which is also required by Section 528 of the PHS Act and is approved under OMB No. 0930-0205.
The estimated burden for the reporting requirements for the PATH evaluation is summarized in the table below.
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
Coast Guard, Department of Homeland Security.
Notice of Federal Advisory Committee Teleconference meeting.
The Merchant Marine Personnel Advisory Committee working group will meet via teleconference to work on Task Statement 98, review of the progress made by the military services towards meeting the goals on the use of Military Education, Training, and Assessment for STCW and National Mariner Endorsements as identified in the Howard Coble Coast Guard and Maritime Transportation Act of 2014 and subsequent legislation, and to complete the discussions from its March 22-23 and May 16, 2017 meetings. The teleconference will be open to the public.
The Merchant Marine Personnel Advisory Committee working group is scheduled to meet via teleconference on Wednesday, August 2, 2017, from 8 a.m. until 5 p.m. and on Thursday, August 3, 2017, from 8 a.m. until 5 p.m. Eastern Standard Time. Please note that this teleconference may adjourn early if the working group has completed its business.
To join the teleconference, contact the individual listed in the
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the Alternate Designated Federal Officer as soon as possible using the contact information provided in the
Lieutenant Junior Grade James Fortin, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee, 2703 Martin Luther King Jr. Ave. SE., Stop 7509, Washington, DC 20593-7509, telephone 202-372-1128, fax 202-372-8385 or
The Merchant Marine Personnel Advisory Committee was established under authority of section 310 of the Howard Coble Coast Guard and Maritime Transportation Act of 2014, Title 46, United States Code, section 8108, and chartered under the provisions of the Federal Advisory Committee Act, (Title 5, United States Code, Appendix). The Committee acts solely in an advisory capacity to the Secretary of the Department of Homeland Security through the Commandant of the Coast Guard on matters relating to personnel in the United States merchant marine, including training, qualifications, certification, documentation, and fitness standards and other matters as assigned by the Commandant; shall review and comment on proposed Coast Guard regulations and policies relating to personnel in the United States merchant marine, including training, qualifications, certification, documentation, and fitness standards; may be given special assignments by the Secretary and may conduct studies, inquiries, workshops, and fact finding in consultation with individuals and groups in the private sector and with State or local governments; shall advise, consult with, and make recommendations reflecting its independent judgment to the Secretary.
The agenda for the August 2, 2017, working group teleconference is as follows:
(1) The working group will meet briefly to discuss Task Statement 98 (All task statements can be found at
(2) Reports of working sub-groups. At the end of the day, the working sub-groups will report to the full working group on what was accomplished in their meetings. The full working group will not take action as a result of this working group meeting; action will be taken on day 2 of the meeting.
(3) Public comment period.
(4) Adjournment of meeting.
The agenda for the August 3, 2017, working group teleconference is as follows:
(1) The working group will meet briefly to discuss Task Statement 98 (All task statements can be found at
(2) Reports of working sub-groups. The working sub-groups will report to the full working group on what was accomplished in their meetings. The full working group will not take action on these reports at this time. Any action taken as a result of this working group meeting will be taken after the public comment period.
(3) Public comment period.
(4) Preparation of the meeting report to the full Committee.
(5) Adjournment of meeting.
A copy of all meeting documentation will be available at
A public comment period will be held during each day concerning matters being discussed. Speakers are requested to limit their comments to 3 minutes. Please note that the public comment periods will end following the last call for comments. Please contact Lieutenant Junior Grade James Fortin, listed in the
Please note that the teleconference may adjourn early if the work is completed.
Department of Homeland Security, Coast Guard.
Notice of Federal Advisory Committee Teleconference meeting.
The Merchant Marine Personnel Advisory Committee working group will meet via teleconference to work on Task Statement 96, review and comment on course and program approval requirements and NVIC 03-14 guidelines for approval of training courses and programs, to complete the discussions from its March 22-23 and May 16, 2017 meetings. The teleconference will be open to the public.
The Merchant Marine Personnel Advisory Committee working group is scheduled to meet via teleconference on Tuesday, July 25, 2017, from 8 a.m. until 5 p.m. and on Wednesday, July 26, 2017, from 8 a.m. until 5 p.m. Eastern Standard Time. Please note that this teleconference may adjourn early if the working group has completed its business.
To join the teleconference, contact the individual listed in the
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the Alternate Designated Federal Officer as soon as possible using the contact information provided in the
Lieutenant Junior Grade James Fortin, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee, 2703 Martin Luther King Jr. Ave SE., Stop 7509, Washington, DC 20593-7509, telephone 202-372-1128, fax 202-372-8385 or
The Merchant Marine Personnel Advisory Committee was established under authority of section 310 of the Howard Coble Coast Guard and Maritime Transportation Act of 2014, Title 46, United States Code, section 8108, and chartered under the provisions of the Federal Advisory Committee Act, (Title 5, United States Code, Appendix). The Committee acts solely in an advisory capacity to the Secretary of the Department of Homeland Security through the Commandant of the Coast Guard on matters relating to personnel in the United States merchant marine, including training, qualifications, certification, documentation, and fitness standards and other matters as assigned by the Commandant. The Committee shall also review and comment on proposed Coast Guard regulations and policies relating to personnel in the United States merchant marine, including training, qualifications, certification, documentation, and fitness standards; may be given special assignments by the Secretary and may conduct studies, inquiries, workshops, and fact finding in consultation with individuals and groups in the private sector and with State or local governments; and shall advise, consult with, and make recommendations reflecting its independent judgment to the Secretary.
The agenda for the July 25, 2017, working group teleconference is as follows:
(1) The working group will meet briefly to discuss Task Statement 96 (All task statements can be found at
(2) Reports of working sub-groups. At the end of the day, the working sub-groups will report to the full working group on what was accomplished in their meetings. The full working group will not take action as a result of this working group meeting; action will be taken on day 2 of the meeting.
(3) Public comment period.
(4) Adjournment of meeting.
The agenda for the July 26, 2017, working group teleconference is as follows:
(1) The working group will meet briefly to discuss Task Statement 96 (All task statements can be found at
(2) Reports of working sub-groups. The working sub-groups will report to the full working group on what was accomplished in their meetings. The full working group will not take action on these reports at this time. Any action taken as a result of this working group meeting will be taken after the public comment period.
(3) Public comment period.
(4) Preparation of the meeting report to the full Committee.
(5) Adjournment of meeting.
A copy of all meeting documentation will be available at
A public comment period will be held during each day during the working group teleconference concerning matters being discussed. Speakers are requested to limit their comments to 3 minutes. Please note that the public comment periods will end following the last call for comments. Please contact Lieutenant Junior Grade James Fortin, listed in the
Please note that the teleconference may adjourn early if the work is completed.
Coast Guard, DHS.
Notice.
The Coast Guard announces that a Certificate of Alternative Compliance (COAC) was issued for the TUG INDEPENDENCE. We are issuing this notice because its publication is required by statute.
The Certificate of Alternative Compliance was issued on May 9th, 2017.
For information or questions about this notice call or email Mr. Kevin Miller, First District Towing Vessel/Barge Safety Specialist, U.S. Coast Guard; telephone (617) 223-8272, email <
The United States is signatory to the International Maritime Organization's International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The special construction or purpose of some vessels makes them unable to comply with the light, shape, and sound signal provisions of the 72 COLREGS. Under statutory law
The Commandant, U.S. Coast Guard, certifies that the TUG INDEPENDENCE is a vessel of special construction or purpose, and that, with respect to the position of the navigation and towing lights, it is not possible to comply fully with the requirements of the provisions enumerated in the 72 COLREGS, without interfering with the normal operation of the vessel. The Commandant further finds and certifies that the sidelights (13′ 2.75″; from the vessel's side mounted on the pilot house) and stern/towing lights (5′ 6.5″ aft of frame 18 mounted on top of the pilot house) are in the closet possible compliance with the applicable provisions of the 72 COLREGS and that full compliance with the 72 COLREGS would not significantly enhance the safety of the vessel's operation.
This notice is issued under authority of 33 U.S.C. 1605(c) and 33 CFR 81.
U.S. Immigration and Customs Enforcement, Department of Homeland Security.
60-Day Notice of Information collection for review; Form No. I-352, Immigration Bond; OMB Control No. 1653-0022.
The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (USICE) will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published in the
Written comments and suggestions regarding items contained in this notice and especially with regard to the estimated public burden and associated response time should be directed to the PRA Clearance Officer for USICE and sent via electronic mail to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Fish and Wildlife Service, Interior.
Notice.
We, the U.S. Fish and Wildlife Service (Service), provide notice of an exemption to threatened species permit requirements granted under our Endangered Species Act (Act) regulations for beluga sturgeon (
Documents and other information submitted with the application are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Scientific Authority, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041; fax (703) 358-2276.
Dr. Rosemarie Gnam, (703) 358-1708 (telephone); (703) 358-2276 (fax);
Under section 4(d) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
In accordance with 50 CFR 17.44(y)(5), we consider applications for exemptions from threatened species permits for beluga sturgeon caviar and meat obtained from aquaculture facilities located outside the littoral States of Azerbaijan, Bulgaria, Georgia, Islamic Republic of Iran, Kazakhstan, Romania, Russian Federation, Serbia and Montenegro, Turkey, Turkmenistan, and Ukraine. These exemptions are for individual facilities. Through an exemption, the Service may authorize aquacultured beluga sturgeon caviar and meat originating from the facility to be imported, exported, re-exported, or traded in interstate and foreign commerce without threatened species permits issued under 50 CFR 17.32. Additionally, the Service may authorize an exemption for aquaculture facilities within the United States from prohibitions against take for purposes of harvesting caviar or meat or for conducting activities involving research to enhance the survival or propagation of the species.
Under the 4(d) rule, the Service may issue such exemptions only after a facility has satisfactorily demonstrated to us that criteria in § 17.44(y)(5)(i) through (iii) have been met, including: (1) The relevant regulatory authority has certified that the facility implements sufficient controls to prevent the escape of live animals and disease pathogens into local ecosystems; (2) the facility does not rely on wild beluga sturgeon for broodstock; and (3) the facility has entered into a formal agreement with one or more littoral states to study, protect, or otherwise enhance the survival of wild populations of beluga sturgeon. Exemptions granted under § 17.44(y)(5) shall not apply to trade (import, export, re-export, or interstate and foreign commerce) in live beluga sturgeon. Exemptions may be revoked at any time if the Service determines that any of the criteria shown in paragraphs (y)(5)(i) through (iii) are not met by the facility, and applicants are required to submit biennial reports on their compliance. In addition to meeting all requirements of the 4(d) rule, all applicable provisions in 50 CFR parts 13, 14, and 23 remain in effect and must also be met.
On March 6, 2013, we received an application from Sturgeon AquaFarms that requested an exemption from threatened species permits in accordance with 50 CFR 17.44(y)(5) for Sturgeon AquaFarms' aquaculture facility in Bascom, Florida. In evaluating the application, the Service sought additional information from the applicant, the State of Florida, and the littoral states with which the applicant has entered into formal agreements (the Russian Federation and the Republic of Azerbaijan). We also conducted a site visit at the Sturgeon AquaFarms' aquaculture facility in Bascom, Florida. On June 15, 2016, the Service approved, under certain conditions, the requested exemption from threatened species permitting requirements to allow the take of beluga sturgeon from Sturgeon AquaFarms' aquacultured stock, located at its facility in Bascom, Florida, for the purpose of harvesting beluga meat and to allow for the interstate commerce and export of beluga meat the facility harvests from its aquacultured stock. This exemption applies to aquacultured beluga meat only; it does not apply to trade in beluga caviar or live beluga sturgeon.
We issue this notice under the authority of the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability; request for comment.
We, the Fish and Wildlife Service (Service), announce that of our Pima pineapple cactus (
To ensure consideration, we must receive written comments on or before August 25, 2017. However, we will accept information about any species at any time.
For additional information about submitting comments, see Request for Public Comments.
Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, at the above address and phone number, or by email at
A primary goal of our endangered species program and the Act (16 U.S.C. 1531
Plants are found on lands owned or managed by the Federal government (approximately 12 percent), State government (approximately 46 percent), Tribal government (approximately 2 percent), and private entities (approximately 40 percent).
The principal
The objective of a recovery plan is to provide a framework for the recovery of a species so that protection under the Act is no longer necessary. A recovery plan includes scientific information about the species and provides criteria and actions necessary for us to be able to reclassify the species to threatened status or remove it from the List of Endangered and Threatened Plants (List) at 50 CFR 17.12(h). Recovery plans help guide our recovery efforts by describing actions we consider necessary for the species' conservation, and by estimating time and costs for implementing needed recovery measures. To achieve its goals, this draft recovery plan identifies the following objectives:
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The draft recovery plan focuses on conserving and enhancing habitat quality, protecting the population, managing threats, monitoring progress, and building partnerships to facilitate recovery. When the recovery of
Section 4(f) of the Act requires us to provide public notice and an opportunity for public review and comment during recovery plan development. It is also our policy to request peer review of recovery plans (July 1, 1994; 59 FR 34270). In an appendix to the approved recovery plan, we will summarize and respond to the issues raised by the public and peer reviewers. Substantive comments may or may not result in changes to the recovery plan; comments regarding recovery plan implementation will be forwarded as appropriate to Federal or other entities so that they can be taken into account during the course of implementing recovery actions. Responses to individual commenters will not be provided, but we will provide a summary of how we addressed substantive comments in an appendix to the approved recovery plan.
We invite written comments on the draft recovery plan. In particular, we are interested in additional information regarding the current threats to the species and the costs associated with implementing the recommended recovery actions.
Before we approve our final recovery plan, we will consider all comments we receive by the date specified in
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Comments and materials we receive will be available, by appointment, for public inspection during normal business hours at our office (see
A complete list of all references cited herein is available upon request from the Arizona Ecological Services Office (see
We developed our draft recovery plan under the authority of section 4(f) of the Act, 16 U.S.C. 1533(f). We publish this notice under section 4(f) Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Office of the Federal Register received this document on June 21, 2017.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection at the Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the Antitrust Division's Web site, filed with the Court, and, under certain circumstances, published in the
The United States of America, acting under the direction of the Attorney General of the United States, brings this civil action to enjoin the acquisition of Baker Hughes Incorporated (“Baker Hughes”) by General Electric Co. (“GE”) and to obtain other equitable relief. The United States alleges as follows:
1. GE's acquisition of Baker Hughes would combine two of the leading providers of refinery process chemicals and services in the United States. Refineries process crude oil and natural gas extracted from wells (“hydrocarbons”) into finished products like gasoline. To perform this process, refineries rely on a variety of special chemicals, collectively known as refinery process chemicals, to remove salts, solids, metals, and other impurities from the hydrocarbons and to prevent corrosion and damage to refinery equipment. Refineries rely on process chemical and service providers to evaluate the specific hydrocarbons flowing into their refineries and to formulate and apply customized
2. Failures can be costly. If the refinery process chemical and service provider selects the wrong chemicals or fails to provide adequate and timely service, the result may be millions of dollars in lost production or damage to the refinery's equipment. For these reasons, oil and gas refiners choose a provider based on a number of factors that include not just pricing but the provider's experience, ability to offer timely and high-quality service, and research and development capabilities.
3. GE and Baker Hughes vigorously compete to win the business of oil and gas refiners. If the transaction is allowed to proceed, this competition will be lost, and the merged firm will control over 50% of the market, leading to higher prices, reduced service quality, and diminished innovation.
4. Accordingly, as alleged more specifically below, the acquisition, if consummated, would likely substantially lessen competition in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, and should be enjoined.
5. Defendant GE is a New York corporation headquartered in Boston, Massachusetts. GE is a large, diversified corporation that, among other lines of business, supplies the oil and gas industry with refinery process chemicals and services through its GE Water & Process Technologies business unit. GE generated $16 billion in revenues from oil- and gas-related products and services in 2015.
6. Defendant Baker Hughes is a Delaware corporation headquartered in Houston, Texas. Baker Hughes supplies the oil and gas industry with refinery process chemicals and services through its Downstream Chemicals business, which is part of Baker Hughes's Chemicals and Industrial Services organization. Baker Hughes's 2015 revenues were $15.7 billion.
7. Pursuant to a Transaction Agreement and Plan of Merger dated October 30, 2016 (“Transaction”), GE will acquire Baker Hughes.
8. The United States brings this action pursuant to Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
9. Defendants provide refinery process chemicals and services in the flow of interstate commerce, and their provision of refinery process chemicals and services substantially affects interstate commerce. The Court has subject matter jurisdiction over this action pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345.
10. Defendants have consented to venue and personal jurisdiction in the District of Columbia for the purpose of this matter. Venue is therefore proper in this district under Section 12 of the Clayton Act, 15 U.S.C. 22 and 28 U.S.C. 1391(b) and (c).
11. The provision of refinery process chemicals and services is a relevant product market and line of commerce under Section 7 of the Clayton Act. Oil and gas refiners have no reasonable substitutes for refinery process chemicals and services. Because oil and gas refiners have no reasonable alternatives to refinery process chemicals and services, few, if any, would substitute to other products in response to a price increase.
12. Oil and gas refiners choose from those suppliers that have service staff and support infrastructure in their local area. GE and Baker Hughes have such infrastructure and compete with one another for customers in local areas throughout the United States. One well-accepted methodology for assessing whether a group of products and services sold in a particular area constitutes a relevant market under the Clayton Act is to ask whether a hypothetical monopolist over all the products sold in the area would raise prices for a non-transitory period by a small but significant amount, or whether enough customers would switch to other products or services or purchase outside the area such that the price increase would be unprofitable.
13. The relevant market is highly concentrated and would become more concentrated as a result of the Transaction. GE's share of the refinery process chemicals and services market in the United States is approximately 20% while Baker Hughes's is approximately 35%.
14. Concentration in relevant markets is typically measured by the Herfindahl-Hirschman Index (“HHI”).
15. The refinery process chemicals and services market in the United States currently is highly concentrated, with an HHI over 2,900. The Transaction would increase the HHI by about 1,450, rendering the Transaction presumptively anticompetitive.
16. Defendants are two of a few firms that have the technical capabilities and expertise to provide refinery process chemicals and services in the United States. Defendants vigorously compete on price, service quality, and product development, and customers have benefitted from this competition.
17. The Transaction would eliminate the competition between Defendants to provide refinery process chemicals and services in the United States. After the Transaction, GE would gain the incentive and ability to raise its bid prices significantly above competitive levels, reduce its investment in research
18. Entry by a new provider of refinery process chemicals and services or expansion of existing marginal providers would not be timely, likely, and sufficient to prevent the substantial lessening of competition caused by the elimination of Baker Hughes as an independent competitor.
19. Successful entry into the provision of refinery process chemicals and services in the United States is difficult, costly, and time consuming. An entrant would need to develop local infrastructure, a full line of chemicals designed for refineries, and a track record of successfully treating the products processed by refineries. Because of the significant investment oil and gas refiners make in acquiring hydrocarbons to process and the high costs of any problem or delay, refinery oil and gas refiners are unlikely to switch away from established providers, making it difficult for new refinery process chemical and service providers to enter the market.
20. Defendants cannot demonstrate cognizable and merger-specific efficiencies that would be sufficient to offset the Transaction's anticompetitive effects.
21. The effect of the Transaction, if consummated, would likely be to lessen substantially competition for refinery process chemicals and services in the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. Unless restrained, the Transaction would likely have the following effects, among others:
(a) Competition in the market for refinery process chemicals and services in the United States would be substantially lessened;
(b) prices for refinery process chemicals and services in the United States would increase;
(c) the quality of refinery process chemicals and services in the United States would decrease; and
(d) innovation in the refinery process chemicals and services market in the United States would diminish.
22. The United States requests that this Court:
(a) Adjudge GE's proposed acquisition of Baker Hughes to violate Section 7 of the Clayton Act, 15 U.S.C. § 18;
(b) Permanently enjoin and restrain Defendants from consummating the proposed acquisition by GE of Baker Hughes or from entering into or carrying out any contract, agreement, plan, or understanding, the effect of which would be to combine GE and Baker Hughes;
(c) Award the United States its costs for this action; and
(d) Award the United States such other and further relief as the Court deems just and proper.
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, as amended (15 U.S.C. 18).
As used in this Final Judgment:
A. “Acquirer” means Suez or another entity to whom Defendants divest any of the Divestiture Assets or with whom Defendants have entered into definitive contracts to sell any of the Divestiture Assets.
B. “GE” means defendant General Electric Co., a New York corporation with its headquarters in Boston, Massachusetts, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
C. “Baker Hughes” means defendant Baker Hughes Incorporated, a Delaware corporation with its headquarters in Houston, Texas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
D. “Suez” means SUEZ, a French
E. “GE Water & Process Technologies” means the GE Water & Process Technologies business unit of GE as it operated prior to the filing of the Complaint in this matter, including but not limited to the entities listed in the Appendix.
F. “Divestiture Assets” means all the assets of GE Water & Process Technologies, including:
1. All tangible assets that comprise the GE Water & Process Technologies business, including but not limited to all worldwide manufacturing plants; service centers; labs; warehouse and distribution facilities; offices; the global headquarters located in Trevose, Pennsylvania; all global research and development facilities; manufacturing equipment; tooling and fixed assets; personal property; inventory; office furniture; materials; supplies; other property; all licenses, permits and authorizations issued by any governmental organization relating to GE Water & Process Technologies; assignment and/or transfer of all contracts, agreements (including supply agreements), leases, commitments, certifications, and understandings exclusively relating to GE Water & Process Technologies; all customer lists, contracts, accounts, credit records; all other business and administrative records; and all other assets used exclusively by GE Water & Process Technologies;
2. The following intangible assets:
(a) all intangible assets owned, licensed, controlled, or used primarily by the GE Water & Process Technologies business, including but not limited to all patents, licenses and sublicenses, intellectual property, copyrights, trademarks, trade names, service marks, service names (excluding any trademark, trade name, service mark, or service name containing the GE monogram or the names “GE” or “General Electric”), technical information, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information provided by GE Water & Process Technologies to its own employees, customers, suppliers, agents, or licensees, and all research data concerning historic and current research and development efforts relating to the Divestiture Assets, including but not limited to designs of experiments and the results of successful and unsuccessful designs and experiments; and
(b) a worldwide, non-exclusive, royalty-free license to all intellectual property, including but not limited to all patents, copyrights, trademarks, trade names, service marks, service names, and trade secrets owned by GE or that GE has the right to license and used by the GE Water & Process Technologies business at any time during the period that the GE Water & Process Technologies business has been owned by GE. Such license (except for any license for trademarks, trade names, service marks, and service names containing the names “GE” or “General Electric”) shall be perpetual and shall grant the Acquirer the right to make, have made, use, sell or offer for sale, copy, create derivative works, modify, improve, display, perform, and enhance the licensed intangible assets. Any improvements or modifications to these intangible assets developed by the Acquirer shall be owned solely by that Acquirer.
A. This Final Judgment applies to GE and Baker Hughes, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Section IV and Section V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets or of lesser business units that include the Divestiture Assets, they shall require the purchaser to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the acquirers of the assets divested pursuant to this Final Judgment.
A. Defendants are ordered and directed, within 90 calendar days after the signing of the Hold Separate Stipulation and Order in this matter, or five (5) calendar days after notice of the entry of the Final Judgment by the Court, whichever is later, to divest the Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to one or more extensions of this time period, not to exceed 90 calendar days in total, and shall notify the Court in such circumstances. Defendants agree to use their best efforts to divest the Divestiture Assets as expeditiously as possible.
B. In the event Defendants are divesting the Divestiture Assets to an Acquirer other than Suez, Defendants shall promptly make known, by usual and customary means, the availability of the Divestiture Assets to be divested.
C. Defendants shall inform any person making an inquiry regarding a possible purchase of the Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment.
D. In accomplishing the divestiture ordered by this Final Judgment, Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privileges or work-product doctrine. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
E. Defendants shall provide the Acquirer and the United States information relating to the personnel employed by the Divestiture Assets to enable the Acquirer(s) to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer(s) to employ any defendant employee whose primary responsibility is related to the production, operation, development or sale of products and services by GE Water & Process Technologies.
F. Defendants shall permit the prospective Acquirer of the Divestiture Assets to have reasonable access to personnel and to make inspections of the physical facilities of GE Water & Process Technologies; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
G. Defendants shall warrant to the Acquirer that each asset will be operational on the date of sale.
H. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets.
I. Defendants shall warrant to the Acquirer (1) that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset and (2) that, following the sale of the Divestiture Assets, Defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
J. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by a Divestiture Trustee appointed pursuant to Section V, of this Final Judgment, shall include the entire Divestiture Assets and shall be accomplished in
(1) shall be made to an Acquirer that, in the United States' sole judgment, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the provision of refinery process chemicals and services; and
(2) shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer and Defendants give Defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
Any questions that arise concerning whether particular assets are appropriately considered Divestiture Assets subject to Section IV shall be resolved by the United States, in its sole discretion, consistent with the terms of this Final Judgment.
A. If Defendants have not divested the Divestiture Assets within the time period specified in Section IV.A, Defendants shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a Divestiture Trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets.
B. After the appointment of a Divestiture Trustee becomes effective, only the Divestiture Trustee shall have the right to sell the Divestiture Assets. The Divestiture Trustee shall have the power and authority to accomplish the divestiture to an Acquirer(s) acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the Divestiture Trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V.D of this Final Judgment, the Divestiture Trustee may hire at the cost and expense of Defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the Divestiture Trustee, reasonably necessary in the Divestiture Trustee's judgment to assist in the divestiture. Any such investment bankers, attorneys, or other agents shall serve on such terms and conditions as the United States approves including confidentiality requirements and conflict of interest certifications.
C. Defendants shall not object to a sale by the Divestiture Trustee on any ground other than the Divestiture Trustee's malfeasance. Any such objections by Defendants must be conveyed in writing to the United States and the Divestiture Trustee within ten (10) calendar days after the Divestiture Trustee has provided the notice required under Section VI.
D. The Divestiture Trustee shall serve at the cost and expense of Defendants pursuant to a written agreement, on such terms and conditions as the United States approves including confidentiality requirements and conflict of interest certifications. The Divestiture Trustee shall account for all monies derived from the sale of the assets sold by the Divestiture Trustee and all costs and expenses so incurred. After approval by the Court of the Divestiture Trustee's accounting, including fees for its services yet unpaid and those of any professionals and agents retained by the Divestiture Trustee, all remaining money shall be paid to Defendants and the trust shall then be terminated. The compensation of the Divestiture Trustee and any professionals and agents retained by the Divestiture Trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the Divestiture Trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount. If the Divestiture Trustee and Defendants are unable to reach agreement on the Divestiture Trustee's or any agents' or consultants' compensation or other terms and conditions of engagement within 14 calendar days of appointment of the Divestiture Trustee, the United States may, in its sole discretion, take appropriate action, including making a recommendation to the Court. The Divestiture Trustee shall, within three (3) business days of hiring any other professionals or agents, provide written notice of such hiring and the rate of compensation to Defendants and the United States.
E. Defendants shall use their best efforts to assist the Divestiture Trustee in accomplishing the required divestiture. The Divestiture Trustee and any consultants, accountants, attorneys, and other agents retained by the Divestiture Trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and Defendants shall develop financial and other information relevant to such business as the Divestiture Trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Defendants shall take no action to interfere with or to impede the Divestiture Trustee's accomplishment of the divestiture.
F. After its appointment, the Divestiture Trustee shall file monthly reports with the United States and, as appropriate, the Court setting forth the Divestiture Trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The Divestiture Trustee shall maintain full records of all efforts made to divest the Divestiture Assets.
G. If the Divestiture Trustee has not accomplished the divestiture ordered under this Final Judgment within six months after its appointment, the Divestiture Trustee shall promptly file with the Court a report setting forth (1) the Divestiture Trustee's efforts to accomplish the required divestiture, (2) the reasons, in the Divestiture Trustee's judgment, why the required divestiture has not been accomplished, and (3) the Divestiture Trustee's recommendations. To the extent such reports contains information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. The Divestiture Trustee shall at the same time furnish such report to the United States which shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the Divestiture Trustee's appointment by a period requested by the United States.
H. If the United States determines that the Divestiture Trustee has ceased to act or failed to act diligently or in a reasonably cost-effective manner, it may recommend the Court appoint a substitute Divestiture Trustee.
A. In the event Defendants are divesting the Divestiture Assets to an Acquirer other than Suez, within two (2) business days following execution of a definitive divestiture agreement, Defendants or the Divestiture Trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section IV or Section V of this Final Judgment. If the Divestiture Trustee is responsible, it shall similarly notify Defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from Defendants, the proposed Acquirer(s), any other third party, or the Divestiture Trustee, if applicable, additional information concerning the proposed divestiture, the proposed Acquirer(s), and any other potential Acquirer. Defendants and the Divestiture Trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from Defendants, the proposed Acquirer(s), any third party, and the Divestiture Trustee, whichever is later, the United States shall provide written notice to Defendants and the Divestiture Trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to Defendants' limited right to object to the sale under Section V.C of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer(s) or upon objection by the United States, a divestiture proposed under Section IV or Section V shall not be consummated. Upon objection by Defendants under Section V.C, a divestiture proposed under Section V shall not be consummated unless approved by the Court.
Defendants shall not finance all or any part of any purchase made pursuant to Section IV or Section V of this Final Judgment.
Until the divestiture required by this Final Judgment has been accomplished, Defendants shall take all steps necessary to comply with the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this Court.
A. Within twenty (20) calendar days of the filing of the Complaint in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or Section V, Defendants shall deliver to the United States an affidavit as to the fact and manner of its compliance with Section IV or Section V of this Final Judgment. In the event Defendants are divesting the Divestiture Assets to an Acquirer other than Suez, each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. In the event Defendants are divesting the Divestiture Assets to an Acquirer other than Suez, each such affidavit shall also include a description of the efforts Defendants have taken to solicit buyers for the Divestiture Assets, and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by Defendants, including limitation on information, shall be made within fourteen (14) calendar days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, Defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions Defendants have taken and all steps Defendants have implemented on an ongoing basis to comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in Defendants' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.
C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, or of any related orders such as any Hold Separate Stipulation and Order, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1) access during Defendants' office hours to inspect and copy, or at the option of the United States, to require Defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendants, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports or response to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by Defendants to the United States, Defendants represent and identify in writing the
Defendants may not reacquire any part of the Divestiture Assets during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
Defendant General Electric Co. (“GE”) and Defendant Baker Hughes Incorporated (“Baker Hughes”) entered into a Transaction Agreement and Plan of Merger dated October 30, 2016 (“Transaction”). GE and Baker Hughes are two of the leading providers of refinery process chemicals and services used by oil and gas refineries to remove impurities from the oil and gas and to prevent damage to refinery equipment.
The United States filed a civil antitrust Complaint on June 12, 2017 seeking to enjoin the Transaction. The Complaint alleges that the likely effect of the Transaction would be to lessen competition substantially for refinery process chemicals and services in the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, resulting in higher prices, reduced service quality, and diminished innovation.
At the same time the Complaint was filed, the United States also filed a proposed Final Judgment and a Hold Separate Stipulation and Order (“Hold Separate”) that are designed to eliminate the anticompetitive effects of the Transaction. Under the proposed Final Judgment, which is explained more fully below, GE is required to divest its GE Water & Process Technologies business unit. Under the terms of the Hold Separate, GE will take certain steps during the pendency of the ordered divestiture to ensure that GE Water & Process Technologies is operated as a competitively independent, economically viable, and ongoing business concern.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
GE is a New York corporation headquartered in Boston, Massachusetts. GE is a large, diversified corporation that, among other lines of business, supplies the oil supplies the oil and gas industry through a number of business units, including GE Water & Process Technologies, a standalone business unit that sells refinery process chemicals and services. GE earned $16 billion in revenues from its oil and gas businesses in 2015.
Baker Hughes is a Delaware corporation headquartered in Houston, Texas, with extensive operations in the oil and gas industry, including selling refinery process chemicals and services. Baker Hughes earned $15.7 billion in revenues in 2015.
The Transaction, as initially agreed to by Defendants, would lessen competition substantially.
The Complaint alleges that the provision of refinery process chemicals
Oil and gas refiners choose from those suppliers that have service staff and support infrastructure in their local area. GE and Baker Hughes have such infrastructure, and compete with one another for customers, in areas throughout the United States. A hypothetical monopolist of refinery process chemicals and services in the United States likely would impose at least a small but significant price increase because few if any customers would substitute to purchasing other products or to purchasing outside the United States. Therefore, the United States is a relevant geographic market under Section 7 of the Clayton Act for the provision of refinery process chemicals and services.
The market for the provision of refinery process chemicals and services in the United States is highly concentrated and would become more concentrated as a result of the proposed transaction. A combined GE and Baker Hughes would control over 50% of the market for refinery process chemicals and services in the United States. The Transaction would eliminate significant head-to-head competition between GE and Baker Hughes and give the merged firm the incentive and ability to raise its prices above competitive levels, reduce its investment in research and development, and provide lower levels of service.
Entry by new refinery process chemical and service providers or expansion by existing providers would not be timely, likely, and sufficient to prevent the substantial lessening of competition caused by the Transaction. Successful entry into the refinery process chemicals and services business is difficult, costly, and time consuming. In addition to local infrastructure, a new refinery process chemicals and services provider would have to develop a portfolio of production chemicals and hire experienced staff. In addition, because of the significant investment oil and gas refiners make in infrastructure and the high costs of any problem or delay, refiners disfavor using new providers and typically only switch providers if their existing provider performs poorly over a long period of time. As a result, it is difficult and time consuming for a new provider to enter the market, develop a track record of successful work, and grow its business.
The divestiture requirement of the proposed Final Judgment will eliminate the anticompetitive effects of the proposed transaction by establishing GE Water & Process Technologies as an independent and economically viable competitor in refinery process chemicals and services. The sale of GE Water & Process Technologies will provide the buyer of the divestiture assets with the necessary assets to maintain a significant presence in the United States and remain an effective competitor.
To ensure continued vigorous competition, the proposed Final Judgment requires the divestiture of all of the tangible and intangible assets of GE Water & Process Technologies that are currently used to serve customers. Under the proposed Final Judgment, the tangible assets of GE Water & Process Technologies that must be divested include worldwide manufacturing plants, service centers, labs, warehouse and distribution facilities, and offices, including the business's global headquarters located in Trevose, Pennsylvania. The transfer will also include all six global research and development facilities. This will ensure that the acquirer of the divestiture assets has the infrastructure necessary to continue providing refinery process chemicals and services to refiners and compete for opportunities.
The proposed Final Judgment also requires the transfer and licensing of intangible assets, such as intellectual property rights, sufficient to allow the buyer to be an effective competitor. GE must fully divest the complete portfolio of intellectual property used primarily by GE Water & Process Technologies. GE will keep intellectual property used primarily by other GE business units in addition to GE Water & Process Technologies, but will grant the buyer of the divestiture assets a perpetual, royalty-free license for the use of such technology.
The proposed Final Judgment requires Defendants to sell the divestiture package within 90 days after the Court signs the Hold Separate in this matter, subject to one or more extensions up to a total of 90 days by the United States. The proposed Final Judgment contemplates the sale of the divestiture assets to SUEZ, a French
The assets must be divested in such a way as to satisfy the United States in its sole discretion that the operations can and will be operated by the purchaser as a viable, ongoing business that can compete effectively to provide refinery process chemicals and services. Defendants must take all reasonable steps necessary to accomplish the divestiture quickly and shall cooperate with prospective purchasers.
In the event that Defendants do not accomplish the divestiture within the prescribed period, the proposed Final Judgment provides that upon application by the United States, the Court will appoint a trustee selected by the United States to effect the divestiture. If a trustee is appointed, the proposed Final Judgment provides that Defendants will pay all of the trustee's costs and expenses. The trustee will have the authority to divest the divestiture assets to an acquirer acceptable to the United States. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted by mail to:
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against Defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against the Transaction proposed by Defendants. The United States is satisfied, however, that the divestiture of assets described in the proposed Final Judgment will preserve competition for the provision of refinery process and water treatment chemicals and services in the United States. Thus, the proposed Final Judgment would achieve all or substantially all of the relief the United States would have obtained through litigation but avoids the time, expense, and uncertainty of a full trial on the merits of the Complaint.
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2);
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Asset Preservation Stipulation and Order, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the Antitrust Division's Web site, filed with the Court, and, under certain circumstances, published in the
The United States of America, acting under the direction of the Attorney General of the United States, the State of Iowa, the State of Mississippi, and the State of Montana (collectively, “Plaintiff States”), acting by and through their respective Offices of the Attorney General, bring this civil action to enjoin the proposed merger of The Dow Chemical Company (“Dow Chemical”) and E.I. du Pont de Nemours and Company (“DuPont”).
1. In December 2015, Dow Chemical and DuPont announced that they had agreed to a merger of equals in a transaction with an estimated value exceeding $130 billion. Both Dow Chemical and DuPont are among the largest chemical companies in the world.
2. Dow Chemical and DuPont each make a wide variety of innovative crop protection chemicals used by farmers across the United States. Each company also manufactures a number of petrochemicals, including high-pressure ethylene derivatives that are crucial inputs to a number of important products and industries.
3. The agricultural sector is a large and vital part of the American economy. American farmers grow crops to feed consumers in the United States and abroad, to sustain livestock, and to produce alternative energy to power homes, vehicles, and industries. Every year, American farmers plant tens of millions of acres of corn, soybeans, wheat, and specialty crops, such as fruits, nuts, and vegetables. To meet the needs of a growing population, American farmers rely on a variety of effective crop protection chemical products, including herbicides and insecticides, which protect crops from weeds and insects that damage crops and reduce yield.
4. Dow Chemical and DuPont are two of only a handful of chemical companies that manufacture certain types of crop protection chemicals. Vigorous competition between Dow Chemical's and DuPont's crop protection chemicals has benefitted farmers through lower prices, more effective solutions to certain pest and weed problems, and superior service. In particular, Dow Chemical and DuPont compete in the U.S. sales of broadleaf herbicides for winter wheat and insecticides for chewing pests. That competition would be lost if the merger is consummated. Accordingly, the proposed acquisition likely would substantially lessen competition in the markets for certain crop protection chemicals in the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
5. Dow Chemical and DuPont also compete in the manufacture and sale of two types of high-pressure ethylene derivative products called acid copolymers and ionomers, which are used in the production of flexible food packaging and other industrial applications. The combination of Dow Chemical and DuPont would result in a merger to monopoly in the production of acid copolymers and ionomers in the United States. Accordingly, the proposed transaction likely would substantially lessen competition in the markets for acid copolymers and ionomers in the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
6. Dow Chemical, founded in 1897, is headquartered in Midland, Michigan, operates in approximately 180 countries, and employs over 50,000 people worldwide. In 2016, Dow Chemical had revenues of approximately $48 billion. Dow Chemical's primary lines of business are chemical, plastic, and agricultural products and services. Dow Chemical's products are used in various industries, ranging from agriculture to consumer goods.
7. DuPont, founded in 1802, is headquartered in Wilmington, Delaware, operates in approximately 90 countries, and employs more than 60,000 people worldwide. In 2016, DuPont reported revenues of $24.5 billion. DuPont's primary products include crop protection chemicals and performance products, such as plastics and polymers.
8. Pursuant to a December 11, 2015 agreement, Dow Chemical and DuPont have agreed to an all-stock merger of equals. At the time of the merger announcement, the combined market capitalization of the companies was $130 billion. The merger plan contemplates spinning off the firms' combined assets into three separate, publicly-traded companies as soon as feasible. One of those companies would focus on agriculture products (with approximately $18 billion in revenue), another on material sciences
9. The United States brings this action under Section 15 of the Clayton Act, 15 U.S.C. 25, to prevent and restrain defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
10. The Plaintiff States bring this action under Section 16 of the Clayton Act, 15 U.S.C. 26, to prevent and restrain the defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18. The Plaintiff States, by and through their respective Attorneys General, bring this action as parens patriae on behalf of and to protect the health and welfare of their citizens and the general economy of each of their states.
11. Defendants Dow Chemical and DuPont sell crop protection chemicals, including herbicides and insecticides, and acid copolymers and ionomers throughout the United States. They are engaged in the regular, continuous, and substantial flow of interstate commerce, and their sales of crop protection chemicals and acid copolymers and ionomers have had a substantial effect on interstate commerce. This Court has subject matter jurisdiction over this action under Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345.
12. Defendants have consented to venue and personal jurisdiction in this judicial district. Venue is therefore proper in this district under Section 12 of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391(c).
13. Crop protection chemicals are used to protect crops from damage or loss from other biological organisms such as weeds, insects, or disease (
14. Crop protection chemicals can be separated into three broad categories that have different qualities and attributes: herbicides (to combat weeds); insecticides (to combat insect pests); and fungicides (to combat microbial disease).
15. The key component of any particular crop protection chemical is the “active ingredient,” which is the chemical molecule that produces the desired effect against the targeted weed or insect pest. Crop protection chemicals are typically sold as “formulated products” that contain the active ingredient and also inactive ingredients such as solvents, fillers, and adjuvants used to stabilize the active ingredient and facilitate its effective use on the intended crops.
16. Both active ingredients and formulated products must be registered with the U.S. Environmental Protection Agency (“EPA”) and approved for use. In order to gain approval, products must meet stringent toxicity and efficacy standards. Approvals are granted on a crop-by-crop basis and contain strict dosage requirements. A farmer wishing to control a certain pest on his or her farm can use only the products and dose-rates that the EPA has approved for the particular crops to which the product will be applied.
17. The crop protection industry includes a handful of large integrated research and development firms (including Dow Chemical and DuPont) that develop, manufacture, and sell crop protection chemicals. While the large research and development firms sometimes sell directly to farmers, their primary customers are large distributors and farmer co-ops that resell products to farmers.
18. Both Dow Chemical and DuPont produce herbicides for winter wheat. Winter wheat is a type of grass that is planted in autumn and produces an edible grain. In the United States, winter wheat is grown primarily in the Great Plains states, including Kansas, Nebraska, and Texas.
19. Herbicides are chemicals used to combat weeds that harm crops. They can be selective (killing only certain types of plants) or non-selective. Non-selective herbicides kill all plant matter, including weeds and the crop. Because of this, non-selective herbicides are typically used after the crop is harvested, to clear the field of remaining weeds. Selective herbicides target only weeds, and are applied “post-emergence,” or during the growth of the crop.
20. There are three common types of selective herbicide products: broadleaf, grass, and cross-spectrum. Broadleaf herbicides primarily eliminate or suppress broadleaf weeds. Grass herbicides primarily eliminate or suppress grass weeds. Cross-spectrum herbicides are effective on both grass and broadleaf weeds. Each herbicide formulation has a different spectrum of weeds on which it is effective, so a farmer chooses an herbicide based on the particular kinds of weeds threatening the crop.
21. Herbicides are registered with the EPA for use on particular crops. Because crop choices and weed threats vary from farm to farm, the options available to farmers may vary from location to location, depending on the specific crop/weed combinations a farmer faces.
22. Dow Chemical and DuPont both offer herbicides that are labeled and registered for the control of broadleaf weeds in winter wheat crops. DuPont's Finesse product is the top broadleaf herbicide used to combat the weed spectrum that typically threatens winter wheat crops. Dow Chemical recently introduced a new broadleaf herbicide for winter wheat, called Quelex.
23. Dow Chemical and DuPont also sell insecticides for chewing pests. Insecticides are used to suppress or eliminate insect infestations in crops. There are three main classes of insect pests: (1) chewing insects (
24. Insecticide use is particularly important for specialty crop farmers of tree fruit, tree nuts, and other fruits and vegetables (“specialty crops”). Any damage to specialty crops, no matter how slight, can result in the fruit or nut being rejected for sale. Thus, specialty crop farmers are particularly averse to the risk of insect damage when choosing an insecticide. Specialty crop farmers also value selective chemistry insecticides because they are less harmful to beneficial insects (such as bees and parasitic wasps) that not only pollinate fruit, but also help to control damaging insects, such as mites. In contrast, broad spectrum chemistries, such as pyrethroids, kill most of the insects in a field, including beneficial ones. Farmers therefore either minimize their use and/or use them towards the end of a growing season.
25. DuPont produces the active ingredient chlorantraniliprole, which DuPont markets under the trade name, Rynaxypyr. Rynaxypyr is one of the best selling and most effective active ingredients used to combat chewing pests on the market. Rynaxypyr is patent-protected until 2022. In the United States, Rynaxypyr is marketed and sold in formulations under the brand names Altacor, Coragen, and Prevathon. DuPont's 2015 U.S. insecticides sales totaled $118 million; of that total, Rynaxypyr sales accounted for $73 million.
26. Dow Chemical manufactures and sells two active ingredients which are also effective against chewing pests: (1) methoxyfenozide, sold under the brand name Intrepid, and (2) spinetoram, sold under the brand names Delegate and Radiant. In 2015, Dow Chemical had a total of $165 million in U.S. insecticides sales. Of that total, spinetoram sales accounted for $57 million and methoxyfenozide sales accounted for $34 million.
27. To combat broadleaf weeds in winter wheat, particularly in the central plains of the United States, farmers need broadleaf herbicides that are labeled and registered for use on winter wheat. Farmers of winter wheat cannot use grass herbicides to combat broadleaf weeds because they are ineffective. Farmers would not use cross-spectrum herbicides to combat broadleaf weeds, as cross-spectrum herbicides are significantly more expensive and, thus, it would not be cost-justified to use cross-spectrum herbicides for broadleaf weeds alone. Farmers would not forgo using broadleaf herbicides altogether, because doing so would risk significant wheat yield losses.
28. All herbicides sold in the United States must be registered and approved by the EPA. Similar products available in other countries cannot be offered to United States customers due to EPA regulations, so they are not competitive constraints.
29. A small but significant increase in the price of broadleaf herbicides sold in the United States labeled and registered for use on winter wheat would not cause customers of those herbicides to substitute to grass or cross-spectrum herbicides, nor would farmers forgo using herbicides altogether and risk weed damage to their crops. As a result, customers are unlikely to switch away from broadleaf herbicides sold in the United States in volumes sufficient to defeat such a price increase. Accordingly, the development, manufacture, and sale of broadleaf herbicides sold in the United States labeled and registered for use on winter wheat is a line of commerce and relevant market within the meaning of Section 7 of the Clayton Act.
30. Insecticides for chewing pests are targeted to combat a particular type of pest, and insecticides for other types of pests cannot, in general, be used as substitutes. While there are broad-spectrum insecticides which are effective on more than one type of pest, those insecticides tend to kill indiscriminately, including beneficial insects. Specialty crop farmers in California, Washington and elsewhere need beneficial insects such as bees to pollinate their crops. These farmers would not, however, choose to forgo managing the insect pests which attack their crops, because even slight damage can result in an entire harvest being rejected for sale.
31. All insecticides sold in the United States must be registered and approved by the EPA. Similar products available in other countries cannot be offered to United States customers due to EPA regulations, so they are not competitive constraints.
32. A small but significant increase in the price of chewing pest insecticides sold in the United States would not cause customers of those insecticides to substitute to broad-spectrum insecticides, nor would farmers forgo using insecticides altogether and risk severe pest damage to their whole crop, in volumes sufficient to defeat such a price increase. Accordingly, the development, manufacture, and sale of chewing pest insecticides sold in the United States is a line of commerce and relevant market within the meaning of Section 7 of the Clayton Act.
33. Dow Chemical and DuPont are two of the four largest suppliers of broadleaf herbicides for winter wheat crops in the United States. Together they account for over forty percent of the total market, with combined annual sales of $81 million in 2015. Dow Chemical and DuPont compete head-to-head for the development, manufacture, and sale of broadleaf herbicides for winter wheat. That competition, which would be lost if the merger is consummated, has benefited farmers through lower prices, more effective solutions, and superior service.
34. Competition between Dow Chemical and DuPont has also spurred research, development, and marketing of new and improved broadleaf herbicides for winter wheat. For example, Dow Chemical intends to market its Quelex herbicide, which was recently introduced into the market, to farmers of winter wheat that currently use DuPont's market-leading Finesse product. DuPont considered adopting competitive responses, including price reductions, to protect its market share from Dow Chemical's Quelex herbicide.
35. The proposed merger, therefore, likely would substantially lessen competition for the development, manufacture, and sale of broadleaf herbicides for winter wheat, in violation of Section 7 of the Clayton Act. This likely would lead to higher prices, less favorable contractual terms, and a reduced incentive to spend significant resources in developing new products.
36. Dow Chemical and DuPont are the two largest suppliers of insecticides used on chewing pests in the United States. Together they account for $238 million in annual sales. The merger of Dow Chemical and DuPont likely would substantially lessen competition in the market for the development, manufacture, and sale of chewing pest insecticides.
37. If the merger between Dow Chemical and DuPont is consummated, the combined company will control nearly seventy-five percent of the market for chewing pest insecticides in the United States. Additionally, Dow Chemical and DuPont's closest competitor sells competing products that are mixed with DuPont's Rynaxypyr, for which the competitor has a license. As a result, specialty crop farmers would have little alternative but to accept increased prices post merger.
38. Competition between Dow Chemical and DuPont has benefited customers of chewing pest insecticides through lower prices, more effective solutions, and superior service. Customers also have benefited from the competition between Dow Chemical and DuPont by obtaining more favorable contract terms, such as financing and priority in product shipments to coincide with crop growing seasons. A combined Dow Chemical and DuPont would have the incentive and ability to eliminate or restrict financial and other incentives to customers, extinguishing this competition and those tangible and valuable benefits to customers.
39. The proposed merger, therefore, likely would substantially lessen competition for the development, manufacture, and sale of chewing pest insecticides, in violation of Section 7 of the Clayton Act. This likely would lead to higher prices, less favorable contractual terms, and less innovation.
40. The discovery, development, testing, registration, and commercial launch of a new herbicide or insecticide can take ten to fifteen years and can cost well over $150 million dollars. Given
41. High-pressure ethylene derivatives (“HiPEDs”) are plastic resins produced by “cracking,” or breaking down, petrochemicals into their constituent parts and combining them with various molecules to produce polymer resins. The resulting resins, such as low density polyethylene, ethylene vinyl acetate, acrylate copolymers, grafted polyolefins, acid copolymers, and ionomers, have different performance characteristics, such as hardness, corrosion resistance or scratch resistance, depending on the materials used in their construction.
42. HiPED resins are mixed with other plastic resins to manufacture numerous plastic products, such as films, bottles, coatings, and packaging. Customers source particular HiPED resins that meet their specific needs and requirements and build their manufacturing process around specific resin combinations that give the final product the desired performance characteristics.
43. Unlike most HiPED resins, where there is substitution possible for both the supply and demand of the products, neither customers nor manufacturers can easily switch between acid copolymers and ionomers (two specific types of HiPED resins) and other HiPED resins.
44. Acid copolymers are a specific type of HiPED resin manufactured using highly acidic input products. In order to handle inputs with high acid content, HiPED resin manufacturers must install specific corrosion-resistant equipment that is not used for the manufacture of other HiPED resins. Such equipment can cost millions of dollars.
45. Acidic inputs make acid copolymers both highly adhesive and very durable. As a result, acid copolymers are used to create strong seals between substrates, or “tie layers,” of flexible packaging. Their increased adhesive ability is particularly necessary in applications where packaging will be exposed to challenging environments, such as high levels of grease, oil, acid, or dust.
46. Because of these characteristics, packaging films made using acid copolymers are ideal for use in the food and beverage industry. Indeed, this industry consumes the vast majority of acid copolymers produced, for use in products such as juice boxes, toothpaste tubes, and meat and cheese wrap, among others. Unlike other plastic films, food and beverage packaging must adhere to strict food safety guidelines, and significant deviations from approved formulas must undergo a rigorous requalification process that can take significant time and expense.
47. Both Dow Chemical and DuPont manufacture acid copolymers in the United States. Dow Chemical manufactures acid copolymers in a dedicated corrosion-resistant facility that is part of its larger chemical complex in Freeport, Texas. DuPont manufactures acid copolymers and other HiPED resins on corrosion-resistant manufacturing lines within facilities located in Sabine, Texas and Victoria, Texas.
48. Ionomers are another specific type of HiPED resin. They are directly derived from acid copolymers and are produced by neutralizing acid copolymers with sodium, zinc, magnesium, or other salts. As a result of this process, ionomers are hard and durable. When added to a plastic coating, ionomers make the resulting product more impact- and cut-resistant.
49. Ionomers are used in a multitude of applications, such as decking and automotive parts. Ionomers are preferred for these end uses because their superior toughness and impact resistance protect the underlying product from the repeated blows it is subjected to.
50. Both Dow Chemical and DuPont produce ionomers in the United States. DuPont manufactures ionomers in-line with its acid copolymer production in Sabine, Texas. Dow Chemical manufactures acid copolymers in its Freeport, Texas facility and then ships them to Odessa, Texas, where a third party converts them to ionomers.
51. Food and beverage packaging manufacturers purchase the majority of acid copolymers produced in the United States. These customers rely upon the superior sealant and adhesive characteristics acid copolymers provide as compared to other HiPED resins. Additionally, because food and beverage packaging must adhere to strict food safety guidelines, significant deviations from approved formulas must undergo a rigorous qualification process that can take significant time and incur additional costs. Most customers therefore would not switch to another product if faced with a significant and non-transitory increase in the price of acid copolymers.
52. Customers have consistently reported that purchasing acid copolymers abroad is not a realistic option for domestic purchasers, due to taxes, tariffs, logistical costs, and the longer lead times associated with importing acid copolymers. Most customers report that it would take considerably more than a small, significant, and non-transitory increase in price to make European suppliers a viable alternative to Dow Chemical and DuPont.
53. A small but significant increase in price for acid copolymers sold in the United States would not cause customers to turn to another product in sufficient numbers to defeat such a price increase. Thus, the development, manufacture, and sale of acid copolymers in the United States constitutes a relevant product market and line of commerce under Section 7 of the Clayton Act.
54. Customers purchase ionomers for the superior impact- and cut-resistance characteristics that are not available in other HiPED resins. These customers rely on the hardness and resilience that an ionomer-based coating provides as compared to other coatings. Customers cannot switch to other, less resilient, coatings and cannot forgo the use of protective coatings altogether, as either choice would significantly decrease the useful lifespan of the underlying products. Most customers therefore would not switch to another product if faced with a small but significant and non-transitory increase in the price of ionomers.
55. U.S. customers cannot turn to ionomer suppliers abroad due to taxes, tariffs, logistical costs, and longer lead times associated with importing ionomers. Most customers report that it would take considerably more than a small, significant, and non-transitory increase in price to make European suppliers a viable alternative to Dow Chemical and DuPont.
56. A small but significant increase in price for ionomers sold in the United States would not cause customers to turn to another product in sufficient numbers to defeat such a price increase. Thus, the development, manufacture, and sale of ionomers in the United States constitutes a relevant product market and line of commerce under Section 7 of the Clayton Act.
57. Dow Chemical and DuPont are the only two manufacturers of acid copolymers in the United States. Dow Chemical controls over 80 percent of the U.S. market and DuPont is responsible for 19 percent of sales (less than one tenth of one percent of acid copolymers are imported). The merger of the only U.S. manufacturers of these products would leave customers with little alternative but to accept increased prices post merger.
58. As a result of head-to-head competition between Dow Chemical and DuPont, customers have obtained better pricing, service, and contract terms. In some cases, customers report that Dow Chemical and DuPont have competed to assist customers with the development of new uses for existing acid copolymer products, allowing customers to expand sales and better serve their own consumers. Customers also have benefited from the development of new acid copolymer products, which has been spurred on by competition between Dow Chemical and DuPont.
59. The proposed merger would likely substantially lessen competition for the development, manufacture, and sale of acid copolymers in violation of Section 7 of the Clayton Act. The U.S. market for acid copolymers is highly concentrated and would become significantly more concentrated as a result of the proposed merger to monopoly: Dow Chemical and DuPont will control over 99 percent of the acid copolymers market in the United States post merger, leading to higher prices and reduced innovation.
60. Dow Chemical and DuPont are the only two manufacturers of ionomers in the United States, where the two companies collectively are responsible for all sales. Dow Chemical and DuPont are each other's only competitor for ionomers and customers would have no alternative but to accept increased prices post merger.
61. Customers have benefited from the competition between Dow Chemical and DuPont. Dow Chemical is the only company contesting DuPont's near-monopoly in ionomers. Its presence has resulted in better pricing and contract terms for customers, who otherwise would have no choice but to purchase from DuPont. Customers also have benefited from competition between Dow Chemical and DuPont to develop new products from ionomers and new uses for existing ionomer products.
62. The proposed merger would likely substantially lessen competition for the development, manufacture, and sale of ionomers in violation of Section 7 of the Clayton Act. The market for ionomers is highly concentrated and the proposed merger would result in a monopoly, leading to higher prices and reduced innovation.
63. In addition to the specialized equipment required to produce ethylene derivatives generally, acid copolymer manufacturing requires a high-pressure autoclave and all equipment surfaces must be coated with a corrosion-resistant material. Only Dow Chemical and DuPont have both high-pressure autoclaves and corrosion-resistant equipment. The cost associated with upgrading an existing ethylene derivative manufacturing operation to produce acid copolymers is estimated to be in the millions of dollars. If the merged firm were to raise prices, timely and sufficient entry is unlikely to deter or counteract competitive harm.
64. The manufacturing of ionomers requires specialized know-how as well as ready and reliable access to acid copolymers, a key input into ionomer manufacturing. Post merger, Dow Chemical and DuPont will effectively control the entire U.S. market for acid copolymers. As such, even if a third party has the technical capability to manufacture ionomers, it would be limited by the amount of acid copolymers it could obtain on the open market—a market primarily controlled by the merged entity. Because of the specialized know-how and the likely foreclosure of access to a key ingredient, if the merged firm were to raise prices, timely and sufficient entry would be unlikely to deter or counteract competitive harm.
65. If allowed to proceed, Dow Chemical and DuPont's proposed merger would likely reduce or eliminate competition in the markets for broadleaf herbicides for winter wheat and chewing pest insecticides, and tend to create a monopoly in the markets for acid copolymers and ionomers, in the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
66. Among other things, the transaction would:
(a) eliminate significant present and future head-to-head competition between Dow Chemical and DuPont in the markets for broadleaf herbicides for winter wheat, chewing pest insecticides, acid copolymers, and ionomers;
(b) likely raise prices for broadleaf herbicides for winter wheat, chewing pest insecticides, acid copolymers, and ionomers;
(c) likely eliminate innovation rivalry by two of the leading developers of new crop protection chemicals;
(d) consolidate the supply of acid copolymers and ionomers under the control of a single firm; and
(e) likely cause the number and quality of advances in acid copolymers and ionomers to decrease.
67. Plaintiffs request that the Court:
(a) adjudge and decree that the proposed merger between Dow Chemical and DuPont is unlawful and in violation of Section 7 of the Clayton Act, 15 U.S.C. 18;
(b) preliminarily and permanently enjoin and restrain defendants and all persons acting on their behalf from entering into any agreement, understanding, or plan whereby Dow Chemical and DuPont would merge or combine;
(c) award Plaintiffs the costs of this action; and
(d) grant Plaintiffs such other and further relief as the Court may deem just and proper.
I, Lowell Stern, hereby certify that on June 15, 2017, I caused a copy of the foregoing Complaint, Asset Preservation Stipulation and Order, proposed Final Judgment, Competitive Impact Statement, and Explanation of Consent Decree Procedures, to be served upon defendants The Dow Chemical Company and E.I. du Pont de Nemours and Company by mailing the documents electronically to their duly authorized legal representatives, as follows:
WHEREAS, plaintiffs United States of America and the States of Iowa, Mississippi, and Montana (collectively, “Plaintiff States”), filed their Complaint on June 15, 2017, plaintiffs and defendants, The Dow Chemical Company and E.I. du Pont de Nemours and Company, by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of fact or law;
AND WHEREAS, defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain divestiture of certain rights and assets by defendants to assure that competition is not substantially lessened;
AND WHEREAS, plaintiffs require defendants to make certain divestitures for the purpose of remedying the loss of competition alleged in the Complaint;
AND WHEREAS, defendants have represented to plaintiffs that the divestitures required below can and will be made and that defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is ORDERED, ADJUDGED, AND DECREED:
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against defendants under Section 7 of the Clayton Act, 15 U.S.C. 18.
As used in this Final Judgment:
A. “Acquirer” or “Acquirers” means the entity or entities to which defendants divest the Divestiture Assets.
B. “Acquirer of the Crop Protection Divestiture Assets” means the entity to which defendants divest the Crop Protection Divestiture Assets.
C. “Acquirer of the Material Science Divestiture Assets” means the entity to which defendants divest the Material Science Divestiture Assets.
D. “DuPont” means defendant E.I. du Pont de Nemours and Company, a Delaware corporation with its headquarters in Wilmington, Delaware, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
E. “Dow Chemical” means defendant The Dow Chemical Company, a Delaware corporation with its headquarters in Midland, Michigan, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Calgary Facility” means DuPont's interest in the facility located at 4444 72nd Avenue SE., Calgary, Alberta, Canada T2C 2C1.
G. “Freeport Facility” means Dow Chemical's dedicated acid copolymer production facility located within the B-7700 Block and B-7800 Block of Dow Chemical's integrated chemical site at 2301 Brazosport Blvd., APB Building, Freeport, Texas 77541, including a ground lease to the real property underlying the Freeport Facility, but not including ownership of any underlying real property.
H. “Manati Manufacturing Unit” means the manufacturing unit within DuPont's industrial complex at Km
I. “Mobile Facility” means DuPont's facility located at 12650 Highway 43 N, Axis, Alabama 36505.
J. “DuPont's Finesse-formulated products” means all products (including Finesse) packaged at the Calgary Facility and containing the active ingredients Metsulfuron Methyl and Chlorsulfuron Methyl produced at the Manati Manufacturing Unit.
K. “DuPont's Rynaxypyr-formulated products” means all products manufactured at the Mobile Facility that contain the active ingredient Chlorantraniliprole (including Altacor, Coragen, and Prevathon), except seed treatment applications.
L. The “Finesse Business” means:
1. the Manati Manufacturing Unit;
2. the lease to the Calgary Facility;
3. all tangible assets primarily relating to DuPont's Finesse-formulated products, including, but not limited to, manufacturing equipment, tooling and fixed assets, personal property, inventory, office furniture, materials, supplies, and other tangible property and all assets at the Manati Manufacturing Unit and at the Calgary Facility used in connection with DuPont's Finesse-formulated products;
4. all intangible assets owned, licensed, controlled, or used by DuPont, wherever located, primarily relating to DuPont's Finesse-formulated products, including, but not limited to, all patents, licenses and sublicenses, intellectual property, copyrights, trademarks (including Finesse), trade names, service marks, service names, technical information, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information DuPont provides to its own employees, customers, suppliers, agents or licensees, and all research data concerning historic and current research and development efforts primarily relating to DuPont's Finesse-formulated products, including, but not limited to, designs of experiments, and the results of successful and unsuccessful designs and experiments; except that defendants may retain copies of or access to any intangible assets primarily relating to DuPont's Finesse-formulated products that are necessary in order to perform any services pursuant to their agreements with the Acquirer of the Crop Protection Divestiture Assets, provided, however, that defendants may not otherwise use any such intangible assets in connection with the development, manufacture, and/or sale of broadleaf herbicides for winter wheat.
M. The “Rynaxypyr Business” means:
1. the Mobile Facility;
2. all tangible assets primarily relating to DuPont's Rynaxypyr-formulated products, including, but not limited to, manufacturing equipment, tooling and fixed assets, personal property, inventory, office furniture, materials, supplies, and other tangible property and all assets at the Mobile Facility used in connection with DuPont's Rynaxypyr-formulated products; all licenses, permits, and authorizations issued by any governmental organization primarily relating to DuPont's Rynaxypyr-formulated products (to the extent such licenses, permits, and authorizations are capable of assignment or transfer); all contracts (or portions thereof), teaming arrangements, agreements (or portions thereof), leases, commitments, certifications, and understandings, primarily relating to DuPont's Rynaxypyr-formulated products, including supply agreements; all customer lists, contracts, accounts, and credit records primarily relating to DuPont's Rynaxypyr-formulated products; all repair and performance records and all other records primarily relating to DuPont's Rynaxypyr-formulated products; except that defendants (i) may retain copies of or access to any tangible assets used by DuPont primarily relating to the Rynaxypyr-formulated products that are necessary in order to perform any services pursuant to their agreements with the Acquirer of the Crop Protection Divestiture Assets and (ii) may retain seed treatment assets, provided, however, that defendants may not otherwise use any such tangible assets in connection with the development, manufacture, and/or sale of insecticides for chewing pests; and
3. all intangible assets owned, licensed, controlled, or used by DuPont, wherever located, primarily relating to DuPont's Rynaxypyr-formulated products, including, but not limited to, all patents, licenses and sublicenses, intellectual property, copyrights, trademarks (including Altacor, Coragen, and Prevathon), trade names, service marks, service names, technical information, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information DuPont provides to its own employees, customers, suppliers, agents or licensees; and all research data concerning historic and current research and development efforts primarily relating to DuPont's Rynaxypyr-formulated products, including, but not limited to, designs of experiments, and the results of successful and unsuccessful designs and experiments; except that defendants (i) may retain copies of or access to any intangible assets used by DuPont relating to DuPont's Rynaxypyr-formulated products that are necessary in order to perform any services pursuant to their agreements with the Acquirer of the Crop Protection Divestiture Assets and (ii) may retain seed treatment assets, provided, however, that defendants may not otherwise use any such intangible assets in connection with the development, manufacture, and/or sale of insecticides for chewing pests.
N. “Crop Protection Divestiture Assets” means:
1. the Finesse Business; and
2. the Rynaxypyr Business.
O. “Material Science Divestiture Assets” means:
1. the Freeport Facility;
2. all tangible assets located at the Freeport Facility and primarily used by Dow Chemical's acid copolymer and ionomers business in the United States, including, but not limited to, research and development assets, manufacturing equipment, tooling and fixed assets, personal property, inventory, office furniture, materials, supplies, and other tangible property, except that the Material Science Divestiture Assets do not include (i) information technology, equipment, and tools (
3. all intangible assets primarily used by Dow Chemical in connection with the development, manufacture, and/or sale of acid copolymers and ionomers in the United States, including, but not limited to, patents, licenses and sublicenses, intellectual property, copyrights, trademarks (including Primacor), trade names, service marks, service names, technical information, know-how, and trade secrets, except that, to the extent any intangible assets primarily used by Dow Chemical's acid copolymer and ionomers business in the United States are also used by other Dow Chemical businesses or are necessary to perform any services pursuant to defendants' agreements with the Acquirer of the Material Science Divestiture Assets, defendants will receive a license to use such intangible assets from the Acquirer of the Material Science Divestiture Assets, provided, however, that defendants may not use any such intangible assets to develop, manufacture, and/or sell acid copolymers and ionomers.
P. “Divestiture Assets” means the Crop Protection Divestiture Assets and the Material Science Divestiture Assets.
A. This Final Judgment applies to DuPont and Dow Chemical, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Sections IV, V, and VI of this Final Judgment, defendants sell or otherwise dispose of all or substantially all of their assets or lesser business units that include the Divestiture Assets, they shall require the purchaser or purchasers to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the Acquirers of the assets divested pursuant to this Final Judgment.
A. Defendants are ordered and directed, within thirty (30) calendar days after the consummation of the merger of Dow Chemical and DuPont, or sixty (60) calendar days after notice of the entry of this Final Judgment by the Court, whichever is later, to divest the Crop Protection Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States, in its sole discretion, after consultation with the Plaintiff States. The United States, in its sole discretion, may agree to one or more extensions of this time period not to exceed sixty (60) calendar days in total, and shall notify the Court in such circumstances. Defendants agree to use their best efforts to divest the Crop Protection Divestiture Assets as expeditiously as possible.
B. In accomplishing the divestiture ordered by Section IV of this Final Judgment, to the extent they have not done so prior to the filing of the Complaint, defendants promptly shall make known, by usual and customary means, the availability of the Crop Protection Divestiture Assets. Defendants shall inform any person making an inquiry regarding a possible purchase of the Crop Protection Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers of the Crop Protection Divestiture Assets, subject to customary confidentiality assurances, all information and documents relating to the Crop Protection Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privilege or work-product doctrine. Defendants shall make available such information to plaintiffs at the same time that such information is made available to any other person.
C. To the extent they have not done so prior to the filing of the Complaint, defendants shall provide to the prospective Acquirer of the Crop Protection Divestiture Assets and the United States information relating to the personnel involved in the development, manufacture, and/or sale of the Crop Protection Divestiture Assets to enable the Acquirer to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer of the Crop Protection Divestiture Assets to employ any defendant employee whose primary responsibility is the development, manufacture, and/or sale of the Crop Protection Divestiture Assets.
D. Defendants shall permit the Acquirer of the Crop Protection Divestiture Assets to have reasonable access to personnel and to make inspections of the Manati Manufacturing Unit, the Calgary Facility, and the Mobile Facility; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
E. Defendants shall warrant to the Acquirer of the Crop Protection Divestiture Assets that each asset will be operational in all material respects on the date of sale.
F. Defendants shall not take any action that will impede in any material way the permitting, operation, or divestiture of the Crop Protection Divestiture Assets.
G. At the option of the Acquirer of the Crop Protection Divestiture Assets, defendants shall enter into a contract for formulation services for the Finesse-formulated products at DuPont's El Paso, Illinois facility and the Rynaxypyr-formulated products at DuPont's Valdosta, Georgia facility. The formulation services agreement shall be in effect for one year after all necessary
H. Defendants shall warrant to the Acquirer of the Crop Protection Divestiture Assets that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset, and that following the sale of the Crop Protection Divestiture Assets, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Crop Protection Divestiture Assets.
I. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by Divestiture Trustee appointed pursuant to Section VI, of this Final Judgment, shall include the entire Crop Protection Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, after consultation with the Plaintiff States, that the Crop Protection Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing business in the development, manufacture, and sale in the United States of (1) broadleaf herbicides for winter wheat and (2) insecticides for chewing pests. The divestiture, whether pursuant to Section IV or Section VI of this Final Judgment,
(1) shall be made to an Acquirer that, in the United States' sole judgment, after consultation with the Plaintiff States, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the businesses of developing, manufacturing, and selling (a) broadleaf herbicides for winter wheat and (b) insecticides for chewing pests; and
(2) shall be accomplished so as to satisfy the United States, in its sole discretion, after consultation with the Plaintiff States, that none of the terms of any agreement between the Acquirer and defendants give defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
A. Defendants are ordered and directed, within thirty (30) calendar days after the consummation of the merger of Dow Chemical and DuPont, or sixty (60) calendar days after notice of the entry of this Final Judgment by the Court, whichever is later, to divest the Material Science Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to one or more extensions of this time period not to exceed sixty (60) calendar days in total, and shall notify the Court in such circumstances. Defendants agree to use their best efforts to divest the Material Science Divestiture Assets as expeditiously as possible.
B. In accomplishing the divestiture ordered by Section V of this Final Judgment, to the extent they have not done so prior to the filing of the Complaint, defendants promptly shall make known, by usual and customary means, the availability of the Material Science Divestiture Assets. Defendants shall inform any person making an inquiry regarding a possible purchase of the Material Science Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers of the Material Science Divestiture Assets, subject to customary confidentiality assurances, all information and documents relating to the Material Science Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privilege or work-product doctrine. Defendants shall make available such information to plaintiffs at the same time that such information is made available to any other person.
C. To the extent they have not done so prior to the filing of the Complaint, defendants shall provide the Acquirer of the Material Science Divestiture Assets and the United States information relating to personnel whose primary responsibility is the development, manufacture, and/or sale of the Material Science Divestiture Assets, excluding Dow Chemical employees who will provide services under the OSA, to enable the Acquirer to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer of the Material Science Divestiture Assets to employ any defendant employee whose primary responsibility is the development, manufacture, and/or sale of the Material Science Divestiture Assets, excluding Dow Chemical employees who will provide services under the OSA.
D. Defendants shall permit the Acquirer of the Material Science Divestiture Assets to have reasonable access to personnel and to make inspections of the Freeport Facility; access to any and all environmental, zoning, and other permit documents and information related to the Freeport Facility; and access to any and all financial, operational, or other documents and information related to the Freeport Facility; in each case as customarily provided as part of a due diligence process.
E. Defendants shall warrant to the Acquirer of the Material Science Divestiture Assets that such assets will be in substantially the same operating condition on the date of sale as they were on February 1, 2017.
F. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Material Science Divestiture Assets.
G. At the option of the Acquirer of the Material Science Divestiture Assets, defendants shall enter into an operating services agreement (“OSA”) with the Acquirer sufficient to meet the Acquirer's needs for assistance in matters relating to the operation of the Material Science Divestiture Assets. If the Acquirer elects to self-operate the Material Science Divestiture Assets, defendants may require the written execution of an agreement by the Acquirer to indemnify defendants for breaches of any environmental permits that result from the operation of the Material Science Divestiture Assets by an operator other than defendants.
H. Defendants shall warrant to the Acquirer of the Material Science Divestiture Assets that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset, and that following the sale of the Material Science Divestiture Assets, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits
I. Unless the United States otherwise consents in writing, the divestiture pursuant to Section V, or by Divestiture Trustee(s) appointed pursuant to Section VI, of this Final Judgment, shall include the entire Material Science Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Material Science Divestiture Assets can and will be used by the Acquirer of the Material Science Divestiture Assets as part of a viable, ongoing business in the development, manufacture, and sale of acid copolymers and ionomers in the United States. The divestiture, whether pursuant to Section V or Section VI of this Final Judgment,
(1) shall be made to an Acquirer that, in the United States' sole judgment, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the business of developing, manufacturing, and selling acid copolymers and ionomers; and
(2) shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between the Acquirer and defendants give defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
A. If defendants have not divested the Crop Protection or Material Science Divestiture Assets within the time periods specified in Paragraphs IV(A) and V(A), defendants shall notify plaintiffs of that fact in writing. Upon application of the United States, the Court shall appoint a Divestiture Trustee or Trustees selected by the United States and approved by the Court to effect the divestiture of the remaining Divestiture Asset(s).
B. After the appointment of Divestiture Trustee(s) becomes effective, only the Divestiture Trustee(s) shall have the right to sell the relevant Divestiture Assets. The Divestiture Trustee(s) shall have the power and authority to accomplish the divestitures to Acquirer(s) acceptable to the United States, after consultation with the Plaintiff States, at such price and on such terms as are then obtainable upon reasonable effort by the Divestiture Trustee(s), subject to the provisions of Sections IV, V, VI, and VII of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Paragraph VI(D) of this Final Judgment, the Divestiture Trustee(s) may hire at the cost and expense of defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the Divestiture Trustee(s), and are reasonably necessary in the Divestiture Trustee(s)' judgment to assist in the divestiture(s). Any such investment bankers, attorneys, or other agents shall serve on such terms and conditions as the United States approves including confidentiality requirements and conflict of interest certifications.
C. Defendants shall not object to a sale by the Divestiture Trustee(s) on any ground other than the Divestiture Trustee(s)' malfeasance. Any such objections by defendants must be conveyed in writing to United States and the Divestiture Trustee(s) within ten (10) calendar days after the Divestiture Trustee(s) have provided the notice required under Section VII.
D. The Divestiture Trustee(s) shall serve at the cost and expense of defendants pursuant to a written agreement, on such terms and conditions as the United States approves, including confidentiality requirements and conflict of interest certifications. The Divestiture Trustee(s) shall account for all monies derived from the sale of the assets sold by the Divestiture Trustee(s) and all costs and expenses so incurred. After approval by the Court of the Divestiture Trustee(s)' accounting, including fees for their services yet unpaid and those of any professionals and agents retained by the Divestiture Trustee(s), all remaining money shall be paid to defendants and the trust shall then be terminated. The compensation of the Divestiture Trustee(s) and any professionals and agents retained by the Divestiture Trustee(s) shall be reasonable in light of the value of the relevant Divestiture Asset(s) and based on a fee arrangement providing the Divestiture Trustee(s) with an incentive based on the price and terms of the divestitures and the speed with which they are accomplished, but timeliness is paramount. If the Divestiture Trustee(s) and defendants are unable to reach agreement on the Divestiture Trustee(s)' or any agents' or consultants' compensation or other terms and conditions of engagement within fourteen (14) calendar days of appointment of the Divestiture Trustee(s), the United States may, in its sole discretion, take appropriate action, including making a recommendation to the Court. The Divestiture Trustee(s) shall, within three (3) business days of hiring any other professionals or agents, provide written notice of such hiring and the rate of compensation to defendants and the United States.
E. Defendants shall use their best efforts to assist the Divestiture Trustee(s) in accomplishing the required divestiture(s). The Divestiture Trustee(s) and any consultants, accountants, attorneys, and other agents retained by the Divestiture Trustee(s) shall have full and complete access to the personnel, books, records, and facilities of the Divestiture Asset(s), and defendants shall develop financial and other information relevant to the Divestiture Asset(s) as the Divestiture Trustee(s) may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Defendants shall take no action to interfere with or to impede the Divestiture Trustee(s)' accomplishment of the divestiture(s).
F. After their appointment, the Divestiture Trustee(s) shall file monthly reports with the United States and, as appropriate, the Court setting forth the Divestiture Trustee(s)' efforts to accomplish the divestitures ordered under this Final Judgment. To the extent such reports contain information that the Divestiture Trustee(s) deem confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Asset(s), and shall describe in detail each contact with any such person. The Divestiture Trustee(s) shall maintain full records of all efforts made to divest the Divestiture Asset(s).
G. If the Divestiture Trustee(s) have not accomplished the divestitures ordered under this Final Judgment within six months after their appointment, the Divestiture Trustee(s) shall promptly file with the Court a report setting forth (1) the Divestiture Trustee(s)' efforts to accomplish the required divestiture(s), (2) the reasons, in the Divestiture Trustee(s)' judgment, why the required divestiture(s) have not been accomplished, and (3) the Divestiture Trustee(s)' recommendations. To the extent such report contains information that the Divestiture Trustee(s) deem confidential, such report shall not be filed in the public docket of the Court. The Divestiture Trustee(s) shall at the same time furnish such report to the
H. If the United States determines that the Divestiture Trustee(s) have ceased to act or failed to act diligently or in a reasonably cost-effective manner, it may recommend the Court appoint substitute Divestiture Trustee(s).
A. Within two (2) business days following execution of any definitive divestiture agreement, defendants or the Divestiture Trustee(s), whichever is then responsible for effecting the divestitures required herein, shall notify plaintiffs of any proposed divestiture required by Section IV, V, or VI of this Final Judgment. If the Divestiture Trustee(s) are responsible, they shall similarly notify defendants. The notice shall set forth the details of the proposed divestitures and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Asset(s), together with full details of the same.
B. Within fifteen (15) calendar days of receipt by plaintiffs of such notice, the United States, after consultation with the Plaintiff States, may request from defendants, the proposed Acquirer, any other third party, or the Divestiture Trustee(s), if applicable, additional information concerning the proposed divestiture, the proposed Acquirer, and any other potential Acquirer. Defendants and the Divestiture Trustee(s) shall furnish any additional information requested, except such information or documents subject to the attorney-client privilege or work-product doctrine, within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from defendants, the proposed Acquirer, any third party, and the Divestiture Trustee(s), whichever is later, the United States shall provide written notice to defendants and the Divestiture Trustee(s), if there is one or more, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, a divestiture may be consummated, subject only to defendants' limited right to object to the sale under Paragraph VI(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon objection by the United States, divestiture proposed under Section IV, V, or VI shall not be consummated. Upon objection by defendants under Paragraph VI(C), a divestiture proposed under Section VI shall not be consummated unless approved by the Court.
Defendants shall not finance all or any part of any purchase made pursuant to Section IV, V or VI of this Final Judgment.
Until the divestitures required by this Final Judgment have been accomplished, defendants shall take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestitures ordered by this Court.
A. Within twenty (20) calendar days of the filing of the Complaint in this matter, and every thirty (30) calendar days thereafter until the divestitures have been completed under Section IV, V, and/or VI, defendants shall deliver to the United States an affidavit as to the fact and manner of its compliance with Section IV, V, and/or VI of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts defendants have taken to solicit buyers for the Divestiture Assets, and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by defendants, including limitation on information, shall be made within fourteen (14) calendar days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an ongoing basis to comply with Section IX of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in defendants' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.
C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestitures have been completed.
A. Upon application of the United States, the Court shall appoint a Monitoring Trustee or Trustees selected by the United States and approved by the Court.
B. The Monitoring Trustee(s) shall have the power and authority to monitor defendants' compliance with the terms of this Final Judgment and the Asset Preservation Stipulation and Order entered by this Court, and shall have such other powers as this Court deems appropriate. The Monitoring Trustee(s) shall be required to investigate and report on the defendants' compliance with this Final Judgment and the Asset Preservation Stipulation and Order and the defendants' progress toward effectuating the purposes of this Final Judgment.
C. Subject to Paragraph XI(E) of this Final Judgment, the Monitoring Trustee(s) may hire at the cost and expense of defendants any consultants, accountants, attorneys, or other agents, who shall be solely accountable to the Monitoring Trustee(s), as reasonably necessary in the Monitoring Trustee(s)' judgment. Any such consultants, accountants, attorneys, or other agents shall serve on such terms and conditions as the United States approves, including confidentiality requirements and conflict of interest certifications.
D. Defendants shall not object to actions taken by the Monitoring Trustee(s) in fulfillment of the Monitoring Trustee(s)' responsibilities under any Order of this Court on any ground other than the Monitoring Trustee(s)' malfeasance. Any such objections by defendants must be conveyed in writing to the United States
E. The Monitoring Trustee(s) shall serve at the cost and expense of defendants pursuant to a written agreement with defendants and on such terms and conditions as the United States approves, including confidentiality requirements and conflict of interest certifications. The compensation of the Monitoring Trustee(s) and any consultants, accountants, attorneys, and other agents retained by the Monitoring Trustee(s) shall be on reasonable and customary terms commensurate with the individuals' experience and responsibilities. If the Monitoring Trustee(s) and defendants are unable to reach agreement on the Monitoring Trustee(s)' or any agents' or consultants' compensation or other terms and conditions of engagement within fourteen (14) calendar days of appointment of the Monitoring Trustee(s), the United States may, in its sole discretion, take appropriate action, including making a recommendation to the Court. The Monitoring Trustee(s) shall, within three (3) business days of hiring any consultants, accountants, attorneys, or other agents, provide written notice of such hiring and the rate of compensation to defendants and the United States.
F. The Monitoring Trustee(s) shall have no responsibility or obligation for the operation of defendants' businesses.
G. Defendants shall use their best efforts to assist the Monitoring Trustee(s) in monitoring defendants' compliance with their individual obligations under this Final Judgment and under the Asset Preservation Stipulation and Order. The Monitoring Trustee(s) and any consultants, accountants, attorneys, and other agents retained by the Monitoring Trustee(s) shall have full and complete access to the personnel, books, records, and facilities relating to compliance with this Final Judgment, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Defendants shall take no action to interfere with or to impede the Monitoring Trustee(s)' accomplishment of their responsibilities.
H. After their appointment, the Monitoring Trustee(s) shall file reports monthly, or more frequently as needed, with the United States and, as appropriate, the Court setting forth defendants' efforts to comply with their obligations under this Final Judgment and under the Asset Preservation Stipulation and Order. To the extent such reports contain information that the Monitoring Trustee(s) deem confidential, such reports shall not be filed in the public docket of the Court.
I. The Monitoring Trustee(s) shall serve for at least six (6) months after the divestiture of the Divestiture Assets is finalized pursuant to either Section IV, V and/or VI of this Final Judgment. The United States, in its sole discretion, may extend this time period.
J. If the United States determines that the Monitoring Trustee(s) have ceased to act or failed to act diligently or in a reasonably cost-effective manner, it may recommend the Court appoint substitute Monitoring Trustee(s).
A. For the purposes of determining or securing compliance with this Final Judgment, or of any related orders such as any Asset Preservation Stipulation and Order, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to defendants, be permitted:
(1) access during defendants' office hours to inspect and copy, or at the option of the United States, to require defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of defendants, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit written reports or response to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, or of the Plaintiff States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by defendants to the United States, defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” then the United States shall give defendants ten (10) calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Defendants may not reacquire any part of the Divestiture Assets during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
In December 2015, The Dow Chemical Company (“Dow Chemical”) and E.I. du Pont de Nemours and Company (“DuPont”) announced that they had agreed to a merger of equals in a deal estimated to be valued at over $130 billion. If consummated, the merged entity would be one of the largest chemical companies in the world.
Plaintiffs filed a civil antitrust Complaint on June 15, 2017, seeking to enjoin the proposed acquisition. The Complaint alleges that the acquisition would likely reduce or eliminate competition in the markets for broadleaf herbicides for winter wheat and chewing pest insecticides, and tend to create a monopoly in the markets for acid copolymers and ionomers, in the United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. That loss of competition likely would result in increased prices and a reduction in service and innovation for the customers who rely upon these products.
At the same time the Complaint was filed, the Plaintiffs filed a proposed Final Judgment and an Asset Preservation Stipulation and Order which, together, are designed to eliminate the anticompetitive effects of the acquisition. Under the proposed Final Judgment, which is explained more fully below, DuPont is required to divest its Finesse-formulated herbicide products (active ingredients Metsulfuron Methyl and Chlorsulfuron Methyl), and its Rynaxypyr-formulated insecticide products, along with the assets used to develop, manufacture, and sell those products. Dow Chemical is required to divest its Freeport, Texas acid copolymers and ionomers manufacturing unit and associated assets. Under the terms of the Asset Preservation Stipulation and Order, DuPont and Dow Chemical will also take certain steps to ensure that the divestiture assets are operated as competitively independent, economically viable, and ongoing business concerns; that they remain uninfluenced by the consummation of the acquisition; and that competition is maintained during the pendency of the ordered divestiture.
The plaintiffs and defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Dow Chemical, founded in 1897, is headquartered in Midland, Michigan, operates in approximately 180 countries, and employs over 50,000 people worldwide. In 2016, Dow Chemical had revenues of approximately $48 billion. Dow Chemical's primary lines of business are chemical, plastic, and agricultural products and services. Dow Chemical's products are used in various industries, ranging from agriculture to consumer goods.
DuPont, founded in 1802, is headquartered in Wilmington, Delaware, operates in approximately 90 countries, and employs more than 60,000 people worldwide. In 2016, DuPont reported revenues of $24.5 billion. DuPont's primary products include crop protection chemicals and performance products, such as plastics and polymers.
Pursuant to a December 11, 2015 agreement, Dow Chemical and DuPont have agreed to an all-stock merger of equals. At the time of the merger announcement, the combined market capitalization of the companies was $130 billion. The merger plan contemplates spinning off the firms' combined assets into three separate, publicly-traded companies as soon as feasible. One of those companies would focus on agriculture products (with approximately $18 billion in revenue), another on material sciences (approximately $51 billion in revenue), and a third on “specialty” products, such as organic light-emitting diodes and building wrap (approximately $13 billion in revenue).
Crop protection chemicals are used to protect crops from damage or loss from other biological organisms such as weeds, insects, or disease (
The key component of any particular crop protection chemical is the “active ingredient,” which is the chemical molecule that produces the desired effect against the targeted weed or insect pest. Crop protection chemicals are typically sold as “formulated products” that contain the active ingredient and also inactive ingredients such as solvents, fillers, and adjuvants used to stabilize the active ingredient and facilitate its effective use on the intended crops.
Both active ingredients and formulated products must be registered with the U.S. Environmental Protection Agency (“EPA”) and approved for use. In order to gain approval, products must meet stringent toxicity and efficacy standards. Approvals are granted on a crop-by-crop basis and contain strict dosage requirements. A farmer wishing to control a certain pest on his or her farm can use only the products and dose-rates that the EPA has approved for the particular crops to which the product will be applied.
The crop protection industry includes a handful of large integrated research and development firms (including Dow Chemical and DuPont) that develop, manufacture, and sell crop protection chemicals. While the large research and development firms sometimes sell directly to farmers, their primary customers are large distributors and farmer co-ops that resell products to farmers.
Both Dow Chemical and DuPont produce herbicides for winter wheat.
Herbicides are chemicals used to combat weeds that harm crops. They can be selective (killing only certain types of plants) or non-selective. Non-selective herbicides kill all plant matter, including weeds and the crop. Because of this, non-selective herbicides are typically used after the crop is harvested, to clear the field of remaining weeds. Selective herbicides target only weeds, and are applied “post-emergence,” or during the growth of the crop.
There are three common types of selective herbicide products: Broadleaf, grass, and cross-spectrum. Broadleaf herbicides primarily eliminate or suppress broadleaf weeds. Grass herbicides primarily eliminate or suppress grass weeds. Cross-spectrum herbicides are effective on both grass and broadleaf weeds. Each herbicide formulation has a different spectrum of weeds on which it is effective, so a farmer chooses an herbicide based on the particular kinds of weeds threatening the crop.
Herbicides are registered with the EPA for use on particular crops. Because crop choices and weed threats vary from farm to farm, the options available to farmers may vary from location to location, depending on the specific crop/weed combinations a farmer faces.
Dow Chemical and DuPont both offer herbicides that are labeled and registered for the control of broadleaf weeds in winter wheat crops. DuPont's Finesse product is the top broadleaf herbicide used to combat the weed spectrum that typically threatens winter wheat crops. Dow Chemical recently introduced a new broadleaf herbicide for winter wheat, called Quelex.
Dow Chemical and DuPont also sell insecticides for chewing pests. Insecticides are used to suppress or eliminate insect infestations in crops. There are three main classes of insect pests: (1) Chewing insects (
Insecticide use is particularly important for specialty crop farmers of tree fruit, tree nuts, and other fruits and vegetables (“specialty crops”). Any damage to specialty crops, no matter how slight, can result in the fruit or nut being rejected for sale. Thus, specialty crop farmers are particularly averse to the risk of insect damage when choosing an insecticide. Specialty crop farmers also value selective chemistry insecticides because they are less harmful to beneficial insects (such as bees and parasitic wasps) that not only pollinate fruit, but also help to control damaging insects, such as mites. In contrast, broad spectrum chemistries, such as pyrethroids, kill most of the insects in a field, including beneficial ones. Farmers therefore either minimize their use and/or use them towards the end of a growing season.
DuPont produces the active ingredient chlorantraniliprole, which DuPont markets under the trade name, Rynaxypyr. Rynaxypyr is one of the best selling and most effective active ingredients used to combat chewing pests on the market. Rynaxypyr is patent-protected until 2022. In the United States, Rynaxypyr is marketed and sold in formulations under the brand names Altacor, Coragen, and Prevathon. DuPont's 2015 U.S. insecticides sales totaled $118 million; of that total, Rynaxypyr sales accounted for $73 million.
Dow Chemical manufactures and sells two active ingredients which are also effective against chewing pests: (1) Methoxyfenozide, sold under the brand name Intrepid, and (2) spinetoram, sold under the brand names Delegate and Radiant. In 2015, Dow Chemical had a total of $165 million in U.S. insecticides sales. Of that total, spinetoram sales accounted for $57 million and methoxyfenozide sales accounted for $34 million.
To combat broadleaf weeds in winter wheat, particularly in the central plains of the United States, farmers need broadleaf herbicides that are labeled and registered for use on winter wheat. Farmers of winter wheat cannot use grass herbicides to combat broadleaf weeds because they are ineffective. Farmers would not use cross-spectrum herbicides to combat broadleaf weeds, as cross-spectrum herbicides are significantly more expensive and, thus, it would not be cost-justified to use cross-spectrum herbicides for broadleaf weeds alone. Farmers would not forgo using broadleaf herbicides altogether, because doing so would risk significant wheat yield losses.
All herbicides sold in the United States must be registered and approved by the EPA. Similar products available in other countries cannot be offered to United States customers due to EPA regulations, so they are not competitive constraints.
A small but significant increase in the price of broadleaf herbicides sold in the United States labeled and registered for use on winter wheat would not cause customers of those herbicides to substitute to grass or cross-spectrum herbicides, nor would farmers forgo using herbicides altogether and risk weed damage to their crops. As a result, customers are unlikely to switch away from broadleaf herbicides sold in the United States in volumes sufficient to defeat such a price increase. Accordingly, the development, manufacture, and sale of broadleaf herbicides sold in the United States labeled and registered for use on winter wheat is a line of commerce and relevant market within the meaning of Section 7 of the Clayton Act.
Insecticides for chewing pests are targeted to combat a particular type of pest, and insecticides for other types of pests cannot, in general, be used as substitutes. While there are broad-spectrum insecticides which are effective on more than one type of pest, those insecticides tend to kill indiscriminately, including beneficial insects. Specialty crop farmers in California, Washington and elsewhere need beneficial insects such as bees to pollinate their crops. These farmers would not, however, choose to forgo managing the insect pests which attack their crops, because even slight damage can result in an entire harvest being rejected for sale.
All insecticides sold in the United States must be registered and approved by the EPA. Similar products available in other countries cannot be offered to United States customers due to EPA regulations, so they are not competitive constraints.
A small but significant increase in the price of chewing pest insecticides sold in the United States would not cause customers of those insecticides to substitute to broad-spectrum insecticides, nor would farmers forgo using insecticides altogether and risk severe pest damage to their whole crop, in volumes sufficient to defeat such a price increase. Accordingly, the development, manufacture, and sale of chewing pest insecticides sold in the United States is a line of commerce and relevant market within the meaning of Section 7 of the Clayton Act.
Dow Chemical and DuPont are two of the four largest suppliers of broadleaf herbicides for winter wheat crops in the United States. Together they account for over forty percent of the total market, with combined annual sales of $81 million in 2015. Dow Chemical and DuPont compete head-to-head for the development, manufacture, and sale of broadleaf herbicides for winter wheat. That competition, which would be lost if the merger is consummated, has benefited farmers through lower prices, more effective solutions, and superior service.
Competition between Dow Chemical and DuPont has also spurred research, development, and marketing of new and improved broadleaf herbicides for winter wheat. For example, Dow Chemical intends to market its Quelex herbicide, which was recently introduced into the market, to farmers of winter wheat that currently use DuPont's market-leading Finesse product. DuPont considered adopting competitive responses, including price reductions, to protect its market share from Dow Chemical's Quelex herbicide.
The proposed merger, therefore, likely would substantially lessen competition for the development, manufacture, and sale of broadleaf herbicides for winter wheat, in violation of Section 7 of the Clayton Act. This likely would lead to higher prices, less favorable contractual terms, and a reduced incentive to spend significant resources in developing new products.
Dow Chemical and DuPont are the two largest suppliers of insecticides used on chewing pests in the United States. Together they account for $238 million in annual sales. The merger of Dow Chemical and DuPont likely would substantially lessen competition in the market for the development, manufacture, and sale of chewing pest insecticides.
If the merger between Dow Chemical and DuPont is consummated, the combined company will control nearly seventy-five percent of the market for chewing pest insecticides in the United States. Additionally, Dow Chemical and DuPont's closest competitor sells competing products that are mixed with DuPont's Rynaxypyr, for which the competitor has a license. As a result, specialty crop farmers would have little alternative but to accept increased prices post merger.
Competition between Dow Chemical and DuPont has benefited customers of chewing pest insecticides through lower prices, more effective solutions, and superior service. Customers also have benefited from the competition between Dow Chemical and DuPont by obtaining more favorable contract terms, such as financing and priority in product shipments to coincide with crop growing seasons. A combined Dow Chemical and DuPont would have the incentive and ability to eliminate or restrict financial and other incentives to customers, extinguishing this competition and those tangible and valuable benefits to customers.
The proposed merger, therefore, likely would substantially lessen competition for the development, manufacture, and sale of chewing pest insecticides, in violation of Section 7 of the Clayton Act. This likely would lead to higher prices, less favorable contractual terms, and less innovation.
The discovery, development, testing, registration, and commercial launch of a new herbicide or insecticide can take ten to fifteen years and can cost well over $150 million dollars. Given the lengthy development cycle, the high hurdles and substantial cost of regulatory approval, entry of additional competitors in the market for either broadleaf herbicides for winter wheat or chewing pest insecticides is not likely to be timely or sufficient to defeat a post-merger price increase.
High-pressure ethylene derivatives (“HiPEDs”) are plastic resins produced by “cracking,” or breaking down, petrochemicals into their constituent parts and combining them with various molecules to produce polymer resins. The resulting resins, such as low density polyethylene, ethylene vinyl acetate, acrylate copolymers, grafted polyolefins, acid copolymers, and ionomers, have different performance characteristics, such as hardness, corrosion resistance or scratch resistance, depending on the materials used in their construction.
HiPED resins are mixed with other plastic resins to manufacture numerous plastic products, such as films, bottles, coatings, and packaging. Customers source particular HiPED resins that meet their specific needs and requirements and build their manufacturing process around specific resin combinations that give the final product the desired performance characteristics.
Unlike most HiPED resins, where there is substitution possible for both the supply and demand of the products, neither customers nor manufacturers can easily switch between acid copolymers and ionomers (two specific types of HiPED resins) and other HiPED resins.
Acid copolymers are a specific type of HiPED resin manufactured using highly acidic input products. In order to handle inputs with high acid content, HiPED resin manufacturers must install specific corrosion-resistant equipment that is not used for the manufacture of other HiPED resins. Such equipment can cost millions of dollars.
Acidic inputs make acid copolymers both highly adhesive and very durable. As a result, acid copolymers are used to create strong seals between substrates, or “tie layers,” of flexible packaging. Their increased adhesive ability is particularly necessary in applications where packaging will be exposed to challenging environments, such as high levels of grease, oil, acid, or dust.
Because of these characteristics, packaging films made using acid copolymers are ideal for use in the food and beverage industry. Indeed, this industry consumes the vast majority of acid copolymers produced, for use in products such as juice boxes, toothpaste tubes, and meat and cheese wrap, among others. Unlike other plastic films, food and beverage packaging must adhere to strict food safety guidelines, and significant deviations from approved formulas must undergo a rigorous requalification process that can take significant time and expense.
Both Dow Chemical and DuPont manufacture acid copolymers in the United States. Dow Chemical manufactures acid copolymers in a dedicated corrosion-resistant facility that is part of its larger chemical complex in Freeport, Texas. DuPont manufactures acid copolymers and other HiPED resins on corrosion-resistant manufacturing lines within facilities located in Sabine, Texas and Victoria, Texas.
Ionomers are another specific type of HiPED resin. They are directly derived from acid copolymers and are produced by neutralizing acid copolymers with sodium, zinc, magnesium, or other salts. As a result of this process, ionomers are hard and durable. When added to a plastic coating, ionomers make the resulting product more impact- and cut-resistant. Ionomers are used in a multitude of applications, such as decking and automotive parts. Ionomers are preferred for these end uses because
Both Dow Chemical and DuPont produce ionomers in the United States. DuPont manufactures ionomers in-line with its acid copolymer production in Sabine, Texas. Dow Chemical manufactures acid copolymers in its Freeport, Texas facility and then ships them to Odessa, Texas, where a third party converts them to ionomers.
Food and beverage packaging manufacturers purchase the majority of acid copolymers produced in the United States. These customers rely upon the superior sealant and adhesive characteristics acid copolymers provide as compared to other HiPED resins. Additionally, because food and beverage packaging must adhere to strict food safety guidelines, significant deviations from approved formulas must undergo a rigorous qualification process that can take significant time and incur additional costs. Most customers therefore would not switch to another product if faced with a significant and non-transitory increase in the price of acid copolymers.
Customers have consistently reported that purchasing acid copolymers abroad is not a realistic option for domestic purchasers, due to taxes, tariffs, logistical costs, and the longer lead times associated with importing acid copolymers. Most customers report that it would take considerably more than a small, significant, and non-transitory increase in price to make European suppliers a viable alternative to Dow Chemical and DuPont.
A small but significant increase in price for acid copolymers sold in the United States would not cause customers to turn to another product in sufficient numbers to defeat such a price increase. Thus, the development, manufacture, and sale of acid copolymers in the United States constitutes a relevant product market and line of commerce under Section 7 of the Clayton Act.
Customers purchase ionomers for the superior impact- and cut-resistance characteristics that are not available in other HiPED resins. These customers rely on the hardness and resilience that an ionomer-based coating provides as compared to other coatings. Customers cannot switch to other, less resilient, coatings and cannot forgo the use of protective coatings altogether, as either choice would significantly decrease the useful lifespan of the underlying products. Most customers therefore would not switch to another product if faced with a small but significant and non-transitory increase in the price of ionomers.
U.S. customers cannot turn to ionomer suppliers abroad due to taxes, tariffs, logistical costs, and longer lead times associated with importing ionomers. Most customers report that it would take considerably more than a small, significant, and non-transitory increase in price to make European suppliers a viable alternative to Dow Chemical and DuPont.
A small but significant increase in price for ionomers sold in the United States would not cause customers to turn to another product in sufficient numbers to defeat such a price increase. Thus, the development, manufacture, and sale of ionomers in the United States constitutes a relevant product market and line of commerce under Section 7 of the Clayton Act.
Dow Chemical and DuPont are the only two manufacturers of acid copolymers in the United States. Dow Chemical controls over 80 percent of the U.S. market and DuPont is responsible for 19 percent of sales (less than one tenth of one percent of acid copolymers are imported). The merger of the only U.S. manufacturers of these products would leave customers with little alternative but to accept increased prices post merger.
As a result of head-to-head competition between Dow Chemical and DuPont, customers have obtained better pricing, service, and contract terms. In some cases, customers report that Dow Chemical and DuPont have competed to assist customers with the development of new uses for existing acid copolymer products, allowing customers to expand sales and better serve their own consumers. Customers also have benefited from the development of new acid copolymer products, which has been spurred on by competition between Dow Chemical and DuPont.
The proposed merger would likely substantially lessen competition for the development, manufacture, and sale of acid copolymers in violation of Section 7 of the Clayton Act. The U.S. market for acid copolymers is highly concentrated and would become significantly more concentrated as a result of the proposed merger to monopoly: Dow Chemical and DuPont will control over 99 percent of the acid copolymers market in the United States post merger, leading to higher prices and reduced innovation.
Dow Chemical and DuPont are the only two manufacturers of ionomers in the United States, where the two companies collectively are responsible for all sales. Dow Chemical and DuPont are each other's only competitor for ionomers and customers would have no alternative but to accept increased prices post merger.
Customers have benefited from the competition between Dow Chemical and DuPont. Dow Chemical is the only company contesting DuPont's near-monopoly in ionomers. Its presence has resulted in better pricing and contract terms for customers, who otherwise would have no choice but to purchase from DuPont. Customers also have benefited from competition between Dow Chemical and DuPont to develop new products from ionomers and new uses for existing ionomer products.
The proposed merger would likely substantially lessen competition for the development, manufacture, and sale of ionomers in violation of Section 7 of the Clayton Act. The market for ionomers is highly concentrated and the proposed merger would result in a monopoly, leading to higher prices and reduced innovation.
In addition to the specialized equipment required to produce ethylene derivatives generally, acid copolymer manufacturing requires a high-pressure autoclave and all equipment surfaces must be coated with a corrosion-resistant material. Only Dow Chemical and DuPont have both high-pressure autoclaves and corrosion-resistant equipment. The cost associated with upgrading an existing ethylene derivative manufacturing operation to produce acid copolymers is estimated to be in the millions of dollars. If the merged firm were to raise prices, timely and sufficient entry is unlikely to deter or counteract competitive harm.
The manufacturing of ionomers requires specialized know-how as well as ready and reliable access to acid copolymers, a key input into ionomer manufacturing. Post merger, Dow Chemical and DuPont will effectively control the entire U.S. market for acid copolymers. As such, even if a third party has the technical capability to
The divestitures required by the proposed Final Judgment will eliminate the anticompetitive effects of the merger between Dow Chemical and DuPont by establishing two new, independent, and economically viable competitors. The Crop Protection Divestiture Assets include DuPont's Finesse-formulated herbicide products, which contain the active ingredients Metsulfuron Methyl and Chlorsulfuron Methyl, and its Rynaxypyr-formulated insecticide products, along with the assets which facilitate the development, manufacture, and sale of those products. The Material Science Divestiture Assets include Dow's Freeport, Texas acid copolymers and ionomers manufacturing unit and associated assets. Both of these divestitures must be sold as viable ongoing businesses.
Prior to divestiture, defendants must maintain the Crop Protection Divestiture Assets and Material Science Divestiture Assets under an Asset Preservation Stipulation and Order (“APSO”). Under the APSO, defendants must preserve, maintain, and continue to operate both sets of assets as ongoing, economically viable competitive product lines. This includes the requirement that defendants appoint a person or persons to oversee the Crop Protection and Material Science Divestiture Assets. This person or persons shall have complete managerial responsibility for each asset package, subject to the provisions of the proposed Final Judgment, and shall make all business decisions relating to the operation of the assets, including all production, sale, pricing, and discounting decisions, independent of defendants.
The assets must also be divested in such a way as to satisfy the United States in its sole discretion, that each business can and will be operated by the Acquirers as viable, ongoing businesses that can compete effectively in the relevant markets (in the case of the Crop Protection Divestiture Assets, the United States will exercise its discretion after consultation with the Plaintiff States). Defendants must take all reasonable steps necessary to accomplish the divestitures quickly and shall cooperate with prospective purchasers.
Pursuant to Paragraphs IV(A) and V(A) of the proposed Final Judgment, both the Crop Protection Divestiture and Material Science Divestiture must be completed within thirty (30) days after the consummation of the merger of Dow Chemical and DuPont, or sixty (60) days after notice of the entry of the Final Judgment by the Court, whichever is later. Each divestiture package remedies a separate competitive harm alleged in the complaint and must be sold to an Acquirer that will operate the business as a viable, ongoing business. The two asset packages relate to different industries with different customers, market conditions, and required expertise. In order to ensure that the each divestiture package is operated as a viable, ongoing business, the Crop Protection and Material Science Divestiture Assets will likely be sold to different Acquirers.
These divestiture periods are longer than those often found in Antitrust Division consent decrees, but are warranted in this case. Transfer of the Crop Protection Divestiture Assets and the Material Science Divestiture Assets are both subject to numerous government approvals, including approvals from authorities outside the United States. The longer divestiture period allows defendants and the Acquirer(s) to obtain these regulatory approvals, but still ensures that the divestitures are made as quickly as possible, thus reducing the risk that the assets will decrease in value.
Paragraph IV(G) provides that the Acquirer of the Crop Protection Divestiture Assets may contract with the defendants for the provision of formulation services for a transitional period. Formulation is the process of adding inert chemicals to the active ingredients that provide the efficacy of crop protection products. Providers of crop protection products routinely use third parties for formulation services in order to optimize supply chains and minimize shipping costs on completed products. However, formulation services must be provided at a facility that has received the appropriate regulatory approvals in the United States (through the United States Environmental Protection Agency) and abroad, a process that may be time-consuming. So, the Acquirer of the Crop Protection Divestiture Assets may choose to enter a formulation services agreement with the defendants prior to being in a position to formulate the acquired products at an approved facility of its own choosing. The formulation services agreement shall be in effect for one (1) year after all necessary regulatory approvals have been granted by jurisdictions where the Finesse-formulated products and the Rynaxypyr-formulated products are currently registered. During the term of the formulation services agreement, defendants shall implement and maintain procedures to preclude the sharing of information between defendants and the Acquirer. The United States, in its sole discretion, may approve an extension of the formulation services agreement for a period not to exceed two (2) years.
Paragraph V(G) provides that the Acquirer of the Material Science Divestiture Assets may contract with the defendants for the provision of operating services that include the operation of process controls at the acid copolymer production facility under the management and supervision of the Acquirer. The Acquirer of the Material Science Divestiture Assets may choose to enter an operating services agreement with the defendants because the Material Science Divestiture Assets are located within a significantly larger chemical complex in Freeport, Texas where such services can be more efficiently provided across multiple facilities. Dow offers similar services on an arms-length basis to other firms that own manufacturing assets within the larger chemical complex in Freeport, Texas. During the term of the operating services agreement, defendants shall implement and maintain procedures to preclude the sharing of information between defendants and the Acquirer.
Given the complexity of these industries, Section XI of the proposed Final Judgment also provides that the United States may appoint a Monitoring Trustee(s). Because of the size and complexity of the divestitures, separate Monitoring Trustees are required for the Crop Protection Divestiture Assets and Material Science Divestiture Assets. The Monitoring Trustees will have the power and authority to investigate and report on the defendants' compliance with the terms of the proposed Final Judgment and the APSO during the pendency of the divestiture, including the ability to hire at the cost and expense of defendants any consultants, accountants, attorneys, or other agents necessary in the Monitoring Trustees' judgment. The Monitoring Trustees would not have any responsibility or obligation for the operation of the parties' businesses. The Monitoring Trustees will serve at defendants' expense, on such terms and conditions as the United States approves, and defendants must assist the trustees in
Finally, in the event that defendants do not accomplish the divestiture within the periods prescribed in Paragraphs IV(A) and V(A) of the proposed Final Judgment, Section VI of the proposed Final Judgment provides that the Court will appoint a trustee selected by the United States to effect the divestiture. If a trustee is appointed, the proposed Final Judgment provides that defendants will pay all costs and expenses of the trustee. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her appointment becomes effective, the trustee will file monthly reports with the Court and the United States setting forth his or her efforts to accomplish the divestiture. At the end of six (6) months, if the divestiture has not been accomplished, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate, in order to carry out the purpose of the trust, including extending the trust or the term of the trustee's appointment.
The divestiture provisions of the proposed Final Judgment will eliminate the anticompetitive effects of the acquisition in the provision of broadleaf herbicides for winter wheat, insecticides for chewing pests, acid copolymers, and ionomers in the United States.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against defendants.
The plaintiffs and defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to:
The plaintiffs considered, as an alternative to the proposed Final Judgment, a full trial on the merits against defendants. The plaintiffs could have continued the litigation and sought preliminary and permanent injunctions against the merger between Dow Chemical and DuPont. The plaintiffs are satisfied, however, that the divestiture of assets described in the proposed Final Judgment will preserve competition in the markets for broadleaf herbicides for winter wheat, insecticides for chewing pests, acid copolymers, and ionomers. Thus, the proposed Final Judgment would achieve all or substantially all of the relief the plaintiffs would have obtained through litigation, but avoids the time, expense, and uncertainty of a full trial on the merits of the Complaint.
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. § 16(e)(2);
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Executive Office for Immigration Review, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), 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.
Comments are encouraged and will be accepted for 60 days until August 25, 2017.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Jean King, General Counsel, USDOJ-EOIR-OGC, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia, 20530; telephone: (703) 305-0470.
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:
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Primary: Legal service providers seeking to be included on the List of Pro Bono Legal Service Providers (“List”), a list of persons who have indicated their availability to represent aliens on a pro bono basis. Abstract: EOIR seeks to replace the current paper version of the EOIR Forms-56, with an electronic system to make an initial application and apply for continued participation in the List. Form EOIR-56 will be mandatory, and is intended to elicit, in a uniform manner, all of the required information for EOIR to determine whether an applicant meets the eligibility requirements for inclusion on the List.
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If additional information is required contact: Melody D. Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) revision titled, “Report on Occupational Employment and Wages,” 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 26, 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:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA to revise the Report on Occupational Employment and Wages information collection. The Occupational Employment Statistics (OES) survey is a Federal/State establishment survey of wage and salary workers designed to produce data on current detailed occupational employment and wages for each Metropolitan Statistical Area and Metropolitan Division as well as by detailed industry classification. OES survey data assists in the development of employment and training programs established by the Perkins Vocational Education Act of 1998. This ICR has been classified as a revision, because the OES program seeks to change its OMB clearance to test the efficiency of using email to contact respondents in lieu of mailing paper forms and to conduct a non-response analysis survey. Wagner-Peyser Act section 15 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,
44 U.S.C. 3507(a)(1)(D).
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Records of Tests and Examinations of Mine Personnel Hoisting Equipment,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before July 26, 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-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Records of Tests and Examinations of Mine Personnel Hoisting Equipment information collection. Various MSHA regulations make it mandatory for a covered mine operator to make and to maintain records of specific tests and inspections of mine personnel hoisting systems, including wire ropes, to ensure each system remains safe to operate while in use. Federal Mine Safety and
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on August 31, 2017. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice.
On June 30, 2017, the Department of Labor (DOL) will submit the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Logging Operations Standard,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before July 31, 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 to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Logging Operations Standard information collection requirements codified in regulations 29 CFR 1910.266(f), (g), and (i). The Standard requires an Occupational Safety and Health Act (OSH Act) covered employer subject to the Standard to assure operating and maintenance instructions are available on a machine or in the area where the machine is operated. For vehicles, the employer must assure that operating and maintenance instructions are available for each vehicle. The standard also requires an employer to provide training to workers and to certify that the training has been provided. OSH Act sections 2(b)(3), 6(b), and 8(c) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs by July 31, 2017. In order to help ensure appropriate consideration, comments should mention OMB Control Number 1218-0198. The OMB is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice.
On June 30, 2017, the Department of Labor (DOL) will submit the Office of the Assistant Secretary for Administration and Management (OASAM) sponsored information collection request (ICR) titled, “Application for Use of Public Space by Non-DOL Agencies in the Frances Perkins Building,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
Submit comments on or before July 31, 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-DM, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-6881 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks to extend PRA authority for the Application for Use of Public Space by Non-DOL Agencies in the Frances Perkins Building, Form DL1-6062B, a non-DOL entity uses for applying to use conference and meeting capabilities located in the DOL headquarters building. This application is an information collection subject to the PRA.
A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
The Legal Services Corporation's Finance Committee will meet telephonically on July 10, 2017. The meeting will commence at 3:00 p.m., EDT, and will continue until the conclusion of the Committee's agenda.
John N. Erlenborn Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington, DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348
• When connected to the call, please immediately “MUTE” your telephone.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the Chair may solicit comments from the public.
Open.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1500. Questions may be sent by electronic mail to
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals needing other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
Weeks of June 19, 26, July 3, 10, 17, 24, 31, 2017.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
By a vote of 3-0 on June 21, 2017, the Commission determined pursuant to U.S.C. 552b(e) and '9.107(a) of the Commission's rules that the above referenced Affirmation Session be held with less than one week notice to the public. The meeting is scheduled on Thursday, June 22, 2017
There are no meetings scheduled for the week of June 26, 2017.
There are no meetings scheduled for the week of July 3, 2017.
There are no meetings scheduled for the week of July 10, 2017.
There are no meetings scheduled for the week of July 17, 2017.
There are no meetings scheduled for the week of July 24, 2017.
There are no meetings scheduled for the week of July 31, 2017.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Design Information Questionnaire—IAEA N-71 and Associated Forms N-72, N-73, N-74, N-75, N-76, N-77, N-91, N-92, N-93, and N-94.”
Submit comments by July 26, 2017.
Submit comments directly to the OMB reviewer at: Aaron Szabo, Desk Officer, Office of Information and Regulatory Affairs, Docket ID NRC-2016-0205, NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-3621, email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2016-0205 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2016-0205 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Design Information Questionnaire—IAEA N-71 and Associated Forms N-72, N-73, N-74, N-75, N-76, N-77, N-91, N-92, N-93, and N-94.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Office of Personnel Management.
30-Day Notice and request for comments.
The Automated Systems Management Group, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on a new information collection request (ICR), OPM Form 1203-FX (Occupational Questionnaire).
Comments are encouraged and will be accepted until July 26, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The information collection was previously published in the
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Occupational Questionnaire is an optical scan form designed to collect applicant information and qualifications in a format suitable for automated processing and to create applicant records for an automated examining system. The 1203 series was commonly referred to as the “Qualifications and Availability Form C.” OPM re-titled the series as “Occupational Questionnaire” to fit a more generic need. OPM uses this form to carry out its responsibility for open competitive examining for admission to the competitive service in accordance with Section 3304, Title 5, United States Code. One change has been made to the form under
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation 506(e) of Regulation D (17 CFR 230.506(e)) under the Securities Act of 1933 (15 U.S.C. 77a
We estimate there are 19,908 respondents that will conduct a one-hour factual inquiry to determine whether the issuer and its covered persons have had pre-existing
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Comments must be submitted to OMB within 30 days of this notice.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit business development companies (“BDCs”) to co-invest in portfolio companies with each other and with affiliated investment funds.
1889 BDC, Inc. (the “Fund”), 1889 Adviser, LLC (the “BDC Adviser”), on behalf of itself and its successors,
The application was filed on August 5, 2016 and amended on December 12, 2016, April 21, 2017 and May 11, 2017.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on July 17, 2017, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE., Washington, DC 20549-1090. Applicants: 245 Park Avenue, 26th Floor, New York, NY 10167.
Bruce R. MacNeil, Senior Counsel, at (202) 551-6817 or David J. Marcinkus, Branch Chief, at (202) 551-6821 (Chief Counsel's Office, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Fund is a Delaware corporation organized as a closed-end management investment company that has elected to be regulated as a BDC under Section 54(a) of the Act.
2. The BDC Adviser is a Delaware limited liability company which will be registered with the Commission as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”) prior to commencement of operations of the Fund. The BDC Adviser serves as investment adviser to the Fund and is a wholly-owned subsidiary of the Existing Affiliated Adviser.
3. Each Existing Affiliated Fund is an entity that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act. The Existing Affiliated Funds pursue strategies focused on investing in a variety of fixed income and credit investments.
4. The Existing Affiliated Adviser is a Delaware limited partnership and is registered as an investment adviser under the Advisers Act. The Existing Affiliated Adviser serves as investment adviser to each of the Existing Affiliated Funds.
5. Applicants seek an order (“Order”) to permit a Regulated Fund
The term “Adviser” means the BDC Adviser, the Existing Affiliated Adviser and any future investment adviser that (i) controls, is controlled by, or is under common control with the Existing Affiliated Adviser and (ii) is registered as an investment adviser under the Advisers Act.
6. Applicants state that a Regulated Fund may, from time to time, form a Wholly-Owned Investment Subsidiary.
7. When considering Potential Co-Investment Transactions for any Regulated Fund, the Adviser will consider only the Objectives and Strategies, investment policies, investment positions, capital available for investment, and other pertinent factors applicable to that Regulated Fund. The Adviser expects that any portfolio company that is an appropriate investment for a Regulated Fund should also be an appropriate investment for one or more other Regulated Funds and/or one or more Affiliated Funds, with certain exceptions based on available capital or diversification.
8. Other than pro rata dispositions and Follow-On Investments as provided in conditions 7 and 8, and after making the determinations required in conditions 1 and 2(a), the Adviser will present each Potential Co-Investment Transaction and the proposed allocation to the directors of the Board eligible to vote under section 57(o) of the Act (“Eligible Directors”), and the “required majority,” as defined in section 57(o) of the Act (“Required Majority”)
9. With respect to the pro rata dispositions and Follow-On Investments provided in conditions 7 and 8, a Regulated Fund may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of each Regulated Fund and Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board of the Regulated Fund has approved that Regulated Fund's participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Regulated Fund. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Regulated Fund's Eligible Directors. The Board of any Regulated Fund may at any time rescind, suspend or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On Investments must be submitted to the Eligible Directors.
10. No Independent Director of a Regulated Fund will have a direct or indirect financial interest in any Co-Investment Transaction, other than indirectly through share ownership in one of the Regulated Funds.
11. Applicants also represent that if the Advisers or its principal owners (“Principals”) or any person controlling, controlled by, or under common control with the Advisers or the Principals, and
1. Section 57(a)(4) of the Act prohibits certain affiliated persons of a BDC from participating in joint transactions with the BDC or a company controlled by a BDC in contravention of rules as prescribed by the Commission. Under section 57(b)(2) of the Act, any person who is directly or indirectly controlling, controlled by, or under common control with a BDC is subject to section 57(a)(4). Applicants submit that each of the Regulated Funds and Affiliated Funds be deemed to be a person related to each Regulated Fund in a manner described by section 57(b) by virtue of being under common control. Section 57(i) of the Act provides that, until the Commission prescribes rules under section 57(a)(4), the Commission's rules under section 17(d) of the Act applicable to registered closed-end investment companies will be deemed to apply to transactions subject to section 57(a)(4). Because the Commission has not adopted any rules under section 57(a)(4), rule 17d-1 also applies to joint transactions with Regulated Funds that are BDCs. Section 17(d) of the Act and rule 17d-1 under the Act are applicable to Regulated Funds that are registered closed-end investment companies.
2. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated persons of a registered investment company from participating in joint transactions with the company unless the Commission has granted an order permitting such transactions. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
3. Applicants state that in the absence of the requested relief, the Regulated Funds would be, in some circumstances, limited in their ability to participate in attractive and appropriate investment opportunities. Applicants believe that the proposed terms and conditions will ensure that the Co-Investment Transactions are consistent with the protection of each Regulated Fund's shareholders and with the purposes intended by the policies and provisions of the Act. Applicants state that the Regulated Funds' participation in the Co-Investment Transactions will be consistent with the provisions, policies, and purposes of the Act and on a basis that is not different from or less advantageous than that of other participants.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Each time an Adviser considers a Potential Co-Investment Transaction for an Affiliated Fund or another Regulated Fund that falls within a Regulated Fund's then-current Objectives and Strategies, the Regulated Fund's Adviser will make an independent determination of the appropriateness of the investment for such Regulated Fund in light of the Regulated Fund's then-current circumstances.
2. (a) If the Adviser deems a Regulated Fund's participation in any Potential Co-Investment Transaction to be appropriate for the Regulated Fund, it will then determine an appropriate level of investment for the Regulated Fund.
(b) If the aggregate amount recommended by the applicable Adviser to be invested by the applicable Regulated Fund in the Potential Co-Investment Transaction, together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the investment opportunity will be allocated among them pro rata based on each participant's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each. The applicable Adviser will provide the Eligible Directors of each participating Regulated Fund with information concerning each participating party's available capital to assist the Eligible Directors with their review of the Regulated Fund's investments for compliance with these allocation procedures.
(c) After making the determinations required in conditions 1 and 2(a), the applicable Adviser will distribute written information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each participating Regulated Fund and Affiliated Fund) to the Eligible Directors of each participating Regulated Fund for their consideration. A Regulated Fund will co-invest with one or more other Regulated Funds and/or one or more Affiliated Funds only if, prior to the Regulated Fund's participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i) The terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its shareholders and do not involve overreaching in respect of the Regulated Fund or its shareholders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction is consistent with:
(A) The interests of the shareholders of the Regulated Fund; and
(B) the Regulated Fund's then-current Objectives and Strategies;
(iii) the investment by any other Regulated Funds or Affiliated Funds would not disadvantage the Regulated Fund, and participation by the Regulated Fund would not be on a basis different from or less advantageous than that of other Regulated Funds or Affiliated Funds; provided that, if any other Regulated Fund or Affiliated Fund, but not the Regulated Fund itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this condition 2(c)(iii), if:
(A) The Eligible Directors will have the right to ratify the selection of such director or board observer, if any;
(B) the applicable Adviser agrees to, and does, provide periodic reports to the Regulated Fund's Board with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and
(C) any fees or other compensation that any Affiliated Fund or any Regulated Fund or any affiliated person
(iv) the proposed investment by the Regulated Fund will not benefit the Advisers, the Affiliated Funds or the other Regulated Funds or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by condition 13, (B) to the extent permitted by sections 17(e) or 57(k) of the Act, as applicable, (C) indirectly, as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction, or (D) in the case of fees or other compensation described in condition 2(c)(iii)(C).
3. Each Regulated Fund has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable Adviser will present to the Board of each Regulated Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated Funds or Affiliated Funds during the preceding quarter that fell within the Regulated Fund's then-current Objectives and Strategies that were not made available to the Regulated Fund, and an explanation of why the investment opportunities were not offered to the Regulated Fund. All information presented to the Board pursuant to this condition will be kept for the life of the Regulated Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for Follow-On Investments made in accordance with condition 8,
6. A Regulated Fund will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Regulated Fund and Affiliated Fund. The grant to an Affiliated Fund or another Regulated Fund, but not the Regulated Fund, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Affiliated Fund or any Regulated Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as to participation by each Regulated Fund in the disposition.
(b) Each Regulated Fund will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Affiliated Funds and any other Regulated Fund.
(c) A Regulated Fund may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition; (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) the Board of the Regulated Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this condition. In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such disposition solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(d) Each Affiliated Fund and each Regulated Fund will bear its own expenses in connection with any such disposition.
8. (a) If any Affiliated Fund or any Regulated Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Fund.
(b) A Regulated Fund may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(c) If, with respect to any Follow-On Investment:
(i) The amount of the opportunity is not based on the Regulated Funds' and the Affiliated Funds' outstanding investments immediately preceding the Follow-On Investment; and
(ii) the aggregate amount recommended by the Adviser to be invested by each Regulated Fund in the Follow-On Investment, together with the amount proposed to be invested by the participating Affiliated Funds in the same transaction, exceeds the amount of the opportunity; then the amount invested by each such party will be allocated among them pro rata based on each participant's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each.
(d) The acquisition of Follow-On Investments as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions set forth in the application.
9. The Non-Interested Directors of each Regulated Fund will be provided quarterly for review all information
10. Each Regulated Fund will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Funds were a BDC and each of the investments permitted under these conditions were approved by the Required Majority under section 57(f) of the Act.
11. No Non-Interested Director of a Regulated Fund will also be a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the Act), of an Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the Advisers under their respective investment advisory agreements with Affiliated Funds and the Regulated Funds, be shared by the Regulated Funds and the Affiliated Funds in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may be.
13. Any transaction fee
14. If the Holders own in the aggregate more than 25 percent of the Shares of a Regulated Fund, then the Holders will vote such Shares as directed by an independent third party when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable State law affecting the Board's composition, size or manner of election.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to establish an implementation date for certain trade modifiers required on trade reports to the Transaction Reporting and Compliance Engine (“TRACE”) involving U.S. Treasury Securities. The proposed rule change does not make any changes to the text of FINRA rules.
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On October 18, 2016, the Commission approved a proposed rule change to require FINRA members to report certain transactions in U.S. Treasury Securities to TRACE.
The Original Filing amended the TRACE rules to require that transactions in U.S. Treasury Securities, as defined in Rule 6710, be reported to TRACE. To effectuate this requirement, the Original Filing amended the definition of “TRACE-Eligible Security” to include U.S. Treasury Securities and amended the definition of “U.S. Treasury Security” to exclude savings bonds. The term “U.S. Treasury Securities” therefore includes Treasury bills, notes, and bonds, as well as separate principal and interest components of a U.S. Treasury Security separated pursuant to the Separate Trading of Registered Interest and Principal of Securities (STRIPS) program operated by the Treasury Dept.
The Original Filing also included amendments to Rule 6730 to require the use of two new modifiers, when applicable, to reported transactions in U.S. Treasury Securities. When proposing the rule, FINRA noted that transactions in U.S. Treasury Securities that are executed as part of larger trading strategies can often be priced away from the current market for legitimate reasons.
First, the amendments require that members append a “.B” modifier to a trade report if the transaction being reported is part of a series of transactions where at least one of the transactions involves a futures contract (
FINRA noted that the use of these modifiers on TRACE trade reports involving U.S. Treasury Securities will allow FINRA to better understand and evaluate execution prices for specific transactions that may otherwise appear aberrant if, for example, they are significantly outside of the price range for that security at that time. Among other things, these modifiers should reduce the number of false positive results that could be generated through automated surveillance patterns that include the price as part of the pattern.
As noted above, the new TRACE reporting requirements for U.S. Treasury Securities are scheduled to be implemented beginning July 10, 2017,
FINRA has filed the proposed rule change for immediate effectiveness. The implementation date will be February 5, 2018.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
As noted in the Original Filing, the new modifiers may introduce additional complexity to the proposed reporting, as traders at FINRA-member firms must apply the modifiers correctly and consistently to ensure meaningful data collection. FINRA noted that, in discussions with market participants, larger firms, for example, indicated that U.S. Treasury Securities are typically traded across many desks within the firm and this increases compliance costs because the new modifiers need to be identified by individual traders, as they are uniquely situated to know whether a specific trade is associated with a cross-instrument strategy that would require the modifier.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such
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.
All submissions should refer to File Number SR-FINRA-2017-018. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 10, 2017, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICE Clear Europe has proposed changes to its EOD Price Discovery Policy that are designed to implement a new price submission process. As part of its current price submission process, ICE Clear Europe requires Clearing Members to submit certain required price information to an intermediary, which ICE Clear Europe then obtains and uses as part of its price discovery process. The proposed rule changes would eliminate the use of the intermediary in the price submission process and instead require Clearing Members to submit required price information directly to ICE Clear Europe. In order to implement the direct price submission process, ICE Clear Europe proposed to amend its EOD Price Discovery Policy to (1) require Clearing Members establish direct connectivity with ICE Clear Europe and use a FIX API to provide ICE Clear Europe with the required price information, (2) add references to FIX API terminology, and (3) make revisions reflecting the replacement of existing trade date files with FIX API firm trade messages.
In addition to the changes described above, ICE Clear Europe also proposed changes with respect to the format of information required to be submitted by Clearing Members for the CDX.NA.HY index. Moreover, ICE Clear Europe proposed modifications to the process for distributing end-of-day prices, which will result in ICE Clear Europe publishing separate messages setting forth end-of-day price information for single name and index CDS to Clearing Members.
Section 19(b)(2)(C) of the Act directs the Commission to approve a propose rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
The Commission finds that the proposed rule change, which modifies ICE Clear Europe's EOD Price Discovery Policy to implement a direct price submission process for Clearing Members, is consistent with Section 17A of the Act and Rule 17Ad-22 thereunder. The proposed rule change is consistent with the requirements of Section 17A(b)(3)(F) that the rules of a registered clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions. By reducing operational risk the proposed rule changes reduce the likelihood that ICE Clear Europe will be unable to complete its end-of-day price discovery process. Completion of the end-of-day price discovery process is a necessary and essential element in ICE Clear Europe's clearance and settlement processes. The Commission believes that the proposed changes should enhance ICE Clear Europe's ability to complete the necessary pricing process effectively and thereby promote the prompt and accurate clearance and settlement of derivative agreements, contracts and transactions consistent with Section 17A(b)(3)(F).
For similar reasons, the proposed rule changes are also consistent with Rule 17Ad-22(e)(17) in that they are designed to reduce operational risk outside of ICE Clear Europe's control.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend its fee schedule to replace its current inverted pricing model with a simple, low fee model.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
Most exchanges today utilize maker-taker pricing under which they provide a rebate to orders that add liquidity and charge a fee to orders that remove liquidity. The Exchange currently incorporates an inverse of that pricing model under which it charges a fee to add liquidity and provides a rebate to remove liquidity. As described below, the Exchange proposes to amend its fee schedule to replace its current inverted
The Exchange submits this proposal in response to the industry feedback and the debate regarding exchange fee structures. Rule 610 of Regulation NMS limits the fees that a Trading Center
In securities priced at or above $1.00, the Exchange currently charges a fee of $0.0005 per share for Displayed orders that add liquidity and provides a rebate $0.0002 per share for Displayed orders that remove liquidity. Receipt of this removal rebate is contingent on the attributed Market Participant Identifier (“MPID”) adding (including Non-Displayed
As a result of the proposed change, the Exchange proposes to make corresponding changes to the following fee codes for securities priced at or above $1.00:
• Fee code 3, which is appended to orders that add liquidity on the Exchange in Tape A and C securities outside of Regular Trading Hours,
• Fee code 4, which is appended to orders that add liquidity on the Exchange in Tape B securities outside of Regular Trading Hours, are currently charged a fee of $0.00050 per share. Orders that yield fee code 4 would now be charged the proposed standard fee of $0.00030 per share.
• Fee code 6, which is appended to orders that remove liquidity from the Exchange in all securities outside of Regular Trading Hours, are currently provided a rebate of $0.00020 per share. Orders that yield fee code 6 would now be charged the proposed standard fee of $0.00030 per share.
• Fee code B, which is appended to orders that add liquidity on the Exchange in Tape B securities during Regular Trading Hours, are currently charged a fee of $0.00050 per share. Orders that yield fee code B would now be charged the proposed standard fee of $0.00030 per share.
• Fee code BB, which is appended to orders that remove liquidity from the Exchange in Tape B securities during of Regular Trading Hours, are currently provided a rebate of $0.00020 per share. Orders that yield fee code BB would now be charged the proposed standard fee of $0.00030 per share.
• Fee code CR, which is appended to orders that remove liquidity from the Exchange using an eligible routing strategy, are currently provided a rebate of $0.00020 per share. Under footnote 12, the eligible routing strategies for fee code CR are ROUT, RDOT, ROUE, ROUC, and ROCO. The Exchange proposes to delete fee code CR and footnote 12 as orders that remove liquidity from the Exchange, regardless of whether any portion of that order is routed away would now be charged the proposed standard fee of $0.00030 per share as set forth under the Standard Rates table. The Exchange also proposes to delete fee code CR from the Standard Rate table.
• Fee code N, which is appended to orders that remove liquidity from the Exchange in Tape C securities during of Regular Trading Hours, are currently provided a rebate of $0.00020 per share. Orders that yield fee code N would now be charged the proposed standard fee of $0.00030 per share.
• Fee code PR, which is appended to orders that remove liquidity from the Exchange using an eligible routing strategy, are currently provided a rebate of $0.00020 per share. Under footnote 6, the eligible routing strategies for fee code PR are ROUZ, ROUD, and ROUQ. The Exchange proposes to delete fee code PR and footnote 6 as orders that remove liquidity from the Exchange, regardless of whether any portion of that order is routed away would now be charged the proposed standard fee of $0.00030 per share as set forth under the Standard Rates table. The Exchange also proposes to delete fee code PR from the Standard Rate table.
• Fee code V, which is appended to orders that add liquidity on the Exchange in Tape A securities during Regular Trading Hours, are currently charged a fee of $0.00050 per share. Orders that yield fee code V would now be charged the proposed standard fee of $0.00030 per share.
• Fee code W, which is appended to orders that remove liquidity from the Exchange in Tape A securities during of Regular Trading Hours, are currently provided a rebate of $0.00020 per share.
• Fee code XR, which is appended to orders that remove liquidity from the Exchange using an eligible routing strategy, are currently provided a rebate of $0.00020 per share. Under footnote 7, the eligible routing strategies for fee code PR are DIRC, ROUX, RDOX, INET, ROBB, SWPA, and SWPB. The Exchange proposes to delete fee code XR and footnote 7 as orders that remove liquidity from the Exchange, regardless of whether any portion of that order is routed away would now be charged the proposed standard fee of $0.00030 per share as set forth under the Standard Rates table. The Exchange also proposes to delete fee code XR from the Standard Rate table.
• Fee code Y, which is appended to orders that add liquidity on the Exchange in Tape C securities during Regular Trading Hours, are currently charged a fee of $0.00050 per share. Orders that yield fee code Y would now be charged the proposed standard fee of $0.00030 per share.
The Exchange determines the liquidity adding reduced fee that it will charge Members using a tiered pricing structure. Currently, the Exchange charges reduced fee of $0.00030 per share under three Volume Tiers and two Step-Up tiers described in footnote 4 of the Fee Schedule. The Exchange proposes to delete all tiers listed under footnote 4 as all Displayed orders would be charged a fee of $0.00030 per share regardless of whether the Member or MPID achieves certain volume criteria. A description of each tier under footnote 4 that is to be deleted is below.
• Under Volume Tier 1, a Member must add an ADV equal to or greater than 1% of the TCV,
• Under Volume Tier 2, a Members must add an ADV equal to or greater than 0.25% of the TCV, including orders with a Non-Displayed instruction that add liquidity; and removes an ADV of at least 0.25% of the TCV.
• Under Volume Tier 3, a Member must add an ADV equal to or greater than 0.15% of TCV, including Non-Displayed orders that add liquidity; and has an “added liquidity” as a percentage of “added plus removed liquidity” of at least 85%.
• Under Step-Up Tier 1, the MPID must add an ADV equal to or greater than 0.10% of the TCV more than the MPID's December 2012 added ADV as a percentage of TCV or September 2013 added ADV as a percentage of TCV, whichever is lower.
• Under Step-Up Tier 2, the MPID adds an ADV equal to or greater than 0.05% of the TCV more than the MPID's December 2012 added ADV as a percentage of TCV or September 2013 added ADV as a percentage of TCV, whichever is lower; and an “added liquidity” as a percentage of “added plus removed liquidity” equal to or greater than 85%.
In securities priced at or above $1.00, the Exchange currently charges a fee of $0.0010 per share for Non-Displayed orders that add or remove liquidity. The Exchange now proposes to charge a fee of $0.00050 per share to Non-Displayed orders in securities priced above $1.00 that remove liquidity (other than for fee code DT, which will be charged no fee, as described below) and to charge no fee or rebate for Non-Displayed orders that add liquidity. Unless noted below, the Exchange does not propose to amend the fees charged for Non-Displayed orders in securities priced below $1.00.
As a result of the proposed change, the Exchange proposes to make corresponding changes to the following fee codes for securities priced at or above $1.00:
• Fee code DM is appended to Non-Displayed orders that add liquidity using MidPoint Discretionary Orders.
• Fee code DT is appended to Non-Displayed orders that remove liquidity using MidPoint Discretionary Orders. Orders that yield fee code DT in securities priced at or above $1.00 are charged a fee of $0.00050 per share and orders in securities priced below $1.00 are charged a fee equal to 0.05% of the transaction's dollar value. Orders that yield fee code DT would now be free for all securities regardless of whether they are priced above or below $1.00.
• Fee code HA is appended to Non-Displayed orders that add liquidity Orders that yield fee code HA in securities priced at or above $1.00 are charged a fee of $0.00100 per share and orders in securities priced below $1.00 are charged a fee equal to 0.10% of the transaction's dollar value. Orders that yield fee code HA would now be free for all securities regardless of whether they are priced above or below $1.00.
• Fee code HR is appended to Non-Displayed orders that remove liquidity. Orders that yield fee code HR in securities priced at or above $1.00 are charged a standard fee of $0.0010 per share and orders in securities priced below $1.00 are charged a fee equal to 0.10% of the transaction's dollar value. Orders in securities priced at or above $1.00 that yield fee code HR would now be charged the proposed standard fee of $0.00050 per share. Orders in securities priced below $1.00 would be charged 0.05% of the transaction's dollar value.
• Fee code RP, which is appended to Non-Displayed orders that add liquidity using Supplemental Peg Orders,
In securities priced at or above $1.00, the Exchange currently charges a fee of $0.00080 per share for Non-Displayed orders that add or remove liquidity using MidPoint Peg Orders.
• Fee code MM is appended to Non-Displayed orders that add liquidity using MidPoint Peg Orders. Orders in securities priced at or above $1.00 that yield fee code MM are currently charged a fee of $0.00080 per share. Orders in securities below $1.00 that yield fee code MT are currently charged a fee equal to 0.08% of the transaction's dollar value. Orders that yield fee code MM would now be free for all securities regardless of whether they are priced above or below $1.00.
• Fee code MT is appended to Non-Displayed orders that remove liquidity using MidPoint Peg Orders. Orders in securities priced at or above $1.00 that yield fee code MT are currently charged a fee of $0.00080 per share. Orders in securities below $1.00 that yield fee code MT are currently charged a fee equal to 0.08% of the transaction's dollar value. Orders that yield fee code
• Fee code PA, which is appended to orders that add liquidity using the RMPT or RMPL routing strategies,
• Fee code PT, which is appended to orders that add liquidity using the RMPT or RMPL routing strategies, are charged a fee of $0.00100 per share. Orders that yield fee code PT would now be charged the proposed standard fee of $0.00050 per share.
Currently footnote 2 of the fee schedule states that the rates for fee codes HA, HR, MM and MT are contingent upon Member adding or removing an ADV of at least 1,000,000 shares Non-Displayed (yields fee codes HA, HR, DM, DT, MM, MT and RP) or Member adding an ADV of at least 8,000,000 shares (Displayed and Non-Displayed). For securities priced at or above $1.00, Members not meeting either minimum are currently charged $0.0030 per share for fee codes HA, HR, MM and MT. For securities priced below $1.00, Members not meeting either minimum are currently charged 0.30% of the dollar value of the transaction. The Exchange does not propose any contingency requirements or conditions that Members must satisfy to receive the proposed rates for Non-Displayed orders. Therefore, the Exchange proposes to delete footnote 2 of the fee schedule as receipt of the proposed rates would not be contingent on the Member meeting any volume requirements. All Non-Displayed orders in securities priced below $1.00 would not be contingent to any minimum volume requirements and subject to the current rates set forth in the applicable fee code.
The Exchange also proposes to modify or delete tiers applicable to Non-Displayed Orders. The Exchange currently offers two tiers under footnote 3, the RMPT/RMPL Tiers, under which a Member receives a discounted fee of either $0.0006 or $0.0008 per share for orders yielding fee codes PT or PX where that Member satisfies certain criteria. Under Tier 1, a Member receives a reduced fee of $0.0008 per share where they add or remove an ADV greater than or equal to 2,000,000 shares using the RMPT or RMPL routing strategy. Under Tier 2, a Member receives a reduced fee of $0.0006 per share where they add or remove an ADV greater than or equal to 4,000,000 shares using the RMPT or RMPL routing strategy. As described above, fee codes PT and PX are appended to orders that remove liquidity or are routed, respectively, using the RMPT or RMPL routing strategies. Orders that yield fee code PT would be charged a fee of $0.00050 as proposed herein. Orders that yield fee code PX would continue to be charged a fee of $0.00120 per share. Because the fee for orders that yield fee code PT would be lower than the reduced fee provided by the two RMPT/RMPL Tiers, the Exchange proposes to only apply the reduced fee for those tiers to orders that yield fee code PX as those orders would be charged a higher fee of $0.00120 per share if they do not achieve the RMPT/RMPL tier's criteria.
The Exchange also offers two tiers under footnote 13, the Midpoint Add and Remove Tiers, under which a Member receives a reduced fee of $0.0006 or $0.0004 per share for orders that yield fee code MM or MT where that Member satisfies certain criteria. As described above, fee codes MM and MT are appended to Midpoint Peg Orders that add or remove liquidity, respectively. Under Tier 1, Members are charged a reduced fee of $0.0006 per share where the Member has an ADV equal to or greater than 1,200,000 shares in orders that yield fee codes MM or MT. Under Tier 2, Members are charged a reduced fee of $0.0004 per share where the Member has an ADV equal to or greater than 2,500,000 shares in orders that yield fee codes MM or MT. The Exchange proposes to delete all tiers listed under footnote 13 as all MidPoint Peg orders that remove liquidity would be charged the proposed standard rates regardless of whether the Member achieves certain volume criteria—a fee of $0.00050 per share and those orders that add liquidity would be charged no fee.
The Exchange proposes to implement the above changes to its fee schedule on immediately.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The Exchange believes its proposal to replace its current taker-maker pricing model with a new low fee model where it would charge a fee or provide the execution free of charge is equitable and reasonable as it would serve to simply its fee schedule to provide low standard rates for Displayed and Non-Displayed orders while also eliminating rebates and other pricing incentives. The Exchange submits this proposal in response to the industry feedback and the debate regarding exchange fee structures. Recent industry discourse has focused on fee structures and their purported effect on liquidity provision, liquidity taking, potential conflicts and order routing in the U.S. equity market. In addition, the Commission's EMSAC recommended that the Commission propose a pilot program to adjust the access fee cap under Rule 610 of Regulation NMS to better understand these dynamics.
The proposed fee structure provides a simple, straight forward low cost model that seeks to treat both liquidity providers and removers equally. Adopting a low fee model under which Displayed orders are charged the same low fee regardless of whether they add or remove liquidity will serve to provide an equal economic incentive to Members that not only seek to remove liquidity, but also to add liquidity to the Exchange. The Exchange believes that reducing the standard fee for Displayed orders and charging no fee for Non-Displayed orders that add liquidity will
The modification and elimination of certain reduced fees via the current tiered pricing model as proposed herein is also equitable and reasonable because it would aid in simplifying the fee schedule and result in all Member's being charged the same rates for all transactions regardless of their monthly volumes. The Exchange generally believes that volume-based pricing provides benefits or discounts that are reasonably related to: (i) The value to an exchange's market quality; (ii) associated higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns; and (iii) the introduction of higher volumes of orders into the price and volume discovery processes. However, the elimination of the Exchange's current tiered pricing is consistent with the proposed fee model which is designed to attract additional order flow though low fees for both adding and removing liquidity.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that this change represents a significant departure from previous pricing offered by the Exchange's competitors. The proposed rates would apply uniformly to all Members, and Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets. Further, excessive fees would serve to impair an exchange's ability to compete for order flow and members rather than burdening competition. The Exchange believes that its proposal would not burden intramarket competition because the proposed rate would apply uniformly to all Members.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its fee schedule applicable to its equities trading platform (“EDGX Equities”) to: (i) Modify the rates associated with fee codes AA, RA and RR; and (ii) decrease the condition necessary to qualify for the enhanced rebate provided pursuant to the Investor Depth Tier under footnote 1. The Exchange notes that Bats EDGA Exchange, Inc. (“EDGA”) is implementing certain pricing changes effective June 1, 2017, including modification of various fees and rebates to add and remove liquidity with a displayed or IOC order to a flat fee of $0.0003 per share to add or remove liquidity with a displayed or IOC order.
The Exchange proposes to modify the rate associated with orders yielding fee code AA, which results from an order routed to EDGA using ALLB routing strategy,
The Exchange proposes to decrease the fee associated with orders yielding fee code RA, which results from an order routed to EDGA which adds liquidity, from a fee of $0.0005 per share to a fee of $0.0003 per share for securities priced at or above $1.00. The Exchange does not propose to modify the rate for orders yielding fee code RA for securities priced below $1.00, which are currently not charged a fee nor provided a rebate.
The Exchange proposes to decrease the rate associated with orders yielding fee RR, which result from an order routed to EDGA using the Destination Specific routing strategy (also known as “DIRC”),
The Exchange currently offers nine Add Volume Tiers under footnote 4, which provide enhanced rebates ranging from $0.0025 to $0.0032 per share for qualifying orders which yield fee codes B,
• Currently, under the Investor Depth Tier a Member may be provided an enhanced rebate of $0.0033 per share where that Member: (i) Adds an ADV
The Exchange proposes to implement the above changes to its fee schedule immediately.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange believes that the proposed modifications to the tiered pricing structure are reasonable, fair and equitable, and non-discriminatory. The Exchange operates in a highly competitive market in which market participants may readily send order flow to many competing venues if they deem fees at the Exchange to be excessive or incentives provided to be insufficient. The proposed structure remains intended to attract order flow to the Exchange by offering market participants a competitive pricing structure. The Exchange believes it is reasonable to offer and incrementally modify incentives intended to help to contribute to the growth of the Exchange.
Volume-based pricing such as that proposed herein have been widely adopted by exchanges, including the Exchange, and are equitable because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to: (i) The value to an exchange's market quality; (ii) associated higher levels of market activity, such as higher levels of liquidity provisions and/or growth patterns; and (iii) introduction of higher volumes of orders into the price and volume discovery processes.
As noted above, EDGA is implementing certain pricing changes effective June 1, 2017, including modification of various fees and rebates to and remove liquidity with a displayed or IOC order to a flat fee of $0.0003 per share to add or remove liquidity with a displayed or IOC order.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that any of the proposed changes to the Exchange's routing pricing burden competition, as they are based on the pricing on other venues. Similarly, the Exchange does not believe that the proposed change to the Exchange's tiered pricing structure burden competition, but instead, that they enhance competition as they are intended to increase the competitiveness of EDGX by modifying pricing incentives in order to attract order flow and incentivize participants to increase their participation on the Exchange. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee structures to be unreasonable or excessive. The proposed changes are generally intended to enhance the rebates for liquidity added to the Exchange, which is intended to draw additional liquidity to the Exchange. The Exchange does not believe the proposed amendments would burden intramarket competition as they would be available to all Members uniformly.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Tennessee dated 06/16/2017.
Effective 06/16/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15172 B and for economic injury is 15173 0.
The States which received an EIDL Declaration # are Tennessee, North Carolina
Department of State.
Notice of public meeting.
The Department of State will hold an information session regarding an ongoing process under the Convention on Biological Diversity concerning the use of “digital sequence information on genetic resources,” also known as genetic sequence data.
The meeting will be held on July 11, 2017, 1-3 p.m.
The meeting will be held at the Harry S. Truman Main State Building, Room 3940, 2201 C Street NW., Washington, DC 20520.
If you would like to participate in this meeting, please send your (1) name, (2) organization/affiliation, (3) business email address, and (4) business phone number, as well as any requests for reasonable accommodation, to Stephanie Aktipis at
The Secretariat of the Convention on Biological Diversity (CBD) released a call (
We will provide a brief overview of the use of digital sequence information on genetic resources in the context of the CBD and the Nagoya Protocol and will listen to your comments, concerns, and questions about this issue. The information obtained from this meeting and any subsequent related meetings will inform the U.S. submission to the CBD. It will also help us prepare for U.S. participation in international meetings, specifically U.S. participation in future CBD and Nagoya Protocol meetings. Documents and other information related to the CBD and Nagoya Protocol can be found at this Web site:
The personal information requested above is being collected pursuant to 22 U.S.C. 2651a and 22 U.S.C. 4802 for the purpose of screening and pre-clearing participants to enter the host venue at the U.S. Department of State. The Department of State will use this information consistent with the routine uses set forth in the System of Records Notices for Protocol Records (STATE-33) and Security Records (State-36). Provision of this information is voluntary, but failure to provide
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to July 26, 2017.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, by mail to PPT Forms Officer, U.S. Department of State, CA/PPT/S/L/LA, 44132 Mercure Cir, P.O. Box 1227, Sterling, VA 20166-1227, by phone at (202) 485-6538, or by email at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Surface Transportation Board.
Approval of rail cost adjustment factor.
The Board approves the third quarter 2017 Rail Cost Adjustment Factor (RCAF) and cost index filed by the Association of American Railroads. The third quarter 2017 RCAF (Unadjusted) is 0.903. The third quarter 2017 RCAF (Adjusted) is 0.375. The third quarter 2017 RCAF-5 is 0.357.
Pedro Ramirez, (202) 245-0333. Federal Information Relay Service (FIRS) for the hearing impaired: (800) 877-8339.
Additional information is contained in the Board's decision, which is available on our Web site,
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Fourteenth RTCA SC-228 Plenary Session.
The FAA is issuing this notice to advise the public of a meeting of Fourteenth RTCA SC-228 Plenary Session.
The meeting will be held July 14, 2017, 9:00 a.m.-5:00 p.m.
The meeting will be held at: RTCA Headquarters, 1150 18th Street NW., Suite 910, Washington, DC 20036.
Al Secen at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Fourteenth RTCA SC-228 Plenary Session. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation.
Fourth DAC Meeting.
The FAA is issuing this notice to advise the public of the Fourth DAC Meeting.
The meeting will be held on July 21, 2017, 11:00 a.m.-2:30 p.m. EDT.
The meeting will be held as a virtual meeting only. Contact RTCA for dial-in information.
Al Secen at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given of the Fourth DAC Meeting. The DAC is a component of RTCA, which is a Federal Advisory Committee. The agenda will likely include, but may not be limited to, the following:
Attendance is open to the interested public. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Thirtieth RTCA SC-225 Rechargeable Lithium Batteries and Battery Systems Plenary.
The FAA is issuing this notice to advise the public of a meeting of Thirtieth RTCA SC-225 Rechargeable Lithium Batteries and Battery Systems Plenary.
The meeting will be held July 11, 2017, 9:00 a.m.-5:00 p.m.
The meeting will be held virtually at:
Karan Hofmann at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Thirtieth RTCA SC-225 Rechargeable Lithium
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
The Federal Motor Carrier Safety Administration (FMCSA) requests public comment on an application for exemption from Daimler Trucks North America LLC (DTNA) to allow its Attention Assist and Lane Departure Warning system camera to be mounted lower in the windshield on DTNA's commercial motor vehicles (CMVs) than is currently permitted.
Comments must be received on or before July 26, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2017-0176 using any of the following methods:
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Mr. Jose R. Cestero, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC-PSV, (202) 366-5541, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
Section 4007 of the Transportation Equity Act for the 21st Century (TEA- 21) [Pub. L. 105-178, June 9, 1998, 112 Stat. 401] amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs). On August 20, 2004, FMCSA published a final rule (69 FR 51589) implementing section 4007. Under this rule, FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved by the current regulation (49 CFR 381.305).
The decision of the Agency must be published in the
The Federal Motor Carrier Safety Regulations (FMCSRs) require devices meeting the definition of “vehicle safety technology,” including DTNA's Attention Assist and Lane Departure Warning system, to be mounted (1) not more than 4 inches below the upper edge of the area swept by the windshield wipers, or (2) not more than 7 inches above the lower edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals. Because the camera would be mounted outside of the driver's normal sight lines
DTNA has applied for an exemption from 49 CFR 393.60(e)(1) to allow an Attention Assist and Lane Departure Warning system camera to be mounted lower in the windshield than is currently permitted. A copy of the application is included in the docket referenced at the beginning of this notice.
Section 393.60(e)(1)(i) of the FMCSRs prohibits the obstruction of the driver's field of view by devices mounted at the top of the windshield. Antennas and similar devices must not be mounted more than 152 mm (6 inches) below the upper edge of the windshield, and outside the driver's sight lines to the road and highway signs and signals. Section 393.60(e)(1)(i) does not apply to vehicle safety technologies, as defined in § 390.5 as including “a fleet-related incident management system, performance or behavior management system, speed management system, lane departure warning system, forward collision warning or mitigation system, active cruise control system, and transponder.” Section 393.60(e)(1)(ii) requires devices with vehicle safety technologies to be mounted (1) not more than 100 mm (4 inches) below the upper edge of the area swept by the windshield wipers, or (2) not more than 175 mm (7 inches) above the lower edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals.
In its application, DTNA states:
The proposed exemption will increase safety by providing Attention Assist and Lane Departure Warning. The exemption will also allow DTNA to enable additional safety features in the future that will provide further safety benefits such as traffic sign recognition, active lane keeping, video capture, and intelligent headlight control. This safety device will become a critical enabler for future technology such as Autonomous Vehicles.
In the DTNA installation, the camera housing is approximately 102 mm (4.01 inches) wide by 177 mm (6.97 inches) tall. We propose to mount the camera such that it is in the approximate center of the top of the windshield and such that the bottom edge of the camera is approximately 7 inches below the upper edge of the windshield, outside of the driver's (and passenger's) normal sight lines to the road ahead, highway signs and signals, and all mirrors. This location will allow for the optimal functionality of the advanced safety systems supported by the camera.
DTNA has created a CAD layout of a typical DTNA conventional type truck to verify that the safety device does not significantly obstruct the FMVSS 104 specified zones A, B, or C for passenger cars of 1730 or more mm overall width. (See Figure 1.) In fact, the device only obstructs 0.0% of zone C, 1.2% of zone B, and 2.8% of zone A.
DTNA has installed prototype camera housings in fifteen DTNA conventional type vehicles and assessed the impact of the camera on driver and passenger visibility on over 50 CDL drivers and over 900,000 miles. This includes over-the-road mileage accumulation through a mixture of mountain, freeway, highway, and city routes. (See Figure 2 for a photograph taken from the driver seat.) All drivers and passengers agreed that there was no noticeable obstruction to the normal sight lines to the road ahead, highway signs, signals, or any mirrors. Driver comments included: “The position of the MPC1 camera system does not negatively impact visibility.”
While the application states that the camera will be mounted 7 inches below the upper edge of the windshield, DTNA provided supplemental information to clarify that the camera system will be mounted 8.5 inches below the upper edge of the area swept by the windshield wipers.
The exemption would apply to all CMV operators driving DTNA vehicles with the Attention Assist and Lane Departure Warning system camera installed. Daimler believes that mounting the system as described would maintain a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption.
In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on DTNA's application for an exemption from 49 CFR 393.60. All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the
Under part 235 of Title 49 of the Code of Federal Regulations (CFR) and 49 U.S.C. 20502(a), this document provides the public notice that on June 7, 2017, National Railroad Passenger Corporation (Amtrak) petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of a signal system. FRA assigned the petition Docket Number FRA-2017-0051.
Amtrak seeks to remove two derails, one in each direction approaching the Spuyten Duyvil bridge on Main Track #1, at Inwood interlocking, milepost (MP) 9.9 on the New York Division, Hudson Line, Inwood, New York.
Amtrak would like to remove the derails as they have been rendered obsolete by advanced technologies which ensure that trains stop rather than derail. They have been a source of considerable delay to time-sensitive passenger trains. Amtrak desires to remove these derails from the main tracks to eliminate maintenance and operation of obsolete hardware that is no longer needed, and to reduce delays caused by failures of the derails. Each of the interlocking home signals protecting these derails and the associated movable bridge are equipped with 100Hz coded cab signal system with speed control. The interlockings have also been equipped with both Advanced Civil Speed Enforcement System and Positive Train Stop.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by August 10, 2017 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that on May 16, 2017, the Southern California Regional Rail Authority (SCRRA, doing business as Metrolink) petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 231, Railroad Safety Appliance Standards. FRA assigned the petition Docket Number FRA-2017-0041.
SCRRA has purchased newly designed F125 diesel-electric locomotives for use in commuter service. The new locomotives are manufactured by Progress Rail in Muncie, IN. SCRRA requests relief from 49 CFR 231.17(e),
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by August 10, 2017 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Federal Transit Administration (FTA), DOT.
Notice of Intent to Prepare an Environmental Impact Statement.
The Federal Transit Administration (FTA) and Los Angeles County Metropolitan Transportation Authority (Metro) has initiated the preparation of an Environmental Impact Statement (EIS) for the West Santa Ana Branch (WSAB) Transit Corridor Project (Project) pursuant to the National Environmental Policy Act (NEPA). The Project is a proposed light rail transit (LRT) line that would extend approximately 20 miles and connect downtown Los Angeles to southeast Los Angeles County, serving the cities and communities of Arts District, Little Tokyo, Los Angeles, unincorporated
Written comments on the scope of the EIS should be sent to Ms. Fanny Pan, Project Manager, by
Written comments on the scope of the EIS should be sent to Ms. Fanny Pan, Project Manager, Metro, One Gateway Plaza, Mail Stop: 99-22-4, Los Angeles, California 90012, or via email at
• Thursday, June 15, 2017, 6 p.m. to 8 p.m., T. Mayne Thompson Park, 14001 S. Bellflower Blvd., Bellflower, CA 90706;
• Tuesday, June 20, 2017, 6 p.m. to 8 p.m., South Gate Girls Club House, 4940 Southern Ave., South Gate, CA 90280;
• Wednesday, June 21, 2017, 3 p.m. to 5 p.m. (Businesses), 6 p.m. to 8 p.m. (General Public), Nishi Hongwanji Buddhist Temple, 815 E. 1st St., Los Angeles, CA 90012;
• Saturday, June 24, 2017, 10 a.m. to 12 p.m., Huntington Park Community Center, 6925 Salt Lake Ave., Huntington Park, CA 90255.
These locations are accessible by persons with disabilities. Spanish translation and Spanish-speaking staff will be provided at all Scoping Meetings. Japanese translation will be provided at the June 21, 2017 Scoping Meeting. ADA accommodations and other translations are available by calling (323) 466-3876 or California Relay Service at 711 at least 72 hours in advance of the meeting. The Scoping Meeting on Tuesday, June 20, 2017 will be broadcast via Live Webcast for those unable to attend the meeting in person. The broadcast will be accessible starting at 6:30 p.m. by visiting
Ms. Candice Hughes, Environmental Protection Specialist, Federal Transit Administration, 888 S. Figueroa Street, Suite 440, Los Angeles, CA 90017 at (213) 629-8613, or via email at
The EIS will be prepared in accordance with the requirements of the NEPA and its implementing regulations. The EIS process will evaluate alternatives recommended for further study as a result of the planning Alternatives Analysis approved by the Southern California Association of Governments in February 2013 and the Project Definition for Environmental Scoping including four Northern Alignment Options approved by the Metro Board on April 27, 2017, and available on the Metro Web site (
Pursuant to 23 CFR 771.123(j), at the conclusion of the Draft EIS circulation period, Metro will prepare a report identifying the locally preferred alternative (LPA). Prior to commencement of a Final EIS, the LPA will be adopted by the Metro Board and included in the Metropolitan Transportation Plan identifying sufficient federal and other funding for the project, in order to be evaluated under the NEPA process.
LACMTA will also use the EIS document to comply with the California Environmental Quality Act (CEQA), which requires an Environmental Impact Report (EIR). The purpose of this notice is to alert interested parties regarding the intent to prepare the EIS, to provide information on the nature of the proposed project and possible alternatives, and to invite public participation in the EIS process, including providing comments on the scope of the Draft EIS, and to announce that public scoping meetings will be conducted.
NEPA “scoping” has specific and fairly limited objectives, one of which is to identify the significant issues associated with alternatives that will be examined in detail in the document, while simultaneously limiting consideration and development of issues that are not truly significant. It is in the NEPA scoping process that potentially significant environmental impacts—those that give rise to the need to prepare an EIS—should be identified; impacts that are deemed not to be significant need not be developed extensively in the context of the impact statement, thereby keeping the statement focused on impacts of consequence. Transit projects may also generate environmental benefits; these should be highlighted as well—the impact statement process should draw attention to positive impacts, not just negative impacts.
In addition, in the event that the WSAB line was to be extended to Orange County in the future, the Project will evaluate an optional station at Bloomfield Avenue (just north of the Los Angeles County-Orange County boundary).
Regulations implementing NEPA, as well as provisions of the recently enacted Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), call for public involvement in the EIS process. Section 6002 of SAFETEA-LU requires that FTA and MDT do the following: (1) Extend an invitation to other Federal and non-Federal agencies and Indian tribes that may have an interest in the proposed project to become “participating agencies,” (2) provide an opportunity for involvement by participating agencies and the public in helping to define the purpose and need for a proposed project, as well as the range of alternatives for consideration in the impact statement, and (3) establish a plan for coordinating public and agency participation in and comment on the environmental review process. Any Federal or non-Federal agency or Indian tribe interested in the Project that does not receive an invitation to become a participating agency should notify at the earliest opportunity the Project Manager identified above under
A comprehensive public involvement program has been developed and a public and agency involvement Coordination Plan will be created. The program includes a project Web site (
Maritime Administration, Department of Transportation.
Meeting notice.
The U.S. Department of Transportation, Maritime Administration (MARAD) announces that the following U.S. Merchant Marine Academy (Academy) Board of Visitors (BOV) meeting will take place:
The BOV's Designated Federal Officer and Point of Contact Brian Blower; 202 366-2765;
Any member of the public is permitted to file a written statement with the Academy BOV. Written statements should be sent to the Designated Federal Officer (DFO) at: Brian Blower; 1200 New Jersey Ave SE., W28-314, Washington, DC 20590 or via email at
46 U.S.C. 51312; 5 U.S.C. app. 552b; 41 CFR parts 102-3.140 through 102-3.165.
By Order of the Executive Director in lieu of the Maritime Administrator.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of Applications for Modification of Special Permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before July 11, 2017.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on Special Permit Applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before July 26, 2017.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(13); 49 CFR 1.53(6)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of Applications for Special Permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before July 26, 2017.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is removing the name of one individual, whose property and interests in property have been blocked pursuant to an executive order issued on September 23, 2001, titled “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism,” from the list of Specially Designated Nationals and Blocked Persons (SDN List).
OFAC's actions described in this notice are effective on June 21, 2017.
Associate Director for Global Targeting, tel.: 202/622-2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622-2490, Assistant Director for Licensing, tel.: 202/622-2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622-2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
The following person is removed from the SDN List, effective as of June 21, 2017.
1. SALAH, Muhammad (a.k.a. HASANAYN, Nasr Fahmi Nasr) (individual) [SDGT].
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing supplemental information for the name of one individual whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
OFAC's actions described in this notice are effective on June 21, 2017.
Associate Director for Global Targeting, tel.: 202/622-2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622-2490, Assistant Director for Licensing, tel.: 202/622-2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622-2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
On June 21, 2017, OFAC supplemented the identification information for one individual whose property and interests in property are blocked pursuant to Executive Order 13224, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism”.
The supplementation identification information is as follows:
1. BOULGHITI, Boubekeur (a.k.a. BOULGHIT, Boubakeur; a.k.a. “AL DJAZAIRI, Abou Bakr”; a.k.a. “AL-JAZARI, Yasir”; a.k.a. “AL-JAZIRI, Abou Yasser”; a.k.a. “AL-JAZIRI, Abu Bakr”; a.k.a. “EL DJAZAIRI, Abou Yasser”), Peshawar, Pakistan; DOB 13 Feb 1970; POB Rouiba, Algiers, Algeria; nationality Algeria; Gender Male (individual) [SDGT].
Internal Revenue Service, Department of Treasury.
Notice.
The Internal Revenue Service (IRS), in accordance with the Paperwork Reduction Act of 1995 (PRA 95), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the IRS assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the IRS's information collection requirements and provide the requested data in the desired format. Currently, the IRS is soliciting comments on a revision of the Notices under the Mental Health Parity and Addiction Equity Act of 2008 information collection request (ICR) to add a model form participants and authorized representatives can use to request certain inform from their health plans that is discussed below.
A copy of the information collection request (ICR) may be obtained by contacting the office listed in the
Written comments must be submitted to the office shown in the
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the draft model form should be directed to R. Joseph Durbala, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 317-5746, or through the internet at
The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) was enacted on October 3, 2008 and amended by the Affordable Care Act and the 21st Century Cures Act (Cures Act). Generally, MHPAEA requires that the financial requirements and treatment limitations imposed on mental health and substance use disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. As discussed below, MHPAEA includes several disclosure requirements for group health plans and health insurance issuers.
The Cures Act
The statutory MHPAEA provisions and implementing regulations expressly provide that a plan or issuer must disclose the criteria for medical necessity determinations with respect to MH/SUD benefits to any current or potential participant, beneficiary, or contracting provider upon request and must disclose the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits to the participant or beneficiary.
On October 27, 2016, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued Affordable Care Act Implementation FAQs Part 34, which, among other things, solicited feedback regarding disclosures with respect to MH/SUD benefits under MHPAEA and other laws. In the FAQs, the Departments indicated that they had received questions and suggestions regarding disclosures with respect to Nonquantitative Treatment Limitation (NQTLs) applicable to medical/surgical and MH?SUD benefits under the plan. The feedback also included requests from various stakeholders for model forms that group health plan participants, beneficiaries, covered individuals in the individual market, or persons acting on their behalf could use to request relevant disclosures. Stakeholders also requested guidance on other ways in which disclosures, or the process for requesting disclosures, could be more uniform, streamlined, or otherwise simplified
In addition, the Departments indicated that they had received requests to explore ways to encourage uniformity among State reviews of health insurance issuers' compliance with the NQTL standards. Various stakeholders stated that model forms to report NQTL information will help facilitate uniform implementation and enforcement of MHPAEA, and relieve some complexity that MHPAEA compliance poses for issuers operating in multiple States. Furthermore, other stakeholders highlighted that the use of such model forms may also benefit consumers, as consumers will be entitled to request the analysis performed to complete the model forms.
The Cures Act requires the Departments, by June 13, 2017, to solicit feedback from the public on how the disclosure request process for documents containing information that health plans and health insurance issuers are required under Federal or State law to disclose to participants, beneficiaries, contracting providers or authorized representatives to ensure compliance with existing mental health parity and addiction equity requirements can be improved while continuing to ensure consumers' rights to access all information required by Federal or State law to be disclosed.
The Departments recently issued Affordable Care Act Implementation FAQs Part 38, which again solicited comments on FAQs Part 34 as required
This notice requests public comment on the draft model form discussed above. The IRS notes that an agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICR and the current burden estimates follows:
The Internal Revenue Service (IRS) is particularly interested in comments that:
• 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,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the revision of the information collection; they will also become a matter of public record.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), in accordance with the Paperwork Reduction Act of 1995 (PRA 95), provides the general public and Federal agencies with an opportunity to comment on continuing collections of information. This helps the IRS assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the IRS's information collection requirements and provide the requested data in the desired format. The IRS is soliciting comments concerning Taxpayer Statement Regarding Refund. The information and taxpayer signature are needed to begin the tracing action.
Written comments should be received on or before August 25, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, 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 continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning the election to expense certain depreciable business assets. Including, the recordkeeping and reporting requirements necessary to monitor compliance with a specific type of depreciation.
Written comments should be received on or before August 25, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to Kerry Dennis, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW., Washington DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), in accordance with the Paperwork Reduction Act of 1995 (PRA 95), provides the general public and Federal agencies with an opportunity to comment on continuing collections of information. This helps the IRS assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the IRS's information collection requirements and provide the requested data in the desired format. The IRS is soliciting comments concerning Application to Participate in the IRS Acceptance Agent Program. Form 13551 is used to gather information to determine applicant's eligibility in the Acceptance Agent Program.
Written comments should be received on or before August 25, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), in accordance with the Paperwork Reduction Act of 1995 (PRA 95), provides the general public and Federal agencies with an opportunity to comment on continuing collections of information. This helps the IRS assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the IRS's information collection requirements and provide the requested data in the desired format. The IRS is soliciting comments concerning Request for Miscellaneous Determination associated with standardizing information collections of individually written requests for miscellaneous determinations associated with Exempt Organizations.
Written comments should be received on or before August 25, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), in accordance with the Paperwork Reduction Act of 1995 (PRA 95), provides the general public and Federal agencies with an opportunity to comment on continuing collections of information. This helps the IRS assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the IRS's information collection requirements and provide the requested data in the desired format. The IRS is soliciting comments concerning environmental settlement funds-classification. Additionally, it addresses determination of the portion of a trust to include in income by a grantor owner.
Written comments should be received on or before August 25, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to Kerry Dennis, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW., Washington DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Request For Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information 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.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
Veterans Health Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 25, 2017.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461-5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
Public Law 112-239 Sec. 726
a. Veterans Outcome Assessment—Baseline
b. Veterans Outcome Assessment—Follow Up
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before July 26, 2017.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-5870 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
90-day petition findings, request for information, and initiation of status review.
We, NMFS, announce our 90-day findings on a petition to list ten species of giant clam as endangered or threatened under the U.S. Endangered Species Act (ESA). We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted for seven species (
Information and comments on the subject action must be received by August 25, 2017.
You may submit comments, information, or data, by including “NOAA-NMFS-2017-0029” by either of the following methods:
•
•
Lisa Manning, NMFS, Office of Protected Resources (301) 427-8403.
On August 7, 2016, we received a petition from a private citizen, Dr. Dwayne W. Meadows, Ph.D., requesting that we list the Tridacninae giant clams (excluding
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition,
At the 90-day stage, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. Conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by non-governmental organizations, such as the International Union for the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (
The petition clearly indicates the administrative measure recommended and gives the scientific and, in some cases, the common names of the species involved. The petition also contains a narrative justification for the recommended measures and provides limited information on the species' geographic distribution, habitat use, and threats. Limited information is also provided on population status and trends for all but a couple of species. The introduction of the petition emphasizes that giant clam species have not been evaluated by the IUCN since 1996, and more recent information provides evidence of significant population declines of all giant clam species range-wide, with increasing threats. The petition then provides general background information on giant clams as well as some limited species-specific information where available. Topics covered by the petition include giant clam taxonomy, natural history, descriptions of
Giant clams are a small but conspicuous group of large bivalves that are members of the cardiid bivalve subfamily Tridacninae (Su
Giant clam taxonomy (family Cardiidae, subfamily Tridacninae) has seen a surge in new species descriptions in recent decades (Borsa
Modern giant clams are distributed along shallow shorelines and on reefs in the Indo-West Pacific in the area confined by 30° E and 120° W (
Anecdotal reports by SCUBA divers and data from Reef Check (an international non-governmental organization that trains volunteers to carry out coral reef surveys) include records of giant clams beyond previously defined geographical boundaries, extending their known occurrence to near Cape Agulhas, South Africa. Giant clam distribution is not uniform, with greater diversity found in the central Indo-Pacific (Spalding
The petition cites Soo and Todd (2014), stating that giant clams are markedly stenothermal (
The exact lifespan of tridacnines has not been determined; although it is estimated to vary widely between eight to several hundred years (see original citations in Soo and Todd 2014). Little information exists on the size at maturity for giant clams, but size and age at maturity vary by species and geographical location (Ellis 1997). In general, giant clams appear to have relatively late sexual maturity, a sessile, exposed adult phase and broadcast spawning reproductive strategy, all of which can make giant clams vulnerable to depletion and exploitation (Neo
According to Munro (1992), giant clams are facultative planktotrophs, in that they are essentially planktotrophic (
The petition does not provide historical or current global abundance estimates for any of the petitioned clam species; rather, the petition cites a number of studies that document local extirpations of various giant clam species in particular areas to demonstrate that all species of giant clams are currently declining, or have declined historically, within their ranges. We assess the information presented in the petition, and information in our files, regarding each of the petitioned species in individual species accounts later in this finding.
The petition indicates that giant clam species merit listing due to all five ESA section 4(a)(1) factors: Present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence. We first discuss each of these threats to giant clams in general, and then discuss these threats as they relate to each species, based on information in the petition and the information readily available in our files.
The petition contends that all giant clam species are at risk of extinction due to habitat destruction. The petitioner cites Foster and Vincent (2004) and states that: “Giant clams inhabit shallow coastal waters which are highly vulnerable to habitat degradation caused by various anthropogenic activities.” While we agree that highly populated coastal areas are subject to anthropogenic impacts (
Finally, the petitioner also notes evidence from the South China Sea that 40 square miles (104 sq km) of coral reefs have been destroyed as a result of giant clam poaching, with an additional 22 square miles (57 sq km) destroyed by island-building and dredging activities. The petitioner notes that the main target during these poaching activities is
Therefore, while the information in the petition suggests concern for the status of coral reef habitat generally, its broadness, generality, and speculative nature, and the lack of connections between the threats discussed and the status of the giant clam species specifically, means that we cannot find that this information reasonably suggests that habitat destruction is an operative threat that acts or has acted on each of the species to the point that they may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response and consider the significance within the context of the species' overall range. In this case, generalized evidence of declining coral reef habitat is not evidence of a significant threat to any of the individual petitioned species to infer extinction risk such that the species may meet the definition of either threatened or endangered under the ESA.
In addition to habitat degradation as a result of various anthropogenic activities, the petition contends that climate change related threats, including ocean warming and ocean acidification, are operative threats to all giant clam species and the coral reef habitat they rely on. The petitioner cites Brainard
With regard to climate change related threats to coral reef habitat, NMFS' final rule to list 20 species of reef-building corals (79 FR 53852; September 10, 2014) explains that exposure and response of coral species to global threats varies spatially and temporally, based on variability in the species' habitat and distribution. The vast majority of coral species occur across multiple habitat types, or reef environments, and have distributions that encompass diverse physical environmental conditions that influence how that species responds to global threats. Additionally, the best available information, as summarized in Brainard
In addition to bleaching, the petitioner similarly implies that ocean acidification is a threat to giant clam habitat (
Finally, the petition provided no information or analysis regarding how changes in coral reef composition and function because of climate change pose an extinction risk to any of the petitioned giant clam species. This is particularly important given that giant clams do not have an obligate relationship to coral reefs and, like corals, occur in a wide variety of habitats that encompass diverse physical environmental conditions that influence how a particular species responds to global threats. Broad generalizations regarding climate change related threats and their impacts cannot be applied as an equivalent threat to corals and coral reef associated species. In cases where the petitioner provided relevant species-specific information regarding climate change impacts, we consider this information in further detail below in the individual species accounts.
The petition describes several activities that may be contributing to the overutilization of giant clams in general. The petition notes that harvest of giant clams is for both subsistence purposes (
The petition discusses a number of commercial fisheries that operated historically, including long-range Taiwanese fishing vessels and some local fisheries that developed in the 1970s and 1980s (
In terms of current and ongoing threats of overutilization to giant clams, the petition emphasizes the threat of the growing giant clam industry in China, largely the result of improved carving techniques, increased tourism in Hainan, China, the growth in e-commerce, and the domestic Chinese wholesale market (Larson 2016). The petition also cites McManus (2016) to note concerns that stricter enforcement of the trade in ivory products has diverted attention to giant clam shells. The petition points out that the giant clam (
Although the petition does not mention aquaculture and hatchery programs, we found some information in our files on numerous giant clam aquaculture and hatchery programs throughout the Indo-Pacific, with several species being cultured in captivity for the purpose of international trade and restocking/reseeding programs to enhance wild populations. Currently, a variety of hatchery and nursery production systems are being utilized in over 21 Indo-Pacific countries (Teitelbaum and Friedman 2008), with several Pacific Island Countries and Territories (PICTs) across the Pacific using giant clam aquaculture and restocking programs to help enhance wild populations and culture clams for commercial use/trade. For example, the Cook Islands cultures giant clams at the Aitutaki Marine Research Center and exported 30,000 giant clams from 2003 to 2006 for the global marine aquarium trade (Kinch and Teitelbaum 2009). In 2005, the Palau National Government established the Palau Maricultural Demonstration Center Program to conduct research on giant clam culture and to establish community-based giant clam grow-out farms. This program has helped establish 46 giant clam farms throughout Palau, with over two million giant clam `seedlings' distributed (Kinch and Teitelbaum 2009). At least 10 percent of all giant clams from each farm are also kept aside to spawn naturally in their own ranched enclosures, thus reseeding nearby areas. In addition to being used to reseed areas in Palau, the program exported approximately 10,000 cultured giant clams each year from 2005 to 2008 to France, Germany, Canada, the United States (including Guam and the Federated States of Micronesia (FSM)), Korea, and Taiwan. Other major producers of cultured giant clams for export include the Republic of the Marshall Islands, Tonga, and the FSM, producing an approximate average of 15-20,000 pieces of clams per year (Kinch and Teitelbaum 2009). Therefore, the international trade of giant clams is complex, with many facets to consider, including the increasing influx of cultured giant clams into the trade. We acknowledge that the success of these restocking programs have been variable and limited in some locations (Teitelbaum and Friedman 2008); however, given the foregoing information, we cannot conclude that international trade poses an equal extinction risk to all of the petitioned giant clam species. In cases where the petition did provide species-specific information regarding commercial trade, we consider this information, as well as what is in our files, in the individual species accounts below.
The petition states that predation is not likely a threat to giant clam species, as there is no evidence to suggest that levels of predation have changed or are unnaturally high and affecting the status of giant clam populations. We could also find no additional information in our files regarding the threat of predation for any of the petitioned clam species.
The petition asserts that because diseases have been documented in a number of species and have likely increased in concert with climate change, they cannot be ruled out as a threat. The petition presented some limited information on diseases (
The petition claims existing regulatory mechanisms at the international, federal, and state level to protect giant clams or the habitat they need to survive are inadequate. The petitioner asserts that not only are local and national laws inadequate to protect
The petitioner notes that there are some laws for giant clams on the books in certain locations, but only discusses regulations from the Philippines and Malaysia and a separate issue of illegal clam poaching in disputed areas of the South China Sea. The petition acknowledges that all species of giant clam in the Philippines are protected as endangered species under the Philippine's Fisheries Administrative Order No. 208 series of 2001 (Dolorosa and Schoppe 2005), but states that despite this law, declines of giant clams continue. However, the only study presented on abundance trends since the law was implemented in 2001 was conducted on one reef (Tubbataha Reef; Dolorosa and Schoppe 2005). Dolorosa and Schoppe (2005) specifically stated that they could not conclude a continuous decline of tridacnids was occurring because the much lower density observed in their study was based on data taken from a single transect. Prior to the study conducted by Dolorosa and Schoppe (2005), the only quantitative information presented was from studies conducted in the 1980s and 1990s (Villanoy
The petitioner also notes that Malaysia's Department of Fisheries has listed giant clams as protected species, but cites Tan and Yasin (2003) as evidence that giant clams continue to decline despite this protective regulation. The petition provides no details regarding when this law was implemented or what specific protections it affords giant clams in Malaysian waters, nor could we find these details in the reference provided (Tan and Yasin 2003). Given that Malaysia represents a different proportion of each of the petitioned species' overall range, the potential inadequacy of regulatory mechanisms in Malaysia will be assessed and considered for each of the petitioned species in the individual species accounts below.
Overall, the discussion of inadequate regulatory mechanisms for giant clams at the national/local level by the petitioner focuses on Southeast Asia, without any information regarding regulatory mechanisms throughout large portions of the rest of the ranges of the species. However, we found regulations in our files in numerous countries throughout the tropical Pacific (
The petition asserts that international regulations, specifically the CITES, are inadequate to control commercial trade of giant clam species. The petition explains that although all members of the Tridacninae family are listed under Appendix II of CITES, implementation and enforcement are likely not adequate and thus illegal shipments are not necessarily intercepted. However, the assertions regarding illegal shipments were made broadly about wildlife shipments in general, without providing any specific information or clear linkages regarding how CITES is failing to regulate international trade of each of the petitioned giant clam species. The petition cites a number of CITES documents and states that these documents “show wide disparities in yearly giant clam trade figures,” which suggest that some countries have failed to exert control on the clam trade (bin Othman
Overall, the discussion of the inadequacy of CITES is very broad and does not discuss how the inadequacy of international trade regulations is impacting any of the petitioned species to the point that it is contributing to an extinction risk, with the exception of
The petition claims that regulatory mechanisms to curb greenhouse gas emissions and reduce the effects of global climate change are inadequate to protect giant clams from the threats climate change poses to the species and their habitat. The petition goes on to explain that climate change threats, including bleaching and ocean acidification, represent the most significant long-term threat to the future of global biodiversity. Information in our files and from scientific literature indeed indicates that greenhouse gas emissions have a negative impact to reef building corals (NMFS 2012). However, as we discussed in detail previously, beyond this generalized global threat to coral reefs, we do not find that the petition presents substantial information indicating that the effects of greenhouse gas emissions are negatively affecting the petitioned species or their habitat such that they may warrant listing under the ESA. In particular, the information in the petition and in our files does not indicate that the loss of coral reef habitat or the direct effects of ocean warming and acidification is contributing to the extinction risk of the petitioned species (refer back to the
The petitioner discusses the climate change-related impacts of ocean warming and giant clam bleaching as an extinction risk to all the petitioned giant clam species. In terms of giant clam bleaching, the petitioner argues that giant clams are like stony corals, in that the
Despite this significant reduction in symbiont population, and the consequent changes to their carbon and nitrogen budgets, the clams are able to cope with bleaching events significantly better than corals. During the recovery of clams after an artificial bleaching event only three out of 24 clams died, and personal observations at Orpheus Island indicated that survival rates of bleached clams were greater than 95 percent under natural conditions. This is in contrast to reports indicating coral mortality in some species can be as great as 99 percent.
Therefore, although giant clams and stony corals can experience similar bleaching of their symbiotic zooxanthellae, this does not necessarily equate to analogous impacts of widespread bleaching-induced mortality from ocean warming. As discussed for another reef-dwelling organism in the orange clownfish 12-month finding (80 FR 51235), anemones also have symbiotic zooxanthellae, but literature on the effects of ocean warming on anemones show results that are not necessarily analogous with corals either, and in fact show high variability between and within species. Even individual anemones can show varying responses across different bleaching events. Although observed anemone bleaching has thus far been highly variable during localized events, the overall effect of bleaching events on anemones globally (
Without species-specific information on how ocean warming-induced bleaching affects each of the petitioned giant clam species (
Similar to the effects of ocean warming, the petitioner discusses ocean acidification as a threat contributing to the extinction risk of all of the petitioned giant clam species. The petitioner asserts that the effects of ocean acidification will likely accelerate the bioerosion of giant clam shells and lead to their increased fragility. To support this assertion, the petition cites two studies. One study (Waters 2008) looked at cultured specimens of
The second study (Lin
Overall, while we agree that ocean acidification is likely to continue and increase in severity over time within the ranges of the giant clam species, resulting in various detrimental impacts, additional information in our files also underscores the complexity and uncertainty associated with the various specific effects of ocean acidification across the ranges of giant clams. There are numerous complex spatial and temporal factors that compound uncertainty associated with projecting effects of ocean acidification on coral reef associated species such as giant clams. Further, as explained in the final rule to list 20 reef-building coral species under the ESA (79 FR 53852; September 10, 2014), projecting species-specific responses to global threats is complicated by several physical and biological factors that also apply to the petitioned giant clam species. First, global projections of changes to ocean acidification into the future are associated with three major sources of uncertainty, including greenhouse gas emissions assumptions, strength of the climate's response to greenhouse gas concentrations, and large natural variations. There is also spatial and temporal variability in projected environmental conditions across the ranges of the species. Finally, species-specific responses depend on numerous biological characteristics, including (at a minimum) distribution, abundance, life history, susceptibility to threats, and capacity for acclimatization.
In this case, the petition did not provide sufficient information regarding the likely impacts of ocean acidification on specific giant clam species or their populations. Without any analysis of how ocean acidification may be negatively impacting each of the petitioned giant clam species (with the exception of
Based on the information presented in the petition and in our files, we made 10 separate 90-day findings, one for each of the petitioned giant clam species. We first address the seven species for which we have determined that the information presented in the petition and in our files constitutes substantial information that the petitioned action may be warranted (
The petition does not provide any descriptive information for
The petitioner provides some information on life history specific to this species. He cites Shelley (1989) who found second sexual maturity in
The petition includes a range map for
According to Munro (1992),
Although an overall population abundance estimate or population trends for
The petition presents three references from the Philippines on
While individually and collectively the studies discussed in this section represent a small portion of
The petition presents three studies with species-specific information regarding threats to
Finally, Norton
In conclusion, the information provided on threats for this species is limited and the individual studies by themselves are not substantial information indicating the petitioned action may be warranted for the species. However, the evidence presented of localized declines or extirpations in different parts of the species' range does suggest that one or more threats may be acting on the species throughout all or a significant portion of its range and the petitioned action may be warranted. The number and spatial distribution of localized severe declines or extirpations in the context of the species' range may be contributing to an elevated extinction risk for this species such that it warrants further investigation. The best available information on the species' overall status and all potential threats will be evaluated in a forthcoming status review to determine what has potentially caused these declines and extirpations.
The petition does not provide any descriptive information for
Aside from the information already discussed previously in the
The petition does not provide an overall population abundance or trend estimate for
The petition asserts that
While
Overall, while the information presented in the petition is very limited regarding the species' current status and abundance trends throughout its range and would not in and of itself constitute substantial information, the species' range is significantly restricted. Therefore, given that the species only occurs in four countries, the information presented in the petition from the Philippines, albeit limited, gives cause for concern that the species may have an elevated extinction risk that warrants further investigation.
The only species-specific information provided by the petition regarding threats to
In conclusion, the information provided on population abundance and threats for this species is limited and by itself would not be considered substantial information indicating the petitioned action may be warranted. The individual studies presented are not compelling evidence of species level concerns for reasons discussed above. However, given the species' extremely restricted range, combined with evidence of localized declines and historical overutilization in the Philippines, we find the information compelling enough to conclude that the petitioned action may be warranted. The best available information on the species' overall population status and all potential threats will be evaluated in a forthcoming status review.
The petition itself does not describe any species-specific life history information for
Among giant clam species,
In a survey of giant clams in the Red Sea, Richter
Given the recent description of this species, information on its current population status and abundance trends is limited. However, one available study suggests a significant historical decline of the species. Results of surveys along the shores and well-dated emerged reef terraces of Sinai and Aqaba show that
Based on the limited information in the petition, we determined that historical and ongoing overutilization may be a threat contributing to an elevated extinction risk for this species that warrants further investigation, particularly given the species' restricted geographic range and shallow depth distribution. In general,
Based on the above information, we find that the petition presents substantial scientific and commercial information indicating that the petitioned action of listing
The petition itself does not provide any descriptive information for
The petition presents very limited life history information for
The petition does not provide a description of the geographic range for
The petition does not provide estimates of population abundance or trends for
The petitioner cites Tan and Yasin (2003), stating giant clams of all species but
Hardy and Hardy (1969) did a seminal study of ecology of
While individually and collectively, the studies discussed in this section represent a small portion of
Beyond the generalized threats to all giant clam species discussed above, the petition presents little information on threats to
Tridacna derasa: Widespread throughout the group, but generally rare on the fringing reefs of the main islands where terrestrial influence is strong, and in the leeward islands (yasawas) where sheltered oceanic lagoons are generally wanting. In 1984-85, there were still abundant populations on various reefs in the windward (Lau, Lomaiviti) islands, but subsequent commercial harvest has considerably reduced these numbers. Isolated pockets still remain and should be protected. Densities on inhabited windward islands generally low, with remaining individuals in deeper water (10 m plus). Further commercial harvests for export should be prohibited.
According to CITES documents, commercial harvest for export is now prohibited in Fiji and the fisheries department cultures clams, including
A 2004 CITES trade review for
The petition cites Bliderg (2000), who studied the effect of increasing water temperature by 3 °C on cultured
In conclusion, the information provided on threats for this species is limited and by itself would not be considered substantial information indicating the petitioned action may be warranted. The individual studies presented are not compelling evidence of species level concerns for reasons discussed above, however, taken together they provide sufficient evidence such that further investigation is warranted. The evidence presented of small, localized populations or extirpations in different parts of the species range is compelling enough to conclude that the petitioned action may be warranted. The best available information on all potential threats to the species will be evaluated in a forthcoming status review to determine what has potentially caused the observed declines and extirpations, and the extent to which such declines have occurred.
In addition to the
Prior to the rapid escalation of the aquarium trade,
The petition does not provide overall estimates of population abundance or trends for
Thus, while quantitative abundance estimates are unavailable for
As noted previously, giant clams in general are considered a valuable fishery target in many countries, with uses for both local consumption and commercial trade. Based on information in the petition and our files, it is clear that
Overall, we conclude that the information presented in the petition and our files provides substantial evidence that the petitioned action for
Although the petition notes that
Aside from the general giant clam life history information already discussed previously in the
The petition provides limited some information regarding the species
The petitioner states that
In Singapore, Neo and Todd (2012a) surveyed 29 reefs, covering an estimated 87,515 m
The petitioner cites Tan and Yasin (2003), stating that giant clams of all species but
The petitioner cites Thamrongnavasawat
Villanoy
As discussed previously, the petition also broadly states that all six giant clam species occurring in Indonesia, including
Overall, given the extensive range of
Given that
Information in our files indicates that
In terms of commercial trade, a significant trade review was conducted in 2004 for 27 countries that trade in
Overall, the species-specific information in the petition and in our files to support the claim that
In addition to overutilization, the petitioner also claims that
We acknowledge these results, but they are not easily interpreted into potential species level effects over time and/or space for
In conclusion, the information provided on threats for this species is limited and by itself would not be considered substantial information indicating the petitioned action may be warranted. However, combined with the evidence presented of small, localized populations or extirpations in different parts of the species' range, we conclude the information presented in the petition is compelling enough to conclude that the petitioned action may be warranted. Therefore, we conclude that the number and spatial distribution of localized severe declines or extirpations in the context of the species' range may be contributing to an elevated extinction risk for this species such that it warrants further investigation. Thus, the best available information on overall status and potential threats to the species will be evaluated in a forthcoming status review to determine what has potentially caused these declines and extirpations and the overall extinction risk for the species.
Aside from what has already been discussed in terms of life history information for giant clams in general (refer back to the
The petition provides only one reference for
Very little species-specific information on threats is presented in the petition for
In conclusion, the information provided on threats for this species is limited and by itself would not be considered substantial information indicating the petitioned action may be warranted. Anecdotal evidence from one location of a species' range would generally not be compelling evidence of species level concerns throughout its range for reasons discussed above. However, the combined evidence on the species' restricted range, sparse distribution and rarity, and anecdotal evidence of population decline in the center of the species' distribution, is compelling enough to conclude that the petitioned action may be warranted. The best available information on its overall status and all potential threats to the species will be evaluated in a forthcoming status review.
The petition provided some species-specific information regarding
We found a limited amount of additional information in our files on the life history of this species.
The petition does not provide overall estimates of population abundance or trends for
The petition also asserts that
The petition also broadly states that all six giant clam species occurring in Indonesia, including
Finally, the petition notes that
In our own files, we found that
Overall, the information regarding
The petition asserts that all species of giant clam, including
The petition contends that
Aside from Japan, no other information or data is provided in the petition from Fiji or Vietnam to support the broad statement that overfishing of
In Fiji,
In Vietnam between 1998 and 2003, gross live exports of wild-sourced
Overall, while it appears that some countries have traded
In most locations where information is available,
Overall, most of the information provided in the petition and in our files suggest that overutilization is not likely a significant threat to
The petition did not provide any species-specific information regarding how diseases may be affecting
The petition did not present species-specific information regarding inadequate regulatory mechanisms for
In terms of trade regulations, the discussion in the petition was not species-specific. Additionally, we determined above in the
With regard to regulations of greenhouse gas emissions, the discussion in the petition was also not species-specific. The petitioner did not provide species-specific information regarding the negative response to ocean warming or acidification. In addition, the information in the petition, and in our files, does not indicate that
Aside from the information previously discussed for giant clams in general in the
Based on the foregoing information, we do not agree that the petition provides substantial information to indicate that the
The petition provided very little information regarding a general description of
The petition presents the majority of life history information for
Among members of the subfamily Tridacninae,
In terms of habitat,
For
Neo and Todd (2012a) surveyed 87,515 m
As described in earlier species accounts, the petitioner cites Tan and Yasin (2003), stating giant clams of all species but
The petition cites Salazar
As previously discussed in other species accounts, the petition states that Hernawan (2010) found small populations and evidence of recruitment failure in the six species found during a survey of Kei Kecil, Southeast-Maluku, Indonesia, including
The petitioner cites Thamrongnavasawat
The only references with species-specific information on abundance and trends for
In French Polynesia, Gilbert
The petition cites Chambers (2007) and notes that
Finally, a CITES trade review of
The petition asserts that all species of giant clam, including
Species-specific information on overharvest of
The study by Shelley (1989) discussed above in the
We found additional trade information for
Based on the foregoing information, the species-specific information presented in the petition and in our files on overharvest of
The petition does not present any species-specific information indicating disease or predation are factors acting on populations of
The petition does not present species-specific information regarding inadequate regulatory mechanisms for
In terms of international trade and greenhouse gas regulations, the discussion in the petition was again not species-specific. The petitioner did not provide species-specific information regarding the negative response to ocean warming or acidification. However, we evaluated the information in the petition that may apply to all the petitioned species. Above in the
The petition presents limited information in terms of other natural or manmade factors affecting the status of
The work by Andrefouet
It is common for all species, especially those with very expansive geographic ranges like
Aside from what has already been discussed in the general life history information applicable to all giant clams (refer back to the
The petition did not provide a range map for this species, nor was it included in bin Othman
The petition does not provide any species-specific information for
The petition does not provide any species-specific information regarding how habitat destruction is negatively impacting
Aside from what has already been discussed regarding the threat of overutilization for giant clams in general, we could not find any species-specific information in the petition or in our files regarding overutilization of
Aside from what has already been discussed regarding the threats of disease and predation for giant clams in general (refer back to the
The petition did not present species-specific information regarding inadequate regulatory mechanisms for
In terms of international trade and greenhouse gas regulations, the discussion in the petition was again not species-specific. The petitioner did not provide species-specific information regarding the negative response to ocean warming or acidification. However, we evaluated the information in the petition that may apply to all the petitioned species. In the general
Aside from the information previously discussed for giant clams in general in the
The petition did not provide substantial information that any identified or unidentified threats may be acting on
Based on the above information and the criteria specified in 50 CFR 424.14(b)(2), we find that the petition and information readily available in our files present substantial scientific and commercial information indicating that the petitioned action of listing the following giant clam species as threatened or endangered may be warranted:
To ensure that the status reviews are based on the best available scientific and commercial data, we are soliciting information relevant to whether the giant clam species for which we have made positive findings are endangered or threatened. Specifically, we are soliciting information in the following areas: (1) Historical and current distribution and abundance of these species throughout their respective ranges; (2) historical and current population trends; (3) life history in marine environments, including growth rates and reproduction; (4) historical and current data on the commercial trade of giant clam products; (5) historical and current data on fisheries targeting giant clam species; (6) any current or planned activities that may adversely impact the species; (7) ongoing or planned efforts to protect and restore the species and its habitats, including information on aquaculture and/or captive breeding and restocking programs for giant clam species; (8) population structure information, such as genetics data; and (9) management, regulatory, and enforcement information. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.
A complete list of references is available upon request to the Office of Protected Resources (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
| 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 |