Page Range | 8985-9126 | |
FR Document |
Page and Subject | |
---|---|
82 FR 9125 - Plan To Defeat the Islamic State of Iraq and Syria | |
82 FR 9119 - Organization of the National Security Council and the Homeland Security Council | |
82 FR 9077 - Sunshine Act Meeting; National Science Board | |
82 FR 9070 - Sunshine Act Meeting | |
82 FR 9056 - Certain New Pneumatic Off-the-Road Tires From India: Affirmative Amended Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances | |
82 FR 9109 - West Branch Intermediate Holdings, LLC and Continental Rail LLC-Acquisition of Control Exemption-Cimarron Valley Railroad, L.C., Clarkdale Arizona Central Railroad, L.C., Wyoming and Colorado Railroad Company, Inc. | |
82 FR 9108 - New Mexico Central Railroad, LLC-Acquisition and Operation Exemption-Southwestern Railroad, Inc., Whitewater Division | |
82 FR 9077 - Regular Board of Directors Meeting; Sunshine Act | |
82 FR 9105 - 30-Day Notice of Proposed Information Collection: Exchange Programs Alumni Web Site Registration | |
82 FR 9070 - National Offshore Safety Advisory Committee | |
82 FR 9076 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
82 FR 9004 - Removal of Personally Identifiable Information From Registration Records | |
82 FR 9109 - Proposed Collection; Comment Request; Update and Revision of the FinCEN Suspicious Activity Reports Electronic Data Fields | |
82 FR 9104 - Mississippi Disaster #MS-00097 | |
82 FR 9104 - Oregon Disaster #OR-00084 | |
82 FR 9103 - Georgia Disaster #GA-00089 | |
82 FR 9104 - Georgia Disaster #GA-00091 | |
82 FR 8993 - Availability of Certain North American Electric Reliability Corporation Databases to the Commission | |
82 FR 9106 - West Branch Intermediate Holdings, LLC and Continental Rail LLC-Continuance in Control Exemption-New Mexico Central Railroad, LLC | |
82 FR 9067 - Combined Notice of Filings #2 | |
82 FR 9063 - Combined Notice of Filings #1 | |
82 FR 9060 - Privacy Act of 1974; System of Records | |
82 FR 9064 - Cheniere Midstream Holdings, Inc.; Notice of Intent To Prepare an Environmental Impact Statement for the Planned Midcontinent Supply Header Interstate Pipeline Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Sessions | |
82 FR 9067 - Valley Crossing Pipeline, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed Border Crossing Project, and Request for Comments on Environmental Issues | |
82 FR 9107 - David L. Durbano, Wyoming and Colorado Railroad Company, Inc., and Saratoga Railroad, LLC-Corporate Family Transaction | |
82 FR 9009 - Transition Progress Report Form and Filing Requirements for Stations Eligible for Reimbursement From the TV Broadcast Relocation Fund | |
82 FR 9107 - New Orleans Public Belt Railroad-Temporary Trackage Rights Exemption-Illinois Central Railroad Company | |
82 FR 9079 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Digital I&C Systems; Notice of Meeting | |
82 FR 9081 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Future Plant Designs; Notice of Meeting | |
82 FR 9077 - In the Matter of Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 3, LLC; Indian Point Nuclear Generating Unit No. 3; and Entergy Nuclear FitzPatrick, LLC; James A. FitzPatrick Nuclear Power Plant | |
82 FR 9079 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Future Plant Designs; Notice of Meeting | |
82 FR 9056 - Civil Nuclear Trade Advisory Committee: Meeting of the Civil Nuclear Trade Advisory Committee | |
82 FR 9080 - South Carolina Electric & Gas Company Virgil C. Summer Nuclear Station, Units 2 and 3; Passive Core Cooling System (PXS) Design Changes To Address Potential Gas Intrusion | |
82 FR 9073 - DHS Data Privacy and Integrity Advisory Committee | |
82 FR 9055 - Certain Softwood Lumber Products From Canada: Postponement of Preliminary Determination in the Countervailing Duty Investigation | |
82 FR 9114 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple Fiscal Service Information Collection Requests | |
82 FR 9061 - TRICARE; Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); Fiscal Year 2017 Diagnosis Related Group (DRG) Updates and Notice of Termination of Future Federal Register Notices Regarding the DRG Update | |
82 FR 9074 - Water Infrastructure Improvements for the Nation Act; Indian Dam Safety | |
82 FR 9082 - Submission for Review: 3206-0144, More Information Needed for the Person Named Below, RI 38-45 | |
82 FR 9060 - Pacific Fishery Management Council; Public Meeting | |
82 FR 9060 - North Pacific Fishery Management Council; Public Meeting | |
82 FR 9059 - Fisheries of the Gulf of Mexico and the South Atlantic; Southeast Data, Assessment and Review (SEDAR); Public Meeting | |
82 FR 9035 - Air Plan Approval; AK, Fairbanks North Star Borough; 2006 PM2.5 | |
82 FR 9083 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To: (i) Amend Rules 11.190(a)(3) and 11.190(b)(8) To Modify the Operation of the Primary Peg Order Type; (ii) Amend Rule 11.190(h)(3)(C)(ii) and (D)(ii) Regarding Price Sliding in Locked and Crossed Markets To Simplify the Price Sliding Process for Both Primary Peg Orders and Discretionary Peg Orders Resting on or Posting to the Order Book; and (iii) Make Minor Housekeeping Changes To Conform Certain Terminology | |
82 FR 9086 - Self-Regulatory Organizations; ICE Clear Credit LLC; Order Approving Proposed Rule Change To Provide for the Clearance of Additional Credit Default Swap Contracts | |
82 FR 9101 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 8040 (Obligations of Market Makers) | |
82 FR 9089 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Implement Collateral Fee Changes | |
82 FR 9090 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change To Amend the Opening Process | |
82 FR 9083 - Allstate Assurance Company, et al.; Notice of Application | |
82 FR 9087 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940 | |
82 FR 9075 - Certain Table Saws Incorporating Active Injury Mitigation Technology and Components Thereof; Issuance of a Limited Exclusion Order and a Cease and Desist Order; Termination of the Investigation | |
82 FR 8994 - Disturbance Control Standard-Contingency Reserve for Recovery From a Balancing Contingency Event Reliability Standard | |
82 FR 9114 - Request for Information: To Provide Comprehensive Advice To Assist the Department of Veterans Affairs (VA) With Developing Policy Regarding Safety and Quality Standards for Providers of Modification Services Under the Automobile Adaptive Equipment (AAE) Program | |
82 FR 9069 - Termination of Dormant Proceedings | |
82 FR 9055 - Foreign-Trade Zone (FTZ) 82-Mobile, Alabama; Authorization of Limited Production Activity; Airbus Americas, Inc. (Commercial Passenger Jet Aircraft Production); Mobile, Alabama | |
82 FR 9105 - 30-Day Notice of Proposed Information Collection: PEPFAR Program Expenditures | |
82 FR 9072 - The Critical Infrastructure Partnership Advisory Council | |
82 FR 9071 - Agency Information Collection Activities: Proposed Collection; Comment Request; FEMA Preparedness Grants: Emergency Management Performance Grant (EMPG) | |
82 FR 9082 - New Postal Products | |
82 FR 9058 - Submission for OMB Review; Comment Request | |
82 FR 9076 - Notice of Extension to Public Comment Period for Consent Decree Under the Clean Air Act | |
82 FR 8989 - Safety Standard Mandating ASTM F963 for Toys | |
82 FR 8985 - Energy Conservation Program: Test Procedures for Central Air Conditioners and Heat Pumps | |
82 FR 8985 - Energy Conservation Program: Test Procedures for Compressors | |
82 FR 9034 - Petition for Rulemaking; Foundation for Resilient Societies | |
82 FR 9012 - Amendments to Fireworks Regulations | |
82 FR 8986 - Civil Monetary Penalties Annual Inflation Adjustments |
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
Copyright Office, Library of Congress
Financial Crimes Enforcement Network
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; delay of effective date.
This document temporarily postpones the effective date of a recently published final rule amending the test procedures for central air conditioners and heat pumps.
Effective February 1, 2017, the effective date of the rule amending 10 CFR parts 429 and 430 published in the
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
On January 20, 2017, the Assistant to the President and Chief of Staff (“Chief of Staff”) issued a memorandum, published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; delay of effective date.
This document temporarily postpones the effective date of a recently published final rule establishing test procedures for certain varieties of compressors.
Effective February 1, 2017, the effective date of the rule amending 10 CFR parts 429 and 431 published in the
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
On January 20, 2017, the Assistant to the President and Chief of Staff (“Chief of Staff”) issued a memorandum, published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
Federal Election Commission.
Final rules.
As required by the Federal Civil Penalties Inflation Adjustment Act of 1990, the Federal Election Commission is adjusting for inflation the civil monetary penalties established under the Federal Election Campaign Act, the Presidential Election Campaign Fund Act, and the Presidential Primary Matching Payment Account Act. The civil monetary penalties being adjusted are those negotiated by the Commission or imposed by a court for certain statutory violations, and those imposed by the Commission for late filing of or failure to file certain reports required by the Federal Election Campaign Act. The adjusted civil monetary penalties are calculated according to a statutory formula and the adjusted amounts will apply to penalties assessed after the effective date of these rules.
The final rules are effective on February 2, 2017.
Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Mr. Eugene J. Lynch, Paralegal, Office of General Counsel, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Federal Civil Penalties Inflation Adjustment Act of 1990 (the “Inflation Adjustment Act”),
As required by the 2015 Act,
The Commission must adjust for inflation its civil monetary penalties “notwithstanding Section 553” of the Administrative Procedures Act (“APA”).
Furthermore, because the inflation adjustments made through these final rules are required by Congress and involve no Commission discretion or policy judgments, these rules do not need to be submitted to the Speaker of the House of Representatives or the President of the Senate under the Congressional Review Act, 5 U.S.C. 801
The new penalty amounts will apply to civil monetary penalties that are assessed after the date the increase takes effect, even if the associated violation predated the increase.
As amended by the 2015 Act, the Inflation Adjustment Act requires the Commission to annually adjust its civil monetary penalties for inflation by applying a cost-of-living-adjustment (“COLA”) ratio.
The Commission assesses two types of civil monetary penalties that must be adjusted for inflation. First are penalties that are either negotiated by the Commission or imposed by a court for violations of FECA, the Presidential Election Campaign Fund Act, or the Presidential Primary Matching Payment Account Act. These civil monetary penalties are set forth at 11 CFR 111.24. Second are the civil monetary penalties assessed through the Commission's Administrative Fines Program for late filing or non-filing of certain reports required by FECA.
FECA establishes the civil monetary penalties for violations of FECA and the other statutes within the Commission's jurisdiction.
The actual adjustment to each civil monetary penalty is shown in the chart below.
FECA authorizes the Commission to assess civil monetary penalties for violations of the reporting requirements of 52 U.S.C. 30104(a) according to the penalty schedules “established and published by the Commission.” 52 U.S.C. 30109(a)(4)(C)(i). The Commission has established two such schedules: The schedule in 11 CFR 111.43(a) applies to reports that are not election sensitive, and the schedule in 11 CFR 111.43(b) applies to reports that are election sensitive.
To determine the adjusted civil monetary penalty amount for each level of activity, the Commission multiplies the most recent penalty amount by the COLA ratio and rounds that figure to the nearest dollar. The new civil monetary penalties are shown in the schedules in the rule text, below.
Administrative practice and procedures, Elections, Law enforcement, Penalties.
For the reasons set out in the preamble, the Federal Election Commission amends subchapter A of chapter I of title 11 of the
52 U.S.C. 30102(i), 30109, 30107(a), 30111(a)(8); 28 U.S.C. 2461 note; 31 U.S.C. 3701, 3711, 3716-3719, and 3720A, as amended; 31 CFR parts 285 and 900-904.
(a) The civil money penalty for all reports that are filed late or not filed, except election sensitive reports and pre-election reports under 11 CFR 104.5,
(b) The civil money penalty for election sensitive reports that are filed late or not filed shall be calculated in accordance with the following schedule of penalties:
(c) If the respondent fails to file a required report and the Commission cannot calculate the level of activity under paragraph (d) of this section, then the civil money penalty shall be $7,641.
On behalf of the Commission.
Consumer Product Safety Commission.
Direct final rule.
Section 106 of the Consumer Product Safety Improvement Act (CPSIA) made ASTM F963-07ε1,
The rule is effective on April 30, 2017, unless we receive significant adverse comment by March 6, 2017. If we receive timely significant adverse comments, we will publish notification in the
You may submit comments, identified by Docket No. CPSC-2017-0010, by any of the following methods:
For information related to the toy standard, contact: Carolyn T. Manley, Lead Compliance Officer, Office of Compliance and Field Operations, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814-4408; telephone: 301-504-7607; email:
Section 106 of the Consumer Product Safety Improvement Act of 2008. Section 106(a) of CPSIA mandated that beginning on February 10, 2009, ASTM F963-07ε1,
Notification of Revisions. On November 1, 2016, ASTM notified the CPSC of ASTM's approval and publication of revisions to ASTM F963-16 in a revised standard approved on August 1, 2016, ASTM F963-16,
In general, ASTM F963-16 contains clarifications, corrections, and new requirements that will increase safety, reduce testing burden, or enhance clarity and utility of the standard. A number of changes align ASTM F963 more closely with the European Standard (EN) 71,
Changes were made in the following sections:
• Scope—Updates section 1.7, which lists all sections of the standard, to reflect the addition of toy chests.
• Referenced documents—Removes one reference, updates one, and adds 22 new references.
• Terminology—Adds seventeen new definitions, changes seven definitions, and removes six definitions, generally because they are redundant with new or changed definitions, and thus, are no longer needed.
• Labeling Requirements—Updates labeling requirements for battery-operated toys and magnetic toys.
• Instructional Literature—Revises language to clarify instructional literature requirements for battery-operated toys and battery-powered ride-on toys.
• Batteries—Adds new testing requirements to address toys that contain rechargeable cells and batteries. Adds a new warning label for certain button and coin cell batteries of nominal 1.5 volts or greater to address hazards that have been identified with these cells. Adds four new test methods for toys that contain rechargeable cells and batteries: Battery overcharging test, repetitive overcharging test, single fault charging test and short circuit protection test.
• Cleanliness (biological)—Changes the test methods for both microbial cleanliness of cosmetics, liquids, pastes, putties, gels, powders, and feathers and the cleanliness of stuffing materials.
• Cleanliness (stuffing)—Changes the test methods for both microbial cleanliness of cosmetics, liquids, pastes, putties, gels, powders, and feathers and the cleanliness of stuffing materials.
• Expanding Materials—Adds new definitions, performance requirements, test methodology and a test template to address the emerging hazard of gastrointestinal blockage related to ingestion of expanding materials.
• Heavy Elements—Allows X-ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams, commonly known as HDXRF, for Total Element Content Screening.
• Impaction Hazard—Clarifies impaction hazard test fixture requirements for rigid squeeze toys and tethered rigid components.
• Magnets—Includes a new cyclic soaking test for only wooden toys, toys intended to be used in water, mouth pieces of mouth-actuated toys with magnets or magnetic components. New definitions for “experimental/science sets.”
• Mouth-Actuated Toys—Adds design requirements to prevent the projectile or any liberated toy part from entering the mouth.
• Projectile Toys—Includes changes to descriptions, definitions, allowed shapes, types of projectile toys, exemptions, assessments and kinetic energy density levels allowed for certain types of projectile toys.
• Ride-on Toys (stability)—Requires dimensional spacing between wheels on the same axis of ride-on toys.
• Ride-on Toys (overloading)—Requires a more stringent overload weight test for ride-on and seated toys.
• Ride-on Toys (restraints)—Exempts straps used for waist restraints on ride-on toys from the free length and loop requirements.
• Sound-Producing Toys—Redefines “mouth-actuated toys” to include a broader range of toys, such as noisemakers and projectile toys; increases peak limits (due to miscalculated values); adds new noise limit; lowers test speed for push-pull toys; and revises the format, sequence and requirements sections for clarification.
• Toy Chests—Reincorporates toy chest section 4.27 and associated provisions from ASTM F963-07ε1 into the current 2016 toy standard, and clarifies a multi-positional lid requirement when testing for maximum lid drop requirements.
• Annex—Adds Annex A12 to document the rationale for the changes in the 2016 version of ASTM F963.
Although ASTM F963-16 is mandatory by operation of statute, nothing currently in the Code of Federal Regulations (CFR) indicates that ASTM F963 is a CPSC mandatory standard. This direct final rule adds a new part 1250, Safety Standard Mandating ASTM F963 for Toys, which incorporates by reference ASTM F963-16 into the CFR, along with the rest of CPSC's mandatory rules so that the public may more readily ascertain the mandatory rules that apply.
The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble of the final rule, ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).
In accordance with the OFR's requirements, section B of this preamble summarizes the ASTM F963-16 standard that the Commission incorporates by reference into 16 CFR part 1250. The standard is reasonably available to interested parties, and interested parties may purchase a copy of the standard from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; phone: 610-832-9585;
Section 14(a) of the CPSA imposes the requirement that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other
Because toys are children's products, samples of these products must be tested by a third party conformity assessment body whose accreditation has been accepted by the Commission. These products also must comply with all other applicable CPSC requirements, such as the lead content requirements of section 101 of the CPSIA, the phthalates prohibitions of section 106 of the CPSIA, and the tracking label requirement in section 14(a)(5) of the CPSA.
In accordance with section 14(a)(3)(B)(vi) of the CPSIA, the Commission has previously published two NORs for accreditation of third party conformity assessment bodies for testing toys (76 FR 46598 (Aug. 3, 2011), 78 FR 15836 (March 12, 2013)). The last NOR provided the criteria and process for our acceptance of accreditation of third party conformity assessment bodies for testing toys to ASTM F963-11. The NOR for ASTM F963-11 is listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies.” 16 CFR part 1112.
The previous NOR for the toy safety standard included 35 sections from ASTM F963-11 and one section from ASTM F963-07ε1 (Section 4.27, Toy Chests) that required third party testing. The revisions to ASTM F963-11 that were adopted into ASTM F963-16 include new requirements, new test methods, and several clarifications to safety provisions and test methods.
The Commission will require third party testing for 37 sections of ASTM F963-16, including the same 35 sections that required third party testing for ASTM F963-11, plus two new sections. The new sections are Section 4.40 for Expanding Materials and Section 4.41 for Toy Chests. Section 4.40 for Expanding Materials is a new safety requirement, which addresses a hazard that was not addressed in earlier versions of ASTM F963. Section 4.41 for toy chests reincorporates the toy chest requirements from ASTM F963-07ε1 back into ASTM F963. The incorporation of the toy chest requirements back into ASTM F963-16 simplifies the NOR because it now references only one version of the standard, ASTM F963-16. This rule revises section 1112.15(b)(32)(ii) of the NOR for ASTM F963 in part 1112 to add two new subsections, (JJ) for section 4.40 for expanding materials and (KK) for section 4.41 for toy chests to the NOR. Additionally, references to section 4.27 of ASTM F963-07ε1 (toy chests) have been deleted from section 1112.15(b)(32)(i) to reflect that the toy chest provisions of ASTM F963-07ε1 have been reincorporated into ASTM F963-16. Finally, the reference to ASTM F963-07ε1 regarding toys chests in section 1112.15(c)(1)(ii) has been deleted to reflect that provision as reincorporated into ASTM F963-16, and the citation regarding the incorporation by reference of ASTM F963 has been updated to list ASTM F963-16 in section 1112.15(c)(1) (iii).
Certain provisions of ASTM F963-16 do not require third party testing as was the case in the previous NORs issued for ASTM F963. The ASTM F963-16 provisions that do not require third party testing are in the following areas:
• Any provision of ASTM F963 that section 106 of the CPSIA excepted from being a mandatory consumer product safety standards issued by the Commission. The CPSIA also excepted from ASTM F963 any provision that restates or incorporates an existing mandatory standard or ban promulgated by the Commission or by statute. In addition, the CPSIA excepted provisions from ASTM F963 that restates or incorporates a regulation promulgated by the Food and Drug Administration or any statute administered by the Food and Drug Administration. Section 4, Public Law 112-28—Aug 12, 2011.
• Those sections of ASTM F963-16 that pertain to the manufacturing process and, thus, cannot be evaluated meaningfully by a test of the finished product (
• Those provisions of ASTM F963-16 with requirements for labeling, instructional literature, or producer's markings.
• The provision in ASTM F963-16 that sets a limit for a DI (2-ethylhexyl) phthalate in pacifiers, rattles, and teethers. This section is excepted from third party testing because section 108 of the CPSIA sets limits for this and other phthalates that are more stringent than this requirement in ASTM F963-16.
Finally, as noted, some of the revised sections of ASTM F963 include changes to test methods. However, the test method revisions do not involve a change in scientific discipline necessary to conduct the test or a significant increase in complexity. Testing laboratories that are accredited and CPSC-accepted to test to specific sections in ASTM F963-11 are considered by CPSC to be competent to conduct testing to those same sections in ASTM F963-16. Therefore, CPSC will accept testing to support product certifications for sections in ASTM F963-16 if the test laboratory is already CPSC-accepted to those same sections in ASTM F963-11. Test laboratories that conduct testing to support product certifications to ASTM F963-16 must show in their test reports “ASTM F963-16” and the specific section numbers in the standard to which the product was evaluated.
There are two new sections in ASTM F963-16. Because section 4.41 for Toy Chests merely reincorporates the toy chests provision into ASTM F963-16, the CPSC will accept testing if the laboratory is already CPSC-accepted for ASTM F963-07ε1, Section 4.27 for Toy Chests. Additionally, although section 4.40 for Expanding Materials is a new requirement not previously found in ASTM F963, the CPSC will accept product testing for certification, if the test laboratory is already CPSC-accepted for ASTM F963-11, sections 4.6 for Small Parts and 4.24 for Squeeze Toys. This is because the new provision in section 4.40 in ASTM F963-16 involves mechanical testing, including dimensional measurements and the use of a test gauge. The testing methods have strong similarities with other mechanical testing in section 4.6 Small Objects and Section 4.24-Squeeze Toys of ASTM F963-11. Therefore, CPSC considers test laboratories that are currently CPSC-accepted for testing to section 4.6 Small Objects and Section 4.24-Squeeze Toys of ASTM F963-11 to be competent to conduct testing to this new requirement.
CPSC will accept ASTM F963-16 testing results by test laboratories that are CPSC-accepted to ASTM F963-11 sections for a period not to exceed 2 years. This should allow adequate time for test laboratories to work with their accreditation bodies, make official updates to their accreditation scope to include ASTM F963-16 sections, and submit applications to the CPSC.
The CPSC will open the application process for all sections of ASTM F963-16 when this document is published in
On February 4, 2019, the CPSC will no longer accept laboratory applications that reference sections of “ASTM F963-11.” At that time, the scope document submitted with applications to CPSC must reference “ASTM F963-16” and the specific section numbers listed in the NOR in section 16 CFR 1112.15(b)(32). This approach will avoid disruption to third party testing to the toy safety standard and allow for a practicable transition from ASTM F963-11 to ASTM F963-16 for testing laboratories, the toy industry, and other interested parties.
The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA) generally requires notice and comment rulemaking, section 553 of the APA provides an exception when the agency, for good cause, finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” The Commission concludes that notice and comment is unnecessary because ASTM F963 automatically becomes a consumer product safety standard by operation of law. The Commission has voted to allow ASTM F963-16 to become the mandatory CPSC standard. Even without the incorporation by reference, ASTM F963-16 will take effect as the new mandatory CPSC standard pursuant to section 106(g) of the CPSIA. This rule incorporates by reference ASTM F963-16 into the CFR to inform the public what version of the ASTM F963 is mandatory. Because this document merely incorporates by reference a standard that takes effect by operation of statute, public comment could not affect the changes to the standard or the effect of the revised standard as a consumer product safety standard under section 106(g) of the CPSIA. The rule also updates the corresponding provisions of the NOR for ASTM F963 in part 1112 to reflect the revision to the standard. The amendment to part 1112 does not establish substantive requirements, but updates the criteria and process for CPSC's acceptance of accreditation of third party conformity assessment bodies for testing toys under the revised ASTM F963 standard. Therefore, the Commission concludes that public comment is not necessary.
The Commission believes that issuing a direct final rule in these circumstances is appropriate. In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite promulgation of rules that are noncontroversial and that are not expected to generate significant adverse comment.
Unless we receive a significant adverse comment within 30 days, the rule will become effective on April 30, 2017. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one where the commenter explains why the rule would be inappropriate, including an assertion challenging the rule's underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change.
Should the Commission receive significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.
The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. 5 U.S.C. 603 and 604. As explained above, the Commission has determined that notice and comment is not necessary for this direct final rule. Thus, the RFA does not apply. We also note the limited nature of this document. The incorporation by reference of ASTM F963-16 and the update to the notice of requirements in part 1112 will not result in any substantive changes to the standard. Rather, with this action, the CFR will reflect the mandatory CPSC standard that takes effect under the CPSIA and will update the corresponding NOR provisions in 16 CFR part 1112.
The toy standard contains information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). OMB has approved the collection of information for ASTM F963-11 under OMB Control No. 3041-0159. ASTM F963-16 updates the labeling requirements for battery-operated toys and magnetic toys, as well as revises the language to clarify instructional literature requirements for battery-operated toys and battery-powered ride-on toys. CPSC will update the burden hours in the existing collection of information to reflect the requirements in the 2016 version of the ASTM F963 standard, including those for labeling and instructional literature.
The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a “consumer product safety standard under [the CPSA)]” is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury, unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an
Section 106(f) of the CPSIA states that rules issued under that section “shall be considered consumer product safety standards issued by the Commission under section of the Consumer Product Safety Act” thus, implying that the preemptive effect of section 26(a) of the CPSA would apply. Therefore, a rule issued under section 106 of the CPSIA will invoke the preemptive effect of section 26(a) of the CPSA when it becomes effective.
Under the procedure set forth in section 106(g) of the CPSIA, when ASTM revises ASTM F963, the revision becomes the CPSC standard within 180 days of notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product. In accordance with this provision, this rule establishes an effective date that is 180 days after we receive notification from ASTM of revisions to the standard. As discussed in section F of this preamble, this is a direct final rule. Unless we receive a significant adverse comment within 30 days, the rule will become effective on April 30, 2017. Additionally, the effective date for the NOR is April 30, 2017, the same date that the provisions of ASTM F963-16 become effective.
Administrative practice and procedure, Audit, Consumer protection, Incorporation by reference, Reporting and recordkeeping requirements, Third party conformity assessment body.
Consumer protection, Imports, Incorporation by reference, Infants and children, Law enforcement, Safety, Toys.
For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II, as follows:
15 U.S.C. 2063; Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008).
The revisions and additions read as follows:
(b) * * *
(32) 16 CFR part 1250, safety standard for toys. The CPSC only requires certain provisions of ASTM F963-16 to be subject to third party testing; and therefore, the CPSC only accepts the accreditation of third party conformity assessment bodies for testing under the following toy safety standards:
(i) [Reserved]
(ii) ASTM F963-16:
(JJ) Section 4.40, Expanding Materials
(KK) Section 4.41, Toy Chests (except labeling and/or instructional literature requirements)
(c) * * *
(1) * * *
(ii) ASTM F963-16, “Standard Consumer Safety Specification for Toy Safety,” August 1, 2016.
Pub. L. 110-314, sec. 106, 122 Stat. 3016 (August 14, 2008); Pub. L. 112-28, 125 Stat. 273 (August 12, 2011).
This part establishes a consumer product safety standard for toys that mandates provisions of ASTM F963.
(a) Except as provided for in paragraph (b) of this section, toys must comply with the provisions of ASTM F963-16, Standard Consumer Safety Specification for Toy Safety, approved August 1, 2016. The Director of the Federal Register approves the incorporation by reference listed in this section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of this ASTM standard from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; phone: 610-832-9585;
(b) Pursuant to section 106(a) of the Consumer Product Safety Improvement Act of 2008 section 4.2 and Annex 5 or any provision of ASTM F963 that restates or incorporates an existing mandatory standard or ban promulgated by the Commission or by statute or any provision that restates or incorporates a regulation promulgated by the Food and Drug Administration or any statute administered by the Food and Drug Administration are not part of the mandatory standard incorporated in paragraph (a) of this section.
Federal Energy Regulatory Commission, DOE.
Notice of compliance date.
This document provides notice of the compliance date for the amended regulations adopted in the final rule issued by the Federal Energy Regulatory Commission (Commission) in Docket No. RM15-25-000, requiring the North American Electric Reliability Corporation (NERC) to provide the Commission with access to certain databases compiled and maintained by NERC.
The date for compliance with the amended regulations adopted in Docket No. RM15-25-000 is February 21, 2017.
On June 16, 2016, the Commission issued a final rule amending its regulations to require NERC to provide the Commission, and Commission staff, with access to certain databases compiled and maintained by NERC.
Federal Energy Regulatory Commission, Department of Energy.
Final rule.
The Commission approves Reliability Standard BAL-002-2 (Disturbance Control Standard—Contingency Reserve for Recovery from a Balancing Contingency Event) submitted by the North American Electric Reliability Corporation (NERC). Reliability Standard BAL-002-2 is designed to ensure that balancing authorities and reserve sharing groups balance resources and demand and return their Area Control Error to defined values following a Reportable Balancing Contingency Event. In addition, the Commission directs NERC to develop modifications to Reliability Standard BAL-002-2 to address concerns regarding extensions of the 15-minute period for Area Control Error recovery and contingency reserve restoration. The Commission also directs NERC to collect and report on data regarding additional megawatt losses following Reportable Balancing Contingency Events during the Contingency Reserve Restoration Period and to study and report on the reliability risks associated with megawatt losses above the most severe single contingency that do not cause energy emergencies.
This rule is effective April 3, 2017.
Enakpodia Agbedia (Technical Information), Office of Electric Reliability, Division of Reliability Standards, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6750,
Mark Bennett (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-8524,
1. Pursuant to section 215 of the Federal Power Act (FPA),
2. Pursuant to section 215(d)(5) of the FPA,
3. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards that are subject to Commission review and approval. The Commission may approve, by rule or order, a proposed Reliability Standard or modification to a Reliability Standard
4. On March 16, 2007, the Commission issued Order No. 693, approving 83 of the 107 Reliability Standards filed by NERC, including Reliability Standard BAL-002-0.
5. On January 29, 2016, NERC filed a petition seeking approval of Reliability Standard BAL-002-2;
6. Reliability Standard BAL-002-2 consolidates six requirements in currently-effective Reliability Standard BAL-002-1 into three requirements and is applicable to balancing authorities and reserve sharing groups. NERC stated that Reliability Standard BAL-002-2 improves upon existing Reliability Standard BAL-002-1 because “it clarifies obligations associated with achieving the objective of BAL-002 by streamlining and organizing the responsibilities required therein, enhancing the obligation to maintain reserves, and further defining events that predicate action under the standard.”
7. Requirement R1 of BAL-002-2 requires a balancing authority or reserve sharing group experiencing a Reportable Balancing Contingency Event to deploy its contingency reserves to recover its ACE to certain prescribed values within the Contingency Event Recovery Period of 15 minutes.
8. Specifically, Requirement R1, Part 1.3.1 provides that a balancing authority or reserve sharing group is not subject to Requirement R1, Part 1.1 if it: (1) Is experiencing a Reliability Coordinator declared Energy Emergency Alert Level; (2) is utilizing its contingency reserve to mitigate an operating emergency in accordance with its emergency Operating Plan, and (3) has depleted its contingency reserve to a level below its most severe single contingency.
9. In addition, under Requirement R1, Part 1.3.2, a balancing authority or reserve sharing group is not subject to Requirement R1, Part 1.1 if the balancing authority or reserve sharing group experiences: (1) Multiple Contingencies where the combined megawatt (MW) loss exceeds its most severe single contingency and that are defined as a single Balancing Contingency Event or (2) multiple Balancing Contingency Events within the sum of the time periods defined by the Contingency Event Recovery Period and Contingency Reserve Restoration Period whose combined magnitude exceeds the Responsible Entity's most severe single contingency.
10. Requirement R2 provides that each responsible entity:
11. Requirement R3 provides that “each Responsible Entity, following a Reportable Balancing Contingency Event, shall restore its Contingency Reserve to at least its Most Severe Single Contingency, before the end of the Contingency Reserve Restoration Period [90 minutes], but any Balancing Contingency Event that occurs before the end of a Contingency Reserve Restoration Period resets the beginning of the Contingency Event Recovery Period.”
12. NERC explained that the revised language in the consolidated requirements in Reliability Standard BAL-002-2 will improve efficiency and clarity by removing “unnecessary entities from compliance to capture only those entities that are vital for reliability.”
13. NERC submitted proposed violation risk factors and violation severity levels for each requirement of Reliability Standard BAL-002-2 and an implementation plan and effective dates. NERC stated that these proposals were developed and reviewed for consistency with NERC and Commission guidelines. NERC proposed an effective date for Reliability Standard BAL-002-2 that is the first day of the first calendar quarter that is six months after the date of Commission approval. NERC explained that this implementation date will allow entities to make necessary modifications to existing software programs to ensure compliance.
14. On February 12, 2016, NERC submitted a supplemental filing to clarify a statement in the petition that Reliability Standard BAL-002-2 would operate in conjunction with Reliability Standard TOP-007-0 to control system frequency by addressing transmission line loading in the event of a transmission overload. NERC explained that, while Reliability Standard TOP-007-0 will be retired on April 1, 2017, “the obligations related to [transmission line loading] under TOP-007-0 will be covered by Commission-approved TOP-001-3, EOP-003-2, IRO-009-2, and IRO-008-2 . . . by requiring relevant functional entities to communicate [Interconnection Reliability Operating Limits (IROL)] and [System Operating Limits (SOL)] exceedances so that the [reliability coordinator] can direct appropriate corrective action to mitigate or prevent those events.”
15. On March 31, 2016, NERC submitted a second supplemental filing to “further clarify the extent to which BAL-002-2 interacts with other Commission-approved Reliability Standards to promote Bulk Power System reliability . . . [and support] the overarching policy objective reflected in the stated purpose of Reliability Standard BAL-002-2.”
16. On May 19, 2016, the Commission issued a NOPR proposing to approve Reliability Standard BAL-002-2 as just, reasonable, not unduly discriminatory or preferential and in the public interest.
17. In the NOPR, the Commission recognized that it is essential for grid reliability that responsible entities balance resources and demand and restore system frequency to recover from a system event, and that they maintain reserves necessary to replace capacity and energy lost due to generation or transmission outages. The Commission also stated that Reliability Standard BAL-002-2 improves upon currently-effective Reliability Standard BAL-002-1 by consolidating requirements to streamline and clarify the obligations related to achieving these goals. However, the Commission raised concerns regarding possible extensions of the 15-minute ACE recovery period and the 90-minute Contingency Reserve Restoration Period, as well as NERC's proposal to limit the scope of Reliability Standard BAL-002-2 to a responsible entity's most severe single contingency.
18. In the NOPR, the Commission sought comment on the following issues: (1) Reliability coordinator authorization of extensions of the 15-minute ACE recovery period; (2) resets or credits during the 90-minute Contingency Reserve Restoration Period; (3) the exclusion of megawatt losses above the most severe single contingency in the proposed definition of Reportable Balancing Contingency Event; and (4) NERC's proposal to reduce from “high” to “medium” the violation risk factor for proposed Requirements R1 and R2. The Commission also sought comment on whether NERC's proposed definition of contingency reserve should include the NERC-defined term Demand-side Management.
19. In response to the NOPR, the Commission received 11 sets of comments. We address below the issues raised in the NOPR and comments. The Appendix to this final rule lists the entities that filed comments in response to the NOPR.
20. Pursuant to FPA section 215(d)(2), we approve Reliability Standard BAL-002-2 as just, reasonable, not unduly discriminatory or preferential, and in the public interest. We also approve NERC's eight new and revised proposed definitions and, with one exception, the proposed violation risk factor and violation severity level assignments. In addition, we approve NERC's implementation plan establishing an effective date of the first day of the first calendar quarter, six months after the date of Commission approval, and the retirement of currently-effective BAL-002-1 immediately before that date.
21. The purpose of Reliability Standard BAL-002-2 is to ensure that balancing authorities and reserve sharing groups balance resources and demand and return their ACE to defined values following a Reportable Balancing Contingency Event. We determine that Reliability Standard BAL-002-2 improves upon currently-effective Reliability Standard BAL-002-1 by consolidating the number of requirements to streamline and clarify the obligations for responsible entities to deploy contingency reserves to stabilize system frequency in response to system contingencies.
22. We conclude that BAL-002-2 satisfies the Order No. 693 directive that NERC develop a continent-wide contingency reserve policy.
23. In addition, pursuant to section 215(d)(5) of the FPA, we direct NERC to develop modifications to Reliability Standard BAL-002-2 to address our concerns, discussed below, regarding the 15-minute ACE recovery period set forth in Requirement R1. We also direct NERC to collect and report on data pertaining to the occurrence of Balancing Contingency Events that trigger resets of the 90-minute Contingency Reserve Restoration Period under Requirement R3. We further direct NERC to study and submit a report to the Commission with findings regarding reliability risks associated with most severe single contingency exceedances that do not result in energy emergencies.
24. We discuss below the following issues raised in the NOPR and addressed in the comments: (A) Whether a reliability coordinator must expressly authorize extensions of the 15-minute ACE recovery period; (B) whether BAL-002-2 should be modified to require all contingency reserves to be restored within the 90-minute Contingency Reserve Restoration Period; (C) whether a reasonable obligation should be imposed for balancing authorities and reserve sharing groups to address scenarios involving megawatt losses above the most severe single contingency that do not cause energy emergencies; and (D) NERC's proposal to reduce from “high” to “medium” the violation risk factor for Requirements R1 and R2.
25. In its petition, NERC stated that the “exemption” from the 15-minute ACE recovery period in Requirement R1, Part 1.3.1 “eliminates the existing conflict with EOP-011-1, as it removes undefined auditor discretion when assessing compliance and allows the responsible entity flexibility to maintain service to load while managing reliability.”
26. In the NOPR, the Commission noted that Reliability Standard BAL-002-2, Requirement R1 obligates a responsible entity that experiences a Reportable Balancing Contingency Event to return its Reporting ACE to pre-defined values within the 15-minute Contingency Event Recovery Period. Further, the Reliability Standard does not expressly provide a definitive and enforceable deadline for ACE recovery during a reliability coordinator-declared Energy Emergency Alert accompanied by the depletion of the entity's contingency reserves to below its most severe single contingency.
27. The Commission stated that NERC's explanation for relief from the 15-minute ACE recovery period in Reliability Standard BAL-002-2 raises concerns, because it is unclear how or when an entity will prepare for a second contingency during the indeterminate extension of the 15-minute ACE recovery period that Requirement R1, Part 1.3 permits. The Commission observed that a balancing authority that is operating out-of-balance for an extended period of time is “leaning on the system” by relying on external resources to meet its obligations. That could affect other entities within an Interconnection, particularly if another entity is reacting to a grid event while unaware that the first entity has not restored its ACE.
28. Further, while Reliability Standard EOP-011-1, Requirement R3, requires the reliability coordinator to review balancing authority Operating Plans and notify a balancing authority of any “reliability risks” the reliability coordinator may identify with a time frame for the resubmittal of revised Operating Plans, the NOPR explained that the Reliability Standard does not require reliability coordinator approval of Operating Plans.
29. Therefore, the NOPR proposed to direct NERC to develop modifications to Reliability Standard BAL-002-2 that would require Reporting ACE recovery within the 15-minute Contingency Event Recovery Period unless the relevant reliability coordinator expressly authorizes an extension of the 15-minute ACE recovery period after the balancing authority has met the criteria described in Requirement R1, Part 1.3.1. The Commission's proposal included modifying Reliability Standard BAL-002-2 to identify the reliability coordinator as an Applicable Entity.
30. NERC, EEI, NRECA, TVA, CEA, Joint Commenters, IESO and APS oppose the proposed directive. NERC asserts that the proposed directive is unnecessary because the Balancing Authority ACE Limit (BAAL) and a balancing authority's resource obligations under Reliability Standard BAL-001-2 discourage balancing authorities from leaning on the system during extensions of the Contingency Event Recovery Period. NERC explains that the BAAL:
31. Further, NERC contends that the proposed role for reliability coordinators is unnecessary—in both emergency and non-emergency situations—because the reliability coordinator “must maintain constant oversight of reliability within its [reliability coordinator] area and direct other responsible entities to take actions necessary to maintain reliability.”
32. EEI and Joint Commenters assert that the NOPR proposal “would result in unnecessary duplication of requirements adding no tangible benefit to reliability while needlessly increasing the compliance burden.”
33. While supporting the notification and involvement of reliability coordinators, APS shares Joint Commenters' concern that requiring reliability coordinators to expressly authorize extensions of the 15-minute ACE recovery period could distract responsible entities from focusing on “maintaining and recovering the reliability of the [bulk electric system].”
34. Idaho Power and BPA support the Commission's proposal to expressly require reliability coordinator authorization for extensions of the 15-minute Reporting ACE recovery period. Idaho power agrees with “shifting more oversight to the Reliability Coordinator” as the entity with the system-wide view.
35. We are persuaded by the commenters not to adopt the NOPR proposal that would require reliability coordinator authorization to extend the 15-minute ACE recovery period. As commenters explain, seeking the proposed reliability coordinator authorization while recovering from a disturbance has the potential to complicate an already-challenging situation. However, we continue to see a need to address the underlying concern expressed in the NOPR that a balancing authority that is operating out-of-balance for an extended period of time is “leaning on the system” by relying on external resources to meet its obligations. That scenario could affect other entities within an Interconnection, particularly if another entity is reacting to a grid event while unaware that the first entity has not restored its ACE. Accordingly, to address our concern without requiring reliability coordinator authorization, we adopt APS's proposed alternative that would require a balancing authority or reserve sharing group experiencing a depletion of contingency reserves below its most severe single contingency level during an Energy Emergency Alert to obtain an extension of the 15-minute ACE recovery period by informing the reliability coordinator of the circumstances and providing it with an ACE recovery plan and target time period.
36. We are persuaded that APS's approach is reasonable and adequately addresses concerns with extensions of the 15-minute ACE recovery period. By requiring notification of reliability coordinators and providing the reliability coordinator with an ACE recovery plan and target time period, we agree that the APS proposal “would allow appropriate flexibility to [balancing authorities] when extenuating circumstances are present while providing [reliability coordinators] with the necessary data, communication, and coordination to fulfill their oversight responsibilities to the Interconnection.”
37. Accordingly, we direct NERC to develop modifications to Reliability Standard BAL-002-2, Requirement R1 to require balancing authorities or reserve sharing groups: (1) To notify the reliability coordinator of the conditions set forth in Requirement R1, Part 1.3.1 preventing it from complying with the 15-minute ACE recovery period; and (2) to provide the reliability coordinator with its ACE recovery plan, including a target recovery time. NERC may also propose an equally efficient and effective alternative.
38. Reliability Standard BAL-002-2, Requirement R3 requires a balancing authority or reserve sharing group to restore its contingency reserves to at least its most severe single contingency before the end of the 90-minute Contingency Reserve Restoration Period.
A. Sudden loss of generation:
a. Due to
i. unit tripping,
ii. loss of generator Facility resulting in isolation of the generator from the Bulk Electric System or from the responsible entity's System, or
iii. sudden unplanned outage of transmission Facility;
b. And, that causes an unexpected change to the responsible entity's ACE;
B. Sudden loss of an import, due to unplanned outage of transmission equipment that causes an unexpected imbalance between generation and Demand on the Interconnection.
C. Sudden restoration of a Demand that was used as a resource that causes an unexpected change to the responsible entity's ACE.” NERC Petition Ex. D.
39. In the NOPR, the Commission proposed to direct NERC to modify Reliability Standard BAL-002-2 to “eliminate the potential for unlimited resets and ensure that contingency reserves must be restored within the 90-minute Contingency Reserve Restoration Period.”
40. NERC, EEI, NRECA, CEA, Joint Commenters, IESO and APS support approval of Requirement R3 as filed. NERC asserts that, because of resource limitations and the potential compliance exposure to other Reliability Standards, including the Reporting ACE recovery requirements in Reliability Standard BAL-001-2, entities will not experience unlimited resets of the 90-minute restoration period.
41. IESO and CEA claim that modifications to Reliability Standard BAL-002-2, Requirement R1 to eliminate the potential for unlimited resets are unnecessary. IESO questions the concern about unlimited resets of the Contingency Reserve Restoration Period, stating that it “would suggest that multiple resource loss events could somehow benefit or unburden a [balancing authority's] obligation to restore the reserve level . . . [rather] the infrequent event of a reset occurrence is more appropriately viewed as simply not applying double jeopardy to a [balancing authority] that is already in a troubled situation.”
42. Joint Commenters also oppose the Commission's proposal, explaining that “following a unit trip that results in a [Balancing Contingency Event], the generator's telemetry is often invalid or suspect for some time, and if the [balancing authority] is unable to accurately quantify the actual MW loss, it may be required to take extreme actions, including shedding firm load, simply to meet the 90-minute contingency recovery requirement.”
43. BPA and Idaho Power support the Commission's proposal to require balancing authorities to restore contingency reserves within the 90-minute Contingency Event Recovery Period and receive “credits” for megawatt losses during the Contingency Event Recovery Period. TVA believes the potential for unlimited resets of the 90-minute restoration period is “extremely remote,” but TVA supports the credit proposal as a “reasonable approach” for managing multiple events during a contingency restoration period.
44. The Commission determines not to adopt the NOPR proposal that NERC modify Reliability Standard BAL-002-2 to establish a firm requirement that responsible entities must restore contingency reserves within the 90-minute Contingency Reserve Restoration Period. Based on the comments, we are satisfied that occurrences of multiple Balancing Contingency Events during the 90-minute restoration period are rare and would be temporally bounded by the Reporting ACE recovery requirements in Reliability Standard BAL-001-2. We also acknowledge NERC's comment that intervening Balancing Contingency Events do not relieve balancing authorities and reserve sharing groups of their obligation to restore contingency reserves by the end of the reset period. Further, we acknowledge Joint Commenters' concern that determining the amount of megawatt losses to “credit” could be a distraction from the contingency reserve restoration effort, and the benefits from the proposed “credit” approach could be offset by unnecessary load shedding caused by potential confusion and
45. While, as stated in the NOPR, under some circumstances, extensions of the 90-minute Contingency Reserve Restoration Period may be appropriate, the comments do not fully address the concern expressed in the NOPR with resets resulting from additional megawatt losses following a Reportable Balancing Contingency Event. Therefore, although we determine not to direct modifications to the Reliability Standard, we conclude that the automatic reset provision of Reliability Standard BAL-002-2, Requirement R3 should be monitored for potential problems.
46. Accordingly, the Commission directs NERC to collect and report data pertaining to: (1) Additional megawatt losses following Reportable Balancing Contingency Events during the Contingency Reserve Restoration Period; and (2) the time periods for contingency reserve restoration under Requirement R3 and the number of resets of the 90-minute restoration period, and submit a report to the Commission two years following the first day of implementation of Requirement R3. After NERC reports on the data in a compliance filing, the Commission will consider what further action, if any, to take.
47. NERC's definition of Reportable Balancing Contingency Event limits balancing authority and reserve sharing group responsibility to megawatt losses between 80 percent and 100 percent of their most severe single contingency that occur within a one minute interval.
48. In the NOPR, the Commission expressed concern about the exclusion of megawatt losses above a responsible entity's most severe single contingency from the scope of Reliability Standard BAL-002-2. The Commission questioned the assumption that all such megawatt losses, however small, warrant the proposed limitation on Reliability Standard BAL-002-2.
49. In the NOPR, the Commission did not propose a specific approach but, rather, sought comment on how to address this possible reliability gap and whether to impose a reasonable obligation for balancing authorities and reserve sharing groups to address scenarios involving megawatt losses above the most severe single contingency that do not cause energy emergencies. The NOPR stated that, based on the comments, the Commission may direct that NERC develop a new or modified Reliability Standard to address that reliability gap.
50. NERC, EEI, NRECA, TVA, BPA, CEA, Joint Commenters, IESO, and APS assert that concerns about a possible reliability gap are unfounded and urge the Commission to approve Reliability Standard BAL-002-2 as filed. NERC maintains that the limitation on the scope of Reliability Standard BAL-002-2 will not create a reliability gap and reasserts its view that an integrated, coordinated suite of Reliability Standards “will address important reliability issues and prohibit entities from being able to `lean' on the Interconnection when contingency events cause MW losses greater than an entity's MSSC.”
51. EEI agrees with NERC, and also notes that exceedances of the most severe single contingency that do not create energy emergencies generally raise commercial, not reliability, issues. Further, EEI asserts that tightening Reliability Standard BAL-002-2 by requiring balancing authorities to address megawatt losses above the most severe single contingency “could have unintended consequences that limit the flexibility of the [reliability coordinators] and [balancing authorities] to work together under the existing suite of standards to address such complex situations . . .”
52. Joint Commenters consider requiring balancing authorities and reserve sharing groups to address megawatt losses above the most severe single contingency as tantamount to requiring entities to operate to “N-2” or greater conditions. Joint Commenters assert that this would not only be expensive, estimating that doubling current contingency reserves across North America could cost $150-200 million/year based on average monthly cost of spinning reserves, it could adversely impact reliability. Joint Commenters state that N-2 events typically result from severe transmission events involving weather, major equipment or protection system failures. According to Joint Commenters, “[i]n these situations, transmission security takes priority over maintaining ACE to zero. Excessive generation dispatch by [balancing authorities] could interfere with actions taken simultaneously by Transmission Operators and remote [balancing authorities] to resolve problems on the transmission system.”
53. Joint Commenters explain that the available data reflecting experience with megawatt losses subject to currently-effective Reliability Standard BAL-002-1 indicates that concerns about a reliability gap are overstated. According to Joint Commenters, of the 95 events involving most severe single contingency exceedances from 2012 to 2015, 91 were recovered in less than 15 minutes, and there were no Interconnected Reliability Operating Limit (IROL) exceedances of over 30 minutes in 2015, “which demonstrates that the grid was secure even while zero ACE was not achieved within 15 minutes.”
54. CEA and IESO also oppose requiring balancing authorities or reserve sharing groups to address
55. The Commission remains concerned with relying on a “coordinated suite of standards,” as NERC maintains, to address reliability issues associated with megawatt losses above the most severe single contingency, considering that these other Reliability Standards do not specifically address restoration of ACE and Contingency Reserves. Further, the requirements for emergency Operating Plans in Reliability Standard EOP-011-1 do not specify any obligation for a balancing authority, transmission system operator, and/or reliability coordinator to take action to return ACE to zero for all operating conditions.
56. Additionally, Reliability Standards TOP-001-3, EOP-003-2, IRO-008-2, and IRO-009-2 pertain to actions needed to prevent or mitigate SOLs/IROLs caused by transmission line loading and other responsibilities of the transmission system operator and reliability coordinator. These Reliability Standards do not specifically address the balancing authority's responsibility to recover ACE by balancing load and generation, the purpose of Reliability Standard BAL-002-2.
57. The Commission finds the arguments and historical data provided by commenters to be helpful regarding whether there is a need to expand the requirements of Reliability Standard BAL-002-2 to address most severe single contingency exceedances that do not cause energy emergencies, as contemplated in the NOPR. Nonetheless, we believe the comments do not fully resolve open questions regarding the potential reliability impact of suspending the focus on the balancing of demand and load and ACE recovery—the purpose of Reliability Standard BAL-002-2—in exceedance scenarios.
58. The Commission determines that it is important to better understand the potential impacts of the approach taken in Reliability Standard BAL-002-2 when megawatt losses exceed the most severe single contingency without causing an energy emergency. Accordingly, we direct NERC to study the reliability risks associated with most severe single contingency exceedances that do not cause energy emergencies and submit a report with findings to the Commission two years from Reliability Standard BAL-002-2 implementation.
59. NERC proposed a “medium” violation risk factor for each requirement of Reliability Standard BAL-002-2.
60. In the NOPR, the Commission expressed concern that NERC did not adequately justify lowering the assignment of the violation risk factor for Requirements R1 and R2 and proposed to direct that NERC assign a “high” violation risk factor to Reliability Standard BAL-002-2, Requirements R1 and R2.
61. Requirement R1 requires a balancing authority or reserve sharing group to deploy contingency reserves in response to all Reportable Balancing Contingency Events as the means for recovering Reporting ACE. Requirement R2 requires a balancing authority or reserve sharing group to develop, review and maintain a process within its Operating Plans for determining its most severe single contingency and to prepare to have contingency reserves equal to, or greater than, its most severe single contingency. Currently-effective Reliability Standard BAL-002-1 assigns a “high” violation risk factor for its Requirements R3 and R3.1, which NERC explained are analogous to proposed Requirements R1 and R2 in Reliability Standard BAL-002-2.
62. In the NOPR, the Commission stated that NERC provided insufficient support for the proposed violation risk factor for Requirements R1 and R2. In justifying the assignment of a “medium” violation risk factor NERC asserted, without explanation, that a “medium” violation risk factor is “consistent with other reliability standards (
63. NERC, EEI and APS oppose raising the violation risk factor for Reliability Standard BAL-002-2 to “high” as proposed in the NOPR. NERC asserts that a failure to perform Requirements R1 and R2 “in real time would produce results consistent with the Commission approved guidelines for a `Medium' [violation risk factor] VRF . . . [that is] unlikely to lead to Bulk Electric System instability, separation, or cascading failures.”
64. APS also disagrees with the NOPR proposal because the Commission “utilizes previous versions of reliability standards as a benchmark for the acceptability of VRFs [violation risk factors].”
65. We adopt the NOPR proposal regarding the violation risk factor for Reliability Standard BAL-002-2, Requirements R1 and R2. According to the Commission-approved criteria, a “high” violation risk factor should be assigned to a Reliability Standard requirement if violating the requirement could “directly cause or contribute to the Bulk Electric System instability, separation, or a cascading sequence of failures, or could place the Bulk Electric System at an unacceptable risk of instability, separation or cascading failures.” Reliability Standard BAL-002-2, Requirement R1 requires responsible entities to recover Reporting ACE following the occurrence of a Reportable Balancing Contingency Event, which supports Interconnection frequency in real-time.
66. We disagree with NERC that significant real-time differences between actual and scheduled interchange, the imbalance that Requirement R1 is intended to address, do not fall within the scope of the criterion for a “high” violation risk factor. The need for the bulk electric system to stabilize after changes in system frequency is critical for real-time system operations. NERC asserts that the status of Reporting ACE “is not indicative of an immediate vulnerability.”
67. With regard to Requirement R2, NERC acknowledges that actions under Requirement R2 “support Requirement R1 by requiring responsible entities to develop, review, and maintain a process to determine the MSSC and to maintain, for deployment under Requirement R1, at least enough Contingency Reserve to cover the MSSC . . . [Requirement R2] is critical to the implementation of proposed Reliability Standard BAL-002-2.”
68. Accordingly, we direct NERC to assign a “high” violation risk factor to Reliability Standard BAL-002-2, Requirements R1 and R2.
69. The Office of Management and Budget (OMB) regulations require that OMB approve certain reporting and recordkeeping (collections of information) imposed by an agency.
70. The Commission is submitting these reporting and recordkeeping requirements to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d) (2012). The NOPR solicited comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimate, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing the respondent's burden, including the use of automated information techniques. No comments were received.
71. This final rule approves revisions to Reliability Standard BAL-002-1. NERC states in its petition that the Reliability Standard applies to balancing authorities and reserve sharing groups, and is designed to ensure that these entities are able to recover from system contingencies by deploying adequate reserves to return their ACE to defined values and by replacing the capacity and energy lost due to generation or transmission equipment outages. The Commission also approves NERC's seven new definitions and one proposed revised definition, and the retirement of currently-effective Reliability Standard BAL-002-1 immediately prior to the effective date of BAL-002-2.
72.
73. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email:
74. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
75. The Regulatory Flexibility Act of 1980 (RFA)
76. The Commission estimates that the small entities affected by Reliability Standard BAL-002-2 will incur an annual compliance cost of up to $20,355 (
77. In addition to publishing the full text of this document in the
78. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of
79. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
80. These regulations are effective April 3, 2017. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.
The following appendix will not appear in the Code of Federal Regulations.
U.S. Copyright Office, Library of Congress.
Final rule.
The U.S. Copyright Office is issuing a final rule to allow authors and claimants to replace or remove personally identifiable information (“PII”) from the Office's online registration catalog. This rule allows authors and claimants, or their authorized representatives, to request the replacement or removal of certain PII that is requested by the Office and collected on a registration application, such as a home addresses or personal phone numbers, from the Office's internet-accessible public catalog, while retaining that information in the Office's offline records as required by law. The rule also codifies an existing practice that removes extraneous PII, such as driver's license numbers, social security numbers, banking information, and credit card information, on the Office's own volition or upon request by authors, claimants, or their authorized representatives.
Effective March 6, 2017.
Cindy Abramson, Assistant General Counsel, by email at
On September 15, 2016, the Copyright Office published a notice of proposed rulemaking (“NPRM”) to create procedures to request removal of certain “personally identifiable information” (“PII”) from the Office's registration records.
First, the Office requests and receives certain types of PII during the registration process (
Second, the Office does not request, but sometimes receives, additional PII that applicants include in their registration applications, such as driver's license numbers, social security numbers, banking information, and credit card information on their registration applications. Such information is extraneous and unnecessary for the processing and maintenance of copyright registration records. This information is referred to herein as “extraneous PII.”
With respect to requested PII—information that the Copyright Office purposely collects as part of registration—the Copyright Act imposes certain obligations on the Office to preserve that information as part of the public record. The Act requires the Register to ensure that “records of . . . registrations . . . are maintained, and that indexes of such records are prepared,” and that “[s]uch records and indexes . . . be open to public inspection,” thus creating a public record. 17 U.S.C. 705(a), 705(b). The public record of copyright registrations serves several important functions. Chief among these is that the record
A separate provision of the Act requires the Register of Copyrights to “compile and publish . . . catalogs of all copyright registrations.” 17 U.S.C. 707(a). For most of the Office's history, this catalog was maintained in paper form as the Catalog of Copyright Entries (“CCE”). Starting in 1994, however, the Office began providing the public with access to a computerized database of post-1977 copyright registration and recordation catalog entries via the internet. Then, in 1996, the Office decided to end publication of the printed CCE and publish copyright registration information solely via an online public catalog.
Initially, the PII revealed in the online public catalog was limited to names and, when volunteered, the author's year of birth. By 2007, however, with the advent of the Copyright Office's online registration system (“eCO”), a broader range of PII was pushed from the Office's registration records into the online public catalog, including the postal address of the claimants, and the name, postal address, email address and phone number of the person authorized to correspond about, and/or provide rights and permission to use, the registered work.
In addition, while the information in the online public catalog initially could only be searched and retrieved via the Office's Web site, in 2007 third parties began harvesting registration information, including PII, from the catalog, and posting that information on alternative Web sites, which were then indexed by search engines. As a result, authors and claimants began noticing their personal information appearing in internet search results, and began asking the Office to remove that information from the Office's online public catalog.
In 2008, the Office published a list of frequently asked questions (“FAQs”) on privacy to address some of these concerns.
The Office's practices have differed with respect to extraneous PII—such as driver's license numbers, social security numbers, credit card information, and banking information—that applicants sometimes include on registration applications, even though the application does not require or request such information. Given the particular sensitivity of that information, and the fact that it is not requested as part of the registration application, the Office has developed an informal practice of removing extraneous PII from its registration records, including the online public catalog and the offline records, for no fee. During the registration process, the Office may remove extraneous PII, particularly if it is sensitive information, on its own volition. After the registration is complete, the Office will remove extraneous PII upon request.
The NPRM explained in detail the rationale for and basic operation of the proposed rule. The Office solicited and received sixteen comments on the proposed rule. Having reviewed and carefully considered all of the comments received, the Copyright Office now issues a final rule that closely follows the proposed rule, with some alterations in response to the comments, as discussed below.
Two commenters urged the Office to allow authors or claimants to replace their names in the online public catalog. They argued that, for transgender individuals, disclosure of a birth name equals disclosure of transgender status. National Center for Transgender Equality (“NCTE”) Comments at 1; T. Brown Comments. Although it may be possible to use a supplementary registration to change one's name, both the original registration and the supplementary registration appear in the online registration record. According to these commenters, having a transgender individual's birth name and changed name both appear in the record could jeopardize the “well-being and personal and professional life” of a transgender individual, put them in danger, or subject them to “employment discrimination, bodily harm and/or worse.” T. Brown Comments. NCTE argued that not allowing a person who has received a legal name change to replace their original name with the legally changed name may affect victims of domestic violence as well. NCTE Comments at 1.
NCTE suggested two revisions to the NPRM, one of which the Office reproduces here:
NCTE also recommended that the Office not include a note in the online record indicating that the legal name has been modified because it could pose safety and privacy concerns to transgender individuals. NCTE Comments at 3. While the Office takes seriously these concerns, as mentioned in the NPRM, the Copyright Act imposes certain obligations on the Office to preserve information as part of the public record.
The Software and Information Industry Association (“SIIA”) expressed concern about this aspect of the rule, commenting that “the very reason for the registration data is to enable the licensing of works” and the “proposal makes that more difficult.” SIIA Comments at 3. In SIIA's view, “[t]hose seeking information would have to hire someone in Washington to physically go to the Copyright Office records and search them.”
With respect to other types of PII, alternate information must be provided, unless a stringent standard is met: Specifically, the requester must demonstrate that the stated concern
The Copyright Alliance also recommended revising the rule to allow for bulk access to offline records. Copyright Alliance Comments at 4. The Office's current technology systems does not permit bulk access. While the Office declines to adopt this suggestion under the PII rule, it will consider the recommendation as part of its broader technology modernization efforts.
Several commenters recommended that the Office amend the rule to either provide notice to applicants at the time of registration that their PII will be on the internet and to advise them of their options for avoiding publication of their PII, or to provide an “opt out” mechanism on the registration application that would allow the applicant to opt out of providing his or her PII.
The Copyright Alliance suggested that the rule provide a “do not contact” mechanism at the time of registration. Copyright Alliance Comments at 3. It stated that “providing registrants with the option of indicating they do not wish to be contacted . . . should decrease the amount of unwanted contact and encourage creators to feel more comfortable about providing their information.” Copyright Alliance Comments at 3. Without any empirical evidence to support such an assertion, the Office declines to adopt this
Finally, the Office notes that NWU/ASJA made several comments not relevant to the NPRM, including that the Office should repeal the requirement of registration for enforcement and remedies and withdraw proposed orphan works legislation.
One commenter, Music Reports, recommended the following change to the proposed rule: The Office should require the substitute address information be “verified”—not just be verifiable—at time of application, by requiring notarized documentation of the requester's identity, and by requiring the requester to provide evidence that one is able to receive mail at that address. Music Reports Comments at 2. The Office believes that adding this burden is unnecessary. The rule already requires that the requester provide the Office with “verifiable” information, meaning that the requester will have to aver that the replacement address is one at which the authorand/or claimant can receive mail. And the requester is required to append an affidavit to the request stating as much. Therefore, the Office declines to adopt Music Reports recommendations in the final rule.
Several commenters thought the initial fee for requesting the replacement or removal of requested PII was unreasonable.
One commenter stated that “[r]equiring [an] applicant to submit requested PII then wait for the Office to publish it in its online records and then requiring the individual to request and pay $130 to have some of it taken down would be a very inconvenient process.” Cletus Price Comments. But the Office notes that PII does not necessarily need to be provided as part of the initial registration application. The registration application instructions, as well as the above-mentioned privacy FAQs, warn applicants at the time of registration that any PII provided on the registration application will be made public and that, in order to avoid any issues regarding security or privacy, to provide non-personal information (like a P.O. Box or business address) where possible, or where the information is optional, to not provide PII at all.
Copyright, Information, Privacy, Records.
For the reasons set forth in the preamble, the Copyright Office amends 37 CFR parts 201 and 204 of 37 CFR chapter II as follows:
17 U.S.C. 702.
(c) * * *
(8)
(e)
(2) Categories of personally identifiable information that may be removed from the online public catalog include names, home addresses, personal telephone and fax numbers, personal email addresses, and other information that is requested by the Office as part the copyright registration application except that:
(i) Requests for removal of driver's license numbers, social security numbers, banking information, credit card information and other extraneous PII covered by paragraph (f) of this section are governed by the provisions of that paragraph.
(ii) Requests to remove the address of a copyright claimant must be accompanied by a verifiable substitute address. The Office will not remove the address of a copyright claimant unless such a verifiable substitute address is provided.
(iii) Names of authors or claimants may not be removed or replaced with a pseudonym. Requests to substitute the prior name of the author or claimant with the current legal name of the author or claimant must be accompanied by official documentation of the legal name change.
(3) Requests for removal of PII from the online catalog must be in the form of an affidavit, must be accompanied by the non-refundable fee listed in § 201.3(c), and must include the following information:
(i) The copyright registration number(s).
(ii) The name of the author and/or claimant of record on whose behalf the request is made.
(iii) Identification of the specific PII that is to be removed.
(iv) If applicable, verifiable non-personally-identifiable substitute information that should replace the PII to be removed.
(v) In the case of requests to replace the names of authors or claimants, the request must be accompanied by a court order granting a legal name change.
(vi) A statement providing the reasons supporting the request. If the requester is not providing verifiable, non-personally-identifiable substitute information to replace the PII to be removed, this statement must explain in detail the specific threat to the individual's personal safety or personal security, or other circumstances, supporting the request.
(vii) The statement, “I declare under penalty of perjury that the foregoing is true and correct.”
(viii) If the submission is by an authorized representative of the author or claimant of record, an additional statement, “I am authorized to make this request on behalf of [name of author or claimant of record].”
(ix) The signature of the author, claimant of record, or the authorized representative of the author or claimant of record.
(x) The date on which the request was signed.
(xi) A physical mailing address to which the Office's response may be sent (if no email is provided).
(xii) A telephone number.
(xiii) An email address (if available).
(4) Requests under this paragraph (e) must be mailed to the address listed in § 201.1(c).
(5) A properly submitted request will be reviewed by the Associate Register of Copyrights and Director of the Office Public Information and Education or his or her designee(s) to determine whether the request should be granted or denied. The Office will mail its decision to either grant or deny the request to the address indicated in the request.
(6) If the request is granted, the Office will remove the information from the online public catalog. Where substitute information has been provided, the Office will add that information to the online public catalog. In addition, a note indicating that the online record has been modified will be added to the online registration record. A new certificate of registration will be issued that reflects the modified information. The Office will maintain a copy of the original registration record on file in the Copyright Office, and such records shall be open to public inspection and copying pursuant to paragraphs (b), (c), and (d) of this section. The Office will also maintain in its offline records the correspondence related to the request to remove PII.
(7) Requests for reconsideration of denied requests to remove PII from the online public catalog must be made in writing within 30 days from the date of the denial letter. The request for reconsideration, and a non-refundable fee in the amount specified in § 201.3(c), must be mailed to the address listed in § 201.1(c). The request must specifically address the grounds for denial of the initial request. Only one request for reconsideration will be considered per denial.
(f)
(c) * * *
17 U.S.C. 702; 5 U.S.C. 552(a).
(a) Any individual may request the correction or amendment of a record pertaining to her or him. Requests for the removal of personally identifiable information requested by the Copyright Office as part of an application for copyright registration are governed by § 201.2(e) of this chapter. Requests for the removal of extraneous personally identifiable information, such as driver's license numbers, social security numbers, banking information, and credit card information from registration records are governed by § 201.2(f) of this chapter. With respect to the correction or amendment of all other information contained in a copyright registration, the set of procedures and related fees are governed by 17 U.S.C. 408(d) and § 201.5 of this chapter. With respect to requests to amend any other record that an individual believes is incomplete, inaccurate, irrelevant or untimely, the request shall be in writing and delivered either by mail addressed to the U.S. Copyright Office, Supervisory Copyright Information Specialist, Copyright Information Section, Attn: Privacy Act Request, P.O. Box 70400, Washington, DC 20024-0400, or in person Monday through Friday between the hours of 8:30 a.m. and 5 p.m., eastern time, except legal holidays, at Room LM-401, Library of Congress, U.S. Copyright Office, 101 Independence Avenue SE., Washington, DC 20559-6000. The request shall explain why the individual believes the record to be incomplete, inaccurate, irrelevant, or untimely.
(b) With respect to requests for the correction or amendment of records that are governed by this section, the Office will respond within 10 working days indicating to the requester that the requested correction or amendment has been made or that it has been refused. If the requested correction or amendment is refused, the Office's response will indicate the reason for the refusal and the procedure available to the individual to appeal the refusal.
Approved by:
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) describes the information that must be provided in periodic progress reports (FCC Form 2100—Schedule 387 (Transition Progress Report)) by full power and Class A television stations that are eligible to receive payment of relocation expenses from the TV Broadcast Relocation Fund in connection with their being assigned to a new channel through the Incentive Auction. The Commission previously determined that reimbursable stations must file reports showing how the disbursed funds have been spent and what portion of the stations' construction in complete. These Transition Progress Reports will help the Commission, broadcasters, those involved in construction of broadcast facilities, other interested parties, and the public to assess how disbursed funds have been spent and to monitor the construction of stations.
Effective February 2, 2017.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Joyce Bernstein,
This is a summary of the Commission's document, DA 17-34, MB Docket No. 16-306, GN Docket No. 12-268, released January 10, 2017. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text of this document is also available for download at
The Media Bureau (Bureau) announces that each full power and Class A television station that is eligible for reimbursement of its relocation costs from the TV Broadcast Relocation Fund established by the Middle Class Tax Relief and Job Creation Act of 2012 must periodically file an FCC Form 2100—Schedule 387 (Transition Progress Report) that is attached as Appendix A to the Public Notice. The appendix is available at
In the
Most stations that incur costs as a result of being reassigned to new channels will be eligible for reimbursement from the Reimbursement Fund. In the
The Commission will send a copy of the document, DA 17-34, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
The Federal Communications Commission (Commission) adopted a 39-month transition period during which television stations that are assigned to new channels in the incentive auction
The Bureau proposes to require that reassigned television stations that are not eligible for reimbursement from the TV Broadcast Relocation Fund provide the same progress reports to the Commission on the same schedule as that specified for stations eligible for reimbursement. The Transition Progress Report in Appendix A requires reassigned stations to certify that certain steps toward construction of their post-auction channel either have been completed or are not required, and to identify potential problems which they believe may make it difficult for them to meet their construction deadlines. The information in the progress reports will be used by the Commission, stations, and other interested parties to monitor the status of reassigned stations' construction during the 39-month transition period.
The proposed action is authorized pursuant to sections 1, 4, 301, 303, 307, 308, 309, 310, 316, 319, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 310, 316, 319, and 403.
The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we
Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,386 stations. Of this total, 1,221 stations (or about 88 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on July 2, 2014. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 395. NCE stations are non-profit, and therefore considered to be small entities. Therefore, we estimate that the majority of television broadcast stations are small entities.
We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.
The Bureau proposes that reassigned stations that are not eligible for reimbursement file the Transition Progress Report in Appendix A on a quarterly basis, beginning for the first full quarter after the release of a public notice announcing the completion of the incentive auction, as well as 10 weeks before their construction deadline, 10 days after they complete construction of their post-auction facility, and five days after they cease broadcasting on their pre-auction channel. Once a station has ceased operating on its pre-auction channel, it would no longer need to file reports. We seek comment on the possible burdens the reporting requirement would place on small entities. Entities, especially small businesses, are encouraged to quantify, if possible, the costs and benefits of the proposed reporting requirement.
The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standard; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
In general, alternatives to proposed rules or policies are discussed only when those rules pose a significant adverse economic impact on small entities. We believe the burdens of the proposed reporting requirement are minimal and, in any event, are outweighed by the potential benefits of allowing for monitoring of the post-auction transition. In particular, the intent is to allow the Commission, broadcasters, and other interested parties to more closely monitor that status of construction during the transition, and focus resources on ensuring successful completion of the transition by all reassigned stations and continuity of over-the-air television service. Although the proposal to require reassigned stations that are not eligible for reimbursement to file regular progress reports during the transition may impose additional burdens on these stations, we believe the benefits of the proposal (such as further facilitating the successful post-incentive auction transition) outweigh any burdens associated with compliance
None.
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Consumer Product Safety Commission (Commission or CPSC) proposes to amend its regulations regarding fireworks devices under the Federal Hazardous Substances Act. The proposed amendments are based on the Commission's review of its existing fireworks regulations, the current fireworks market, changes in technology, existing fireworks standards, and safety issues associated with fireworks devices. The proposed amendments would create new requirements and modify or clarify existing requirements. Some of the proposed revisions would align with existing fireworks standards or codify the Commission's existing testing practices. The Commission believes that the proposed requirements would improve consumer safety by codifying limits, test procedures, and requirements that would reduce the risk of injury to consumers and clarifying existing requirements to promote compliance.
Submit comments by April 18, 2017.
Comments, identified by Docket No. CPSC-2006-0034, may be submitted electronically or in writing:
Rodney Valliere, Project Manager, Directorate for Laboratory Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-2526; email:
The Federal Hazardous Substances Act (FHSA; 15 U.S.C. 1261-1278) authorizes the CPSC to regulate hazardous substances, which include fireworks devices. 15 U.S.C. 1262. The Commission assumed responsibility for administering the FHSA on May 14, 1973.
Since assuming responsibility for the FHSA, the Commission has added provisions to the fireworks regulations, which are now in 16 CFR parts 1500 and 1507. These additions include labeling requirements; prohibitions of certain chemicals; performance requirements for specific devices and features; bans (except for wildlife management purposes) on firecrackers that contain more than 50 milligrams (mg) (0.772 grains) of pyrotechnic composition, specific devices, and devices that do not comply with part 1507; bans on reloadable tube aerial shell devices with shells larger than 1.75 inches in outer diameter; requirements for a stability test for large multiple-tube fireworks devices; and an increase in the longest permissible time for a fuse to burn to 9 seconds. 61 FR 67197 (Dec. 20, 1996); 61 FR 13084 (Mar. 26, 1996); 56 FR 37831 (Aug. 9, 1991); 49 FR 50374 (Dec. 28, 1984); 41 FR 22931 (June 8, 1976).
The Commission has also taken steps to review the fireworks regulations, generally, in more recent years. CPSC issued an advance notice of proposed rulemaking (ANPR) in 2006 to explore alternatives for addressing fireworks-related injuries. 71 FR 39249 (July 12, 2006). In 2015 and 2016, the Commission reviewed all of its fireworks regulations to identify revisions or clarifications that would make them more effective at protecting the public, reflect the current market and technology, reduce burdens, and coordinate with other federal and industry standards. This notice of proposed rulemaking (NPR) is the result of that assessment.
In addition, on September 6, 2016, the Commission issued a proposed interpretive rule regarding the method of determining whether a fireworks device is “intended to product audible effects,” for purposes of 16 CFR 1500.17(a)(3). 81 FR 61146 (Sept. 6, 2016). The Commission requested comments regarding its proposed interpretation, and Commission staff considered those comments in developing the proposed regulatory
Under the FHSA, the Commission may classify a “hazardous substance” as a “banned hazardous substance” if the substance is intended or packaged in a form suitable for household use or is intended to be used by children and the Commission finds that, notwithstanding cautionary labeling required under the FHSA, the degree or nature of the hazard associated with the substance is such that public health and safety can only be adequately served by keeping the substance out of interstate commerce. 15 U.S.C. 1261(q)(1). As part of this authority, the Commission may also create design and performance standards for products that qualify as “hazardous substances,” effectively banning products that do not conform to those standards.
Fireworks are “hazardous substances,” as that term is defined in the FHSA. 15 U.S.C. 1261(f). Therefore, to ban fireworks devices or create design or performance requirements for fireworks devices, the Commission must follow the requirements for rulemaking outlined in the FHSA. Under the FHSA, the Commission must make four substantive findings to ban fireworks devices or create design or performance requirements. The first of these four findings is described in the previous paragraph and involves the adequacy of cautionary labeling to protect the public from the degree or nature of the hazard. This finding need not be included in the regulatory text. There are three additional findings that the Commission must make under the FHSA. These three findings are described in detail in the following paragraphs, and the Commission must include them in the regulations. 15 U.S.C. 1262(i)(2).
First, the Commission must find that when the entities that would be subject to the regulation have adopted a voluntary standard that relates to the risk of injury that the regulation seeks to address, either compliance with the voluntary standard is not likely to adequately reduce that risk, or there is not likely to be substantial compliance with the voluntary standard. 15 U.S.C. 1262(i)(2)(A). For the first prong of this finding, whether compliance with a voluntary standard is likely to adequately reduce a risk of injury depends on whether the risk will be reduced to such an extent that there would no longer be an unreasonable risk of injury.
Second, the Commission must find that the benefits expected from the regulation bear a reasonable relationship to its costs. 15 U.S.C. 1262(i)(2)(B). The benefits of a regulation include the extent to which the regulation would reduce the likelihood and severity of injury that may result from the product. The costs include increases to the price of the product and decreases to the availability or usefulness of the product. H.R. Rep. No. 208, 97th Cong., 1st Sess. 875 (1981) (citing
Third, the Commission must find that the regulation imposes the least burdensome requirement that adequately reduces the risk of injury that the regulation aims to address. 15 U.S.C. 1262(i)(2)(C). To evaluate this, the Commission must compare the relative compliance costs of alternatives it considered during the rulemaking process. H.R. Rep. No. 208, 97th Cong., 1st Sess. 875 (1981).
These findings are required only for regulatory changes or additions that would ban a hazardous substance. This includes an express ban, as well as a design, performance, or other requirement that has the effect of banning a device that is not already banned. For amendments that merely clarify or ease existing requirements, these findings are not necessary because the rulemaking would not classify a substance or device as banned.
In addition to the statutory requirements in the FHSA and Administrative Procedure Act that apply to rulemakings, several federal directives are relevant to this NPR. Specifically, a number of Executive Orders (E.O.s) set out rulemaking priorities, including promoting compliance by creating simple and clear regulations and eliminating requirements that are ineffective or outdated. These E.O.s also emphasize the goals of facilitating economic growth, by minimizing burdens, harmonizing with voluntary or international standards, and promoting innovation.
There are three international or voluntary standards regarding fireworks:
•
• The American Fireworks Standards Laboratory's voluntary standards for consumer fireworks (AFSL Standard); and
•
The American Pyrotechnics Association (APA) is a fireworks trade group made up of various fireworks industry members, including manufacturers, importers, and distributors. According to the group's Web site, its members represent approximately 85 percent of the domestic fireworks industry. APA Standard 87-1, last issued in 2001, provides definitions and requirements for various types of fireworks including consumer fireworks, novelties, theatrical pyrotechnics, and display fireworks.
The American Fireworks Standards Laboratory (AFSL) is an independent, nonprofit corporation that develops voluntary standards for consumer fireworks and serves as a third party laboratory, offering testing and certification for compliance with its standards. According to AFSL's Web site, its members represent 85 to 90 percent of domestic fireworks importers. The AFSL standard, last updated in 2009, includes safety and quality standards for various types of fireworks devices, including design, performance, labeling, and shipping.
The European Standard was developed through the consensus of numerous European national standard bodies, as facilitated by the European Committee for Standardization, and reflects European legislation. This standard includes definitions, fireworks categories, labeling requirements, test methods, and construction and performance requirements.
Additionally, the U.S. Department of Transportation (DOT) has regulations relevant to consumer fireworks. DOT has jurisdiction over the transportation in commerce of hazardous materials, including consumer fireworks. 49 U.S.C. 5101-5128. Under this authority, DOT has specific regulatory requirements for fireworks and incorporates by reference APA Standard 87-1 into its regulations, insofar as it is relevant to transportation safety. 49 CFR 171.7;
The APA has continued to review APA Standard 87-1 and is working to issue an updated version of the standard, which DOT subsequently may incorporate by reference into its regulations, supplanting the 2001 version. The Commission is proposing to incorporate by reference portions of APA Standard 87-1 into 16 CFR parts 1500 and 1507, or otherwise align with provisions in that standard. If the APA updates APA Standard 87-1 before the Commission adopts a final rule, the Commission may adopt provisions consistent with or from the 2001 version of the standard, as proposed in this NPR, or may adopt or incorporate by reference provisions of the updated standard that are consistent with the requirements proposed in this NPR.
The Commission proposes several additions and modifications to the fireworks regulations to clarify existing requirements and to improve consumer safety. These proposed requirements fall into three categories—new hazardous substance bans, changes to ease the burdens associated with existing requirements, and clarifications. As discussed, the statutory requirements for these categories differ. To ban a hazardous substance that is not prohibited under the existing regulations, the Commission must make the findings required by the FHSA. To ease or clarify existing requirements, the Commission need not make these findings, but must comply with Administrative Procedure Act rulemaking requirements. The sections below describe the three categories of proposed requirements.
The following proposed requirements would effectively ban hazardous substances that are not currently banned under CPSC's fireworks regulations by adopting mandatory test methods, limiting device content, prohibiting particular chemicals, and adding performance requirements.
Section 1500.17(a)(3) states: “fireworks devices intended to produce audible effects” are banned hazardous substances if the audible effect is produced by a charge of more than 2 grains of pyrotechnic composition. There are essentially two parts to this requirement—first, identifying whether a fireworks device is “intended to produce audible effects,” and second, if so, measuring the pyrotechnic composition to determine if it exceeds 2 grains.
As the rulemaking that adopted this provision explained, the misuse of devices “whose audible effect is produced by a charge of more than 2 grains of pyrotechnic composition . . . [had] been the cause of most of the firework deaths and serious injuries” and the goal of the regulation was to prohibit “dangerously explosive fireworks.” 38 FR 4666 (Feb. 20, 1973); 35 FR 7415 (May 13, 1970);
This regulatory history and more recent fireworks incident data demonstrate the importance of industry compliance with 1500.17(a)(3) for protecting consumers. As the 2015 Fireworks Annual Report (Fireworks Annual Report; CPSC Directorate for Epidemiology, Division of Hazard Analysis,
To identify devices that had a greater explosive power, and therefore, needed a limit to protect consumer safety, the FDA and the Commission opted to apply the 2-grain limit to “devices intended to produce audible effects.” At the time the limit was adopted, the focus on “devices intended to produce audible effects” was a useful way of identifying devices that had a greater explosive or energetic force. However, the fireworks industry has reported, and Commission testing indicates, that fireworks devices on the market today contain metallic fuel when they are “intended to produce an audible effect.” These metallic fuels create an explosive that is more energetic per volume than an explosive without metallic fuel.
The regulations do not specify a method for identifying whether a device is “intended to produce audible effects,” and therefore, subject to the 2-grain limit. However, the CPSC Consumer Fireworks Testing Manual (CPSC Testing Manual; CPSC Directorate for Laboratory Sciences, Division of Chemistry,
To accomplish this, Commission staff has considered the makeup and design of fireworks devices on the market today and reviewed alternative methods of identifying devices that are subject to the 2-grain limit. Based on these assessments, the Commission proposes to set forth, in the regulations, a method for identifying devices that are subject to the 2-grain limit and replace the phrase “intended to produce audible effects” to reflect that method.
Fireworks devices have evolved since CPSC adopted 1500.17(a)(3) in 1973, and now use different types of powders, which impact the sounds devices produce. The fireworks industry has moved away from using black powder in break charges, and instead, often uses hybrid powders. In addition, fireworks devices generally are made by hand, resulting in variability in devices from the same manufacturer and lot. Different samples of the same device may not produce the same audible effects. Depending on the shell construction, packing density, and amount of powder, hybrid powders may produce audible effects intentionally or incidentally to disperse visual effects. Significant training and experience are necessary to distinguish between sounds that are an intentional effect of a fireworks device and sounds that are merely a byproduct of other effects or functions of a fireworks device. CPSC staff has substantial training and experience to make this distinction, but the Commission believes that a simpler and more quantitative test would be preferable and would facilitate consistent and accurate industry testing.
To identify a method that reflects the current design of fireworks devices, reduces the variability in judgments of whether a device is “intended to produce audible effects,” and is simple and repeatable enough for regulated entities to follow easily and consistently, the Commission has reviewed other existing methods of identifying devices subject to the 2-grain limit. The European Standard does not include any equivalent limit to 1500.17(a)(3), and many of the devices listed in the European Standard are not comparable to those sold in the United States. As such, the European Standard does not offer an alternative method that the Commission could adopt. The AFSL Standard limits the explosive composition of various devices “intended to produce reports” to 2 grains of pyrotechnic composition (“reports” is a synonym for “audible effects”). The AFSL Standard also limits break charges to containing only black powder, an equivalent nonmetallic fuel, or fuel that is empirically demonstrated to perform similarly to black powder. Thus, while the AFSL Standard provides similar limits to APA Standard 87-1, described below, it is less quantifiably precise because it provides flexibility for empirical analysis to permit various fuel types.
APA Standard 87-1, section 2.5, provides the same 2-grain (130 mg) limit as 1500.17(a)(3) on the pyrotechnic content of fireworks devices “intended to produce audible effects,” but also includes a definition, or method of identifying whether a device is “intended to produce audible effects.” If a fireworks device includes a burst charge that contains a metallic powder less than 100 mesh in particle size, then the device is “intended to produce audible effects.” Section 2.5 elaborates, stating the inverse of this test method and providing examples. This is a straightforward and objectively measurable method of determining whether a device is subject to the 2-grain limit; under this method, testers need only examine and measure the contents of the burst charge. This definition is consistent with 1500.17(a)(3), which lists devices that traditionally include metallic fuel as examples of devices “intended to produce audible effects,” such as devices that generally use flash powder, which is a mixture of an oxidizer (typically potassium perchlorate) and a metallic fuel (typically aluminum). This method is also consistent with the intended purpose of the regulation to protect consumers from the greater energetic power of certain devices and the associated safety risks.
Commission staff has conducted preliminary testing to examine the relationship between metallic content in break charges and the energy or explosive power of the fireworks device. As an example, staff examined the effect of adding aluminum, a metallic powder, to fireworks devices. As the Division of Chemistry (Chemistry) memorandum in the briefing package for this NPR explains, a quadratic analysis reveals that a 1 percent addition of aluminum increases the energy of a device by 3 percent, and that as aluminum content increases, the amount of explosive power increases, up to 25 percent aluminum content, at which point the explosive power begins to diminish. This demonstrates the consistency between limiting metallic content in break charges and the intended safety purpose of 1500.17(a)(3)—namely, to
Accordingly, the Commission proposes to adopt a method for identifying devices that are subject to the 2-grain limit that is consistent with the method in APA Standard 87-1. However, unlike APA Standard 87-1, the Commission proposes to state the criteria directly in the regulation, without referencing “devices intended to produce audible effects”; in addition, the Commission proposes to state only the general criteria for identifying these devices (
To assess the CPSC Testing Manual method and the APA Standard 87-1 method, Commission staff randomly tested fireworks samples collected from the Office of Compliance from fiscal years 2014, 2015, and 2016. Using the CPSC Testing Manual method, staff found that 17 percent of the samples were “intended to produce audible effects” and exceeded the 2-grain limit. In contrast, while using the APA Standard 87-1 method, staff found that 84 percent of the samples were “intended to produce audible effects” and exceeded the 2-grain limit. Although the sample size is too small to be conclusive, these results show a notable difference between the number of devices that qualify as “intended to produce audible effects” using the CPSC Testing Manual method and the APA Standard 87-1 method. This may be because the APA Standard 87-1 method relies on precise and quantifiable measurements, rather than experienced observation, leaving less room for interpretation.
The Commission does not propose to modify the overall requirement in 1500.17(a)(3); rather the Commission proposes to specify the composition that identifies a device as subject to the 2-grain limit and otherwise retain the 2-grain limit. For consistency, the Commission also proposes to replace references to “audible effects” throughout the regulations. Because the regulations currently do not require any particular method of identifying which devices are subject to the 2-grain limit, requiring the use of a specific method creates a new requirement. Additionally, consistent with the comparative test data, the proposed method likely would identify more devices as subject to the 2-grain limit than the current CPSC Testing Manual method. Therefore, the practical effect of adopting the proposed method of identifying whether a device is “intended to produce audible effects” is that the Commission would ban more devices than it currently considers banned.
It is important to note that the proposed revision to 1500.17(a)(3), which focuses on the metallic content of the device, would reduce the scope of fireworks devices that are subject to the 2-grain limit because the proposed revision does not limit the content of devices containing black powder only. However, the Commission believes that reducing the scope will not decrease the level of protection that the regulation provides because the Commission is not aware of any devices on the market that fall within the scope of the current regulation, but outside the scope of the proposed regulation. Under the current method CPSC staff uses, devices that produce a “loud report” are limited to 2 grains of pyrotechnic composition; this limit applies whether the device contains metallic fuel or only black powder. Under the proposed regulation, only devices that contain metallic fuel less than 100 mesh in particle size are limited to 2 grains of pyrotechnic composition. Therefore, the proposed provision does not limit the content of devices that contain only black powder. However, Commission staff's extensive experience observing and testing fireworks devices indicates that there are no devices currently on the market that contain only black powder and produce a “loud report,” subjecting them to the 2-grain limit. Consequently, like the proposed regulation, the current method, in effect, does not limit the pyrotechnic composition of devices that contain only black powder. Nevertheless, to address this difference, and because a device containing large amounts of only black powder could potentially pose a safety hazard to consumers, the Commission is proposing limits to the pyrotechnic weight in various aerial and ground devices. These limits are discussed in Section IV.A.2., below.
In addition, the Commission is considering limiting metallic powders with larger particle sizes in break charges or reports, possibly by limiting the permissible size and/or the permissible percentage of such metal powders.
In previous rulemakings supporting the 2-grain limit in 1500.17(a)(3), the Commission has found that the degree and nature of the hazard associated with the devices subject to that limit are such that public health and safety necessitate the Commission banning devices that exceed that limit. The proposed method of identifying these devices supports and furthers that necessary ban by providing a quantifiable and reliable method of identifying these particularly explosive devices. As the Fireworks Annual Report indicates, serious injuries and deaths still occur that are associated with devices commonly subject to this limit, including injuries to young children. In addition, as staff's testing indicates, the current test method identifies fewer devices as being subject to the 2-grain limit than the APA Standard 87-1 method. Therefore, the Commission believes that the proposed method is necessary to protect consumer safety because a more straightforward, quantifiable, and repeatable test method that does not require extensive training and experience will more-consistently identify devices that need to be limited to 2 grains of pyrotechnic composition. Consequently, this method will be more effective in keeping such devices off the market.
The Commission evaluated compliance with the 2-grain limit provision in APA Standard 87-1. The Commission believes that the test method is effective since it is a consistent and reliable method for identifying more explosive devices, such that the Commission is proposing to adopt the same method. However, the Commission does not believe that there is likely to be substantial compliance with that provision of APA Standard 87-1. The Commission's preliminary testing of samples collected from the Office of Compliance revealed that 84 percent (54 of 64) of devices analyzed using the APA Standard 87-1 method met that standard's definition of devices “intended to produce audible effects” and exceeded the 2-grain limit, in violation of the standard. Moreover, the severity of the potential injuries shown in CPSC's incident data (including severe burns and death) and the
The Commission believes that the benefits of the proposed requirement bear a reasonable relationship to its costs. The benefits include reducing the likelihood and severity of injury by providing a simpler and more consistent means of identifying devices that have comparatively high explosive powers. As the Directorate for Economic Analysis (EC) memorandum in the briefing package for this NPR indicates, the costs of this requirement are likely to be low. Based on CPSC testing of fireworks samples, there may be a low level of compliance with the comparable provision in APA Standard 87-1; however, the costs associated with changes that would bring noncompliant devices into compliance are likely to be low. Any entities that do not already comply with the provision in APA Standard 87-1 would need to replace metallic powders with nonmetallic powder, or reduce the amount of metallic powders in their devices. Because manufacturers already use both types of powders in devices, and the costs of the two types are comparable, the costs are likely to be low.
The Commission believes that the proposed requirement is the least burdensome option that meets the safety goal of this provision. The Commission examined several test methods, including the method in the CPSC Testing Manual, a method based on explosive force, APA Standard 87-1, the AFSL Standard, and the European Standard. The method in the CPSC Testing Manual requires highly experienced and trained testers to distinguish devices by listening to them; this requires highly-specialized testers, and as the testing data suggests, this leads to comparatively fewer devices being identified as subject to the 2-grain limit. The AFSL Standard is more stringent than APA Standard 87-1, limiting break charges to black powder; but it is also less precise, allowing for equivalent nonmetallic fuel or fuel that is empirically shown to be like black powder. This less-defined standard creates a burden for testing various powders or strictly limits devices to black powder. The European Standard limits pyrotechnic composition differently for various devices, but these devices do not all correlate with devices available on the U.S. market. Consequently, the method the Commission proposes in this NPR is the least burdensome alternative because it provides a simple, precise, and quantifiable method of identifying devices that are subject to the 2-grain limit, minimizing the training needed, and eliminating the need to test the characteristics of various powders.
The proposed requirement would ban devices that contain any amount of metallic powder less than 100 mesh in particle size in the burst charge, when the burst charge is produced by more than 2 grains of pyrotechnic content. However, the Commission recognizes that it may be difficult to ensure that there is no such metallic powder present due to potential contamination from visual effects or environmental contamination, and it may be difficult to consistently identify the presence of metallic powder because of detection limitations and variation. Consequently, the Commission will allow for minimal contamination of up to, but not exceeding, 1.00 percent of metallic powder in burst charges that are subject to 1500.17(a)(3).
The Commission believes that the presence of a metal, such as aluminum, in trace amounts would not pose an increased safety risk to consumers because a scarce amount of contaminant would not significantly add to the energy of the explosive. As the Chemistry memorandum in the briefing package for this NPR explains, staff's preliminary testing revealed that metallic content used in visual effects may inadvertently contaminate break charge content at very low levels. Staff found that when contamination occurred, the contamination level in the break charge was generally less than 1 percent. In addition, different detection instruments can vary in the particle sizes and metallic content levels they detect. Staff evaluated the detection levels of Inductively Coupled Plasma-Optical Emission Spectroscopy (ICP-OES) and X-Ray Fluorescence (XRF) and found that they produced largely similar results but can identify metallic content at slightly different levels. Commission staff believes that both ICP-OES and XRF are viable instruments for assessing compliance with proposed 1500.17(a)(3).
To account for these variables, the Commission will exercise enforcement discretion to allow up to, but not exceeding, 1.00 percent contamination of metallic powder in a burst charge. The Commission believes that 1.00 percent is an appropriate level for two reasons. First, 1.00 percent would allow for unintentional contamination at the levels Commission staff has seen are common in fireworks devices. As the Chemistry memorandum explains, staff's preliminary testing reveals that when metallic content present in visual effects inadvertently contaminates a break charge, it is generally at levels below 0.4 percent; a 1.00 percent allowance should adequately allow for inadvertent contamination. Second, the increase in explosive force from 1.00 percent metallic fuel contamination is minimal, and the Commission believes that it does not present a notable increase in the safety risk to the public. As staff's preliminary testing indicates, a 1.00 percent increase in metallic content increases the energy of a device by 3 percent (using aluminum as an example), and further increases in metallic content correspondingly increase the explosive power of the device up to 25 percent, at which point the explosive power begins to diminish. Thus, contamination up to 1.00 percent likely does not notably increase the risk to consumers.
As discussed, the amount of pyrotechnic material in a fireworks device directly relates to the energetic power of the device, and greater energetic power presents increased safety risks to consumers. To mitigate this risk, 1500.17(a)(3) limits the pyrotechnic material in fireworks devices that are “intended to produce audible effects.” However, this risk also exists for devices that do not fall within that category. To address this, each of the voluntary and international standards on fireworks also limits the chemical composition and pyrotechnic weight of various devices. The specific limits vary with the type of device. For certain devices, the pyrotechnic weight limits address the proportion of break charge relative to the chemical composition or effects. This protects the public because a large proportion of break charge relative to effects may
Currently, CPSC's fireworks regulations do not include such limits, except for certain devices, such as party poppers and firecrackers. The Commission proposes to adopt such limits to reduce the safety risks associated with higher levels of particular chemical compositions and ratios of pyrotechnic weight in specific devices.
Each of the voluntary and international standards limits different devices (some of which overlap), and some of the limits differ. These limits are in section 3.1.1 and 3.1.3 (ground devices) and 3.1.2 (aerial devices) of APA Standard 87-1; in sections 2-1.8, 2-2, 2-3, and 2-4 of the AFSL Standard; and in Table 1 in part 5 of the European Standard. The APA Standard 87-1 limits specify a maximum chemical composition for components, lift charges, and devices, and a maximum ratio of burst charge to total weight of chemical composition. The AFSL Standard does the same, but with some different limits and with allowances for alternate lesser ratios and different device designs. The European Standard lists 30 different devices with corresponding net explosive content limits. However, the devices listed in the European Standard do not fully correspond with devices available in the U.S. market.
The Commission proposes to incorporate by reference the limits in APA Standard 87-1 for mine and shell devices, aerial shell kits (reloadable tube), cylindrical fountains, cone fountains, illuminating torches, wheels, and chasers, with one modification. The categories of devices listed in APA Standard 87-1 are similar to the device delineations in the regulations with which regulated entities are already familiar. They also largely comply with APA Standard 87-1 for transportation purposes, and the Commission believes these limits provide for consumer safety by limiting the explosive power of devices.
The Commission proposes to modify the provisions in APA Standard 87-1, which it proposes to incorporate by reference into the regulation, by including an additional provision that limits the explosive force of certain aerial devices. For mine and shell devices and aerial shell kits (reloadable tube), the Commission proposes to specify, in addition to the provisions in APA Standard 87-1, that the lift charge of each shell is limited to black powder (potassium nitrate, sulfur, and charcoal) or similar pyrotechnic composition without metallic fuel. This aligns with the safety rationale regarding metallic fuel discussed above—namely, that metallic fuels can make an explosive more energetic per volume than devices that do not contain metallic powder; so limiting the lift charge of certain aerial devices to contain only black powder (
Although the provisions that the Commission proposes align with APA Standard 87-1's limits on chemical composition and pyrotechnic weights for aerial and ground devices, they differ from the voluntary standard in three ways. First, the Commission's proposed requirement does not include details about specific devices (
As discussed, the proposed revision to 1500.17(a)(3), which focuses on the metallic content of devices, would reduce the scope of fireworks devices that are subject to the 2-grain limit. Specifically, under the current regulation and CPSC staff's current test method, the 2-grain limit applies to any device that produces a “loud report,” whether it contains metallic fuel or only black powder; under the proposed requirement, the 2-grain limit would apply only to devices that contain metallic fuel and not devices that contain only black powder. The proposed pyrotechnic weight limits for aerial devices fills the gap created by this change, by limiting the explosive force of devices regardless of whether they contain metallic fuel or only black powder. To provide comparable limits for ground devices, the Commission also proposes to adopt the pyrotechnic weight limits for ground devices that are in APA Standard 87-1. Limits for ground devices will also compensate for the reduced scope that the proposed 1500.17(a)(3) creates, by preventing ground devices from containing large amounts of black powder. The Commission believes that these limits are necessary to protect the public because devices containing a large amount of black powder can pose a safety hazard; therefore, it is necessary to limit the power of devices that contain only black powder, as well as devices containing metallic powder.
The proposed limits on chemical composition and pyrotechnic weight would create new limits on fireworks devices that do not currently exist in the regulations, thereby creating a new ban of hazardous substances that currently are not prohibited.
Fireworks devices with greater explosive content may contribute to more severe injuries and deaths than devices with less explosive power and labeling required by section 2(p)(1) of the FHSA is not adequate to protect the public health and safety.
With respect to the first prong of this finding, the Commission believes that compliance with the voluntary standard is likely to reduce the risk of injury, because the limits in the voluntary standard effectively reduce the explosive power of devices, which is why the Commission proposes to incorporate by reference the limits in the voluntary standard. As for the second prong of the finding, however, the Commission believes that there is not likely to be substantial compliance with the voluntary standard. Commission staff randomly tested fiscal year 2014 and 2015 fireworks samples collected by the Office of Compliance to evaluate compliance with the various limits in APA Standard 87-1. Staff analyzed 42 devices in total (12 reloadable aerial shell devices and 30 multiple-tube mine and shell devices). Although the sample size of this testing is insufficient to draw definitive conclusions, the results, nevertheless, are informative. Two (17%) of the 12 reloadable aerial shell devices and 8 (27%) of the 30 multiple-tube mine and shell devices staff tested exceeded the
As the preliminary testing staff conducted showed, between 15 percent and 30 percent of tested devices did not comply with some portion of APA Standard 87-1's limits on chemical composition and pyrotechnic weight. Moreover, the potential severity of injuries and death associated with devices with greater explosive power, described in the previous section, indicate the need for particularly high compliance levels.
The Commission believes that the benefits and costs of the proposed requirement bear a reasonable relationship because the minimal costs associated with limiting the content of fireworks devices are reasonable in light of the benefits to consumer safety. Benefits include reducing the presence of more-energetic devices on the market, which pose an increased safety risk to consumers. Anticipated costs include implementing quality control measures to ensure devices do not contain more than the proscribed limits; these quality control measures may include acquiring smaller measuring devices, which is likely low in cost. The proposed requirements are not expected to eliminate any products from the market because devices that are noncompliant could function as well if they complied with the proposed limits, and the Commission does not expect that manufacturers will have to redesign their products.
Given the minimal burden this requirement would create, the Commission believes that the proposed limits on chemical composition and pyrotechnic weight are the least burdensome way to achieve the safety purpose of the proposed requirement. In comparison to the AFSL and European Standards, the categories of devices listed in APA Standard 87-1 are similar to the device delineations in the regulations with which regulated entities are already familiar. They also largely comply with APA Standard 87-1 for transportation purposes because DOT incorporates that standard by reference into its regulations. The only substantial difference between APA Standard 87-1 and the proposed requirement is that the proposed requirement does not include all of the ground devices that APA Standard 87-1 lists. This is because the Commission does not have data indicating that those ground devices pose significant safety hazards to consumers. As such, the Commission does not believe that limits for those devices are necessary, and there would not be adequate support to justify the FHSA findings.
The Commission proposes to add hexachlorobenzene (HCB) and lead tetroxide and other lead compounds to the list of prohibited chemicals in 1507.2. Various studies indicate that fireworks devices contain HCB and lead tetroxide or other lead compounds. Specifically, studies have found HCB in 25 percent to 53 percent of fireworks samples, depending on the study and in concentrations up to 4.4 percent.
HCB and lead tetroxide and other lead compounds can be released into the environment when fireworks containing them explode; and although the Commission has not conducted an exposure analysis, the public can absorb both chemicals into their bodies through inhalation or surface contact. Moreover, both of these chemicals are likely carcinogenic and are toxic to humans. HCB is associated with numerous serious health effects, including developmental and reproductive toxicity, liver toxicity, and cancer, and can be passed to offspring. Absorption of lead compounds also can have serious impacts on neurological, reproductive, renal, cardiovascular, gastrointestinal, and hematological functions, particularly in children, and can be passed to offspring. The Commission proposes to prohibit fireworks devices from containing these chemicals. This proposed provision covers only health effects relating to non-carcinogenic liver effects and developmental effects including anatomical variations or delayed development (but not including malformations) associated with HCB and hematological, gastrointestinal, cardiovascular, renal, and neurological toxicity associated with lead tetroxide and other lead compounds.
The FHSA authorizes the Commission to declare a substance or mixture of substances to be a hazardous substance within the scope of the FHSA, if it finds that the substance meets one of the categories described in section 2(f)(1)(A) of the statute. 15 U.S.C. 1262(a)(1). Section 2(f)(1)(A) of the FHSA lists various characteristics that qualify a substance as a “hazardous substance.”
As described in the Health Sciences memorandum in Tab A of the briefing package for this NPR, Commission staff believes that fireworks devices containing HCB or lead tetroxide or other lead compounds present toxicological hazards that can be absorbed into the human body; these substances have been demonstrated to be harmful to human health; and fireworks devices have been found to contain these chemicals. Therefore, the Commission believes that there is support to find that fireworks devices containing HCB or lead tetroxide or other lead compounds are “toxic” within the definition in the FHSA and may cause substantial illness as a result of reasonably foreseeable handling, use, or contact with such devices.
All three voluntary and international standards regarding fireworks include some prohibition of lead compounds, HCB, or both. Although the three standards are similar, each addresses limits on HCB and lead compounds differently. Table 1 outlines the relevant requirements in each of the three standards, as well as the current CPSC regulations.
As discussed in Section IV.B.1., below, the Commission also proposes to allow for trace contamination with these and other prohibited chemicals, consistent with the voluntary standards. Section IV.B.1. discusses the various trace contamination limits the Commission is considering for these chemicals and other prohibited chemicals in further detail. Nevertheless, the Commission believes that there is a need, generally, to prohibit HCB and lead tetroxide and other lead compounds.
The proposed requirement would constitute a new hazardous substance ban under the FHSA because it would ban chemicals that are not currently prohibited in CPSC's fireworks regulations.
The Commission believes that HCB and lead tetroxide and other lead compounds in fireworks present a serious hazard to consumers, justifying prohibiting these chemicals. As the Health Sciences memorandum in the briefing package for this NPR discusses, testing indicates that HCB and lead are present in some fireworks devices and bystanders can absorb these chemicals from the environment when they are released from fireworks. Moreover, both chemicals are associated with severe health problems.
As for the first prong of this finding, the Commission believes that compliance with the voluntary standard would adequately reduce the risk of injury because the voluntary standard limits the explosive power of devices, which is why the Commission proposes to incorporate these limits by reference into the regulations. With respect to the second prong of this finding, the Commission believes that there is not likely to be substantial compliance with the voluntary standards. As the data shows, studies have found devices containing HCB or lead compounds and at levels above the limits permitted in the voluntary standards, indicating a lack of compliance. Because of the serious health effects associated with HCB and lead compounds, these two chemicals pose a particularly serious risk to consumers, necessitating a particularly high level of compliance.
The Commission believes that the benefits of the recommended requirement bear a reasonable relationship to its costs. The benefits would include reducing consumer exposure to two chemicals that pose serious health effects. Comparatively, the costs are likely low because HCB and lead compounds are not necessary components of fireworks, they are not commonly used, and the effects they create can be replicated with other safer and less-costly materials.
The Commission believes that the recommended requirement is the least burdensome means of achieving the safety purpose. Prohibiting these two chemicals in unsafe levels is necessary to protect consumer safety; any alternative may not accomplish this purpose.
Section 1507.3(a)(1) requires fireworks devices that use a fuse (with the exception of certain smaller fireworks devices) to use a fuse that is treated or coated to “reduce the possibility of side ignition.” Section 1500.17(a)(9) bans any fireworks device that does not comply with applicable requirements of part 1507 (except as specified in 1500.17(a)(9)), thereby making devices that do not meet the fuse requirements in 1507.3 “banned hazardous substances.” The regulation does not detail how to evaluate compliance with 1507.3(a)(1), nor does it specify what qualifies as “reduc[ing] the possibility of side ignition.” The CPSC Testing Manual, APA Standard 87-1, and the AFSL Standard provide additional details about this requirement. The CPSC Testing Manual provides a test for evaluating fuse side-ignition resistance. The testing involves holding a lit cigarette against the side of the fuse and measuring how long the fuse resists ignition. The CPSC Testing Manual directs testers to measure whether side ignition occurs within 5 seconds; and CPSC currently considers a device to have failed the fuse side-ignition resistance requirement in 1507.3(a)(1) if the fuse ignites within 3 seconds. APA Standard 87-1 and the AFSL Standard provide similar restrictions to 1507.3(a)(1) and similar test methods to the CPSC Testing Manual, each requiring the fuse not to ignite within 3 seconds.
Between 2005 and 2015, the Commission found 28 violations of 1507.3(a)(1). In addition, Commission staff assessed 211 fireworks device samples for side ignition in fiscal year 2015. Staff found that 1 sample (0.5%) ignited in less than 3 seconds; 12 samples (5.7%) ignited in 3 to 5 seconds; and 198 (93.8%) did not ignite within 5 seconds.
The potential for injury when a fireworks device inadvertently ignites is serious and could severely injure or kill a person attempting to light the fireworks device or harm bystanders. If a device lights quickly without the user deliberately lighting it, the user could be holding the device or be close to it when it explodes. Although incident and injury reports listed in the Fireworks Annual Report do not specifically reference side ignition of fireworks devices (which may be difficult to identify), the report does include numerous incidents in which users or bystanders died or sustained serious injuries when a fireworks device exploded while the user was holding it or when the device was lit too close to bystanders or to other fireworks or explosives. Injuries resulting from these incidents included severe burns, bone fractures, and lacerations.
Because of the potential severity of injuries that can result if a device inadvertently ignites, the Commission proposes to adopt the test method for evaluating fuse side ignition described in the CPSC Testing Manual as part of
As explained, the proposed requirement, in effect, would create a new hazardous substance ban, triggering the findings required under the FHSA because it would require all manufacturers to test their devices and use that evaluation method, which may be different or more stringent than the method they currently use.
The Commission believes that the degree and nature of the hazards associated with side ignition are such that the public health and safety necessitate banning devices that exceed the proposed side ignition resistance limit. Inadvertent side ignition presents a serious safety hazard to consumers who may be near the device when it functions. Although incident data does not specifically capture side-ignition incidents, the Fireworks Annual Report references deaths and serious injuries that resulted when a fireworks device fired too close to a user or bystander or when a user was holding it, which are among the circumstances likely to occur when a device inadvertently lights by side ignition. A quantifiable test for all regulated entities to follow would improve consumer safety by promoting consistent assessment of devices to screen for unsafe devices entering the market.
In considering the first prong of this finding, the Commission believes that compliance with the voluntary standard would likely adequately reduce the risk of injury because it specifies a test for evaluating side ignition and specifies a reasonable time in which fuses should resist side ignition, which is why the Commission proposes to adopt a comparable test method and limit. But with respect to the second prong of this finding, the Commission believes that there is not likely to be substantial compliance with the APA Standard 87-1 test method and 3-second threshold. Although CPSC's preliminary testing indicates that a high percentage of devices satisfy the APA Standard 87-1 fuse side-ignition resistance provisions, given the severity of the potential injuries that can result when a fireworks devices inadvertently lights, the Commission believes that a particularly high level of compliance is necessary to adequately reduce this risk. As discussed above, the severity of potential injuries is a factor the Commission considers relevant in assessing the level of compliance necessary to constitute “substantial compliance” with a voluntary standard.
Third, the Commission believes that the benefits of the proposed requirement bear a reasonable relationship to its costs. Anticipated costs include developing a testing program to evaluate product compliance in order to issue certificates of compliance, modifying devices to resist side ignition for a longer period, and potentially removing a small proportion of devices from the market. The Commission does not expect the costs associated with these options to be high, particularly because testing costs can be allocated across all devices with fuses. Benefits include the reduced risk of injury to consumers, including a reduced risk of serious injuries associated with devices firing close to users.
Fourth, the Commission believes that the proposed requirement is the least burdensome way to achieve the targeted safety purpose. The proposed test method and 3-second threshold are consistent with the voluntary standards and the CPSC Testing Manual and would facilitate compliance and consumer safety.
Section 1507.4 provides a minimum base-to-height ratio for fireworks devices that aims to reduce the likelihood of devices tipping over. The ratio test is intended to prevent devices from tipping over, but it is a static test that does not evaluate whether a device will tip over when firing. When firing, a device may tip over if there is no base, or if the base is not securely attached. If a device tips over when firing, it presents a serious safety hazard because it could fire in the direction of bystanders or nearby property, or users may return to a lit device to correct the tip over. Although the Fireworks Annual Report does not specifically track incidents or injuries that involve detached bases, the report does indicate that during a 1-month period in 2015, 6 percent of incidents involved devices tipping over, and 13 percent of incidents involved errant flight paths (including devices firing at bystanders rather than directly upwards), which resulted in severe burns. Although these incidents are not attributable to base detachments, specifically, incidents involving devices tipping over or having errant flight paths are the types of incidents that can occur when a base detaches from a device.
Commission staff has observed that several devices on the market do not have bases, or they have bases that became detached before or during use. Although staff does not systematically check for base attachment issues because that currently is not a requirement, staff nevertheless, may record these issues in notes on test reports during routine testing. Because staff does not systematically check and record base attachment issues, the reports that do reflect such issues represent the minimum number of base attachment issues that staff has witnessed. Between fiscal year 1999 and 2016, staff reports indicate that 88 devices had no base, or the base detached before or during operation; 32 devices tipped over during testing; and 76 devices had compromised tube integrity. More than half of the base separations that staff observed were between fiscal years 2010 and 2016. This could suggest a decline in quality control, although there are other possible explanations as well. In some of these cases, staff noted that the base was detached or broken when received; in others, the base detached during handling; and in others, the base detached or cracked when the device fired. Staff has identified 111 samples (2.4%) out of 4,554 devices that have, or could have bases and that contained notes indicating that bases were either missing or functioned improperly during operation. This indicates that there are a large number of devices on the market that potentially pose a safety hazard if a device tips over.
Because of the safety risk associated with devices tipping over, the role base attachment can play in tip-over incidents, staff's observations of devices that rely on bases to operate properly, and staff's observation of devices on the market that do not have bases that are attached securely, the Commission proposes to require bases to remain attached to devices during storage, handling, and normal operation.
This proposed requirement is similar to provisions in the AFSL Standard and APA Standard 87-1 that require bases to remain attached to devices during transportation, handling, and normal operation. However, because Commission staff has observed devices that arrive with no base or a detached or broken base, the Commission proposes to extend this requirement to storage as well. Because DOT has jurisdiction over transportation safety, the Commission's proposed provision does not address transportation.
This proposal would create a new hazardous substance ban because it would add a requirement to 1507.4 that would require bases to remain attached during storage, handling, and normal operation. As noted, any fireworks device that does not comply with part 1507 constitutes a banned hazardous substance under 1500.17(a)(9).
The Commission believes that the degree and nature of the hazard associated with bases detaching and devices tipping over when firing are such that the public health and safety necessitates the Commission banning devices that do not have bases that are attached securely. Commission testing has found numerous devices that do not have bases that are attached securely and have tipped over during firing. Moreover, the proportion of these devices has increased in recent years. If a device tips over when firing, it can result in serious injuries. Although the incident reports do not address base detachments specifically, tip overs and other incidents can result when a base detaches and have resulted in serious burns to users and bystanders.
The Commission also believes that the voluntary standard provisions regarding base detachment are not adequate. For one, the voluntary standards include requirements relevant to transportation, which falls within DOT's purview. In addition, the Commission believes that the voluntary standards are not likely to adequately reduce the safety risk associated with base detachments because they do not address detachment that occurs during storage. Commission staff has observed fireworks devices with bases that were missing, broken, or detached before staff handled and operated them. As such, staff concluded that it is necessary to require attachment during storage. Finally, the Commission believes that there is not substantial compliance with the voluntary standards. In recent years, Commission staff has observed devices with missing, broken, or detached bases. This suggests that there is not substantial compliance with the voluntary standards. The presence of devices on the market that do not comply with the voluntary standards and the serious injuries that can result when such noncompliant devices tip over during firing, support the Commission's finding that there is not sufficient compliance with the voluntary standards.
The Commission believes that the costs associated with the proposed requirement are reasonable, relative to the safety benefits. These costs include affixing bases to devices; designing them as a single piece; and incurring the time, materials, and shipping costs associated with those modifications. Although the Commission cannot estimate the safety benefits of improving the stability of devices, the general occurrence of tip-over incidents, and the potentially serious injuries that can result, supports the need for safety measures that would reduce them.
The Commission believes that the proposed requirement is the least burdensome way to achieve the safety goal. The proposed requirement is performance-based, rather than prescriptive, allowing manufacturers numerous ways to comply. The proposal also is consistent with requirements in the voluntary standards.
Incident data reported to the Commission for 2005 to 2015 indicate that some incidents may have involved fireworks that projected fragments when they fired, injuring bystanders. Although it was not clear in all of these incidents whether the fragments were part of a consumer fireworks device or debris in the surrounding area, the resulting injuries demonstrate the risk to consumers. The reported incidents included debris in a bystander's eye; third-degree burns on a bystander's foot; a metal shard lodged in a bystander's ankle when the device fired sideways; and first-degree burns and a corneal abrasion from a piece of metal in a bystander's eye. As these incidents demonstrate, fragments of hard materials from a firing fireworks device can cause serious injuries. Moreover, during routine compliance testing, Commission staff has observed hard plastic, metal, or other fragments expelled when fireworks devices function.
To address this safety hazard, the Commission proposes to prohibit fireworks devices from projecting sharp debris when functioning. Section 3.7.2 of APA Standard 87-1 prohibits fireworks devices from propelling sharp fragments of specific materials when set off. The AFSL Standard includes a similar, more general requirement, prohibiting devices from projecting flaming or glowing pieces (section 2-1.11). The Commission proposes to incorporate by reference the APA Standard 87-1 provision because it provides a more detailed requirement, listing specific types of materials that a fireworks device may not project, including metal, glass, and brittle plastic. However, the Commission requests comments on whether this provision should be limited to certain sizes or amounts of these fragments, rather than a strict general ban, because devices may include these materials as necessary components.
Because the regulations do not currently prohibit devices that project sharp fragments, this would be a new ban, subject to the FHSA findings.
The Commission believes that this ban is necessary to adequately protect the public from the risk of serious injury that can result when fireworks devices project sharp fragments. Commission staff has observed devices project fragments when firing and incident data demonstrates the occurrence and severity of these incidents.
The Commission believes that APA Standard 87-1 would adequately reduce the risk of injury associated with projected fragments because it prohibits devices from projecting fragments that can injure bystanders, which is why the Commission proposes to incorporate by reference this provision of the voluntary standard. But the Commission does not believe that there is likely to be substantial compliance with that
The Commission believes that the benefits of the proposed requirement bear a reasonable relationship to the costs. The benefits include increased consumer safety. The costs include possibly redesigning devices to eliminate parts that may be dispersed or expelled as fragments or potentially implementing greater quality control to ensure that such parts are not dispersed or expelled as fragments. Commission staff does not have sufficient information to determine the expected costs of these modifications, but anecdotal evidence indicates that less than 10 percent of the market does not comply with the proposed requirement.
The Commission believes that the proposed requirement is the least burdensome way to achieve the safety goal. The AFSL Standard and APA Standard 87-1 provide similar alternatives, and the proposed requirement is a performance-based standard that prohibits devices that project fragments and does not otherwise limit the design of devices.
The following proposed provision would not create any new requirements or ban any hazardous substances. Rather, the proposed provision would ease the existing regulatory requirements applicable to fireworks devices.
Section 1507.2 prohibits the presence of certain chemicals in fireworks devices. This requirement has existed in CPSC's regulations since 1976. 41 FR 9512 (Mar. 4, 1976); 41 FR 22931 (June 8, 1976). However, technology has advanced significantly since CPSC adopted this provision, and now testing can identify previously undetectable trace amounts of a chemical. This precision can make it difficult and burdensome to demonstrate the absence of prohibited chemicals in any amount because instruments often can quantify the presence of a chemical at parts per billion or parts per trillion, but not zero. Instruments and analyses that can test for the presence of chemicals at infinitesimal levels are costly and often require significant sample preparation, while simpler and less costly test methods (
Given the nature of the chemicals prohibited in fireworks devices and the manner in which these chemicals appear in fireworks devices in trace amounts, the Commission believes that their presence is not intentional. In large enough amounts, these chemicals are unstable or pose health or environmental risks, so manufacturers would not deliberately add them to devices. Rather, when they are present, it is likely the result of their inadvertent presence in the environment during production. The Commission believes that trace amounts of these chemicals do not present a risk to consumers because such minimal levels would not affect the rate of reaction and consequent explosive power.
To reflect current technological capabilities, the relative difficulty and cost of identifying and eliminating all trace amounts of prohibited chemicals, the unintentional nature of trace contamination, and the negligible safety implications of trace contamination, the Commission proposes to allow trace amounts of the chemicals prohibited in 1507.2 to be present in fireworks devices.
Existing standards and Commission testing and research provide some options for selecting an appropriate trace allowance limit. APA Standard 87-1 and the AFSL Standard both allow for small amounts of prohibited chemicals as impurities. APA Standard 87-1, section 3.7.1, allows for trace amounts of all prohibited chemicals, if the trace amount is less than 0.25 percent by weight. The AFSL Standard, Appendix A, Table 1, allows for trace contamination of HCB at the limit of 0.01 percent by weight, but does not include a general allowance for all prohibited chemicals. There are also limits on lead content in other consumer products. The Consumer Product Safety Improvement Act (CPSIA; Pub. L. 110-314, 122 Stat. 3016) limits the lead content of most children's products to 0.01 percent by weight and limits lead compounds in consumer surface-coating materials to 0.009 percent by weight.
Additionally, Commission staff conducted preliminary testing to identify prohibited chemicals in fireworks devices. Examining samples collected from the Office of Compliance from fiscal years 2014 and 2015, staff found that 90 percent of the samples (29 of 32) contained titanium with 100-mesh particle size or smaller, in violation of 1507.2(j), and 38 percent of the samples (12 of 32) contained lead, which the Commission proposes to prohibit in this NPR. However, applying a trace contamination allowance of 0.25 percent by weight (consistent with APA Standard 87-1), only 9 percent (3 of 32) exceeded this limit for titanium with 100-mesh particle size or smaller and only 3 percent (1 of 32) exceeded this limit for lead compounds. Applying an even lower contamination allowance of 0.05 percent by weight, only a few samples (between 9 percent and 16 percent) exceeded this threshold for titanium with 100-mesh particle size or smaller, and none of the samples exceeded this limit for lead compounds. As discussed, various studies have found HCB in fireworks devices in ranges less than and greater than 0.01 percent, 0.05 percent, and 0.25 percent by weight.
Based on this information, there are several options that the Commission may adopt as a general allowance for all prohibited chemicals or as trace allowances for particular chemicals, such as HCB and lead tetroxide and other lead compounds. These options include:
• Allowing trace amounts:
○ Less than 0.25 percent by weight (consistent with the general limit in APA Standard 87-1);
○ less than 0.01 percent by weight (consistent with CPSIA lead limits);
○ less than 0.05 percent by weight (since CPSC's initial testing indicates that most devices comply with this level);
○ less than 0.01 percent by weight (consistent with the most stringent allowance in the voluntary standards); or
○ less than 0.009 percent by weight (consistent with the CPSIA limit on lead compounds in certain consumer materials); or
• adopting no allowance for certain chemicals.
The Commission does not have exposure data regarding the relative safety of the various trace contamination levels identified.
With the exception of HCB, the Commission proposes to allow for trace amounts up to 0.25 percent of each of
The Commission also may opt to adopt trace contamination allowances in the regulations, in compliance guidance, or in the CPSC Testing Manual. Incorporating trace allowance limits into compliance guidance or the CPSC Testing Manual would maintain the strict prohibition in the regulations but give the Commission flexibility in enforcing violations of the prohibited chemicals ban. Including these allowances in compliance guidance or the CPSC Testing Manual would not create or modify the current requirement in 1507.2, but would serve only as an option available for Commission flexibility.
The following proposed requirements would not create any new requirements or ban any hazardous substances; rather they would facilitate regulated entities' understanding of the existing or proposed regulations by providing definitions and eliminating inconsistencies. Because these proposed requirements would not create new hazardous substance bans, they do not require the Commission to make the FHSA findings.
The proposed modifications to 16 CFR 1500.17(a)(3) regarding the method of identifying devices that are limited to 2 grains of pyrotechnic composition (discussed in Section IV.A.1.) focus on the content of the “burst charge” of the device. Additionally, “burst charge” appears in the proposed chemical composition and pyrotechnic weight limits (discussed in Section IV.A.2.). Consequently, the meaning of the term “burst charge” is central to these proposed requirements, and regulated entities need a clear understanding of the term to comply with the proposed requirements. Therefore, the Commission proposes to define “burst charge.”
The proposed requirements in which the term “burst charge” would appear are consistent with provisions in APA Standard 87-1. APA Standard 87-1 defines “burst charge” in section 2.5, describing its function and the effects it produces—namely, that it is a chemical composition that breaks open an aerial device—and identifying “expelling charge” and “break charge” as common synonyms for “burst charge.” The Commission believes that this definition accurately describes the term “burst charge.” For that reason, and to align with the industry standard, the Commission proposes to incorporate by reference the definition of “burst charge” as it appears in the first two sentences of APA Standard 87-1, section 2.5.
The term “chemical composition” is central to the proposed chemical composition and pyrotechnic weight limits (described in Section IV.A.2.). The Commission proposes to define “chemical composition” so that regulated entities have a clear and precise understanding of this term to comply with the proposed limits.
The chemical composition limits that the Commission proposes are similar to those in APA Standard 87-1. APA Standard 87-1 defines “chemical composition” in section 2.6, describing it as pyrotechnic and explosive compositions and detailing its components. The Commission believes that this definition accurately describes “chemical composition.” For this reason, and to align with the industry standard, the Commission proposes to incorporate by reference the definition of “chemical composition” as set forth in APA Standard 87-1, section 2.6.
In addition, the Commission proposes to specify that “chemical composition” consists of lift charge, burst charge, and visible and audible effect materials. This additional information is not in APA Standard 87-1, but the Commission believes it clarifies information, which facilitates industry compliance with the proposed chemical composition and pyrotechnic weight limits.
The proposed definition of “chemical composition” includes the term “explosive composition.” In addition, the proposed definition of “firecrackers,” discussed below, also includes this term. To facilitate clear and consistent industry understanding of this term, the Commission proposes to define “explosive composition.”
APA Standard 87-1 defines “explosive composition” in section 2.6.1, describing the function and effect. The Commission believes that this definition accurately describes the term. For this reason, and for consistency with this recognized standard, the Commission proposes to incorporate by reference APA Standard 87-1, section 2.6.1.
The chemical composition limits that the Commission proposes (described in Section IV.A.2., above) include limits on the chemical composition of “lift charges.” The Commission proposes to define the term “lift charge” so that regulated entities have a clear and consistent understanding of the components to which these limits apply.
The chemical composition limits that the Commission proposes are similar to those in APA Standard 87-1. Standard APA Standard 87-1 also defines “lift charge” in section 2.10, describing its function (lifting or propelling a device into the air) and composition. The Commission believes that this definition accurately describes this term. For this reason, and for consistency with the comparable requirements in APA Standard 87-1, the Commission proposes to incorporate by reference section 2.10 of APA Standard 87-1.
However, the APA Standard 87-1 definition of “lift charge” refers only to mine or shell devices, not all fireworks devices. As an alternative to the APA Standard 87-1 definition, the Commission believes that it may be appropriate to define “lift charge” in a manner that applies to all fireworks devices. The Commission requests comments on this alternative.
The term “pyrotechnic composition” appears in several existing CPSC fireworks regulations, as well as in several of the requirements proposed in this NPR. Specifically, the term appears in the proposed definitions of “burst charge” and “chemical composition”; the proposed chemical composition and pyrotechnic weight limits (described in Section IV.A.2., above); and 16 CFR 1507.3, 1507.5, 1507.9, and 1507.11 (in reference to fuse requirements, pyrotechnic leakage, toy smoke and flitter devices, and party poppers, respectively). The Commission proposes to define “pyrotechnic composition” so that the regulated industry has a clear and uniform understanding of this term and the related requirements. Such an understanding facilitates proper testing and regulatory compliance, which, in turn, promotes consumer safety.
Section 2.6.2 of APA Standard 87-1 defines “pyrotechnic composition,” describing how it functions and the
The term “aerial bomb” appears twice in CPSC's fireworks regulations—in 16 CFR 1500.17(a)(3) and in 1500.17(a)(8). Section 1500.17(a)(3) bans fireworks devices intended to produce audible effects if the audible effect is produced by more than 2 grains of pyrotechnic composition. This section lists examples of devices that are “intended to produce audible effects,” including “aerial bombs.” As a result, 1500.17(a)(3) bans aerial bombs only if they contain more than 2 grains of pyrotechnic composition. In contrast, 1500.17(a)(8) bans various devices, listing each one, including “aerial bombs.” This provision does not limit the ban to devices containing more than 2 grains of pyrotechnic composition; rather, it bans all of the listed devices outright, including “aerial bombs.” As such, 1500.17(a)(3) and 1500.17(a)(8) are inconsistent.
To eliminate this inconsistency, the Commission proposes to remove “aerial bombs” from 1500.17(a)(3) and retain it, as written, in 1500.17(a)(8). The Commission believes that it is appropriate to ban aerial bombs entirely because they present a serious risk of injury to consumers. The proposed removal of “aerial bombs” from 1500.17(a)(3) would not create any new requirements or ban any new hazardous substances. Rather, the Commission would merely be maintaining one of the two existing provisions.
In addition, the Commission proposes to define “aerial bombs” to provide regulated entities with clarity about which devices are banned. None of the existing voluntary or international standards define “aerial bombs.” The Commission proposes to define “aerial bomb” as “a tube device that fires an explosive charge into the air without added visual effect.”
The Commission proposes two revisions to clarify the regulations regarding firecrackers. First, the Commission proposes to define “firecrackers.” The term “firecrackers” appears in 1500.17, 1500.85, and 1507.1. The Commission believes that a definition of “firecrackers” would provide a clear understanding of what these devices include, and thereby, facilitate compliance with requirements that apply to them.
Both APA Standard 87-1 (section 3.1.3.1) and the AFSL Standard (section 1-1.7) define “firecrackers” in largely the same way, describing the materials and effects of a firecracker and specifying limits that apply to firecrackers. The Commission believes that both definitions are clear and accurate, but proposes to incorporate by reference the APA Standard 87-1 definition for consistency with other proposed requirements that would incorporate that standard by reference and to reduce industry burdens by requiring compliance with one voluntary standard, rather than two.
Second, the Commission proposes to revise the references to firecrackers in the regulations so that they are consistent and more straightforward. CPSC's regulations refer to “firecrackers,” “firecrackers designed to produce audible effects,” and “devices designed to produce audible effects.”
Section 1507.1 establishes the scope of part 1507, stating that any fireworks devices, other than firecrackers, that are not otherwise banned, are subject to the requirements in part 1507. Only two sections within part 1507—1507.2 and 1507.3—could apply to firecrackers. In a previous rulemaking, the Commission concluded that 1507.2 should not apply to firecrackers because 1507.2 prohibits chlorates, which are common and adequately safe in firecrackers containing flash powder. 41 FR 9,520 (Mar. 4, 1976). Similarly, the Commission decided that firecrackers need not be subject to the fuse requirements in 1507.3 because the type of fuses those requirements aim to address—namely, those that create a safety hazard—are not used in firecrackers.
In order to streamline the regulations, the Commission proposes to remove the exemption for firecrackers from 1507.1 and, instead, place it in the only two sections to which the exemption is relevant—1507.2 and 1507.3. This does not alter the substantive requirements or the scope of the exemption in this part. Rather, it simply lists the exemption where it is actually applicable, rather than applying it unnecessarily broadly to the entire part.
Section 1507.3(b) requires fuses to remain securely attached to fireworks devices. To evaluate whether a fuse is securely attached to the device, the regulation requires the fuse to support the lesser of: (1) The weight of the fireworks device plus 8 ounces, or (2) double the weight of the device, without separating from the device. However, in describing the two alternate weight options, the regulation states: “whether is less,” rather than, “whichever is less.” Although the meaning of the regulation is apparent, the Commission proposes to correct this typographical error.
Section 1507.4 specifies requirements relevant to bases of fireworks devices and, as described in Section IV.A.5., above, the Commission proposes additional requirements regarding bases in this NPR. To facilitate a clear understanding of the features subject to those requirements, the Commission also proposes to define the term “base.”
APA Standard 87-1 does not define “base,” but section 1-2.1 of the AFSL Standard does, describing it as a platform from which a fireworks device functions and to which tubes are
Section 1507.6 requires the pyrotechnic chamber in fireworks devices to be constructed “to allow functioning in a normal manner without burnout or blowout.” The Commission proposes to adopt definitions for “burnout” and “blowout” in order to provide a clear and consistent understanding of the existing requirement.
APA Standard 87-1 defines “blowout” in section 2.3 and “burnout” in section 2.4, describing the observable effects of these phenomena. The Commission believes that these definitions accurately capture the meaning of these terms and reflect the understanding of the fireworks industry. Therefore, the Commission proposes to incorporate by reference APA Standard 87-1, sections 2.3 and 2.4.
This NPR proposes to incorporate by reference several provisions of APA Standard 87-1. The Office of the Federal Register sets out specific procedural and content requirements to incorporate a material by reference in 1 CFR part 51. Under these regulations, an NPR must summarize the material it proposes to incorporate by reference and discuss how that material is available to interested parties. 1 CFR 51.3(a), 51.5(a). In accordance with this requirement, Sections III. and IV. of this preamble summarize the provisions of APA Standard 87-1 that the Commission proposes to incorporate by reference. Additionally, by permission of APA, interested parties may view the standard as a read-only document during the comment period of this NPR at:
The proposed requirements do not include any provisions that would constitute a collection of information under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501-3521). The proposed requirements do not request or require any parties to create or maintain records or disclose or report information to the Commission, any government body, the public, or third parties. Therefore, the requirements of the PRA do not apply to this NPR.
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) requires agencies to consider the impact of proposed rules on small entities, including small businesses. Section 603 of the RFA requires the Commission to prepare an initial regulatory flexibility analysis (IRFA) and make it available to the public for comment when the NPR is published. The IRFA must describe the impact of the proposed rule on small entities and identify significant alternatives that accomplish the statutory objectives and minimize any significant economic impact of the proposed rule on small entities. Specifically, the IRFA must discuss:
• The reasons the agency is considering the action;
• the objectives of and legal basis for the proposed rule;
• the small entities that would be subject to the proposed rule and an estimate of the number of small entities that would be impacted;
• the reporting, recordkeeping, and other requirements of the proposed rule, including the classes of small entities subject to it and the skills necessary to prepare the reports or records; and
• the relevant federal rules that may duplicate, overlap, or conflict with the proposed rule. 5 U.S.C. 603.
In addition, the IRFA must describe any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and minimize any significant economic impact on small entities.
The Commission is considering the proposed rule to update its existing fireworks regulations to reflect the current fireworks market, changes in technology, existing fireworks standards, and safety issues associated with fireworks devices in order to reduce the risk of injury that fireworks devices present to consumers and align with other voluntary and federal standards.
The objective of the proposed rule is to update CPSC's fireworks regulations to reflect the current fireworks market, changes in technology, existing fireworks standards, and safety issues associated with fireworks devices in order to reduce the risk of injury that fireworks devices present to consumers.
The legal authority for the proposed rule is the FHSA, which authorizes the Commission to adopt regulations regarding hazardous substances and regulatory provisions necessary to enforce those requirements.
The U.S. Small Business Administration (SBA) size guidelines define manufacturers categorized under North American Industry Classification System (NAICS) codes that apply to fireworks manufacturers as “small” if they have fewer than 500 employees. The SBA defines importers as “small” if they have fewer than 100 employees (wholesalers) or less than $7.5 million in sales (retailers). AFSL, which conducts testing and certification for a substantial portion of the fireworks industry, maintains a public list of U.S. importers and Chinese manufacturers that participate in its programs. Its list includes 165 importers, of which 121 are small, six are large, and the remaining 38 are of unknown size (but likely are small). AFSL asserts that its members represent 85 percent to 90 percent of U.S. importers, indicating a total market size of 183 to 194 importers. Although some U.S. firms continue to manufacture fireworks, the vast majority of the market is imported.
The proposed rule includes three categories of requirements. First, the proposed rule adds definitions for various terms that appear in the regulations or in requirements proposed in this NPR and clarifies existing requirements. The proposed definitions are based on the common understanding of these terms within the fireworks industry, and are consistent with the voluntary standards; as such, they do not create any new requirements or impose any burdens on the fireworks industry. Similarly, the clarifications would not change the regulations and would not create any additional burdens.
Second, the proposed rule includes provisions to reduce burdens on the fireworks industry by allowing trace amounts of prohibited chemicals. The burdens related to this proposed requirement are discussed below.
Third, the proposed rule includes new hazardous substances bans. The burdens related to these requirements are discussed in further detail below. To summarize, the following proposed requirements may impact small entities:
• Banning fireworks devices with break charges containing metallic powder less than 100 mesh in particle size when the break charge is produced by more than 2 grains of pyrotechnic composition;
• limiting total pyrotechnic weight and chemical composition by firework type;
• prohibiting HCB and lead tetroxide and other lead compounds in fireworks devices;
• requiring the testing of fuses for side ignition;
• requiring bases remain attached to devices during storage, handling, and use; and
• banning fireworks from expelling fragments when functioning.
Typically, fireworks are manufactured overseas and imported into the United States. For this reason, most of the potential impact of this proposed rule would fall on small domestic importers, rather than small domestic manufacturers. Because the proposed rule includes changes intended to align Federal regulations with voluntary standards, many foreign manufacturers already comply with the proposed regulations. Consequently, for many importers, finding a new supplier may be a low-cost option to comply with the proposed rule.
The proposed rule would amend 1507.2 to allow for trace amounts of prohibited chemicals in fireworks. The Commission proposes various contamination levels that align with the voluntary standards, compliance rates, and other federal standards. Because of advancements in technology, testers can now identify chemicals in such low levels that they do not pose safety hazards to consumers. Between fiscal years 2000 and 2015, CPSC found 41 violations of 1507.2. Of these violations, four came from samples that contained prohibited chemicals in concentrations below the proposed allowance limit of 0.25 percent. The total lot value of those four lots was $7,109, which represents the theoretical reduction in burden for the fireworks industry. In addition, the proposed requirement may reduce burdens by no longer requiring manufacturers to ensure the absolute absence of prohibited chemicals. Therefore, this requirement should not have a significant economic impact on a substantial number of firms.
The proposed rule would adopt a new method of identifying devices that are subject to the two-grain limit, replacing the identifier “devices intended to produce audible effects” with a description of the content of the devices. CPSC's preliminary testing revealed that more than 85 percent of samples do not comply with the proposed standard. Although the sample size of this testing was too small to generalize these findings, it suggests that a significant number of firms may not comply with the proposed requirement. This indicates that fireworks manufacturers may incur some costs to comply with the proposed regulation.
To comply with the proposed requirement, the Commission expects fireworks producers to replace metallic and hybrid powders with black powder formulations. The cost of switching from metallic and hybrid powders to black powder should not create a significant impact for firms that have to change formulations. Commission staff examined retail prices of aluminum, other popular powders, and black powder kits and found that aluminum ranges from $18.35 per pound to $38.67 per pound and black powder kits sell for approximately $5.20 per pound. Therefore, a firework producer switching from 2 grains of aluminum powder purchased for $18.35 per pound to 15 g of black powder purchased for $5.20 per pound would incur a material cost increase of $0.17 per shell. As these mine or shell devices typically sell for $4 to $5 per shell, the difference in fuel costs could represent up to 4 percent of retail revenues. However, because fireworks manufacturers are unlikely to pay retail prices for fuels and the applicable devices represent only a portion of a fireworks manufacturer's product line, the impact of this proposed provision on the total revenue of any manufacturer or importer is likely to be less than one percent and may not be to be significant for the affected small firms.
The proposed rule limits the total amount of pyrotechnic material and the chemical composition in various fireworks devices. These provisions align with the limits in APA Standard 87-1. The limits in APA Standard 87-1 are high enough to allow sufficient explosive force for a fireworks device to function, even accounting for switching from flash powder and hybrid formulations to exclusively black powder. CPSC's initial testing found several devices that do not comply with the proposed limits for aerial devices. To comply with the proposed requirements, non-compliant producers would likely implement quality control measures to ensure devices comply with the specified limits. Given that many fireworks devices are made by hand, a quality control system could consist of a one-time transition to smaller measuring devices for filling fireworks with pyrotechnic material. Thus, this proposed requirement is not likely to produce a significant impact on affected small firms. The Commission does not have information about the level of compliance with the proposed limits for ground devices.
The proposed rule would ban HCB and lead tetroxide and other lead compounds, either entirely or in concentrations above a certain threshold for trace contamination. Although both chemicals were once prominent in fireworks formulations, they have since largely fallen out of use. The voluntary and international standards ban both chemicals, in some combination, and testing indicates that there is a fairly high level of compliance with these
While lead was traditionally used to create “crackle” effects, bismuth trioxide has largely replaced it to achieve that effect because it is less expensive and more effective. HCB was prevalent in fireworks as a color enhancer, but since some standards have banned HCB, fireworks manufacturers have reduced its use. Because of the industry's limited use of these chemicals, the Commission expects that the proposed requirement would pose minimal burden to industry.
The proposed rule would amend 1507.2 to include a test for side ignition of fuses. The test is currently specified in the CPSC Testing Manual. The test requires placing the lit end of a cigarette against the side of a fuse and observing how much time elapses before it ignites. Under the proposed requirement, a device fails if it ignites within 3 seconds.
CPSC testing indicates that 99.5 percent of fireworks pass the proposed test for side ignition. The remaining 0.5 percent of fireworks may fail the test because they have not been treated to prevent side ignition or have not been sufficiently treated or coated to prevent side ignition within 3 seconds. By not defining a metric for reducing the possibility of side ignition, the current regulations leave open the question of whether those fuses that have been treated, but treated insufficiently to pass CPSC's test method, meet the standard in the regulation.
The proposed test method would require fireworks manufacturers and importers to conduct the test to issue a certificate of compliance with their products. The Commission does not know how many fireworks are currently tested for side ignition of fuses. However, a reasonable testing program associated with this requirement is unlikely to create a significant economic impact on fireworks producers. Conceivably, a producer could test the treatment or coating on a sample of fuses, conclude the treatment or coating is effective, and use the same test results for all fireworks that use the same type of fuse. Thus, a producer could amortize the costs of fuse testing across all fireworks sold with fuses.
The proposed rule requires bases to remain attached to fireworks during storage, handling, and operation. The Commission expects this requirement to have a minimal impact on manufacturers. CPSC does not test for base attachment when testing samples of fireworks, but on occasions where bases are detached, staff may note this in the testing report. In fireworks tested between Fiscal Year 1999 and the present, out of 4,554 relevant samples, 111 samples (2.4%) contained notes that bases were either missing or functioned improperly during operation.
For devices that do not meet the proposed requirement, the Commission expects firms to adapt their designs so that the device and base are one piece or to secure the base to the device with an adhesive. The potential costs of complying with the proposed regulation include additional time to affix the base to the fireworks device (seconds per device), materials for affixing the base, and potential shipping costs associated with the higher volume per device when the base is attached. Additionally, some quality control efforts may be needed to ensure that bases are attached correctly so as not to detach during storage, handling, or operation. Because only a small portion of products do not meet the proposed requirement, and the activities necessary to comply with it are low in cost, the Commission does not expect this provision to have a significant economic impact on a substantial number of small firms.
The proposed rule bans fireworks that disperse fragments when operating. This ban is also in APA Standard 87-1 and the AFSL Standard. CPSC staff has observed fragments falling from detonated fireworks during testing and incident data from 2005 through 2015 reveals eight potential incidents associated with fragments in fireworks. CPSC believes the fragments expelled from fireworks are typically due to manufacturers' intentional use of metal, glass, or brittle plastic parts. These components are not part of the effects associated with the device, but may play a role in the functioning of the device. To comply with the proposed rule, fireworks producers would have to redesign their products to not use these components or would have to implement quality control measures to ensure the device does not project these components when firing. CPSC has little information about the costs of these changes.
DOT incorporates by reference APA Standard 87-1 into its regulations, which apply to fireworks when transported in commerce. Because all fireworks sold to consumers are, at some point, transported in commerce, all consumer fireworks fall under the jurisdiction of DOT and are subject to the requirements of APA Standard 87-1. However, DOT's enforcement program is limited to its jurisdiction over the transportation of hazardous materials in commerce and provisions relevant to safety during such transportation.
In estimating the burdens to manufacturers imposed by the proposed rule, the Commission relied on estimates of current compliance with APA Standard 87-1 because it is incorporated by reference into DOT's regulations. The provisions of this proposed rule aim to eliminate conflict between DOT regulations and CPSC regulations for fireworks, where it exists.
The Commission considered alternatives to the proposed requirements that impose new bans on the fireworks industry, in the interests of reducing the compliance burden.
Rather than adopt the proposed method of identifying devices that are limited to two grains of pyrotechnic content, the Commission could take no action. This alternative would be less burdensome than the proposed requirement, as compliance with the current regulation is higher than with the proposed requirement. However, the Commission believes that the proposed provision provides additional clarity and consistency and more-regularly identifies the more-explosive devices, thereby furthering compliance with an important safety provision. Additionally, the Commission believes that the cost of meeting the proposed requirement is low.
An additional alternative is to eliminate the 2-grain limit in more-powerful fireworks devices. However, without this limit, fireworks devices could be manufactured with greater
The Commission considered taking no action to limit the total pyrotechnic weight and chemical composition of certain fireworks devices. However, for those regulated entities that already comply with the limits in APA Standard 87-1 limits, the proposed rule would create only a minimal burden. Moreover, the proposed rule aims to limit the explosive power of fireworks devices to reduce the potential for injuries to users, and CPSC believes there is some benefit in aligning its requirements with the voluntary standards.
The Commission considered taking no action to add HCB and lead tetroxide and other lead compounds to the list of prohibited chemicals in 1507.2. However, that alternative likely would not reduce the burden of the proposed requirement substantially because many regulated entities already exclude these chemicals from their devices. The Commission also considered only prohibiting either HCB or lead tetroxide or other lead compounds, as well as various allowance levels for trace contamination. When considering the trace contamination allowance that the Commission proposes in this NPR, the burden of the proposed requirement is particularly low and aligns with the voluntary standards, and is justified given the highly hazardous nature of these chemicals.
The Commission considered taking no action to require specific testing of fuses. However, this alternative would not significantly reduce the burden of the proposed requirement on firms because CPSC already uses the proposed test for compliance testing. Additionally, the burden of testing fuses is minimal when amortized across all fireworks sold with fuses.
The Commission considered taking no action concerning base attachment. However, the proposed requirement is intended to address a specific hazard. Therefore, the Commission believes that the potential benefit of the proposed requirement outweighs the potential costs, which are unlikely to be significant for a substantial number of firms.
The Commission considered taking no action to ban fireworks that project fragments when firing. However, given the potential for severe injury, the Commission believes that taking no action does not sufficiently protect consumer safety.
Section 18 of the FHSA provides that no state or political subdivision of a state may establish or continue in effect a cautionary labeling requirement or a requirement for a hazardous substance that is designed to protect against the same risk of illness or injury unless the requirement is identical to the FHSA requirement or the requirement the Commission adopts under the FHSA. 15 U.S.C. 1261n(b)(1); Section 231 of the CPSIA. However, a state or political subdivision of a state may establish or continue in effect a requirement applicable to a hazardous substance for the state or political subdivision's own use that is designed to protect against a risk of illness or injury associated with fireworks devices if it provides a higher degree of protection from that risk than the requirement in effect under the Commission's regulations. 15 U.S.C. 1261n(b)(2) and 1261n(b)(4). This allowance does not extend to labeling requirements. In addition, a state or political subdivision may apply for exemption from preemption in the circumstances specified in section 18(b)(3) of the FHSA.
Consequently, if the Commission adopts a final rule regarding fireworks under the FHSA, that rule would preempt non-identical state or local requirements if the state or local provisions specify requirements that deal with the same risk of injury CPSC's regulations aim to address. However, because the FHSA applies to requirements the Commission may impose on fireworks devices and labeling, a final rule would not prevent states and political subdivisions of a state from regulating the sale of fireworks.
The Administrative Procedure Act requires the effective date of a rule to be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). To support the Commission's goals to update the fireworks regulations to reflect the current market and technology, provide clarity and consistency, and promote consumer safety, the Commission proposes that the updated fireworks regulations take effect 30 days after a final rule is published in the
The Commission requests comments on the proposed effective date.
Rules that have “little or no potential for affecting the human environment” fall within a “categorical exclusion” under the National Environmental Policy Act (NEPA; 42 U.S.C. 4231-4370h) and the regulations implementing NEPA (40 CFR parts 1500-1508) and do not normally require an environmental assessment (EA) or environmental impact statement (EIS). As the Commission's regulations state, CPSC actions generally do not produce significant environmental effects and, therefore, generally do not require an EIS. 16 CFR 1021.5(a). The regulations further specify that rules or safety standards that provide design or performance requirements fall within the categorical exclusion from NEPA because they have little or no potential effect on the human environment. 16 CFR 1021.5(c)(1). Consequently, such rules do not require an EA or an EIS.
Because the proposed rule would create design and performance requirements for fireworks devices, the proposed rule falls within the categorical exclusion and no EA or EIS is required. Moreover, although the proposed requirements may render some fireworks non-compliant and therefore, require their disposal, the Commission believes that this impact would be minimal, particularly in light of existing standards and the time provided before the final rule would take effect.
The Commission requests comments on all aspects of this proposed rule, specifically regarding:
• The method of identifying devices that are subject to the 2-grain limit, including:
○ The need and usefulness of including a method of identifying in the regulations which devices are subject to the 2 grain limit;
○ the usefulness, effectiveness, costs, and benefits of the proposed method of identifying these devices, including supporting data;
○ the level of compliance with the comparable requirement in APA Standard 87-1;
○ whether there are devices that contain only black powder that should be limited to 2 grains of pyrotechnic composition because of the safety hazard they pose to consumers; and
○ whether the Commission should limit larger particle sizes of metallic powder in break charges or reports, relevant data and justifications for doing so, and the appropriate method and limit;
• the implications of the Commission electing, at times, to use its enforcement discretion to permit up to 1.00 percent contamination of metallic content in break charges, including:
○ The safety implications of such an allowance;
○ the impact of such an allowance on the costs and burdens of testing and analysis, relative to compliance with the absolute ban in the regulation;
○ a reasonable allowance level that still provides for consumer safety, along with supporting data; and
○ the implications of adopting the allowance in the regulations, as opposed to exercising it as enforcement discretion;
• the proposed limits to chemical composition and pyrotechnic weight of fireworks devices, including:
○ The benefits and costs associated with the proposed requirement;
○ the level of compliance with the requirements in APA Standard 87-1 with which the proposed requirements align;
○ whether the specific limits proposed are appropriate in light of consumer safety and fireworks devices currently on the market; and
○ the safety hazards that the ground devices that would be subject to the proposed requirement pose to consumers and any relevant incident or injury data;
• prohibiting HCB and lead tetroxide and other lead compounds from fireworks devices, including:
○ The benefits and costs associated with banning these chemicals;
○ the level of compliance with the limits for these chemicals in the AFSL Standard and APA Standard 87-1;
○ the presence of HCB in fireworks devices in the U.S. market and the corresponding frequency and levels;
○ the presence of lead tetroxide or other lead compounds in fireworks devices in the U.S. market and the corresponding frequency and levels; and
○ and exposure data regarding the impact of these chemicals in fireworks devices;
• resistance to side ignition, including:
○ Information and data about incidents involving side ignition;
○ whether a test method for evaluating side ignition would improve consumer safety; and
○ the level of compliance with the requirement in APA Standard 87-1;
• bases detaching from fireworks devices, including:
○ Whether base detachment is involved in devices tipping over, incidents, injuries, or deaths and applicable data;
○ the relative benefits and costs associated with the recommended requirement; and
○ the level of compliance with the similar requirements in APA Standard 87-1 and the AFSL Standard;
• the proposed ban of fireworks devices that project fragments when functioning, including:
○ Data regarding the types and frequency of incidents and injuries associated with fragments projected from fireworks devices;
○ the types of materials fireworks devices project as fragments that present a safety risk to the public (
○ whether the Commission should specify a size or amount limit for projected fragments and, if so, the appropriate size or amount and corresponding rationale;
○ the relative benefits and costs associated with the proposed requirement; and
○ the level of compliance with section 3.7.2 of APA Standard 87-1;
• a trace contamination allowance for prohibited chemicals, including:
○ Whether allowing trace amounts of prohibited chemicals adequately protects consumers from the risks associated with these chemicals;
○ which chemicals the Commission should provide trace allowances for;
○ what level of trace contamination should be permitted in light of consumer safety and inadvertent contamination;
○ the relative costs of complying with an absolute ban of prohibited chemicals and trace contamination allowances;
○ the alternatives of adopting trace contamination allowances in the regulations, in compliance guidance, or in the CPSC Testing Manual; and
○ exposure data regarding the impact of trace contamination on consumer safety;
• the usefulness and content of the proposed definitions for:
○ Burst charge;
○ chemical composition;
○ explosive composition;
○ lift charge;
○ pyrotechnic composition;
○ firecrackers;
○ bases;
○ burnout; and
○ blowout;
• aerial bombs, including:
○ The proposed definition of aerial bombs; and
○ incident and injury data regarding aerial bombs;
• the estimated costs and benefits associated with each of the proposed requirements; and
• the estimated costs to small entities for each of the proposed requirements.
During the comment period, APA Standard 87-1 is available for review. Please see Section V. of this NPR for instructions on viewing it.
Please submit comments in accordance with the instructions in the
Consumer protection, Hazardous materials, Hazardous substances, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, and Toys.
Consumer protection, Explosives, Fireworks, and Incorporation by reference.
For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations as follows:
15 U.S.C. 1261-1278, 122 Stat. 3016; the Consumer Product Safety Improvement Act of 2008, Pub. L. 110-314, 104, 122 Stat. 3016 (August 14, 2008).
(a) * * *
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(d) Certain portions, identified in this section, of APA Standard 87-1, Standard for Construction and Approval for Transportation of Fireworks, Novelties, and Theatrical Pyrotechnics, December 1, 2001 (APA Standard 87-1) are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51 (IBR approved for paragraph (a)). You may obtain a copy of the approved material from American Pyrotechnics Association, 7910 Woodmont Avenue, Suite 1220, Bethesda, MD 20814; telephone 301-907-8181;
(a) * * *
(3)(i) Fireworks devices that contain a burst charge containing metallic powder less than 100 mesh in particle size (including but not limited to cherry bombs, M-80 salutes, silver salutes, and kits and components intended to produce such fireworks) if the burst charge is produced by a charge of more than 2 grains (~130 mg) of pyrotechnic composition; except that this provision shall not apply to such fireworks devices if all of the following conditions are met:
(ii)
(A)
(B)
(C)
(D)
(8) Firecrackers, if the explosive composition is produced by more than 50 mg (.772 grains) of pyrotechnic composition, (not including firecrackers included as components of a rocket), aerial bombs, and devices that may be confused with candy or other foods, such as “dragon eggs,” and “cracker balls” (also known as “ball-type caps”), and including kits and components intended to produce such fireworks except such devices which meet all of the following conditions:
(14)(i) Fireworks devices that do not conform to the following chemical composition and pyrotechnic weight limits:
(A)
(B)
(
(
(C)
(D)
(E)
(F)
(G)
(H)
(ii)
(iii)
(A)
(B)
(C)
(D)
(a) * * *
(27) * * *
(i) The package contains only fireworks devices suitable for use by the public and designed primarily to produce visible effects by combustion, except that small devices with an explosive composition that includes metallic fuel less than 100 mesh in particle size may also be included if the burst charge or explosive composition is produced by not more than 2 grains of pyrotechnic composition;
(a) * * *
(2) Firecrackers, if the explosive composition is produced by no more than 50 milligrams (.772 grains) of pyrotechnic composition. (See also § 1500.14(b)(7); § 1500.17(a) (3), (8) and (9); and part 1507).
15 U.S.C. 1261-1262, 2079(d); 21 U.S.C. 371(e).
(a)
(b)
(1)
(2)
(3)
(a) Fireworks devices, other than firecrackers, shall not contain any of the following chemicals:
(1) Arsenic sulfide, arsenates, or arsenites, except in trace amounts less than 0.25% by weight.
(2) Boron, except in trace amounts less than 0.25% by weight.
(3) Chlorates, except in trace amounts less than 0.25% by weight and:
(i) In colored smoke mixtures in which an equal or greater amount of sodium bicarbonate is included.
(ii) In caps and party poppers.
(iii) In those small items (such as ground spinners) wherein the total powder content does not exceed 4 grams of which not greater than 15 percent (or 600 milligrams) is potassium, sodium, or barium chlorate.
(4) Gallates or gallic acid, except in trace amounts less than 0.25% by weight.
(5) Hexachlorobenzene, except in trace amounts less than 0.01% by weight.
(6) Lead tetroxide and other lead compounds, except in trace amounts less than 0.25% by weight.
(7) Magnesium, except in trace amounts less than 0.25% by weight (magnesium/aluminum alloys, called magnalium, are permitted).
(8) Mercury salts, except in trace amounts less than 0.25% by weight.
(9) Phosphorus (red or white), except in trace amounts less than 0.25% by weight. Except that red phosphorus is permissible in caps and party poppers.
(10) Picrates or picric acid, except in trace amounts less than 0.25% by weight.
(11) Thiocyanates, except in trace amounts less than 0.25% by weight.
(12) Titanium, except in particle size greater than 100-mesh or in trace amounts less than 0.25% by weight.
(13) Zirconium, except in trace amounts less than 0.25% by weight.
(b)
(1)
(2)
(3)
(4)
(a) Fireworks devices, other than firecrackers, that require a fuse shall use a fuse that has been treated or coated in such manner as to reduce the possibility of side ignition.
(1) The following test must be conducted to evaluate whether a fuse has been treated or coated in such manner as to reduce the possibility of side ignition:
(i) Cut the fuse at the point where the fuse enters the fireworks device. If the fuse is wrapped in paper, plastic, or taped to the device, remove the fuse with the paper, plastic, and/or tape intact; and
(ii) Place the glowing tip of a lit standard NIST (SRM 1196) cigarette directly on the side of the fuse (or the paper, plastic, or tape attached to the fuse) and time, in seconds, how long it takes for the fuse to ignite.
(2) The fuse must not ignite within 3 seconds.
(3) The following devices are exempted from § 1507.3(a)(1) and (2):
(i) Devices such as ground spinners that require a restricted orifice for proper thrust and contain less than 6 grams of pyrotechnic composition.
(ii) Devices with fuses that protrude less than
(4)
(i)
(ii)
(iii)
(iv)
(b) Fireworks devices, other than firecrackers, that require a fuse shall use a fuse that will burn at least 3 seconds but not more than 9 seconds before ignition of the device.
(c) For fireworks devices, other than firecrackers, that require a fuse, the fuse shall be securely attached so that it will support either the weight of the fireworks device plus 8 ounces of dead weight or double the weight of the device, whichever is less, without separation from the fireworks device.
(a) The base of fireworks devices that are operated in a standing upright position shall:
(1) Have the minimum horizontal dimensions or the diameter of the base equal to at least one-third of the height of the device including any base or cap affixed thereto; and
(2)(i) Remain securely attached to the device during handling, storage, and normal operation.
(ii)
(A)
(B)
(C)
(D)
(b) For purposes of this section, the base means the bottom-most part or foundation attached to one or more tubes of a fireworks device that serves as a flat, stabilizing surface from which the device may function.
(a) The pyrotechnic chamber in fireworks devices shall be constructed in a manner to allow functioning in a normal manner without burnout or blowout.
(b) As used in this section, the terms blowout and burnout are as defined in sections 2.3 and 2.4, respectively, of APA Standard 87-1 (incorporated by reference, see § 1507.14).
(a) Fireworks devices must function in accordance with section 3.7.2 of APA Standard 87-1 (incorporated by reference, see § 1507.14).
(b)
(1)
(2)
(3)
(4)
Certain portions, identified in this part, of APA Standard 87-1, Standard for Construction and Approval for Transportation of Fireworks, Novelties, and Theatrical Pyrotechnics, December 1, 2001 (APA Standard 87-1) are incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51 (IBR approved for §§ 1507.1, 1507.6, and 1507.13). You may obtain a copy of the approved material from American Pyrotechnics Association, 7910 Woodmont Avenue, Suite 1220, Bethesda, MD 20814; telephone 301-907-8181;
Federal Energy Regulatory Commission, Department of Energy.
Notice of petition for rulemaking.
The Federal Energy Regulatory Commission has received a petition from the Foundation for Resilient Societies requesting the Commission initiate a rulemaking to require an enhanced reliability standard to detect, report, mitigate, and remove malware from the Bulk Power System, all as more fully explained in its petition.
Comments are due by 5 p.m. February 17, 2017.
The Commission encourages electronic submission of comments in lieu of paper using the “eFiling” link at
Kevin Ryan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6840,
On January 13, 2017, the Foundation for Resilient Societies, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207, filed a petition requesting that the Commission initiate a rulemaking to require an enhanced reliability standard to detect, report, mitigate, and remove malware from the Bulk Power System, all as more fully explained in its petition.
Any person that wishes to comment in this proceeding must file comments in accordance with Rule 211 of the Commission's Rules of Practice and Procedure, 18 CFR 385.211 (2016). Comments will be considered by the Commission in determining the appropriate action to be taken. Comments must be filed on or before the comment date.
This filing is accessible on-line at
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) revisions submitted by the State of Alaska (Alaska) to address Clean Air Act (CAA or Act) requirements for the 2006 24-hour fine particulate matter (PM
Written comments must be received on or before March 6, 2017.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2015-0131, at
Claudia Vaupel, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: 206-553-6121, email address:
Throughout this document, wherever “we”, “us” or “our” are used, it is intended to refer to the EPA.
On October 17, 2006, the EPA strengthened the 24-hour PM
Following promulgation of a new or revised NAAQS, the EPA is required by section 107(d)(1) of the CAA to designate areas throughout the United States as attainment, nonattainment, or unclassifiable for the NAAQS. Nonattainment areas include both areas that are violating the NAAQS, and nearby areas with emissions sources or activities that contribute to violations in those areas. States with areas designated nonattainment are required to prepare and submit a plan for attaining the NAAQS in the area as expeditiously as practicable.
The requirements for attainment plans for the 2006 24-hour PM
The requirements of subpart 1 for attainment plans include, among other things: (i) The section 172(c)(1) requirements to provide for the implementation of reasonably available control measures (RACM) and reasonably available control technology (RACT), and attainment of the NAAQS; (ii) the section 172(c)(2) requirement to demonstrate reasonable further progress (RFP); (iii) the section 172(c)(3) requirement for emissions inventories; and (iv) the section 172(c)(9) requirement for contingency measures.
The subpart 4 requirements for Moderate areas are generally comparable with the subpart 1 requirements and include: (i) Section 189(a)(1)(B) requirements to demonstrate attainment by the outermost statutory Moderate area attainment date (
The EPA designated a portion of the Fairbanks North Star Borough as nonattainment for the 2006 24-hour PM
As part of its attainment planning analysis, Alaska evaluated total PM
For planning and air quality modeling purposes, Alaska selected two multi-day episodes in 2008 (January 23-February 10 and November 2-17). Alaska explains that these episodes represent typical conditions in the area when PM
Alaska's control strategy in the FNSB NAA focuses on reducing emissions from the key category of residential
The EPA promulgated the nonattainment designation for the FNSB NAA based on data from the State Office Building monitor, which was the monitor that at the time had the requisite 3 years of complete, quality assured data for the regulatory purpose of calculating the design value for the area. Accordingly, Alaska has conducted its analyses and developed the FNSB Moderate Plan using the data from the regulatory monitor at the State Office Building. The EPA notes that an additional monitor located at the North Pole Fire Station became a regulatory monitor in 2015, subsequent to the initial submission of the FNSB Moderate Plan. The North Pole Fire Station monitor currently records the highest values in the FNSB NAA and had a 2013-2015 design value of 124 μg/m
On December 16, 2016, the EPA proposed to find that the FNSB NAA did not attain by the latest permissible statutory Moderate area attainment date of December 31, 2015, and proposed to reclassify the area from Moderate to Serious pursuant to CAA section 188(b)(2).
On December 31, 2014, Alaska submitted its initial Moderate area attainment plan for the FNSB NAA. Alaska made additional submissions and provided clarifying information to supplement the attainment plan in January 2015, March 2015, July 2015, November 2015, March 2016, November 2016, and January 2017 (as previously noted, the initial submission and all supplemental and clarifying information will be collectively referred to as “the FNSB Moderate Plan”).
The primary control strategy in the FNSB Moderate Plan is to reduce emissions from residential wood combustion. The FNSB Moderate Plan includes emissions inventories, an evaluation of precursors for control in the area, RACM/RACT demonstrations for direct PM
Section 172(c)(3) of the CAA requires a state with an area designated as nonattainment to submit a “comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant” for the nonattainment area. By requiring an accounting of actual emissions from all sources of the relevant pollutants in the area, this section provides for the base year inventory to include all emissions from sources in the nonattainment area that contribute to the formation of a particular NAAQS pollutant. For the 2006 24-hour PM
In addition to the base year inventory submitted to meet the requirements of CAA section 172(c)(3), the state must also submit future projected inventories for the projected attainment year and each QM year, and any other year of significance for meeting applicable CAA requirements. Projected emissions inventories for future years must account for, among other things, the ongoing effects of economic growth and adopted emissions control requirements, and are expected to be the best available representation of future emissions. The SIP submission should include documentation explaining how the state calculated the emissions data for the base year and projected inventories. The specific PM
The emissions inventories for the FNSB NAA are discussed in the FNSB Moderate Plan section III.D.5.6 and appendix III.D.5.6. The FNSB Moderate Plan has three emissions inventories for the area: The 2008 base year, the 2015 projected inventory for the Moderate area attainment date, and the projected inventory for the 2017 QM year. In addition, Alaska developed a projected emissions inventory for 2019 for informational purposes to facilitate development of the attainment plan. Each inventory lists direct PM
The inventories are based on emissions estimated during the two
Alaska estimated winter episode average-season-day emissions for the FNSB NAA based on a gridded inventory of actual or projected emissions developed over an area larger than the FNSB NAA for air quality modeling. The emissions were calculated for the FNSB NAA by summing the emissions from grid cells within the area.
Alaska selected the year 2008 as the base year of the emissions inventory. The selection of 2008 as a base year is consistent with emissions inventory requirements because it is one of the three years that the EPA used for calculating the design value for the 2006 24-hour PM
For space-heating sources, Alaska used EPA emissions factors and locally collected data to estimate emissions by heating device and fuel type. Local activity data was gathered from a Fairbanks winter home heating energy model, multiple residential wood heating surveys, a Fairbanks wood species study, and emissions testing of Fairbanks heating devices. Table 3 provides the space heating winter episode average-season day emissions estimates by fuel type for the 2008 base year emissions inventory for the FNSB NAA.
In addition to developing a 2008 base year inventory, Alaska developed a projected year inventory for the statutory Moderate area attainment year (2015),
The
The composition of PM
The EPA interprets the CAA to require that a state must evaluate sources of all four PM
Section 189(e) of the Act requires that the control requirements for major stationary sources of direct PM
Although section 189(e) explicitly addresses only major stationary sources, the EPA interprets the Act as authorizing it also to determine, under appropriate circumstances, that regulation of specific PM
The state has the option of performing either (1) a comprehensive precursor demonstration to establish that the state does not need to address the precursor in the attainment plan for purposes of the control strategy, RFP, QMs and associated reports, contingency measures, motor vehicle emissions budget, or regional emissions analyses in transportation conformity determinations, or (2) a major stationary source precursor demonstration to justify the exclusion of existing major sources from control requirements for the applicable precursor. Both types of precursor demonstrations must include a concentration-based analysis, in which the state evaluates the impact of each precursor on ambient PM
In the FNSB Moderate Plan, Alaska discusses the five pollutants that contribute to the mass of the ambient PM
Alaska's VOC precursor demonstration examined both ambient and modeled PM
In appendix III.D.5.7 of the FNSB Moderate Plan and in the 2017 Clarification, Alaska did not directly determine the impact of VOCs on PM
Alaska also submitted a precursor demonstration for NO
In Alaska's comprehensive precursor demonstration for VOCs using a concentration-based contribution analysis, the modeled PM
The FNSB Moderate Plan does not provide for a NO
Based on a review of the information provided by Alaska, we propose to approve Alaska's precursor demonstrations for major stationary source emissions of NO
The general SIP planning requirements for nonattainment areas under subpart 1 include CAA section 172(c)(1), which requires implementation of all RACM, including RACT. The terms RACM and RACT are not further defined within subpart 1, but past guidance has described “reasonable available” controls as those controls that are technologically and economically feasible, and necessary for attainment in a given area.
The SIP planning requirements for particulate matter nonattainment areas in subpart 4 likewise impose upon states an obligation to develop attainment plans that implement RACM and RACT on appropriate sources within a nonattainment area. Section 189(a)(1)(C) requires that states with areas classified as Moderate nonattainment areas have SIP provisions to assure that RACM and RACT level controls are implemented by no later than four years after designation of the area. As with subpart 1, the terms RACM and RACT are not specifically defined within subpart 4, and the provisions of subpart 4 do not identify specific control measures that must be implemented to meet the RACM and RACT requirements. However, past policy has described RACM (including RACT) as those measures that are technologically and economically feasible and needed for expeditious attainment of the standard. 81 FR 58034. The EPA's recent PM
To meet the Moderate area control strategy requirements, a state first needs to identify all sources of direct PM
CAA section 110(a)(2)(A) provides generally that each SIP “shall include enforceable emission limitations and other control measures, means or techniques . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirement of the Act.” Section 172(c)(6) of the Act, which
In the FNSB Moderate Plan, Alaska explains the multi-step process it undertook, consistent with the process set forth at 40 CFR 51.1009, to evaluate and select control measures that would constitute RACM/RACT in the FNSB NAA. Based on emissions inventory information and other technical analyses, Alaska first identified source categories in the FNSB NAA and associated emissions of PM
Alaska developed a list of potential control measures for relevant sources based on information compiled from various EPA guidance documents, information received during Alaska's public process, and information regarding controls that other states or the EPA have identified as RACM or RACT in attainment plans in other nonattainment areas. Alaska then evaluated control measures to determine if they are technologically and economically feasible, which included consideration of factors such as the emissions benefits and cost effectiveness of the measures. Alaska's RACM/RACT analysis and control strategy are presented in the FNSB Moderate Plan section III.D.5.7, appendix III.D.5.7, and the 2017 Clarification; sections III.D.5.6, III.D.5.8, and III.D.5.11 of the FNSB Moderate Plan also provide supporting information.
Alaska ascertained that the key category of areas sources (non-point sources) in the FNSB NAA that requires imposition of control measures to reach attainment of the 2006 24-hour PM
The changeout program in the FNSB NAA provides subsidies up to $4,000 to replace wood stoves, and up to $10,000 to replace hydronic heaters, with cleaner burning certified devices (FNSB Moderate Plan section III.D.5.7-3, III.D.5.6-50, table 5.6-18). Higher subsidies are available for removal of a solid-fuel burning device and replacement with a heating source that burns oil or natural gas. The changeout program also provides incentives for removing (rather than replacing) older uncertified devices. Subsidies to retrofit hydronic heaters to reduce emissions were also offered. Between 2010 and 2014, Alaska estimates that 3,365 solid-fuel fired heating devices were replaced and 888 devices were removed through the wood stove changeout program (FNSB Moderate Plan section III.D.5.6-51, table 5.6-19).
Alaska estimates that in the absence of a dry wood program, the average moisture content of wood used in the FNSB NAA is 39.7 percent. The requirement to burn only dry wood (moisture content of 20 percent or less) will result in more efficient residential wood heating, decreased fuel use, and reduced emissions (FNSB Moderate Plan section III.D.5.6-45).
The curtailment program in the FNSB NAA places restrictions on the operation of solid-fuel fired heaters during certain ambient and meteorological conditions (FNSB Moderate Plan section III.D.5.11 and 2017 Clarification). The solid-fuel fired heater curtailment alerts are announced by local authorities based on forecasted PM
The voluntary programs in the FNSB NAA are expected to increase compliance with regulations and encourage behaviors that reduce emissions. These programs include public awareness and education on wood storage, heating device operation and maintenance, and curtailment alert notifications (FNSB Moderate Plan section III.D.5.7-7 and 2017 Clarification). Alaska relied on these measures for a small portion of the necessary emission reductions, consistent with EPA guidance for voluntary measures.
The residential heating control measures that Alaska identified as RACM/RACT primarily reduce emissions of direct PM
The FNSB NAA has six major stationary point sources. Alaska evaluated these sources for potential PM
The six major stationary sources in the FNSB NAA are: Fort Wainwright Central Heating Power Plant, Aurora Energy Chena Power Plant, University of Alaska Fairbanks Campus Power Plant, GVEA North Pole Power Plant, GVEA Zehnder Power Plant, and the Flint Hills North Pole Refinery. Alaska's RACM/RACT analysis addressed 12 coal-fired boilers, five gas turbines, and two dual-fuel fired boilers at these facilities (FNSB Moderate Plan appendix III.D.5.7-64). The following is a summary of the control measures that Alaska identified as RACM/RACT for the stationary sources.
Alaska identified fabric filters (baghouses) as RACM/RACT to control direct PM
Alaska identified the use of low sulfur naphtha and light straight-run (LSR) fuel as RACM/RACT level controls for the unit that runs at baseload throughout the year. For the other four gas turbines, Alaska determined that, in the FNSB NAA, the continued use of heavy fuel oil constitutes RACM/RACT for these units. (FNSB Moderate Plan appendix III.D.5.7-88-91).
Alaska evaluated the different source categories in the FNSB NAA for potential controls. In the case of the point sources, Alaska determined that the existing level of control meets RACM/RACT requirements. With respect to mobile sources, Alaska determined that existing federal fuel and engine emission standards provide sufficient levels of emission reduction from these sources for purposes of the 2006 24-hour PM
Alaska's control strategy focuses primarily on imposing control measures on the key sources contributing to nonattainment during the winter season when exceedances of the 2006 24-hour PM
The EPA proposes to approve the control strategy in the FNSB Moderate Plan. In the FNSB Moderate Plan, Alaska appropriately followed a process to analyze and select RACM/RACT level controls for this specific nonattainment area consistent with the procedures for Moderate nonattainment areas identified at 40 CFR 51.1009. The result of this process was Alaska's adoption and implementation of a control strategy that includes the identified technologically and economically feasible control measures for sources in the FNSB NAA. The EPA proposes to find that the FNSB Moderate Plan provides for the implementation of RACM/RACT as required by CAA sections 189(a)(1)(C) and 172(c)(1), and additional reasonable measures as required by CAA sections 172(c)(6) and 40 CFR 51.1009. The EPA's evaluation of the FNSB Moderate Plan indicates that the control strategy includes permanent and enforceable requirements on the appropriate sources at the relevant time of year (
As explained previously, Alaska's initial SIP submission cited a citizen's referendum as a basis for not adopting and implementing many of the control measures analyzed. The referendum, in place from 2010 to 2014, limited the Borough's authority to regulate home heating sources in any manner, thereby effectively preventing the local government from controlling emissions from the critical heating source category.
However, in October 2014, the referendum expired and Alaska began the process of adopting more stringent controls for the FNSB NAA, including control measures applicable to residential heating sources that are a major contributor to violations of the 2006 24-hour PM
The control strategy in the FNSB Moderate Plan includes a number of control measures targeted at reducing residential wood heating emissions during the winter months when exceedances of the NAAQS typically occur. The control measures, including the wintertime open burning prohibition, dry wood requirement, visible emissions limit of 20 percent opacity, prohibited fuel sources, and mandatory curtailment program are similar to approved control programs adopted in other nonattainment areas impacted by emissions from residential wood heating sources. In addition, the FNSB Moderate plan includes emissions standards for wood stoves and hydronic heaters that are more stringent than the current EPA emissions standards for these devices.
Alaska did not specifically analyze area source controls for NH
As noted, the control strategy focuses on reducing emissions from residential wood heating sources and includes control measures such as a woodstove changeout program, a requirement to use only dry wood, a mandatory curtailment program, and an opacity limit for residential heating sources. The EPA agrees that these control measures appropriately target the emissions contributing to nonattainment and provide for reductions during winter stagnation events when concentrations of emissions build-up and lead to exceedances of the 2006 24-hour PM
As discussed in section II.C.2.a of this proposal, the mandatory curtailment control program has two stages, with ambient PM
We have reviewed Alaska's determination in the FNSB Moderate Plan that its area source control measures represent the adoption of reasonable control measures that meet RACM requirements and we believe that Alaska adequately justified its conclusions with respect to each of these measures. As noted, the EPA proposed to reclassify the FNSB NAA to Serious for failure to attain the PM
Alaska's RACM/RACT analysis for the six major stationary sources located in the FNSB NAA appropriately focused on PM
With respect to SO
We have reviewed Alaska's determination in the FNSB Moderate Plan that its stationary source control measures represent the adoption of reasonable control measures that meet RACM/RACT requirements and we believe that Alaska adequately justified its conclusions with respect to each of these measures.
As discussed previously, the EPA has proposed to reclassify the FNSB NAA to Serious for failure to attain the PM
CAA section 189(a)(1)(B) requires each state with a Moderate nonattainment area to submit a plan that includes, among other things, either (i) a demonstration (including air quality modeling) that the plan will provide for attainment by the applicable attainment date; or (ii) a demonstration that attainment by such date is impracticable. For model attainment demonstrations, the EPA's modeling requirements are in 40 CFR part 51, appendix W (82 FR 5182, January 17, 2017). The EPA's guidance recommendations for model input preparation, model performance evaluation, use of the model output for the attainment demonstration, and modeling documentation are described in
Air quality modeling is used to establish emissions targets, the combination of emissions of PM
In addition to a modeled attainment demonstration that focuses on locations with an air quality monitor, the 2016 PM
The EPA has not issued modeling guidance specific to impracticability demonstrations, but believes that a state seeking to make such a demonstration, generally, should provide air quality modeling similar to that required for an attainment demonstration. The main difference between an attainment demonstration and an impracticability demonstration is that despite the implementation of a control strategy including RACM/RACT and additional reasonable measures, an impracticability demonstration does not demonstrate attainment of the standard by the statutory Moderate area attainment date. Alternatively, a model projection could show that the implementation of the SIP control strategy results in attainment of the standard after the statutory Moderate area attainment date. However, there are cases where modeling may not be needed to demonstrate that it is impracticable to attain by the statutory Moderate area attainment date and the EPA has therefore determined that modeling is not a regulatory requirement to support an impracticability demonstration. 40 CFR 51.1009(a)(4); 81 FR 58048. For an attainment demonstration, a thorough review of all modeling inputs and assumptions is especially important because the modeling must ultimately support a conclusion that the plan (including its control strategy) will provide for timely attainment of the applicable NAAQS.
In contrast, for an impracticability demonstration, if the state and the EPA determine that the area cannot attain the NAAQS by the latest statutory Moderate area attainment date, the result is that the EPA will reclassify the area from a Moderate nonattainment area to a Serious nonattainment area. This reclassification obligates the state to submit a new attainment plan that meets more stringent regulatory requirements (
In FNSB Moderate Plan section III.D.5.8 and appendix III.D.5.8, Alaska provided air quality modeling to support its demonstration that it was impracticable for the FNSB NAA to attain the 2006 24-hour PM
To calculate the projected 2015 PM
Alaska evaluated the results of their CMAQ modeling with observed PM
In light of acceptable model performance for PM
The FNSB Moderate Plan section III.D.5.8 also contains an unmonitored area analysis and a weight of evidence analysis as additional support for the modeling demonstration. Alaska used various analytical techniques to inform modeling decisions and to assess model performance. Statistical evaluations with positive matrix factorization and chemical mass balance modeling were used to attribute and prioritize source significance. To understand the distribution of emissions from wood burning versus fossil fuels, a Carbon-14 analysis was used to determine the age distribution of carbon molecules found at each monitoring site. Levoglucosan, an organic compound that is considered to be a tracer of biomass burning, was analyzed to assess the significance of wood burning. A dispersion modeling study using the CALPUFF model was used to characterize PM
The weight of evidence analysis consistently attributed more than 50 percent of the PM
Based on the unmonitored area analysis, Alaska projects 2015 design values above the standard in several parts of the FNSB NAA, including the western part of downtown Fairbanks, to the southeast of downtown Fairbanks,
The EPA is proposing to find that Alaska's model is adequate for assessing whether the FNSB NAA will attain the PM
As discussed previously, the EPA notes that because the FNSB NAA did not attain the 2006 24-hour PM
CAA section 189(a)(1)(B) requires that each Moderate area attainment plan include a demonstration that the plan provides for attainment by the latest applicable Moderate area deadline or, alternatively, that attainment by the latest applicable attainment date is impracticable. A demonstration that the plan provides for attainment must be based on air quality modeling, and the EPA generally recommends that a demonstration of impracticability also be based on air quality modeling and be consistent with the EPA's modeling regulations and guidance (51.1011(a)(2); 51.1011(a)(4)(ii); and 81 FR 58049).
CAA section 188(c) states, in relevant part, that the Moderate area attainment date “shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation as nonattainment.” For the 2006 24-hour PM
The FNSB Moderate Plan includes a demonstration, based on air quality modeling and additional supporting analyses discussed in section II.D of this proposal, that attainment by the statutory Moderate area attainment date of December 31, 2015 was impracticable. Implementation of the selected control strategy resulted in a projected 2015 design value of 39.6 µmu;g/m
We have evaluated the FNSB Moderate Plan's demonstration that it was impracticable for the area for attain by the December 31, 2015 statutory Moderate area attainment date, supporting air quality modeling, and control strategy analyses addressing the adoption of all reasonable measures. We are proposing to approve Alaska's demonstration that it was not practicable for the area to attain the 2006 NAAQS standard by December 31, 2015.
In addition to the information in the FNSB Moderate Plan and supplement, we have reviewed recent PM
CAA section 172(c)(2) requires nonattainment area plans to provide for RFP. In addition, CAA section 189(c) requires PM
The EPA has historically interpreted the requirement to be met by a state showing annual incremental emission reductions in its attainment plan sufficient to maintain generally linear progress toward attainment by the applicable deadline. 40 CFR 51.1012(a)(4);
Section 189(c) provides that attainment plans must include QMs that will be used to measure RFP every 3 years until redesignation. Thus, the EPA determines an area's compliance with RFP in conjunction with determining its compliance with the QM requirement. 40 CFR 51.1013(a) (requiring attainment plans to include specific QMs that will demonstrate RFP toward attainment). Because RFP is an annual emission reduction requirement and the QMs are to be achieved every 3 years, when a state demonstrates compliance with the QM requirement, it provides an objective evaluation of RFP that has been achieved during each of the relevant 3 years.
The CAA does not specify the starting point for counting the 3-year periods for QMs under CAA section 189(c). However, the EPA's longstanding interpretation of the CAA is that the first QM should fall 3 years after the latest date on which the state should have submitted the attainment plan. For the 2006 PM
A state must submit a QM report to the EPA no later than 90 days after the QM date. 40 CFR 51.1013(b). The QM reports must contain: (1) A certification that the attainment plan control strategy is being implemented, (2) technical support to demonstrate that the QMs have been satisfied and how the emissions reductions achieved to date compare to those scheduled to meet RFP, (3) a discussion of whether the area will attain the 2006 PM
The RFP demonstration in the FNSB Moderate Plan addresses emissions of direct PM
Alaska included an inventory for 2017 and motor vehicle emissions budgets, which are discussed in section II.H below. The RFP analysis is based on winter episode average-season-day emissions for the FNSB NAA and actual
As previously noted, on November 22, 2016, and January 6, 2017, Alaska provided a supplementary submission and clarifying information to the EPA that included implementation of control measures for area sources in 2015. The control measures include a mandatory curtailment program for solid-fuel heaters, a requirement to use only dry wood in wood heaters, an opacity limit for solid-fuel fired heating devices, and other measures that strengthened the control strategy. Alaska updated the RFP analysis to include the implementation of these new measures.
The FNSB Moderate Plan, including the 2016 supplement and 2017 Clarification, demonstrates that the control strategy, including all reasonable controls, has been implemented and identifies projected emissions levels, in a 2017 emissions inventory, that reflect full implementation of the control strategy for the area. In an area that cannot practicably attain the PM
In evaluating whether the submitted attainment plan meets the RFP and related QM requirements, we are relying in part on the FNSB Moderate Plan's analysis of the implementation of control measures adopted before 2015 and more recently in 2016. As previously noted, if the FNSB NAA is reclassified from a Moderate to Serious nonattainment area, as proposed, the area will be subject to Serious area plan requirements and Alaska will need to reevaluate and strengthen its attainment plan control strategy, and provide a new attainment demonstration and revised RFP demonstration and QMs based on the Serious area control strategy.
The EPA proposes to approve the FNSB Moderate Plan as meeting both the RFP and QM requirements. The FNSB Moderate Plan provides sufficient data and analyses that demonstrate emissions reductions that provide RFP toward attainment in 2017, and the QM for 2017 provides an objective way for the EPA to verify that Alaska has met the RFP requirements for the relevant 3 years of the attainment plan for this area.
On January 6, 2017, Alaska submitted a QM report (2017 QM Report) to the EPA certifying that the 2017 QMs for the FNSB NAA have been achieved.
Under CAA section 172(c)(9), PM
The purpose of contingency measures is to continue progress in reducing emissions during the period while a state is revising its SIP to address a failure, such as a failure to meet a QM requirement or failure to attain. The principal considerations for evaluating contingency measures are:
• Contingency measures must be fully adopted rules or control measures that are ready to be implemented quickly upon failure to meet RFP or failure of the area to meet the NAAQS by its attainment date.
• The SIP must contain trigger mechanisms for the contingency measures, specify a schedule for implementation, and indicate that the measures will be implemented without further action by the state or by the EPA. In general, we expect all actions needed to affect full implementation of the
• The contingency measures shall consist of control measures that are not otherwise included in the control strategy or that achieve emissions reductions not otherwise relied upon in the control strategy for the area.
• The measures should provide for emissions reductions equivalent to approximately one year of reductions needed for RFP calculated as the overall level of reductions needed to demonstrate attainment divided by the number of years from the base year to the attainment year. 81 FR 58066.
Alaska identified two contingency measures in the FNSB Moderate Plan in section III.D.5.10. In accordance with basic requirements for valid contingency measures, these two measures are not required to meet other attainment plan requirements and are not relied on in the control strategy. The first contingency measure requires the replacement of wood heating devices upon sale or lease of property if the existing devices do not meet specific emissions requirements. The second contingency measure is a mandatory enhanced dry wood compliance program that requires commercial wood sellers to register with the State and to disclose moisture content information to consumers at the time of wood sale and delivery.
The FNSB Moderate Plan contingency measures have been fully adopted into Alaska State Code (18 AAC 50.076 and 50.077). In accordance with basic requirements for valid contingency measures, they will go into effect with minimal further action by the state or the EPA in response to a triggering event; in this case the measures adopted by Alaska will be implemented within 60 days of the EPA making a finding that the FNSB NAA failed to attain the NAAQS and reclassifying the area from a Moderate to a Serious nonattainment area.
The EPA acknowledges that Alaska developed, adopted, and submitted the FNSB Moderate Plan prior to the EPA's publication of the proposed PM
Although the FNSB Moderate Plan did not include contingency measures for failure to meet RFP, the EPA is in the unusual position of reviewing the contingency measure requirement at a later point in time than would normally occur (
As noted, the EPA has proposed (consistent with the impracticability demonstration in the FNSB Moderate Plan) to reclassify the area to Serious. Upon reclassification of this area to Serious nonattainment, Alaska will be required to submit a Serious area plan for this area that must include contingency measures for purposes of both failure to meet RFP and failure to attain by the Serious area attainment date, consistent with the requirements of the CAA and the PM
In addition, Alaska included in the FNSB Moderate Plan contingency measures that are triggered by failure to attain. Although not required, as discussed above, Alaska can elect to include these control measures pursuant to its authority under CAA section 116. Because contingency measures for failure to attain are not required in this type of attainment plan, the EPA is not proposing to approve these control measures as contingency measures. Instead, the EPA is proposing to approve them as SIP strengthening measures because they will achieve additional emission reductions needed in this area.
Approving these control measures will help to assure that further reductions of emissions occur during the period in which Alaska is developing the Serious area attainment plan for this area. In developing the Serious area attainment plan for this area, Alaska will be required submit a SIP revision that will ensure the area achieves the next QM of December 31, 2020 (and additional QMs every three years thereafter as may be necessary). As discussed previously, the analyses in the Serious area attainment plan will be based on the highest violating regulatory monitor which is currently the monitor at the North Pole Fire Station. Thus, the 2020 QMs will be based on meeting RFP at the North Pole Fire Station monitor.
The EPA is therefore proposing to approve, as SIP strengthening measures, the requirement to replace wood heating devices upon sale or lease of property when existing devices do not meet specific emissions requirements and the mandatory enhanced dry wood compliance program. As discussed previously, the EPA has proposed to reclassify the FNSB NAA to Serious and the control measures are set to take effect upon reclassification of the FNSB NAA from Moderate to Serious.
CAA section 176(c) requires Federal actions in nonattainment and maintenance areas to conform to the goals of the SIP to eliminate or reduce the severity and number of violations of the NAAQS and achieve expeditious attainment of the standards. Conformity to the goals of the SIP means that such actions will not (1) cause or contribute to violations of a NAAQS, (2) worsen the severity of an existing violation, or (3) delay timely attainment of any NAAQS or interim milestones.
Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the transportation conformity rule (40 CFR 51.390 and part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, the EPA, FHWA and FTA to demonstrate that an area's long-range transportation plans (“transportation plans”) and transportation improvement program (TIP) conform to applicable SIPs. This demonstration is typically made by showing that estimated
Attainment plans for PM
In section III.D.5.6, the FNSB Moderate Plan provides budgets for direct PM
We have evaluated the budgets developed by Alaska against our adequacy criteria in 40 CFR 93.118(e)(4) as part of our review of the approvability of the budgets. The EPA finds that they are consistent with meeting RFP requirements toward attainment of the 2006 24-hour PM
The CAA allows for the exclusion of air quality monitoring data from design value calculations when there are exceedances caused by events, such as wildfires, that meet the criteria for an exceptional event identified in the EPA's implementing regulations, the Exceptional Events Rule at 40 CFR 50.1, 50.14 and 51.930. Emissions from wildfires influenced PM
The 2009 and 2010 events had regulatory significance for purposes of the modeling and impracticability demonstration in the FNSB Moderate Plan. The 2013 event has regulatory significance for purposes of the Serious area plan submittal in development. Further details on Alaska's analyses and the EPA's concurrences can be found in the docket for this regulatory action. The EPA has concurred with the Alaska's request to exclude event-influenced data for the dates listed above.
Under CAA section 110(k), the EPA is proposing to approve the FNSB Moderate Plan for the PM
Accordingly, the EPA is proposing to determine that the FNSB Moderate Plan, for the FNSB NAA for the 2006 24-hour PM
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference state and local regulations for solid-fuel fired heaters and open burning. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
On September 29, 2016, the City of Mobile, Alabama, grantee of FTZ 82, submitted a notification of proposed production activity to the FTZ Board on behalf of Airbus Americas, Inc., within Site 1, in Mobile, Alabama.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
Effective February 2, 2017.
Toby Vandall at (202) 482-1664, or Peter Zukowski at (202) 482-0189, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
On December 15, 2016, the Department of Commerce (the Department) initiated a countervailing duty investigation on certain softwood lumber products from Canada.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a countervailing duty investigation within 65 days after the date on which the Department initiated the investigation. However, section 703(c)(1) of the Act permits the Department to postpone the preliminary determination until no later than 130 days after the date on which the Department initiated the investigation if: (A) The petitioner
On January 26, 2017, the petitioner submitted a timely request that we postpone the preliminary CVD determination.
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).
International Trade Administration, U.S. Department of Commerce.
Notice of Federal advisory committee meeting.
This notice sets forth the schedule and proposed agenda for a meeting of the Civil Nuclear Trade Advisory Committee (CINTAC).
The meeting is scheduled for Thursday February 16, 2017, from 11:00 a.m. to 12:00 p.m. Eastern Standard Time (EST). The deadline for members of the public to register, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. EST on Friday, February 10, 2017.
The meeting will be held via conference call. The call-in number and passcode will be provided by email to registrants. Requests to register (including to speak or for auxiliary aids) and any written comments should be submitted to: Mr. Jonathan Chesebro, Office of Energy & Environmental Industries, International Trade Administration, Room 20010, 1401 Constitution Ave. NW., Washington, DC 20230. (Fax: 202-482-5665; email:
Mr. Jonathan Chesebro, Office of Energy & Environmental Industries, International Trade Administration, Room 20010, 1401 Constitution Ave. NW., Washington, DC 20230. (Phone: 202-482-1297; Fax: 202-482-5665; email:
Public attendance is limited and available on a first-come, first-served basis. Members of the public wishing to attend the meeting must notify Mr. Jonathan Chesebro at the contact information above by 5:00 p.m. EST on Friday, February 10, 2017 in order to pre-register. Please specify any requests for reasonable accommodation at least five business days in advance of the meeting. Last minute requests will be accepted, but may not be possible to fill.
A limited amount of time will be available for brief oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two (2) minutes per person, with a total public comment period of 20 minutes. Individuals wishing to reserve speaking time during the meeting must contact Mr. Chesebro and submit a brief statement of the general nature of the comments and the name and address of the proposed participant by 5:00 p.m. EST on Friday, February 10, 2017. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, ITA may conduct a lottery to determine the speakers.
Any member of the public may submit written comments concerning the CINTAC's affairs at any time before and after the meeting. Comments may be submitted to the Civil Nuclear Trade Advisory Committee, Office of Energy & Environmental Industries, Room 20010, 1401 Constitution Ave. NW., Washington, DC 20230. For consideration during the meeting, and to ensure transmission to the Committee prior to the meeting, comments must be received no later than 5:00 p.m. EST on Friday, February 10, 2017. Comments received after that date will be distributed to the members but may not be considered at the meeting.
Copies of CINTAC meeting minutes will be available within 90 days of the meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) is amending its final negative determination of sales at less-than-fair-value (LTFV) with respect to certain new pneumatic off-the-road tires (OTR tires) from India to correct ministerial errors in the calculation of the weighted-average dumping margin of Alliance Tires Private Limited (ATC), one of the mandatory respondents in the investigation. Correction of these errors results in a revised margin for ATC that is above
Effective February 2, 2017.
Lilit Astvatsatrian or Trisha Tran, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6412, or (202) 482-4852, respectively.
On January 6, 2017, the Department publicly announced its
Based on an analysis of the allegations submitted by Petitioners, the Department determined that it did not make ministerial errors with respect to the application of partial AFA, as defined by section 735(e) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.224(f).
The products covered by this investigation are OTR tires from India. For a complete description of the scope of the investigation,
Section 735(e) of the Act, and 19 CFR 351.224(f) define a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any similar type of unintentional error which the Secretary considers ministerial.”
The Department finds that the purported errors alleged by Petitioners' do not constitute ministerial errors within the meaning of 19 CFR 351.224(f).
Additionally, in reviewing the record, the Department found that: (1) The Department inadvertently omitted additional fields reported by ATC as part of its minor corrections that should have been part of the final margin calculation; (2) ATC did not revise the home market credit expenses to include the correct payment dates for the particular sales identified as minor corrections at the home market sales verification; and (3) the Department inadvertently included the costs associated with the unreported sample U.S. sales in the indirect selling expenses. These are unintentional errors, similar to the errors identified as ministerial errors in the regulations, and, therefore, constitute ministerial errors within the meaning of 19 CFR 351.224(f). Therefore, the Department corrected these errors in the final margin program by: (1) Including the two additional freight expense fields (
In the
Section 735(a)(3) of the Act provides that the Department will determine that critical circumstances exist in antidumping duty investigations if: (A)(i) There is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise, or (ii) the person by whom, or for whose account, the merchandise was imported, knew or should have known that the exporter was selling the subject merchandise at LTFV and that there would be material injury by reason of such sales, and (B) there have been massive imports of the subject merchandise over a relatively short period.
To determine whether there is a history of dumping and material injury, the Department generally considers previous antidumping duty orders on subject merchandise from the country in question in the United States or current orders imposed by other countries with regard to imports of the same merchandise.
Furthermore, the Department normally considers dumping margins of 25 percent or more for export price sales
As a result of correcting the ministerial errors, we determine that the weighted-average dumping margins and cash deposit rates are as follows:
As stated above, the weighted-average dumping margin for BKT is unchanged from the
Section 735(c)(5)(A) of the Act provides that the estimated “All Others” rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to suspend liquidation on all appropriate entries of OTR tires from India, except as noted below, which were entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice. Additionally, because the weighted-average dumping margin for BKT in the
The Department will also instruct CBP to require cash deposits for suspended entries equal to the amounts as indicated above, which are adjusted for certain countervailable subsidies, where appropriate. The all-others rate applies to all producers or exporters not specifically listed. For the purpose of determining cash deposit rates, the estimated weighted-average dumping margins for imports of subject merchandise from India have been adjusted, as appropriate, for export subsidies found in the final determination of the companion countervailing duty investigation of this merchandise imported from India.
In accordance with section 735(d) of the Act, we notified the U.S. International Trade Commission (ITC) of the
This amended final determination is published in accordance with section 735(e) of the Act and 19 CFR 351.224(e).
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This collection requires vessel trip reports (VTRs) to be submitted weekly
This collection also requires limited access mackerel and longfin squid/butterfish moratorium permit holders to bring all catch aboard the vessel and make it available for sampling by an observer. If catch is not made available to an observer before discard, that catch is defined as slippage, and the vessel operator must complete a “Released Catch Affidavit” form within 48 hours of the end of the fishing trip which details why catch was slipped, estimates the quantity and species composition of the slipped catch, and records the time and location of the slipped catch.
Finally, this collection requires any vessel with a limited access mackerel permit intending to land over 20,000 lbs of mackerel to contact NMFS at least 48 hours in advance of a fishing trip to request an observer. Vessels currently contact NMFS via phone, and selection notices or waivers are issued by NMFS via VMS. If service providers are unable to provide coverage, an owner, operator, or vessel manager may request a waiver by calling the Northeast Fisheries Observer Program.
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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 48 Data Workshop for Southeastern U.S. black grouper.
The SEDAR 48 assessment of Southeastern U.S. black grouper will consist of a Data Workshop; an assessment workshop and series of Assessment webinars; and a Review Workshop. See
The SEDAR 48 Data Workshop will be held from 9 a.m. on March 15, 2017 until 3 p.m. on March 17, 2017; the Assessment Workshop and webinars and Review Workshop dates and times will publish in a subsequent issue in the
Julie Neer, SEDAR Coordinator; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing workshops and webinars; and (3) Review Workshop. The product of the Data Workshop is a data report, which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report, which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Data Workshop agenda are as follows:
1. An assessment data set and associated documentation will be developed.
2. Participants will evaluate all available data and select appropriate sources for providing information on life history characteristics, catch statistics, discard estimates, length and age composition, and fishery dependent and fishery independent measures of stock abundance, as specified in the Terms of Reference for the workshop.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The North Pacific Fishery Management Council (Council) Electronic Monitoring Workgroup (EMWG) will hold a public meeting on March 28, 2017 through March 29, 2017.
The meeting will be held on Tuesday, March 28, 2017, from 8 a.m. to 5 p.m. and Wednesday, March 29, 2017, from 8 a.m. to 5 p.m.
The meeting will be held in the Harbor Room at The Best Western Kodiak Inn, 236 Rezanof Drive, Kodiak, AK 99615. The meeting will be available by teleconference at: (907) 271-2896.
Diana Evans, Council staff; telephone: (907) 271-2809.
The agenda will include: (a) Budget Planning for 2018; (b) Review proposed rule for EM Implementation; (c) Preparation for 2019 contract; (d) Draft 2016 cost report and e) scheduling and other business. The Agenda is subject to change, and the latest version will be posted at
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Pacific Fishery Management Council's (Pacific Council) Groundfish Endangered Species Workgroup will hold a meeting, which is open to the public. Members of the public can participate: in person; via teleconference; and/or through “Go To Meeting.”
The meeting will begin at 9 a.m. on Wednesday, February 15, 2017 and again at 9 a.m. on Thursday, February 16 and continue until business is finished on each day.
The meeting will be held at the Regional Administrator's Conference Room, Building 1, National Oceanic and Atmospheric Administration, Western Regional Center, 7600 Sand Point Way NE., Seattle, WA 98115-6349, telephone: (206)-526-6150. Members of the public who wish to attend the meeting in person must contact Mr. Kevin Duffy; email:
Dr. Kit Dahl, Pacific Council, at (503) 820-2422; toll-free 1-866-806-7204.
The primary purpose of the meeting is to review recent information on take of species listed under the Endangered Species Act (ESA) in the Pacific Coast groundfish fishery (other than salmonids) and provide recommendations to the Pacific Council on any additional mitigation measures needed, to meet the requirements of the ESA, as implemented through the terms and conditions in the most recent biological opinion for the fishery.
Members of the public can participate via GoToMeeting and/or via teleconference. For GoToMeeting access, please join my GoToMeeting:
Although nonemergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2425 at least 5 days prior to the meeting date.
Office of the Secretary of Defense, DoD.
Rescindment of a system of records notice.
Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-130, notice is hereby given that the Department of Defense proposes to delete a system of records, DGC 20, DoD Presidential Appointee Vetting File, last published at 65 FR 75246 on December 1, 2000. This system of records was
Based on a recent review of DGC 20, DoD Presidential Appointee Vetting File, it was determined that this system of records is now appropriately covered under and is maintained in accordance with the government-wide Office of Government Ethics system of records notice OGE/GOVT-1, Executive Branch Personnel Public Financial Disclosure Reports and Other Name-Retrieved Ethics Program Records (December 9, 2013, 78 FR 73863). Accordingly, DGC 20 is duplicative and can be deleted.
Comments will be accepted on or before March 6, 2017. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
Follow the instructions for submitting comments.
*
Mrs. Luz D. Ortiz, Chief, Records, Privacy and Declassification Division (RPDD), 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0478.
The Office of the Secretary systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The Office of the Secretary proposes to delete one system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Based on a recent review of DGC 20, DoD Presidential Appointee Vetting File, it has been determined that the records are covered under and is maintained in accordance with OGE/GOVT-1, Executive Branch Personnel Public Financial Disclosure Reports and Other Name-Retrieved Ethics Program Records (December 9, 2013, 78 FR 73863). Therefore, DGC 20, DoD Presidential Appointee Vetting File can be deleted.
DoD Presidential Appointee Vetting File, DGC 20.
Office of the Secretary, Department of Defense.
Notice of DRG revised rates and notice to terminate future
This notice describes the changes made to the TRICARE DRG-based payment system in order to conform to changes made to the Medicare Prospective Payment System (PPS). It also provides the updated fixed loss cost outlier threshold, cost-to-charge ratios, and the data necessary to update the Fiscal Year (FY) 2017 rates. This notice also announces there will be no future
The rates, weights, and Medicare PPS changes which affect the TRICARE DRG-based payment system contained in this notice are effective for discharges occurring on or after October 1, 2016.
Defense Health Agency (DHA), TRICARE, Medical Benefits and Reimbursement Office, 16401 East Centretech Parkway, Aurora, CO 80011-9066.
Sharon L. Seelmeyer, Medical Benefits and Reimbursement Section, TRICARE, telephone (303) 676-3690. Questions regarding payment of specific claims under the TRICARE DRG-based payment system should be addressed to the appropriate contractor.
The final rule published on September 1, 1987 (52 FR 32992) set forth the basic procedures used under the CHAMPUS DRG-based payment system. This was subsequently amended by final rules published August 31, 1988 (53 FR 33461); October 21, 1988 (53 FR 41331); December 16, 1988 (53 FR 50515); May 30, 1990 (55 FR 21863); October 22, 1990 (55 FR 42560); and September 10, 1998 (63 FR 48439).
An explicit tenet of these final rules, and one based on the statute authorizing the use of DRGs by TRICARE, is that the TRICARE DRG-based payment system is modeled on the Medicare PPS, and that, whenever practicable, the TRICARE system will follow the same rules that apply to the Medicare PPS. The Centers for Medicare & Medicaid Services (CMS) publishes these changes annually in the
In addition, this notice updates the rates and weights in accordance with our previous final rules. The actual changes we are making, along with a description of their relationship to the Medicare PPS, are detailed in this notice. While the initial intent of this notice was to provide notification of the revised DRG weights and rates affecting the DRG based payment system, its relevance has been subsequently overshadowed by the public's online accessibility to the TRICARE manuals and reimbursement rates on the official Web site of the Military Health System (MHS) and the DHA (
Following is a discussion of the changes CMS has made to the Medicare PPS that affect the TRICARE DRG-based payment system.
Under both the Medicare PPS and the TRICARE DRG-based payment system, cases are classified into the appropriate DRG by a Grouper program. The Grouper classifies each case into a DRG on the basis of the diagnosis and procedure codes and demographic information (that is; sex, age, and discharge status). The Grouper used for the TRICARE DRG-based payment system is the same as the current Medicare Grouper with two modifications. The TRICARE system has replaced Medicare DRG 435 with two age-based DRGs (900 and 901), and has implemented thirty-four (34) neonatal DRGs in place of Medicare DRGs 385 through 390. For admissions occurring on or after October 1, 2001, DRG 435 has been replaced by DRG 523. The TRICARE system has replaced DRG 523 with the two age-based DRGs (900 and 901). For admissions occurring on or after October 1, 1995, the CHAMPUS Grouper hierarchy logic was changed so the age split (age <29 days) and assignments to Major Diagnostic Category (MDC) 15 occur before assignment of the pre-MDC DRGs. This resulted in all neonate tracheostomies and organ transplants to be grouped to MDC 15 and not to DRGs 480-483 or 495. For admissions occurring on or after October 1, 1998, the CHAMPUS Grouper hierarchy logic was changed to move DRG 103 to the pre-MDC DRGs and to assign patients to pre-MDC DRGs 480, 103, and 495 before assignment to MDC 15 DRGs and the neonatal DRGs. For admissions occurring on or after October 1, 2001, DRGs 512 and 513 were added to the pre-MDC DRGs, between DRGs 480 and 103 in the TRICARE Grouper hierarchy logic. For admissions occurring on or after October 1, 2004, DRG 483 was deleted and replaced with DRGs 541 and 542, splitting the assignment of cases on the basis of the performance of a major operating room procedure. The description for DRG 480 was changed to “Liver Transplant and/or Intestinal Transplant,” and the description for DRG 103 was changed to “Heart/Heart Lung Transplant or Implant of Heart Assist System.” For FY 2007, CMS implemented classification changes, including surgical hierarchy changes. The TRICARE Grouper incorporated all changes made to the Medicare Grouper, with the exception of the pre-surgical hierarchy changes, which will remain the same as FY 2006. For FY 2008, Medicare implemented their Medicare-Severity DRG (MS-DRG) based payment system. TRICARE, however, continued with the Centers for Medicare & Medicaid Services DRG-based (CMS-DRG) payment system for FY 2008. For FY 2009, the TRICARE/CHAMPUS DRG-based payment system shall be modeled on the MS-DRG system, with the following modifications.
The MS-DRG system consolidated the 43 pediatric CMS DRGs that were defined based on age less than or equal to 17 into the most clinically similar MS-DRGs. In their Inpatient Prospective Payment System final rule for MS-DRGs, Medicare stated for their population these pediatric CMS DRGs contained a very low volume of Medicare patients. At the same time, Medicare encouraged private insurers and other non-Medicare payers to make refinements to MS-DRGs to better suit the needs of the patients they serve. Consequently, TRICARE finds it appropriate to retain the pediatric CMS-DRGs for our population. TRICARE is also retaining the TRICARE-specific DRGs for neonates and substance use.
For FY09, TRICARE will use the MS-DRG v26.0 pre-MDC hierarchy, with the exception that MDC 15 is applied after DRG 011- 012 and before MDC 24.
For FY10, there are no additional or deleted DRGs.
For FY 11, the added DRGs and deleted DRGs are the same as those included in CMS' final rule published on August 16, 2010 (75 FR 50041-50677). That is, DRG 009 is deleted; DRGs 014 and 015 are being added.
For FY 12, the added DRGs and deleted DRGs are the same as those included in CMS' final rule published on August 18, 2011 (76 FR 51476-51846). That is, DRG 015 is deleted; DRGs 016 and 017 are being added.
For FY 2013 there are no new, revised, or deleted DRGs.
For FY 2014 there are no new, revised, or deleted DRGs.
For FY 2015 the added, deleted, and revised DRGs are the same as those included in the CMS' final rule published on August 22, 2014 (79 FR 49880) with the exception of endovascular cardiac valve replacement for which CMS added DRGs 266/267 and TRICARE added DRGs 317/318 because the TRICARE Grouper already has DRGs 266/267 assigned to a pediatric procedure.
For FY2016 the added, deleted, and revised DRGs are the same as those included in the CMS' final rule published on August 17, 2015 (80 FR 49326) with the exception of the cardiovascular procedure for which CMS added DRGs 268-272 and TRICARE added DRGs 275-279, because the TRICARE Grouper already has DRGs 268-272 assigned to a pediatric procedure. Effective October 1, 2015 (FY 2016), the ICD-10 coding system was implemented, replacing the ICD9 coding system.
For FY17 the added, deleted, and revised DRGs are the same as those included in the CMS' final rule published on August 22, 2016 (81 FR 56761). That is, DRG 230 is deleted; DRGs 229, 884, and 208 have been renamed.
TRICARE will continue to use the same wage index amounts used for the Medicare PPS. TRICARE will also duplicate all changes with regard to the wage index for specific hospitals that are redesignated by the Medicare Geographic Classification Review Board. In addition, TRICARE will continue to utilize the out-commuting wage index adjustment.
TRICARE is adopting CMS' percentage of labor related share of the standardized amount. For wage index values greater than 1.0, the labor related portion of the Adjusted Standardized Amount (ASA) shall continue to equal 69.6 percent. For wage index values less than or equal to 1.0 the labor related portion of the ASA shall continue to equal 62 percent.
TRICARE will update the adjusted standardized amounts according to the final updated hospital market basket used for the Medicare PPS for all hospitals subject to the TRICARE DRG-based payment system according to
Since TRICARE does not include capital payments in our DRG-based payments (TRICARE reimburses hospitals for their capital costs as reported annually to the contractor on a pass through basis), we will use the fixed loss cost outlier threshold calculated by CMS for paying cost outliers in the absence of capital prospective payments. For FY17, the TRICARE fixed loss cost outlier threshold is based on the sum of the applicable DRG-based payment rate plus any amounts payable for IDME plus a fixed dollar amount. Thus, for FY17, in order for a case to qualify for cost outlier payments, the costs must exceed the TRICARE DRG base payment rate (wage adjusted) for the DRG plus the IDME payment (if applicable) plus $21,710 (wage adjusted). The marginal cost factor for cost outliers continues to be 80 percent.
The FY17 TRICARE National Operating Standard Cost as a Share of Total Costs (NOSCASTC) used in calculating the cost outlier threshold is 0.921. TRICARE uses the same methodology as CMS for calculating the NOSCASTC; however, the variables are different because TRICARE uses national cost to charge ratios while CMS uses hospital specific cost to charge ratios.
Passage of the Medical Modernization Act of 2003 modified the formula multipliers to be used in the calculation of IDME adjustment factor. Since the IDME formula used by TRICARE does not include disproportionate share hospitals, the variables in the formula are different than Medicare's; however, the percentage reductions that will be applied to Medicare's formula will also be applied to the TRICARE IDME formula. The multiplier for the IDME adjustment factor for TRICARE for FY17 is 1.02.
TRICARE uses a national Medicare cost-to-charge ratio (CCR). For FY17, the Medicare CCR used for the TRICARE DRG-based payment system for acute care hospitals and neonates will be 0.2541. This is based on a weighted average of the hospital-specific Medicare CCRs (weighted by the number of Medicare discharges) after excluding hospitals not subject to the TRICARE DRG system (Sole Community Hospitals, Indian Health Service hospitals, and hospitals in Maryland). The Medicare CCR is used to calculate cost outlier payments, except for children's hospitals. The Medicare CCR has been increased by a factor of 1.0065 to include an additional allowance for bad debt. The 1.0065 factor reflects the provisions of the Middle Class Tax Relief and Job Creation Act of 2012. For children's hospital cost outliers, the CCR used is 0.2760.
The final rule published on May 21, 2014 (79 FR 29085) set forth all final claims with discharge dates of October 1, 2014, or later and reimbursed under the TRICARE DRG-Based payment system, are to be priced using the rules, weights and rates in effect on as of the date of discharge. Prior to this, all final claims were priced using the rules, weights, and rates in effective as of the date of admission.
The updated rates and weights are accessible through the Internet at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company 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 environmental impacts of the Midcontinent Supply Header Interstate Pipeline Project (MIDSHIP Project) involving construction and operation of facilities by Cheniere Midstream Holdings, Inc. (Cheniere Midstream) in Kingfisher, Canadian, Grady, Garvin, Stephens, Carter, Johnston, and Bryan Counties, Oklahoma and leased capacity on existing pipeline infrastructure in Oklahoma, Texas, and Louisiana. The Commission will use this EIS in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EIS. 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 February 27, 2017.
If you sent comments on this project to the Commission before the opening of this docket on November 9, 2016, you will need to file those comments in Docket No. PF17-3-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. 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 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 will provide equal consideration to all comments received, whether filed in written form or provided verbally. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF17-3-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, the Commission invites you to attend one of the public scoping session(s) 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 8:00 p.m. Central Standard Time. You may arrive at any time after 4:00 p.m. There will not be a formal presentation by Commission staff when the session opens. If you wish to speak, the Commission staff will hand out numbers in the order of your arrival; distribution of numbers will be discontinued at 7:00 p.m. Please see appendix 1 for additional information on the session format and conduct.
Your scoping comments will be recorded by the court reporter (with FERC staff or a representative present) and become part of the public record for this proceeding. Transcripts will be publicly available on FERC's eLibrary system (see below for instructions on using eLibrary). If a significant number of people are interested in providing verbal comments in the one-on-one settings, a time limit of 5 minutes may be implemented for each commentor.
It is important to note that 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. Representatives from Cheniere Midstream will also be present to answer project-specific questions.
Please note this is not your only public input opportunity; please refer to the review process flow chart in appendix 2.
Cheniere Midstream plans to construct and operate about 218.4 miles of mainline and lateral natural gas pipeline and appurtenant facilities from Okarche to Bennington, Oklahoma, and to lease approximately 353.0 miles of existing pipeline capacity.
Zone 1 of the MIDSHIP Project would consist of the following facilities in Oklahoma:
• Approximately 198.1 miles of new 36-inch-diameter mainline pipeline in Kingfisher, Canadian, Grady, Garvin, Stephens, Carter, Johnston, and Bryan Counties;
• approximately 20.3 miles of new 24-inch-diameter lateral pipeline (referred to as the “Chisholm Lateral”) in Kingfisher County;
• three new compressor stations, totaling 124,710 horsepower, in Canadian, Garvin, and Bryan Counties;
• nine receipt and two delivery meter stations in Kingfisher, Canadian, Grady, Garvin, and Bryan Counties; and
• other appurtenant facilities.
Zone 2 of the MIDSHIP Project would involve 353.0 miles of existing pipeline capacity leased from the Midcontinent Express Pipeline LLC, and/or Gulf Crossing Pipeline Company LLC pipelines, operated by Kinder Morgan and Boardwalk Pipeline Partners, LP, respectively.
According to Cheniere Midstream, the two-zone system would provide about 1.4 billion cubic feet of natural gas per day from the South Central Oklahoma Oil Province (SCOOP) and Sooner Trend Anadarko Basin Canadian and Kingfisher (STACK) plays in Oklahoma to growing Gulf Coast markets via deliveries to existing market hubs near Atlanta, Texas and Perryville, Louisiana. The general location of the planned project facilities is shown in appendix 3.
Construction of the planned facilities would disturb about 3,003 acres of land for the new mainline, Chisholm Lateral, and aboveground facilities. Cheniere Midstream would maintain about 1,431 acres for permanent operation of the MIDSHIP Project's facilities following construction; the remaining acreage would be restored and revert to former uses. About 66 percent of the planned mainline route and about 93 percent of the Chisholm Lateral route parallel existing pipeline or utility rights-of-way. Cheniere Midstream would not construct any new facilities or facility expansions as part of Zone 2.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action
In the EIS we will discuss 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, fisheries, and wetlands;
• vegetation and wildlife;
• endangered and threatened species;
• socioeconomics;
• land use;
• cultural resources;
• air quality and noise;
• public safety; and
• cumulative impacts.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review 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 FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EIS.
The EIS will present our independent analysis of the issues. We will publish and distribute the draft EIS for public comment. After the comment period, we will consider all timely comments and revise the document, as necessary, before issuing a final EIS. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the 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, we are using this notice to initiate consultation with the applicable State Historic Preservation Offices (SHPO), and to solicit their views and those of other government agencies, interested Native American tribes, and the public on the project's potential effects on historic properties.
We have already identified several issues that we think deserve attention based on a preliminary review of the planned facilities, the environmental information provided by Cheniere Midstream, and comments received at the project open houses. This preliminary list of issues may change based on your comments and our analysis:
• Impacts on water wells;
• threatened and endangered species;
• geological hazards; and
• pipeline route alternatives.
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 and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
Copies of the completed 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 the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 4).
Once Cheniere Midstream files its application 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
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
Public sessions or site visits will be posted on the Commission's calendar located at
Finally, Cheniere Midstream has established toll-free telephone numbers ((888) 214-7275 for general inquiries or (800) 305-2466 for landowner inquiries) and an email support address (
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the impacts of constructing and operating Valley Crossing Pipeline, LLC's (Valley Crossing) proposed Border Crossing Project located in Texas state waters approximately 30 miles east of Brownsville, Texas. The Commission will use this EA in its decision-making process to determine whether the project is consistent with the public interest.
This notice announces the opening of a public comment period also known as a scoping period. During this period, the Commission will gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific
If you sent comments on this project to the Commission before the opening of this docket on November 21, 2016, you will need to file those comments in Docket No. CP17-19-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
For your convenience, there are three 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 at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP17-19-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Valley Crossing proposes to construct and operate an approximately 1,000-foot-long, 42-inch-diameter, natural gas transmission pipeline across the international boundary between the United States of America and the United Mexican States (Mexico). The Border Crossing Project would connect the non-jurisdictional Valley Crossing System with the Mexican Marina Pipeline. The Border Crossing Project would deliver/export up to 2.6 billion cubic feet per day of natural gas to Mexico to serve electrical generation plants. As stated above, this international boundary crossing would occur in Texas state waters in the Gulf of Mexico and would affect approximately 1.5 acres of seafloor.
The general location of the proposed pipeline is shown in appendix 1.
As discussed above, Valley Crossing would also construct and operate a 165-mile-long, 42-inch-diameter, natural gas transmission pipeline system from Nueces County, Texas to the Border Crossing Project facilities. The proposed Valley Crossing System would be regulated by the Railroad Commission of Texas and does not fall under the jurisdiction of the FERC. Although these facilities are not part of the proposed action analyzed in the EA, we will include a description of these facilities and any available environmental impact information to inform stakeholders and decision-makers.
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 issuance of an Authorization. NEPA also requires us
In the EA we will discuss the potential impacts on the marine environment that could occur as a result of construction and operation of the proposed project. We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the Commission's publicly accessible administrative record, commonly referred to as eLibrary. We may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes: Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; concerned citizens; and other interested parties. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies 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 the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, 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. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
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 at
In addition, the Commission now 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
Federal Communications Commission.
Notice.
In this document, the Commission, via the Consumer and Governmental Affairs Bureau (CGB), seeks comment on whether certain docketed Commission proceedings should be terminated as dormant. The Commission's procedural rules, which were revised to streamline and improve the agency's docket management practices, delegate authority to the Chief, CGB to periodically review all open dockets and, in consultation with the responsible Bureaus or Offices, to identify those dockets that appear to be candidates for termination.
Comments are due on or before March 6, 2017, and reply comments are due on or before March 20, 2017.
Interested parties may submit comments, identified by CG Docket No. 17-22, by any of the following methods:
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express mail and Priority mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
Lauren Wilson, Consumer and Governmental Affairs Bureau at (202) 418-1607 or by email at
This is a synopsis of the Commission's Public Notice,
The full text of document DA 17-60 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document DA
Pursuant to 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the respective dates indicated in the
Pursuant to 47 CFR 1.1200
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
The revised rules, in part, delegate authority to the Chief, CGB to periodically review all open dockets and, in consultation with the responsible Bureaus or Offices, to identify those dockets that appear to be candidates for termination. These candidates include dockets in which no further action is required or contemplated, as well as those in which no pleadings or other documents have been filed for several years. However, the Commission specified that proceedings in which petitions addressing the merits are pending should not be terminated absent the parties' consent. The termination of a dormant proceeding also includes dismissal as moot of any pending petition, motion, or other request for relief that is procedural in nature or otherwise does not address the merits of the proceeding.
Prior to the termination of any particular proceeding, the Commission was directed to issue a Public Notice identifying the dockets under consideration for termination and affording interested parties an opportunity to comment. Thus, CGB has identified the dockets for possible termination in document DA 17-60, available at
Federal Election Commission.
Tuesday, February 7, 2017 at 10:00 a.m. and its continuation at the conclusion of the open meeting on February 9, 2017.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Coast Guard, Department of Homeland Security.
Notice of teleconference meeting.
The National Offshore Safety Advisory Committee will meet via teleconference to review and accept the minutes from the Fall 2016 Committee meeting and to discuss the issuance of a task statement to the Committee. The task statement is being issued by the U.S. Coast Guard and requests the Committee's input on Safety Management Systems for vessels engaging in Well Intervention Activities. This teleconference is open to the public.
The Committee will meet by teleconference on Tuesday February 21, 2017 from 10 a.m. Eastern Standard Time and will last approximately one hour. This meeting may end early if the Committee has completed its business, or it may be extended based on the number of public comments.
The meeting will be conducted via teleconference and the call in number is 1-855-475-2447. The participant code is 652 375 79. The number of teleconference lines is limited and will be available on a first come, first served basis.
For information on services for individuals with disabilities, or to request special assistance at the meeting, contact the individuals listed in the
Commander Jose Perez, Designated Federal Officer of the National Offshore Safety Advisory Committee, Commandant (CG-OES-2), U.S. Coast Guard, 2703 Martin Luther King Jr. Avenue SE., Stop 7509, Washington, DC 20593-7509; telephone (202) 372-1410, fax (202) 372-8382 or email
Notice of this meeting is in compliance with the
A copy of all meeting documentation will be available within 90 days following the teleconference at
The National Offshore Safety Advisory Committee will meet via teleconference on February 21, 2017 to discuss the introduction of a new task statement, “Safety Management Systems for Vessels Engaging in Well Intervention Activities”. The task statement may be viewed by accessing the above listed Web site. Public comments or questions will be taken at the discretion of the Designated Federal Officer during the discussion and recommendation portions of the meeting and during the public comment period, see Agenda item (4).
A complete agenda for February 21, 2017 Committee meeting is as follows:
(1) Welcoming remarks.
(2) Review and accept minutes from November 2016 Committee public meeting.
(3) New Business—Introduction of task statement requesting National Offshore Safety Advisory Committee input on Safety Management Systems for Vessels Engaging in Well Intervention Activities.
(4) Public comment period.
A public oral comment period will be held during the teleconference, and speakers are requested to limit their comments to 3 minutes. Contact one of the individuals listed above to register as a speaker.
The agenda and the proposed new task statement will be available at
Meeting minutes from this public meeting will be available for public viewing and copying at
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning information collection activities required to administer the FEMA Emergency Management Performance Grants (EMPG).
Comments must be submitted on or before April 3, 2017.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Angel McLaurine-Qualls, Program Specialist, DHS FEMA, Grant Programs Directorate, 202-786-9532. You may contact the Records Management Division for copies of the proposed
The Emergency Management Performance Grants Program (EMPG) helps facilitate a national and regional all-hazards approach to emergency response, including the development of a comprehensive program of planning, training, and exercises that provides a foundation for effective and consistent response to any threatened or actual disaster or emergency, regardless of the cause. Section 662 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 762), as amended, empowers the FEMA Administrator to continue implementation of an Emergency Management Performance Grants Program to make grants to States to assist State, local, and tribal governments in preparing for all hazards, as authorized by the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
Comments may be submitted as indicated in the
National Protection and Programs Directorate, DHS.
Notice of renewal of the Critical Infrastructure Partnership Advisory Council (CIPAC) Charter.
The Department of Homeland Security (DHS) announced the establishment of the CIPAC in a
Renee Murphy, Designated Federal Officer, Critical Infrastructure Partnership Advisory Council, Sector Outreach and Programs Division, Office of Infrastructure Protection, National Protection and Programs Directorate, U.S. Department of Homeland Security, 245 Murray Lane, Mail Stop 0607, Arlington, VA 20598-0607; telephone: (703) 603-5083; email:
(i) Critical Infrastructure owner and operator members of a DHS-recognized SCC, including their representative trade associations or equivalent organization members of a SCC as determined by the SCC.
(ii) Federal, State, local, and tribal governmental entities comprising the
Privacy Office, DHS.
Committee Management; Notice of Federal advisory committee meeting.
The DHS Data Privacy and Integrity Advisory Committee will conduct a teleconference on Tuesday, February 21, 2017. The teleconference will be open to the public.
The DHS Data Privacy and Integrity Advisory Committee will conduct a teleconference on Tuesday, February 21, 2017, from 10:00 a.m. to 12:00 p.m. Please note that the teleconference may end early if the Committee has completed its business.
This will be a call and online forum (URL will be posted on the Privacy Office Web site in advance of the meeting at
To facilitate public participation, we invite public comment on the issues to be considered by the Committee as listed in the
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The DHS Privacy Office encourages you to register for the meeting in advance by contacting Sandra Taylor, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, at
Sandra Taylor, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, 245 Murray Lane SW., Mail Stop 0655, Washington, DC 20528, by telephone (202) 343-1717, by fax (202) 343-4010, or by email to
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), Title 5, U.S.C., appendix. The DHS Data Privacy and Integrity Advisory Committee provides advice at the request of the Secretary of Homeland Security and the DHS Chief Privacy Officer on programmatic, policy, operational, administrative, and technological issues within DHS that relate to personally identifiable information, as well as data integrity and other privacy-related matters. The Committee was established by the Secretary of Homeland Security under the authority of 6 U.S.C. 451.
During the teleconference, the Committee will address and vote on draft recommendations for DHS to consider on best practices for a data breach notification should DHS suffer a significant incident. The final agenda will be posted on or before January 30, 2017, on the Committee's Web site at
Bureau of Indian Affairs, Interior.
Public meeting.
The Bureau of Indian Affairs (BIA), Office of Trust Services, Division of Water and Power, will be conducting a public meeting by teleconference to obtain input from landowners served by Indian dams on the implementation of the Water Infrastructure Improvements for the Nation Act with regard to Indian dam safety.
Written comments must be received by March 3, 2017. The teleconference will be held on Tuesday, February 14, 2017, from 1 p.m. to 4 p.m., Eastern Time.
You may submit comments by one of the following methods:
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•
Please see the
Yulan Jin, Division Chief, Water and Power, (202) 219-0941,
The Water Infrastructure Improvements for the Nation (WIIN) Act became law on December 16, 2016. Section 3101 of the WIIN Act provides for consultation with affected Indian tribes, as well as solicitation and consideration of comments and recommendations from landowners served by relevant Indian dams, within 60 days of the Act's passage Section 3101 also requires the Secretary to submit a report to Congress within 120 days of enactment (by April 14, 2017) on programmatic goals to address the deferred maintenance needs of Indian dams and funding prioritization criteria for distributing funds from the High-Hazard Indian Dam Safety Deferred Maintenance Fund and the Low-Hazard Indian Dam Safety Deferred Maintenance Fund.
Section 3101 establishes a program to address the deferred maintenance needs of Indian dams and authorizes $32.75 million per year ($22.75 million designated for high- and significant-hazard potential dams and $10 million designated for low-hazard potential dams), plus accrued interest, for each of the fiscal years 2017 through 2023. Subject to appropriations, the funds would be available to carry out maintenance, repair, and replacement activities for qualified Indian dams.
Eligible dams are defined as dams that are included under the Indian Dams Safety Act of 1994 and that are: (1) Owned by the Federal Government (per Executive Order 13327) and managed by the BIA, including dams managed under Indian Self-Determination contracts or compacts; or (2) have deferred maintenance identified by the BIA.
The BIA will be hosting a public meeting by teleconference at the date listed in the
Bureau of Indian Affairs, Interior.
Notice of Tribal consultation.
The Bureau of Indian Affairs (BIA), Office of Trust Services, Division of Water and Power, will be conducting five consultation sessions to obtain oral and written comments on the implementation of the Water Infrastructure Improvements for the Nation Act with regard to Indian dam safety.
Written comments must be received by March 3, 2017. Please see the
You may submit comments by one of the following methods:
•
•
Please see the
Yulan Jin, Division Chief, Water and Power, (202) 219-0941,
The Water Infrastructure Improvements for the Nation (WIIN) Act became law on December 16, 2016. Section 3101 of the WIIN Act provides for consultation with representatives of affected Indian tribes, as well as the solicitation and consideration of comments and recommendations from landowners served by relevant Indians dams, within 60 days of the Act's passage. Section 3101 also requires the
Section 3101 establishes a program to address the deferred maintenance needs of Indian dams and authorizes $32.75 million per year ($22.75 million designated for high- and significant-hazard potential dams and $10 million designated for low-hazard potential dams), plus accrued interest, for each of the fiscal years 2017 through 2023. Subject to appropriation, the funds would be available to carry out maintenance, repair, and replacement activities for qualified Indian dams.
Eligible high-hazard potential dams are those included in the safety of dams program established under the Indian Dams Safety Act of 1994 that are either: (1) Owned by the Federal Government and managed by BIA, including dams managed under Indian Self-Determination contracts or compacts; or (2) have deferred maintenance documented by BIA. Eligible low-hazard potential dams are those covered under the Indian Dams Safety Act of 1994 and are either: (1) Owned by the Federal Government and managed by BIA, including dams managed under Indian Self-Determination contracts or compacts; or (2) have deferred maintenance documented by BIA.
The BIA will be hosting three in-person Tribal consultation sessions. Additionally, two webinars will be held for Tribes unable to make an in-person session. Tribes were notified of these consultation sessions by letter. Tribes potentially affected by the Indian Dam Safety component of the WIIN Act include all Tribes because, while BIA has an inventory of high-hazard potential dams, no such inventory yet exists for low-hazard potential dams. For this reason, BIA also asks that Tribes notify the person listed in the
Tribal consultation sessions will be held on the following dates at the following locations:
BIA is developing drafts of the programmatic goals and funding prioritization criteria for discussion at the consultation sessions. These documents will be available at
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has issued a limited exclusion order against certain products of Robert Bosch Tool Corporation and Robert Bosch GmbH, and a cease and desist order against Robert Bosch Tool Corporation. The investigation is terminated.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on September 1, 2015, based on a complaint filed by SawStop, LLC, and SD3, LLC (together, “SawStop”). 80 FR 52791-92 (Sept. 1, 2015). The amended complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain table saws incorporating active injury mitigation technology and components thereof by reason of infringement of certain claims of United States Patent Nos. 7,225,712 (“the '712 patent”); 7,600,455 (“the '455 patent”); 7,610,836 (“the '836 patent”); 7,895,927 (“the '927 patent”); 8,011,279 (“the '279 patent”); and 8,191,450 (“the '450 patent”). The notice of investigation named as respondents Robert Bosch Tool Corp. of Mount Prospect, Illinois, and Robert Bosch GmbH of Baden-Wuerttemberg, Germany (together, “Bosch”).
The Commission terminated the investigation with respect to the '836 and '450 patents based on SawStop's withdrawal of allegations concerning
On January 27, 2016, SawStop moved for a summary determination that it satisfied the economic prong of the domestic industry requirement. On February 8, 2016, Bosch indicated that it did not oppose the motion. On March 22, 2016, the ALJ granted the unopposed motion and determined that SawStop satisfied the economic prong of the domestic industry requirement. Order No. 10 (Mar. 22, 2016),
On September 9, 2016, the ALJ issued his final initial determination finding a violation of section 337 with respect to the '927 and '279 patents, and no violation of section 337 with respect to the '712 and '455 patents. Specifically, he found that Bosch did not directly or contributorily infringe the '712 and '455 patents, but found that Bosch's REAXX table saw directly infringed the '927 and '279 patents and that Bosch's activation cartridges contributorily infringed the '927 and '279 patents. He also found that Bosch had failed to show that any of the patent claims were invalid, and that SawStop satisfied the domestic industry requirement with respect to all four patents. Based on these findings, on September 20, 2016, the ALJ recommended that a limited exclusion order issue against Bosch's infringing products, that a cease and desist order issue against Robert Bosch Tool Corporation, and that the bond during the period of Presidential review be set at zero percent. He also recommended that the scope of the exclusion order and cease and desist order specifically cover the contributorily infringing activation cartridges.
On September 26, 2016, SawStop and Bosch each petitioned for review of the ID. On October 4, 2016, the parties opposed each other's petitions. On November 10, 2016, the Commission determined not to review the ID, and requested briefing from the parties and the public on the issues of remedy, the public interest, and bonding. The Commission received responsive submissions from SawStop, Bosch, and the PowerTool Institute, Inc. on November 22, 2016, and reply submissions from SawStop and Bosch on December 2, 2016.
The Commission has determined that the appropriate remedy is a limited exclusion order prohibiting the entry of table saws incorporating active injury mitigation technology and components thereof that infringe claims 8 and 12 of the '927 patent and claims 1, 6, 16, and 17 of the '279 patent, and an order that Robert Bosch Tool Corp. cease and desist from importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), or soliciting U.S. agents or distributors of imported table saws incorporating active injury mitigation technology and components thereof that infringe claims 8 and 12 of U.S. Patent the '927 patent and claims 1, 6, 16, and 17 of the '279 patent. The Commission has determined that the public interest factors enumerated in section 337(d) and (f), 19 U.S.C. 1337(d) and (f), do not preclude the issuance of the limited exclusion order or cease and desist order. The Commission has determined that bonding at zero percent of entered value is required during the period of Presidential review, 19 U.S.C. 1337(j). Commissioner Kieff dissents as to the bond determination, and writes separately to explain his views both concerning the basis for issuing the cease and desist order and for making the bond determination. The investigation is terminated.
The Commission's order and opinion were delivered to the President and the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On January 30, 2017, a proposed Consent Decree in
The proposed Consent Decree between the parties resolves the United States' claims that EMD Millipore violated the Clean Water Act and permits it holds under the Act at EMD Millipore's manufacturing facility in Jaffrey, New Hampshire. The proposed Consent Decree requires EMD Millipore to undertake work at its facility to comply with the Act and the permits it holds and to pay a $385,000 civil penalty.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to:
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $11.75 (25 cents per page reproduction cost) payable to the United States Treasury.
On December 20, 2016, the Department of Justice lodged a proposed Second Partial Consent Decree with the United States District Court for the Northern District of California in the lawsuit entitled
Notice of the lodging of the proposed Decree was originally published in the
Comments concerning the Decree should be addressed to the Assistant Attorney General, Environment and Natural Resources Division and should refer to
All comments must be submitted no later than February 14, 2017. Comments may be submitted either by email or by mail:
The Decree may be viewed and downloaded from
For the entire Decree and its appendices, please enclose a check or money order for $40.25 (25 cents per page reproduction cost) payable to the United States Treasury. For a copy of certain portions of the Decree, please designate which portions are requested, and provide the appropriate amount of money. For the Decree without the exhibits and signature pages, the cost is $13.25 (with signature pages, $16.50). For Appendix A, the cost is $8.50. For Appendix B, the cost is $15.25. For the Mitigation Appendix, the cost is $.25.
The National Science Board's Committee on National Science and Engineering Policy (SEP), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Tuesday, February 7, 2017 at 4:30 p.m. EST.
Discussion of the charge for the new Committee on National Science and Engineering Policy.
Open.
This meeting will be held by teleconference at the National Science Foundation, 4201Wilson Blvd., Arlington, VA 22230. A public listening line will be available. Members of the public must contact the Board Office and send an email message to
Please refer to the National Science Board Web site
10:00 a.m., Tuesday, February 7, 2017.
NeighborWorks America—Gramlich Boardroom, 999 North Capitol Street NE., Washington, DC 20002.
Open (with the exception of Executive Sessions).
Jeffrey Bryson, EVP & General Counsel/Secretary, (202) 760-4101;
The General Counsel of the Corporation has certified that in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552(b)(2) and (4) permit closure of the following portion(s) of this meeting:
Nuclear Regulatory Commission.
Order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order approving the transfer of the Master Decommissioning Trust for Indian Point Nuclear Generating Unit No. 3 and James A FitzPatrick Nuclear Power
The Order was issued on January 27, 2017.
Please refer to Docket ID NRC-2017-0015 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Dr. Diane Render, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3629; email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
Entergy Nuclear Indian Point 3, LLC (ENIP3) and Entergy Nuclear Operations, Inc. (ENO) are the owner and operator, respectively, of Facility Operating License No. DPR-64 for Indian Point Nuclear Generating Unit No. 3 (Indian Point Unit 3 or IP3). IP3 is a Westinghouse pressurized-water reactor located in Westchester County, New York. Entergy Nuclear FitzPatrick, LLC (ENF) and ENO are the owner and operator, respectively, of Renewed Facility Operating License No. DPR-59 for the James A. FitzPatrick Nuclear Power Plant (FitzPatrick). FitzPatrick is a General Electric boiling-water reactor located in Oswego County, New York.
By the application dated August 16, 2016 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML16230A308), ENO requested, on behalf of itself, ENIP3, ENF, and the Power Authority of the State of New York (PASNY, which now does business as the New York Power Authority), pursuant to Title 10 of the
By Orders dated November 9, 2000 (ADAMS Accession Nos. ML003767953 and ML003768011), the NRC consented to the direct license transfers of IP3 and FitzPatrick from PASNY to their current owners and operator. As described in these Orders, however, PASNY remained the custodial holder of the decommissioning trust funds for IP3 and FitzPatrick in the Master Trust, which includes the Indian Point Unit 3 Decommissioning Trust Fund (IP3 Fund) and the FitzPatrick Decommissioning Trust Fund (FitzPatrick Fund). The Decommissioning Agreement for IP3 dated November 21, 2000, among PASNY, Entergy Nuclear, Inc. (ENI), and ENIP3, and the Decommissioning Agreement for FitzPatrick dated November 21, 2000, among PASNY, ENI, and ENF (the Decommissioning Agreements), contemplate the transfer of the decommissioning trust funds for IP3 and FitzPatrick to ENIP3 and ENF at the end of the initial terms of the IP3 and FitzPatrick operating licenses, respectively.
ENO and PASNY propose a transaction that will facilitate the transfer of control of the Master Trust to ENO, the current operator of IP3 and FitzPatrick. In addition to paying PASNY consideration for the acquisition of the Master Trust, the proposed transfer would require that ENO assume PASNY's responsibilities and obligations pursuant to the Decommissioning Agreements upon transfer of control of the Master Trust to ENO from PASNY. An Order directing the transfer of control of the Master Trust and consenting to the Master Trust Agreement amendments is required, because the terms of the Master Trust Agreement must be amended before the transfer. Under the license conditions of the operating licenses for IP3 and FitzPatrick, and the terms of the Master Trust Agreement itself, any such amendment requires the prior written consent of the Director of the Office of Nuclear Reactor Regulation. In addition, the existing license conditions do not contemplate the transfer of control of the Master Trust to ENO. Under the terms of Section 10.05 of the Master Trust Agreement, as amended, the terms of the agreement may be amended to comply with an Order issued by the NRC.
Thus, in accordance with these requirements, ENO, on behalf of ENIP3, ENF, and PASNY, requests that the NRC issue an Order directing the transfer of control of the Master Trust, consenting to an amendment to the Master Trust Agreement authorizing the
Based on its review of the information in the application, and other information before the Commission, the NRC staff approves the proposed transfer of control of the Master Trust to ENO, along with the proposed amendments to the Master Trust Agreement, as amended. In addition, the NRC staff finds that the application for the proposed license amendments complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations set forth in 10 CFR Chapter I, “Nuclear Regulatory Commission”; the facilities will operate in conformity with the application, the provisions of the Act, and the rules and regulations of the Commission; there is reasonable assurance that the activities authorized by the amendments can be conducted without endangering the public health and safety and that such activities will be conducted in compliance with the Commission's regulations; the issuance of the amendments will not be inimical to the common defense and security or to the public health and safety; and the issuance of the amendments will be in accordance with 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” of the Commission's regulations and all applicable requirements have been satisfied. The findings set forth above are supported by a safety evaluation dated January 27, 2017.
Accordingly, pursuant to Section 161i(4) of the Atomic Energy Act of 1954, as amended, and 10 CFR 50.75, It is hereby ordered that the application to transfer control of the Master Trust for IP3 and Fitzpatrick to ENO and the amendments to the Master Trust Agreement are approved.
It is further ordered that the license amendments to the operating licenses of IP3 and FitzPatrick that modify existing trust-related license conditions to reflect the transfer of control of the Master Trust to ENO and delete other existing trust-related license conditions in order to apply the generic requirements of 10 CFR 50.75(h) to IP3 and FitzPatrick, are approved. The amendments shall be issued and made effective at the time that the transfer of control of the Master Trust is completed.
This Order is effective upon issuance.
For further details with respect to this Order, see the application dated August 16, 2016, and the NRC staff safety evaluation dated January 27, 2017 (ADAMS Accession No. ML16336A492), which are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01-F21, 11555 Rockville Pike (first floor), Rockville, MD. Publicly available documents created or received at the NRC are also accessible electronically through ADAMS in the NRC Library at
Dated at Rockville, MD, this 27th day of January 2017.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Digital I&C Systems will hold a meeting on February 23, 2017, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of portions that may be closed to protect information that is proprietary pursuant to 5 U.S.C. 552b(c)(4). The agenda for the subject meeting shall be as follows:
The Subcommittee will review the Updated Proposed Rulemaking on Cybersecurity for Fuel Cycle Facilities, including regulatory analysis and draft regulatory guidance. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christina Antonescu (Telephone 301-415-6792 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland. After registering with Security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Future Plant Designs will hold a meeting on February 22, 2017, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of
The Subcommittee will receive a briefing on Advanced Reactor Design Criteria. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Michael Snodderly (Telephone 301-415-2241 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland. After registering with Security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment No. 56 to Combined Licenses (COL), NPF-93 and NPF-94. The COLs were issued to South Carolina Electric & Gas Company (the licensee); for construction and operation of the Virgil C. Summer Nuclear Station (VCSNS) Units 2 and 3, located in Fairfield County, South Carolina.
The granting of the exemption allows the changes to Tier 1 information asked for in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
The exemption and amendment were issued on November 25, 2016.
Please refer to Docket ID NRC-2008-0441 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Paul Kallan, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2809; email:
The NRC is granting an exemption from Paragraph B of Section III, “Scope and Contents,” of appendix D, “Design Certification Rule for the AP1000,” to part 52 of title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VCSNS Units 2 and 3 (COLs NPF-93 and NPF-94). The exemption documents for VCSNS Units 2 and 3 can be found in ADAMS under Accession Nos. ML16301A217 and ML16301A229, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF-93 and NPF-94 are available in ADAMS under Accession Nos. ML16301A198 and ML16301A203, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to VCSNS Units 2 and Unit 3. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated June 2, 2016, the licensee requested from the Commission an exemption from the provisions of 10 CFR part 52, appendix D, Section III.B, as part of license amendment request 16-02, “Passive Core Cooling System (PXS) Design Changes to Address Potential Gas Intrusion (LAR-16-02).”
For the reasons set forth in Section 3.1, “Evaluation of Exemption,” of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML16301A270, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption from the certified DCD Tier 1 information, with corresponding changes to Appendix C of the Facility Combined Licenses as described in the licensee's request dated June 2, 2016. This exemption is related to, and necessary for, the granting of License Amendment No. 56, which is being issued concurrently with this exemption.
3. As explained in Section 5.0, “Environmental Consideration,” of the NRC staff's Safety Evaluation (ADAMS Accession No. ML16301A270), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated June 2, 2016, the licensee requested that the NRC amend the COLs for VCSNS, Units 2 and 3, COLs NPF-93 and NPF-94. The proposed amendment is described in Section I of this
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on June 2, 2016. The exemption and amendment were issued on November 25, 2016 as part of a combined package to the licensee (ADAMS Accession No. ML16301A175).
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Future Plant Designs will hold a meeting on February 23, 2017, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the design acceptance criteria inspection progress and results for piping and human factors. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christina Antonescu (Telephone 301-415-6792 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland. After registering with Security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
U.S. Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on a revision of a currently approved information collection request (ICR) 3206-0144, More Information Needed for the Person Named, RI 38-45. As required by the Paperwork Reduction Act of as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection.
Comments are encouraged and will be accepted until April 3, 2017. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the U.S. Office of Personnel Management, Retirement Services, 1900 E Street NW., Washington, DC 20415-0001, Attention: Alberta Butler, Room 2347-E, or sent by email to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent by email to
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 functions of OPM, including whether the information will have Practical utility;
2. Evaluate the accuracy of OPM'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,
RI 38-45 is used by the Civil Service Retirement System and the Federal Employees Retirement System to identify the records of individuals with similar or the same names. It is also needed to report payments to the Internal Revenue Service.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
This notice will be published in the
On November 29, 2016, the Investors Exchange LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so as to allow sufficient time to consider the issues raised by the proposal. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of Application for an order pursuant to Section 6(c) of the Investment Company Act of 1940, as amended (the “1940 Act” or “Act”), exempting Allstate Assurance Company Separate Account B from all provisions of the Act, subject to certain conditions.
Allstate Assurance Company (the “Company”) and Allstate Assurance Company Separate Account B (the “Separate Account,” and together with the Company, the “Applicants”).
The Applicants seek an order pursuant to Section 6(c) of the 1940 Act, exempting the Separate Account from all provisions of the 1940 Act, subject to certain conditions.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request
Secretary, SEC, 100 F Street NE., Washington, DC 20549-1090. Applicants: Allstate Assurance Company and Allstate Assurance Company Separate Account B, 3100 Sanders Road, Suite J5B, Northbrook, IL 60062.
Sally Samuel, Branch Chief, Disclosure Review and Accounting Office, Division of Investment Management, at (202) 551-6795.
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 Separate Account was established as a managed separate account of the Company on August 21, 1967, for the purpose of funding certain variable annuity contracts (the “Contracts”). The Separate Account is registered as an open-end management investment company under the Act (File No. 811-01525).
2. The Separate Account has retained Provident Investment Management, LLC, to serve as the investment adviser to the Separate Account and The Variable Annuity Life Insurance Company and The Paul Revere Life Insurance Company to provide administrative services to the Separate Account. A Board of Managers, a majority of which consists of persons who are independent of the Separate Account within the meaning of the Act, currently oversees the Separate Account's operations.
3. The Separate Account is one of two investment options available under the Contracts. The other investment option under the Contracts is the Company's general account, which pays a fixed rate of interest (“Fixed Account”). As of September 30, 2016, there were a total of 125 individual Contract owners, only 47 of whom were invested in the Separate Account. Contract owners may transfer account assets between the Fixed Account and the Separate Account but only once every 12 months.
4. Redemptions have significantly reduced the Separate Account's assets over the past decade and are likely to continue notwithstanding any positive investment performance that may result in a net increase in the Separate Account's assets. As of September 30, 2016, the Separate Account had approximately $800,000 in total net assets.
5. The public offering of the Contracts under the Securities Act of 1933 (“Securities Act”) was initially registered in 1967 (File No. 2-27135). The Company discontinued the sale of new Contracts in 1984. Although the Contracts allow Contract owners to make additional contributions, the Company has not received an additional contribution under the Contracts since November 2006, which was allocated to the Fixed Account. No contributions or transfers have been allocated to the Separate Account since 2002. The Company has no intention of offering the Contracts to new purchasers, and conducts no solicitation or marketing activities with respect to the Contracts.
1. Applicants respectfully request that the Commission, pursuant to Section 6(c) of the Act, issue an Order granting an exemption from all provisions of the Act, subject to the conditions set out in Section III, below. Applicants believe, based on the grounds set out in the application, that the requested exemption meets the standards of Section 6(c) of the Act.
2. Section 6(c) of the Act authorizes the Commission to “conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from the provisions of [the Act] or of any rule or regulation thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of [the Act.]”
3. Applicants believe that the requested exemption is appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 3(c)(1) of the Act makes clear that Congress intended to exclude from the Act entities in which there is no significant public interest.
4. In addition, Applicants state that Contract owners do not need the protections afforded by the Act. Applicants assert that Contract owners are adequately protected by the fact that their longstanding relationship with the Company of over 30 years is established by the terms and conditions of the Contracts, which may not be changed without Contract owner approval except where permitted or required by applicable law. The Contracts, among other things, fix the fees and charges (including management fees) associated with the Separate Account, thus distinguishing the Separate Account from mutual funds whose expenses can change periodically. The Contracts also confer upon owners the right to receive at least annually a statement (a) reflecting the investment results for the prior year, (b) listing the investments of the Separate Account as of the date of the statement, and (c) reflecting the value of the accumulation units credited to the Contracts. Moreover, after the date of the Order requested by the application, Applicants will provide Contract owners with annual audited financial statements of the Company and the Separate Account pursuant to proposed condition 5 described below. In addition, the Contracts are governed by and administered according to state
5. Applicants state that there is very little Contract owner interest in the Separate Account. The last time a premium was received under a Contract was in November 2006, and the last time a premium or transfer was allocated to the Separate Account was in 2002. The Separate Account's assets have been declining due to redemptions over the past decade and are likely to continue to decline as the result of redemptions.
6. Applicants maintain that granting the requested relief would enable Applicants to avoid the difficulties of trying to efficiently manage the Separate Account in compliance with the diversification and other requirements of the Act as assets dwindle down to zero. Further, Applicants assert that granting the requested relief would enable Applicants to avoid the significant ongoing legal, accounting, and other costs of maintaining a registered investment company, which costs currently exceed the amount of revenues generated by the fees under the Contracts.
7. Applicants submit that the relief is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
Applicants consent to the following conditions to any Order issued by the Commission:
1. The Company will continue to be responsible for satisfying all the obligations to Contract owners as specified under the terms of their Contracts. In addition, promptly after the issuance of the Notice of the application, the Company will deliver a written document to all Contract owners that will state that the Notice has been issued; that, consequently, after the order granting the relief requested in the Notice is issued, certain legal protections afforded to Contract owners allocating assets to an investment company registered under the Act no longer apply to them; that, nevertheless, the terms and conditions of such Contracts have not changed; and that the Company continues to be responsible for satisfying all the obligations to such Contract owners as specified under the terms of their Contracts. In the event a Contract owner transfers money from the Fixed Account to the Separate Account, the Company and the Separate Account will notify such transferring Contract owner that the Separate Account is no longer a Separate Account registered under the Act and provide the Contract owner a one-time opportunity to transfer the money back into the Fixed Account prior to the 12 month holding period required by the Contracts. Any subsequent transfer by the same Contract owner from the Fixed Account to the Separate Account will be subject to the 12 month holding period required by the Contracts.
2. The Company will continue to be responsible for maintaining records of the values under each owner's Contract, providing quarterly statements and transaction confirmations to Contract owners, and all other administrative functions in connection with the Separate Account. As in the past, the Company may retain one or more administrators to provide such services, but the Company will remain ultimately responsible therefor.
3. The Separate Account will at all times continue to be operated in the manner contemplated by Rule 0-1(e)(1) and (2) under the Act. Specifically:
(a) The Separate Account will continue to be an account established and maintained by an insurance company pursuant to the laws of a state or territory of the United States under which income, gains and losses, whether or not realized, from assets allocated to the Separate Account are, in accordance with the Contracts, credited to or charged against the Separate Account without regard to other income, gains or losses of the insurance company,
(b) the Separate Account shall be legally segregated and the assets of the Separate Account will, at the time during the year that adjustments in the reserves are made, have a value at least equal to the Company's reserves and other contract liabilities with respect to the Separate Account, and, at all other times, will have a value approximately equal to or in excess of such reserves and liabilities, and
(c) that portion of the Separate Account's assets having a value equal to such reserves and contract liabilities will not be chargeable with liabilities arising out of any other business that the Company may conduct.
4. The Company and the Separate Account will operate in compliance with applicable state insurance law, including but not limited to filing annual audited financial statements of the Company and the Separate Account with the insurance department of the Company's domiciliary state.
5. The Company will provide Contract owners invested in the Separate Account with copies of the annual audited financial statements of the Company and the Separate Account.
6. The Company and the Separate Account will not solicit additional contributions from Contract owners, or resume the sale of Contracts, and will not use the Separate Account to issue any other annuity contracts that would require the Separate Account to be registered under the Act unless so registered. In addition, the Company and the Separate Account will not solicit transfers from the Fixed Account into the Separate Account. Furthermore, the Separate Account will not be used for any other business other than as a funding vehicle for the Contracts.
7. The Separate Account will re-register under the Act should the number of beneficial owners invested in the Separate Account exceed 100.
8. The Separate Account will continue to create, maintain and keep current the books and records as set forth in Rules 31a-1 and 31a-2 under the Act for the periods specified by these Rules.
For the reasons and upon the facts set forth above and in the application, Applicants submit that their exemptive request meets the standards set out in Section 6(c) of the Act and that the Commission, therefore, should grant the requested Order.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On November 18, 2016, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The rule change adopts rules that provide the basis for ICC to clear additional credit default swap contracts. Specifically, ICC is amending Chapter 26 of the ICC Rules to add Subchapters 26M and 26N to provide for the clearance of STAC and STAFC Contracts, respectively. ICC represents clearing of the additional STAC and STAFC Contracts will not require any changes to ICC's Risk Management Framework or other policies and procedures constituting rules within the meaning of the Act.
ICC represents that STAC Contracts have similar terms to the Standard European Corporate Single Name CDS contracts (“STEC Contracts”) currently cleared by ICC and governed by Subchapter 26G of the ICC Rules. Therefore, ICC states that the rules found in Subchapter 26M largely mirror the ICC Rules for STEC Contracts in Subchapter 26G, with certain modifications that reflect differences in terms and market conventions between those contracts and STAC Contracts. STAC Contracts will be denominated in United States Dollars.
ICC Rule 26M-102 (Definitions) sets forth the definitions used for the STAC Contracts. ICC represents that the definitions are substantially the same as the definitions found in Subchapter 26G of the ICC Rules, other than certain conforming changes. Similarly, ICC states that its Rules 26M-203 (Restriction on Activity), 26M-206 (Notices Required of Participants with respect to STAC Contracts), 26M-303 (STAC Contract Adjustments), 26M-309 (Acceptance of STAC Contracts by ICE Clear Credit), 26M-315 (Terms of the Cleared STAC Contract), 26M-316 (Relevant Physical Settlement Matrix Updates), 26M-502 (Specified Actions), and 26M-616 (Contract Modification) reflect or incorporate the basic contract specifications for STAC Contracts and are substantially the same as under Subchapter 26G of the ICC Rules.
ICC states that STAFC Contracts have similar terms to the Standard European Financial Corporate Single Name CDS contracts (“STEFC Contracts”) currently cleared by ICC and governed by Subchapter 26H of the ICC Rules. Thus, ICC represents that the rules found in Subchapter 26N largely mirror the ICC Rules for STEFC Contracts in Subchapter 26H, with certain modifications that reflect differences in terms and market conventions between those contracts and STAFC Contracts. STAFC Contracts will be denominated in United States Dollars.
ICC Rule 26N-102 (Definitions) sets forth the definitions used for the STAFC Contracts. ICC states that the definitions are substantially the same as the definitions found in Subchapter 26H of the ICC Rules, other than certain conforming changes. ICC represents that its Rules 26N-203 (Restriction on Activity), 26N-206 (Notices Required of Participants with respect to STAFC Contracts), 26N-303 (STAFC Contract Adjustments), 26N-309 (Acceptance of STAFC Contracts by ICE Clear Credit), 26N-315 (Terms of the Cleared STAFC Contract), 26N-316 (Relevant Physical Settlement Matrix Updates), 26N-502 (Specified Actions), and 26N-616 (Contract Modification) reflect or incorporate the basic contract specifications for STAFC Contracts and are substantially the same as under Subchapter 26H of the ICC Rules.
Section 19(b)(2)(C) of the Act
The Commission finds that the rule change is consistent with the requirements of Section 17A of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of January 2017. A copy of each 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
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Jessica Shin, Attorney-Adviser, at (202) 551-5921 or Chief Counsel's Office at (202) 551-6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE., Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The principal purpose of the proposed changes is to implement changes to the fee that ICC charges for U.S. Treasury securities collateral deposits.
In its filing with the Commission, ICC included statements concerning the purpose of and basis for the proposed rule change, security-based swap submission, or advance notice and discussed any comments it received on the proposed rule change, security-based swap submission, or advance notice. The text of these statements may be examined at the places specified in Item IV below. ICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The proposed revisions are intended to implement changes to the fee that ICC charges for U.S. Treasury securities collateral deposits. The proposed changes are described in detail as follows.
Currently, with respect to collateral deposited by Clearing Participants with ICC for the purpose of satisfying margin and Guaranty Fund requirements, ICC imposes a 5 basis point fee on U.S. Treasury securities collateral deposits.
Effective February 1, 2017, ICC will be changing the fee charged for U.S. Treasury securities collateral deposits from 5 basis points to 7.5 basis points. This fee will continue to be calculated and charged monthly, and will continue to apply to both house and client accounts. ICC believes this change will lead to an increase in the posting of cash collateral by Clearing Participants and their clients, as opposed to U.S. Treasury securities.
ICC believes the proposed rule changes are consistent with the requirements of the Act including Section 17A of the Act.
Further, ICC believes such changes are consistent with Section 17A(b)(3)(F),
ICC does not believe the proposed rule change would have any impact, or impose any burden, on competition. The proposed collateral fee change applies consistently across all market participants and implementation of the proposed collateral fee change does not preclude the implementation of similar fee changes by other market participants. Therefore, ICC does not believe the collateral fee change imposes any burden on competition that is inappropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f) of Rule 19b-4 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, security-based swap submission, or advance notice 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the opening process.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule change is to amend the ISE opening process in connection with a technology migration to a Nasdaq, Inc. (“Nasdaq”) supported architecture. INET is the proprietary core technology utilized across Nasdaq's global markets and utilized on The NASDAQ Options Market LLC (“NOM”), NASDAQ PHLX LLC (“Phlx”) and NASDAQ BX, Inc. (“BX”) (collectively “Nasdaq Exchanges”). The migration of ISE to the Nasdaq INET architecture would result in higher performance, scalability, and more robust architecture. With this system migration, the Exchange intends to adopt the Phlx opening process.
The Exchange intends to begin implementation of the proposed rule change in Q2 2017. The migration will be on a symbol by symbol basis, and the Exchange will issue an alert to Members to provide notification of the symbols that will migrate and the relevant dates.
With the re-platform, the Exchange will now be built on the Nasdaq INET architecture, which allows certain trading system functionality to be performed in parallel. The Exchange believes that this architecture change will improve the Member experience by reducing overall latency compared to the current ISE system because of the
ISE will replace its current opening process at Rule 701 with Phlx's Opening Process.
Today, for each class of options that has been approved for trading, the opening rotation is conducted by the Primary Market Maker (“PMM”) appointed to such class of options pursuant to ISE Rule 701(b)(1). The Exchange may direct that one or more trading rotations be employed on any business day to aid in producing a fair and orderly market pursuant to ISE Rule 701(a)(1). For each rotation so employed, except as the Exchange may direct, rotations are conducted in the order and manner the PMM determines to be appropriate under the circumstances pursuant to ISE Rule 701(a)(2). The PMM, with the approval of the Exchange, has the authority to determine the rotation order and manner and may also employ multiple trading rotations simultaneously pursuant to ISE Rule 701(a)(3).
Trading rotations are employed at the opening of the Exchange each business day and during the reopening of the market after a trading halt pursuant to ISE Rule 701(b). The opening rotation in each class of options is held promptly following the opening of the market for the underlying security.
Market Makers on ISE are held to quoting obligations as outlined in ISE Rule 803. Further, Market Makers quotes prior to the opening rotation, including PMM quotes, are permitted with spread differential of no more than $0.25 between the bid and offer for each options contract for which the bid is less than $2, no more than $0.40 where the bid is at least $2 but does not exceed $5, no more than $0.50 where the bid is more than $5 but does not exceed $10, no more than $0.80 where the bid is more than $10 but does not exceed $20, and no more than $1 where the bid is $20 or greater, provided that the Exchange may establish differences other than the above for one or more options series, as specified in ISE Rule 803(b)(4). These differentials are defined as Valid Width Quotes for purposes of this rule proposal.
The PMM appointed to an option class can initiate the rotation process by sending a rotation request to the Exchange or by authorizing the Exchange to auto-rotate the class. In addition, there are instances where the PMM is unable to initiate the rotation process. In such instances the Exchange may initiate the rotation process by using the Exchange's “Delayed Opening Process,” which provides an alternative method for opening an option class when the PMM is unable to initiate the rotation process.
The Exchange proposes to replace this process with an opening process similar to a recently approved Phlx opening process as noted above.
The Exchange will adopt a “Definitions” section at proposed ISE Rule 701(a), similar to Phlx Rule 1017(a), to define several terms that are used throughout the opening rule. Similar to today, the Exchange will conduct an electronic opening for all option series traded on the Exchange using its trading system (hereinafter “system”).
The Exchange proposes to define the following terms, which are described below: “ABBO,” “market for the underlying security,” “Opening Price,” “Opening Process,” “Pre-Market BBO,” “Potential Opening Price,” “Quality Opening Market,” “Valid Width Quote,” and “Zero Bid Market.”
The Exchange proposes to define “Opening Process” at proposed Rule 701(a)(4) by cross-referencing proposed Rule 701(c). The Exchange proposes to define “Opening Price” at proposed Rule 701(a)(3) by cross-referencing proposed Rule 701(h) and (j). The Exchange proposes to define “Potential Opening Price” at proposed Rule 701(a)(5) by cross-referencing proposed Rule 701(g). The Exchange proposes to define “ABBO” at proposed Rule 701(a)(1) as the Away Best Bid or Offer. The ABBO does not include ISE's market. The Exchange proposes to define “market for the underlying security” at proposed Rule 702(a)(2) as either the primary listing market or the primary volume market (defined as the market with the most liquidity in that underlying security for the previous two calendar months), as determined by the Exchange by underlying and announced to the membership on the Exchange's Web site.
The first part of the Opening Process determines what constitutes eligible interest. The Exchange proposes to adopt in proposed paragraph (b) of Rule 701 a provision that eligible opening interest includes: (i) Valid Width Quotes; (ii) Opening Sweeps; and (iii) orders. Market Makers may submit quotes,
The Exchange notes that Opening Sweeps may be submitted through the new Specialized Quote Feed or “SQF” protocol which permits one-sided orders to be entered by a Market Maker. Today, orders are entered by all participants through FIX and/or DTI on ISE. After the re-platform the INET architecture, all participants will continue to be able to submit orders through FIX, however, DTI will no longer be available. An Opening Sweep is a Market Maker order submitted for execution against eligible interest in the system during the Opening Process.
Proposed Rule 701(b)(1)(i) provides that a Market Maker assigned in a particular option may only submit an Opening Sweep if, at the time of entry of the Opening Sweep, that Market Maker has already submitted and maintains a Valid Width Quote. All Opening Sweeps in the affected series entered by a Market Maker will be cancelled immediately if that Market Maker fails to maintain a continuous quote with a Valid Width Quote in the affected series. Opening Sweeps may be entered at any price with a minimum price variation applicable to the affected series, on either side of the market, at single or multiple price level(s), and may be cancelled and re-entered. A single Market Maker may enter multiple Opening Sweeps, with each Opening Sweep at a different price level. If a Market Maker submits multiple Opening Sweeps, the system will consider only the most recent Opening Sweep at each price level submitted by such Market Maker in determining the Opening Price. Unexecuted Opening Sweeps will be cancelled once the affected series is open.
Proposed Rule 701(b)(2) states that the system will aggregate the size of all eligible interest for a particular participant category
Proposed Rule 701(c)(1) describes when the Opening Process can begin with specific time-related triggers. The proposed rule provides that the Opening Process for an option series will be conducted pursuant to proposed Rule 701(f) though (j) on or after 9:30 a.m. Eastern Time, or on or after 7:30 a.m. Eastern Time for U.S. dollar-settled foreign currency options, if: The ABBO, if any is not crossed and the system has received, within two minutes (or such shorter time as determined by the Exchange and disseminated to membership on the Exchange's Web site) of the opening trade or quote on the market for the underlying security in the case of equity options or, in the case of index options, within two minutes of the receipt of the opening price in the underlying index (or such shorter time as determined by the Exchange and disseminated to membership on the Exchange's Web site), or within two minutes of market opening for the underlying security in the case of U.S. dollar-settled foreign currency options (or such shorter time as determined by the Exchange and disseminated to membership on the Exchange's Web site)
The Exchange is proposing to state in proposed Rule 701(c)(2) that the underlying security, including indexes, must be open on the primary market for a certain time period for all options to be determined by the Exchange for the Opening Process to commence. The Exchange is proposing that the time period be no less than 100 milliseconds and no more than 5 seconds.
Proposed Rule 701(c)(3) states that the PMM assigned in a particular equity option must enter a Valid Width Quote not later than one minute following the dissemination of a quote or trade by the market for the underlying security or, in the case of index options, following the receipt of the opening price in the underlying index. The PMM assigned in a particular U.S. dollar-settled foreign currency option must enter a Valid Width Quote not later than one minute after the announced market opening. Furthermore, a CMM that submits a quote pursuant to proposed Rule 701 in any option series when the PMM's quote has not been submitted shall be required to submit continuous, two-sided quotes
This section is intended to provide information regarding the manner in which a trading halt would impact the Opening Process. Proposed Rule 701(d) states that the procedure described in this Rule may be used to reopen an option after a trading halt. The Exchange is adding that if there is a trading halt or pause in the underlying security, the Opening Process will start again irrespective of the specific times listed in proposed Rule 701(c)(1). This is because these times relate to the normal market opening in the morning.
This next section describes when the Exchange may open with a quote on its market. Proposed Rule 701(e), “Opening with a BBO (No Trade),” provides that if there are no opening quotes or orders that lock or cross each other and no routable orders locking or crossing the ABBO, the system will open with an opening quote by disseminating the Exchange's best bid and offer among quotes and orders (“BBO”) that exist in the system at that time, unless all three of the following conditions exist: (i) A Zero Bid Market; (ii) no ABBO; and (iii) no Quality Opening Market. A Quality Opening Market is determined by reviewing all Valid Width Quotes and determining if the difference of the best bid of those Valid Width Quotes and the best offer of those Valid Width Quotes are of no more than a certain width.
If all three of these conditions exist, the Exchange will calculate an Opening Quote Range pursuant to paragraph (i) and conduct the Price Discovery Mechanism or “PDM” pursuant to paragraph (j). The Exchange believes that when all three of these conditions exist, further price discovery is warranted to validate or perhaps update the Potential Opening Price and to attract additional interest to perhaps render an opening trade possible, because: (i) A Zero Bid Market reflects a lack of buying interest that could benefit from price discovery; (ii) the lack of an ABBO means there is no external check on the Exchange's market for that options series; and (iii) the lack of a Quality Opening Market indicates that the Exchange's market is wide. If no quotes or orders lock/cross each other, nothing matches and there can be no trade. The Exchange believes that when these conditions exist, it is difficult to arrive at a reasonable and expected price. If the provisions in proposed Rule 701(e)(i) through (iii) exist, an Opening Quote Range is calculated pursuant to proposed Rule 701(i) and thereafter, the
If an opening did not occur pursuant to proposed Rule 701(e) and there are opening Valid Width Quotes, or orders, that lock or cross each other, the system will calculate the Pre-Market BBO.
Proposed Rule 701(g) describes the general concept of how the system calculates the Potential Opening Price under all circumstances once the Opening Process is triggered. Specifically, the system will take into consideration all Valid Width Quotes, Opening Sweeps and orders (except All-or-None Orders that cannot be satisfied and displayed and non-displayed portions of Reserve Orders) for the option series and identify the price at which the maximum number of contracts can trade (“maximum quantity criterion”). Proposed Rule 701(h)(3)(i) and proposed Rule 701(i) at paragraphs (5) through (7) contain additional provisions related to Potential Opening Price which are discussed in further detail herein. The proposal attempts to maximize the number of contracts that can trade, and is intended to find the most reasonable and suitable price, relying on the maximization to reflect the best price.
Proposed Rule 701(g)(1) presents the scenario for more than one Potential Opening Price. When two or more Potential Opening Prices would satisfy the maximum quantity criterion and leave no contracts unexecuted, the system takes the highest and lowest of those prices and takes the mid-point; if such mid-point is not expressed as a permitted minimum price variation, it will be rounded to the minimum price variation that is closest to the closing price for the affected series from the immediately prior trading session. If there is no closing price from the immediately prior trading session, the system will round up to the minimum price variation to determine the Opening Price.
If two or more Potential Opening Prices for the affected series would satisfy the maximum quantity criterion and leave contracts unexecuted, the Opening Price will be either the lowest executable bid or highest executable offer of the largest sized side.
The system applies certain boundaries to the Potential Opening Price to help ensure that the price is a reasonable one by identifying the quality of that price; if a well-defined, fair price can be found within these boundaries, the option series can open at that price without going through a further PDM. Proposed Rule 701(h), “Opening with Trade,” provides the Exchange will open the option series for trading with a trade of Exchange interest only at the Opening Price, if certain conditions described below take place. The first condition is provided in proposed Rule 701(h)(1), the Potential Opening Price is at or within the best of the Pre-Market BBO and the ABBO. The second condition is provided for in Rule 701(h)(2), the Potential Opening Price is at or within the non-zero bid ABBO if the Pre-Market BBO is crossed. The third provision is provided for in proposed Rule 701(h)(3), where there is no ABBO, the Potential Opening Price is at or within the Pre-Market BBO which is also a Quality Opening Market.
These boundaries serve to validate the quality of the Opening Price. Proposed Rule 701(h) provides that the Exchange will open with a trade as long as it is within the defined boundaries regardless of any imbalance. The Exchange believes that since the Opening Price can be determined within a well-defined boundary and not trading through other markets, it is fair to open the market immediately with a trade and to have the remaining interest available to be executed in the displayed market. Using a boundary-based price counterbalances opening faster at a less bounded and perhaps less expected price and reduces the possibility of leaving an imbalance.
Proposed Rule 701(h)(3)(i) provides that if there is more than one Potential Opening Price which meets the conditions set forth in proposed Rule 701(h)(1), (2) or (3), where (A) no contracts would be left unexecuted and (B) any value used for the mid-point calculation (which is described in proposed Rule 701(g)) would cross either: (I) The Pre-Market BBO or (II) the ABBO, then the Exchange will open the option series for trading with an execution and use the best price which the Potential Opening Price crosses as a boundary price for the purpose of the mid-point calculation. If these aforementioned conditions are not met, an Opening Quote Range is calculated as described in proposed Rule 701(i) and the PDM, described in proposed Rule 701(j), would commence. The proposed rule explains the boundary as well as the price basis for the mid-point calculation for immediate opening with a trade, which improves the detail included in the rule. The Exchange believes that this process is logical because it seeks to select a fair and balanced price.
Proposed Rule 701(i) provides that the system will calculate an Opening Quote Range (“OQR”) for a particular option series that will be utilized in the PDM if the Exchange has not opened subject to any of the provisions described above. Provided the Exchange has been unable to open the option series under Rule 701(e) or (h), the OQR would broaden the range of prices at which the Exchange may open. This would allow additional interest to be eligible for consideration in the Opening Process. The OQR is an additional type of boundary beyond the boundaries mentioned in proposed Rule 701(g) and (h). OQR is intended to limit the Opening Price to a reasonable, middle ground price and thus reduce the potential for erroneous trades during the Opening Process. Although the Exchange applies other boundaries such as the BBO, the OQR provides a range of prices that may be able to satisfy additional contracts while still ensuring a reasonable Opening Price. The Exchange seeks to execute as much volume as is possible at the Opening Price.
Specifically, to determine the minimum value for the OQR, an amount, as defined in a table to be determined by the Exchange,
If there is more than one Potential Opening Price possible where no contracts would be left unexecuted, any price used for the mid-point calculation (which is described in proposed Rule 701(g)(1)) that is outside of the OQR will be restricted to the OQR price on that side of the market for the purposes of the mid-point calculation. Rule 701(i)(5) continues the theme of relying on both maximizing executions and looking at the correct side of the market to determine a fair price.
Proposed Rule 701(i)(6) deals with the situation where there is an away market price involved. If there is more than one Potential Opening Price possible where no contracts would be left unexecuted and the price used for the mid-point calculation (which is described in proposed Rule 701(g)(1)) is an away market price, pursuant to proposed Rule 701(g)(3), when contracts will be routed, the system will use the away market price as the Potential Opening Price. The Exchange is seeking to execute the maximum amount of volume possible at the Opening Price. The Exchange will enter into the Order Book any unfilled interest at a price equal to or inferior to the Opening Price. It should be noted, the Exchange will not trade through an away market.
Finally, proposed Rule 701(i)(7) provides if the Exchange determined that non-routable interest can receive the maximum number of Exchange interest, after routable interest has been determined by the system to satisfy the away market, then the Potential Opening Price is the price at which the maximum number of contracts can be executed, excluding the interest which will be routed to an away market, which may be executed on the Exchange as described in proposed Rule 701(g). The system will route Public Customer interest in price/time priority to satisfy the away market. This continues the theme of trying to satisfy the maximum amount of interest during the Opening Process.
If the Exchange has not opened pursuant to proposed Rule 701(e) or (h), and after the OQR is calculated pursuant to proposed Rule 701(i), the Exchange will conduct a PDM pursuant to proposed Rule 701(j). The PDM is the process by which the Exchange seeks to identify an Opening Price having not been able to do so following the process outlined thus far herein. The principles behind the PDM are, as described above, to satisfy the maximum number of contracts possible by identifying a price that may leave unexecuted contracts. However, the PDM applies a proposed, wider boundary to identify the Opening Price and the PDM involves seeking additional liquidity.
The Exchange believes that conducting the price discovery process in these situations protects opening orders from receiving a random price that does not reflect the totality of what is happening in the markets on the opening and also further protects opening interest from receiving a potentially erroneous execution price on the opening. Opening immediately has the benefit of speed and certainty, but that benefit must be weighed against the quality of the execution price and whether orders were left unexecuted. The Exchange believes that the proposed rule strikes an appropriate balance.
The proposed rule attempts to open using Exchange interest only to determine an Opening Price, provided certain conditions contained in proposed Rule 701(i) are present to ensure market participants receive a quality execution in the opening. The proposed rule does not consider away market liquidity for purposes of routing interest to other markets until the PDM, rather the away market prices are considered for purposes of avoiding trade-throughs. As a result, the Exchange might open without routing if all of the conditions described above are met. The Exchange believes that the benefit of this process is a more rapid opening with quality execution prices.
Specifically, proposed Rule 701(j)(1) provides that the system will broadcast an Imbalance Message for the affected series (which includes the symbol, side of the imbalance (unmatched contracts), size of matched contracts, size of the imbalance, and Potential Opening Price bounded by the Pre-Market BBO) to participants, and begin an “Imbalance Timer,” not to exceed three seconds. The Imbalance Timer would initially be set 200 milliseconds.
Proposed Rule 701(j)(2), states that any new interest received by the system will update the Potential Opening Price. If during or at the end of the Imbalance Timer, the Opening Price is at or within the OQR the Imbalance Timer will end and the system will open with a trade at the Opening Price if the executions consist of Exchange interest only without trading through the ABBO and without trading through the limit price(s) of interest within OQR which is unable to be fully executed at the Opening Price. If no new interest comes in during the Imbalance Timer and the Potential Opening Price is at or within OQR and does not trade through the ABBO, the Exchange will open at the end of the Imbalance Timer at the Potential Opening Price. This reflects that the Exchange is seeking to identify a price on the Exchange without routing away, yet which price may not trade through another market and the quality of which is addressed by applying the OQR boundary.
Provided the option series has not opened pursuant to proposed Rule 701(j)(2),
Proposed Rule 701(j)(3)(iii) provides when the Route Timer expires, if the Potential Opening Price is within OQR (without trading through the limit price(s) of interest within OQR that is unable to be fully executed at the Opening Price), the system will determine if the total number of contracts displayed at better prices than the Exchange's Potential Opening Price on away markets (“better priced away contracts”) would satisfy the number of marketable contracts available on the Exchange. This provision protects the unexecuted interest and should result in a fairer price. The Exchange will open the option series by routing and/or trading on the Exchange, pursuant to proposed Rule 701(j)(3)(iii) paragraphs (A) through (C).
Proposed Rule 701(j)(3)(iii)(A) provides if the total number of better priced away contracts would satisfy the number of marketable contracts available on the Exchange on either the buy or sell side, the system will route all marketable contracts on the Exchange to such better priced away markets as Intermarket Sweep Order (“ISO”) designated as Immediate-or-Cancel (“IOC”) order(s), and determine an opening Best Bid or Offer (“BBO”) that reflects the interest remaining on the Exchange. The system will price any contracts routed to away markets at the Exchange's Opening Price or pursuant to proposed Rule 701(j)(3)(iii)(B) or (C) described hereinafter. Routing away at the Exchange's Opening Price is intended to achieve the best possible price available at the time the order is received by the away market.
Proposed Rule 701(j)(3)(iii)(B) provides if the total number of better priced away contracts would not satisfy the number of marketable contracts the Exchange has, the system will determine how many contracts it has available at the Exchange Opening Price. If the total number of better priced away contracts plus the number of contracts available at the Exchange Opening Price would satisfy the number of marketable contracts on the Exchange on either the buy or sell side, the system will contemporaneously route a number of contracts that will satisfy interest at away markets at prices better than the Exchange Opening Price, and trade available contracts on the Exchange at the Exchange Opening Price. The system will price any contracts routed to away markets at the better of the Exchange Opening Price or the order's limit price pursuant to Rule 701(j)(vi)(C)(3)(ii). This continues with the theme of maximum possible execution of the interest on the Exchange or away markets.
Proposed Rule 701(j)(3)(iii)(C) provides if the total number of better priced away contracts plus the number of contracts available at the Exchange Opening Price plus the contracts available at away markets at the Exchange Opening Price would satisfy the number of marketable contracts the Exchange has on either the buy or sell side, the system will contemporaneously route a number of contracts that will satisfy interest at away markets at prices better than the Exchange Opening Price (pricing any contracts routed to away markets at the better of the Exchange Opening Price or the order's limit price), trade available contracts on the Exchange at the Exchange Opening Price, and route a number of contracts that will satisfy interest at other markets at prices equal to the Exchange Opening Price. This provision is intended to introduce routing to away markets potentially both at a better price than the Exchange Opening Price as well as at the Exchange Opening Price to access as much liquidity as possible to maximize the number of contracts able to be traded as part of the Opening Process. The Exchange routes at the better of the Exchange's Opening Price or the order's limit price to first ensure the order's limit price is not violated. Routing away at the Exchange's Opening Price is intended to achieve the best possible price available at the time the order is received by the away market.
Proposed Rule 701(j)(4) provides that the system may send up to two additional Imbalance Messages
This provision is proposed to further state that after the Route Timer has expired, the processes in proposed Rule 701(j)(3) will repeat (except no new Route Timer will be initiated). No new Route Timer is initiated because the Exchange believes that after the Route Timer has been initiated and subsequently expired, no further delay is needed before routing contracts if at any point thereafter the Exchange is able to satisfy the total number of marketable contracts the Exchange has by executing on the Exchange and routing to other markets.
Proposed Rule 701(j)(5), entitled “Forced Opening,” will describe what happens as a last resort in order to open an options series when the processes described above have not resulted in an opening of the options series. Under this process, called a Forced Opening, after all additional Imbalance Messages have occurred pursuant to proposed Rule 701(j)(4), the system will open the series executing as many contracts as possible by routing to away markets at prices better than the Exchange Opening Price for their disseminated size, trading available contracts on the Exchange at the Exchange Opening Price bounded by OQR (without trading through the limit price(s) of interest within OQR which is unable to be fully executed at the Opening Price). The system will also route contracts to away markets at prices equal to the Exchange Opening Price at their disseminated size. In this situation, the system will price any contracts routed to away markets at the better of the Exchange Opening Price or
The boundaries of OQR and limit prices within the OQR are intended to ensure a quality Opening Price as well as protect the unexecutable interest entered with a limit price which may not be able to be fully executed. There is some language in the Phlx rule that is not applicable to the ISE opening because ISE does not have automatic re-pricing of orders resting in the Rulebook. Phlx's rule permits members to provide instructions to re-enter the remaining size of an unexecuted order for automatic submission as a new order, the ISE rule will not permit this submission.
Proposed Rule 701(j)(6) provides the system will execute orders at the Opening Price that have contingencies (such as without limitation, All-or-None and Reserve Orders) and non-routable orders such as “Do-Not-Route” or “DNR” Orders,
Proposed Rule (j)(6)(i) provides the system will cancel (1) any portion of a Do-Not-Route order that would otherwise have to be routed to the exchange(s) disseminating the ABBO for an opening to occur, (2) an All-or-None Order that is not executed during the opening and is priced through the Opening Price or (3) any order that is priced through the Opening Price. All other interest will remain in the system and be eligible for trading after opening. The Exchange cancels these orders since it lacks enough liquidity to satisfy these orders on the opening yet their limit price gives the appearance that they should have been executed. The Exchange believes that participants would prefer to have these orders returned to them for further assessment rather than have these orders immediately entered onto the order book at a price which is more aggressive than the price at which the Exchange opened.
Proposed Rule 701(k) provides during the opening of the option series, where there is an execution possible, the system will give priority to Market Orders
Finally, proposed Rule 701(l) provides upon opening of the option series, regardless of an execution, the system disseminates the price and size of the Exchange's best bid and offer (BBO).
There are some differences between the Phlx and ISE rules. ISE has a Reserve Order and Phlx does not have this order type. With Reserve Orders, the displayed and non-displayed portions of Reserve Orders are considered for execution and in determining the Opening Price throughout the Opening Process. Today, ISE permits orders to route during regular trading, however, the Exchange does not perform away market routing during the opening rotation. With this proposal, routing is considered during the Opening Process.
With respect to the Opening Sweep, the Exchange proposes to adopt an order type at new Rule 715(t) entitled “Opening Sweep.” This order type is proposed to be a Market Maker order submitted for execution against eligible interest in the system during the Opening Process pursuant to Rule 701(b)(i). The Exchange believes that describing this order type within Rule 715 will provide clarity to the introduction of Opening Sweeps.
The following examples are intended to demonstrate the Opening Process.
Suppose the PMM in an option enters a quote, 2.00 (100) bid and 2.10 (100) offer and a buy order to pay 2.05 for 10 contracts is present in the system. The System also observes an ABBO is present with CBOE quoting a spread of 2.05 (100) and 2.15 (100). Given the Exchange has no interest which locks or crosses each other and does not cross the ABBO, the option opens for trading with an Exchange BBO of 2.05 (10) × 2.10 (100) and no trade. Since there is an ABBO and no Zero Bid Market, the System does not conduct the PDM and the option opens without delay.
Suppose the PMM enters the same quote in an option, 2.00 (100) bid and 2.10 (100) offer. This quote defines the pre-market BBO. CBOE disseminates a quote of 2.01 (100) by 2.09 (100), making up the ABBO. Firm A enters a buy order at 2.04 for 50 contracts. Firm B enters a sell order at 2.04 for 50 contracts. The Exchange opens with the Firm A and Firm B orders fully trading at an Opening Price of 2.04 which satisfies the condition defined in proposed Rule 701(h)(i), the Potential Opening Price is at or within the best of the Pre-Market BBO and the ABBO.
Similarly, suppose the PMM enters the same quote in an option, 2.00 (100) bid and 2.10 (100) offer. A Market Maker enters a quote of 2.00 (100) × 2.12 (100). The pre-market BBO is therefore 2.00 bid and 2.10 offer. CBOE disseminates a quote of 2.05 (100) by 2.15 (100), making up the ABBO. Firm A enters a buy order at 2.11 for 300 contracts. Firm B enters a sell order at 2.11 for 100 contracts. The option does not open for trading because the Potential Opening Price of 2.11 does not satisfy the condition defined in proposed Rule 701(h)(i), as the Potential Opening Price is outside the Pre-Market BBO. The System thereafter calculates the OQR and initiates the PDM, as discussed in proposed Rule 701(j), to facilitate the Opening Process for the option.
Assume the set up described in Example 2b and an allowable OQR of 0.04. When the PDM is initiated, the System broadcasts an Imbalance Message. At the end of the Imbalance Timer, the option opens with an Opening Price of 2.11 because it is within OQR and the ABBO. The maximum value for OQR is the lowest quote offer of 2.10 plus 0.04.
Suppose the PMM enters a quote, 2.00 (100) bid and 2.10 (100) offer and the defined allowable OQR is 0.04. If CBOE disseminates a quote of 2.00 (100) by 2.09 (100), the away offer is better than the PMM quote. Customer A enters a routable buy order at 2.10 for 150 contracts. The PDM initiates because the Potential Opening Price (2.10) is equal to the Pre-Market BBO but outside of the ABBO. The Potential Opening
Suppose the PMM enters a quote, 2.00 (100) bid and 2.10 (100) offer and the defined allowable OQR is 0.04. A Market Maker enters a quote for 2.05 (100) × 2.14 (100). Firm A enters a buy order of 250 contracts for 2.15 which is more aggressive than the expected OQR of 2.14. The PDM initiates because the Potential Opening Price of 2.15 is outside the Pre-Market BBO (2.05 × 2.10). Assume no additional interest is received during the PDM. After the final Imbalance Timer, the System opens the option for trading with an execution of 200 contracts at an Opening Price of 2.14, which is the boundary of OQR. The residual 50 contracts from Firm A are cancelled back to the participant because the limit order price of 2.15 is priced through the Opening Price of 2.14.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to adopt the Phlx Opening Process is consistent with the Act because the new rule seeks to find the best price. The proposal permits the price of the underlying security to settle down and not flicker back and forth among prices after its opening. It is common for a stock to fluctuate in price immediately upon opening; such volatility reflects a natural uncertainty about the ultimate Opening Price, while the buy and sell interest is matched. The proposed rule provides for a range of no less than 100 milliseconds and no more than 5 seconds in order to ensure that it has the ability to adjust the period for which the underlying security must be open on the primary market. The Exchange may determine that in periods of high/low volatility that allowing the underlying to be open for a longer/shorter period of time may help to ensure more stability in the marketplace prior to initiating the Opening Process.
The Exchange's proposal to adopt a “Definitions” section is consistent with the Act because the terms will assist market participants in understanding the meaning of terms used throughout the proposed Rule. The Exchange added the definitions to provide clarity and consistency throughout the proposed rule.
The first part of the Opening Process determines what constitutes eligible interest. The Exchange's proposal seeks to make clear what type of eligible opening interest is included. The Exchange notes that Valid Width Quotes; Opening Sweeps; and orders are included. The Exchange further notes that Market Makers may submit quotes, Opening Sweeps and orders, but quotes other than Valid Width Quotes will not be included in the Opening Process. Finally, All-or-None Orders
The Exchange believes that it is consistent with the Act to introduce the concept of an Opening Sweep and memorialize this order type within Rule 715(t). While the Opening Sweep is similar to an Opening Only Order,
With respect to trade allocation, the proposal notes at Rule 701(b)(2) that the system will aggregate the size of all eligible interest for a particular participant category
The proposed rule notes the specific times that eligible interest may be submitted into ISE's system. The Exchange's proposed times for entering Market Maker Valid Width Quotes and Opening Sweeps (9:25 a.m. Eastern Time) and U.S. dollar-settled foreign currency options (7:25 a.m. Eastern Time) eligible to participate in the Opening Process, are consistent with the
The Exchange's proposal at Rule 701(c)(1) describes when the Opening Process can begin with specific time-related triggers. The proposed rule, which provides that the Opening Process for an option series will be conducted on or after 9:30 a.m. Eastern Time, or on or after 7:30 a.m. Eastern Time for U.S. dollar-settled foreign currency options, provided the ABBO, if any, is not crossed and the system has received within specified time periods certain specified interest,
The Exchange's proposed rule considers the underlying security, including indexes, which must be open on the primary market for a certain time period for all options to be determined by the Exchange for the Opening Process to commence. The Exchange proposes a time period be no less than 100 milliseconds and no more than 5 seconds to permit the price of the underlying security to settle down and not flicker back and forth among prices after its opening. Since it is common for a stock to fluctuate in price immediately upon opening, the Exchange accounts for such volatility in its process. The volatility reflects a natural uncertainty about the ultimate Opening Price, while the buy and sell interest is matched. The Exchange's proposed range is consistent with the Act because it ensures that it has the ability to adjust the period for which the underlying security must be open on the primary market. The Exchange may determine that in periods of high/low volatility that allowing the underlying to be open for a longer/shorter period of time may help to ensure more stability in the marketplace prior to initiating the Opening Process.
The Exchange's proposal at Rule 701(c)(3) requires the PMM assigned in a particular equity option to enter a Valid Width Quote not later than one minute following the dissemination of a quote or trade by the market for the underlying security or, in the case of index options, following the receipt of the opening price in the underlying index. The PMM assigned in a particular U.S. dollar-settled foreign currency option must enter a Valid Width Quote also not later than one minute after the announced market opening.
Furthermore, the Exchange proposes that a CMM that submits a quote pursuant to proposed Rule 701 in any option series when the PMM's quote has not been submitted shall be required to submit continuous, two-sided quotes in such option series until such time as the PMM submits his/her quote, after which the Market Maker that submitted such quote shall be obligated to submit quotations pursuant to Rule 804(e). This proposal is consistent with the Act because the Exchange will not open if the ABBO becomes crossed or a Valid Width Quote(s) pursuant to proposed Rule 701(c)(1) is no longer present. Instead the process would restart and all eligible opening interest will continue to be considered during the Opening Process when the process is re-started. The Exchange's proposal is consistent with the Act and promotes just and equitable principles of trade because the rule reflects that the ABBO cannot be crossed because it is indicative of uncertainty in the marketplace of where the option series should be valued. The Exchange will wait for the ABBO to become uncrossed before initiating the Opening Process to ensure that there is stability in the marketplace in order to assist the Exchange in determining the Opening Price.
In order to provide certainty to market participants in the event of a trading halt, the Exchange provides in its proposal information regarding the manner in which a trading halt would impact the Opening Process. Proposed Rule 701(d) provides if there is a trading halt or pause in the underlying security, the Opening Process will start again irrespective of the specific times listed in Rule 701(c)(1). The Exchange's proposal to restart in the event of a trading halt is consistent with the Act and promotes just and equitable principles of trade because the proposed rule ensures that there is stability in the marketplace in order to assist the Exchange in determining the Opening Price.
The Exchange's proposed rule accounts for a situation where there are no opening quotes or orders that lock or cross each other and no routable orders locking or crossing the ABBO. In this situation, the system will open with an opening quote by disseminating the Exchange's best bid and offer among quotes and orders (“BBO”) that exist in the system at that time, unless all three of the following conditions exist: (i) A Zero Bid Market; (ii) no ABBO; and (iii) no Quality Opening Market.
If all three of these conditions exist, the Exchange will calculate an OQR pursuant to paragraph (i) and conduct the PDM pursuant to paragraph (j). This approach is consistent with the Act because the when all three of these conditions exist, further price discovery is warranted to validate or perhaps update the Exchange's BBO and to attract additional interest to perhaps render an opening trade possible. The Exchange notes that a Zero Bid Market reflects a lack of buying interest to assist in validating a reasonable opening BBO, the lack of an ABBO means there is no external check on the Exchange's market for that options series; and the lack of a Quality Opening Market indicates that the Exchange's market is wide. For these reasons, the Exchange believes that when these conditions exist, it is difficult to determine if the Exchange BBO is reasonable and therefore an OQR is calculated pursuant to proposed Rule 701(i) and thereafter, the PDM in proposed Rule 701(j) will initiate.
The Exchange believes that proposed rule promotes just and equitable principles of trade, because the proposed conditions involving Zero Bid Markets, no ABBO and no Quality
The proposed rule promotes just and equitable principles of trade because in arriving at the Potential Opening Price the rule considers the maximum number of contracts that can be executed, which results in a price that is logical and reasonable in light of away markets and other interest present in the system. As noted herein, the Exchange's Opening Price is bounded by the OQR without trading through the limit price(s) of interest within OQR which is unable to fully execute at the Opening Price in order to provide participants with assurance that their orders will not be traded through. Although the Exchange applies other boundaries such as the BBO, the OQR provides a range of prices that may be able to satisfy additional contracts while still ensuring a reasonable Opening Price. The Exchange seeks to execute as much volume as is possible at the Opening Price. When choosing between multiple Opening Prices when some contracts would remain unexecuted, using the lowest bid or highest offer of the largest sized side of the market promotes just and equitable principles of trade because it uses size as a tie breaker. The Exchange's method for determining the Potential Opening Price and Opening Price is consistent with the Act because the proposed process seeks to discover a reasonable price and considers both interest present in ISE's system as well as away market interest. The Exchange's method seeks to validate the Opening Price and avoid opening at aberrant prices. The rule provides for opening with a trade, which is consistent with the Act because it enables an immediate opening to occur within a certain boundary without need for the price discovery process. The boundary provides protections while still ensuring a reasonable Opening Price.
The proposed rule considers more than one Potential Opening Price, which is consistent with the Act because it forces the Potential Opening Price to fall within the OQR boundary, thereby providing price protection. Specifically, the mid-point calculation balances the price among interest participating in the Opening when there is more than one price at which the maximum number of contracts could execute. Limiting the mid-point calculation to the OQR when a price would otherwise fall outside of the OQR ensures the final mid-point price will be within the protective OQR boundary. If there is more than one Potential Opening Price possible where no contracts would be left unexecuted and any price used for the mid-point calculation is an away market price when contracts will be routed, the system will use the away market price as the Potential Opening Price.
The PDM reflects what is generally known as an imbalance process and is intended to attract liquidity to improve the price at which an option series will open as well as to maximize the number of contracts that can be executed on the opening. This process will only occur if the Exchange has not been able to otherwise open an option series utilizing the other processes available in proposed Rule 701. The Exchange believes the process presented in the PDM is consistent with just and equitable principles of trade because the process applies a proposed, wider boundary to identify the Opening Price and seeks additional liquidity. The PDM also promotes just and equitable principles of trade by taking into account whether all interest can be fully executed, which helps investors by including as much interest as possible in the Opening Process. The Exchange believes that conducting the price discovery process in these situations protects opening orders from receiving a random price that does not reflect the totality of what is happening in the markets on the opening and also further protects opening interest from receiving a potentially erroneous execution price on the opening. Opening immediately has the benefit of speed and certainty, but that benefit must be weighed against the quality of the execution price and whether orders were left unexecuted. The Exchange believes that the proposed rule strikes an appropriate balance.
It is consistent with the Act to not consider away market liquidity,
With respect to the manner in which the Exchange sends an Imbalance Message as proposed within Rule 701(j)(1), the Imbalance Message is intended to attract additional liquidity, much like an auction, using an auction message and timer. The Imbalance Timer is consistent with the Act because it would provide a reasonable time for participants to respond to the Imbalance Message before any opening interest is routed to away markets and, thereby, maximize trading on the Exchange. The Imbalance Timer would be for the same number of seconds for all options traded on the Exchange. This process will repeat, up to four iterations, until the options series opens. The Exchange believes that this process is consistent with the Act because the Exchange is seeking to identify a price on the Exchange without routing away, yet which price may not trade through another market and the quality of which is addressed by applying the OQR boundary.
Proposed Rule 701(j)(3)(iii)(C) provides if the total number of better priced away contracts plus the number of contracts available at the Exchange Opening Price plus the contracts available at away markets at the Exchange Opening Price would satisfy the number of marketable contracts the Exchange has on either the buy or sell side, the system will contemporaneously route a number of contracts that will satisfy interest at away markets at prices better than the Exchange Opening Price (pricing any contracts routed to away markets at the better of the Exchange Opening Price or the order's limit price), trade available contracts on the Exchange at the Exchange Opening Price, and route a number of contracts that will satisfy interest at other markets at prices equal to the Exchange Opening Price. This provision is consistent with the Act because it considers routing to away markets potentially both at a better price than the Exchange Opening Price as well as at the Exchange Opening Price to access as much liquidity as possible to maximize the number of contracts able to be traded as part of the Opening Process. The Exchange routes at the
Proposed Rule 701(j)(5), entitled “Forced Opening,” provides for the situation where, as a last resort, in order to open an options series when the processes described above have not resulted in an opening of the options series. Under a Forced Opening, the system will open the series executing as many contracts as possible by routing to away markets at prices better than the Exchange Opening Price for their disseminated size, trading available contracts on the Exchange at the Exchange Opening Price bounded by OQR (without trading through the limit price(s) of interest within OQR which is unable to be fully executed at the Opening Price). The system will also route contracts to away markets at prices equal to the Exchange Opening Price at their disseminated size. In this situation, the system will price any contracts routed to away markets at the better of the Exchange Opening Price or the order's limit price. Any unexecuted contracts from the imbalance not traded or routed will be cancelled back to the entering participant if they remain unexecuted and priced through the Opening Price. The Exchange believes that this process is consistent with the Act because after attempting to open by soliciting interest on ISE and considering other away market interest and considering interest responding to Imbalance Messages, the Exchange could not otherwise locate a fair and reasonable price with which to open options series.
The Exchange's proposal to memorialize the manner in which proposed rule will cancel and prioritize interest provides certainty to market participants as to the priority scheme during the Opening Process.
Finally, proposed Rule 701(l) provides upon opening of the option series, regardless of an execution, the system dissemination of the price and size of the Exchange's BBO is consistent with the Act because it clarifies the manner in which the Exchange establishes the BBO for purposes of reference upon opening.
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 proposal does not change the intense competition that exists among the options markets for options business including on the opening. Nor does the Exchange believe that the proposal will impose any burden on intra-market competition; the Opening Process involves many types of participants and interest.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
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 proposes to amend Rule 8040 (Obligations of Market Makers). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend BOX Rule 8040(a)(9) (Obligations of Market Makers) to amend the provision pertaining to trades that are more than $0.25 below parity. Additionally, the Exchange proposes to eliminate Rule 8040(a)(10), the provision providing for bids (offers) to be no more than $1 lower (higher) than the last preceding transaction plus or minus the aggregate change in the last sale price of the underlying (“the one point rule”).
First, the Exchange proposes to eliminate the one point rule as various market changes have rendered the rule obsolete and unnecessary. For example, Market Makers are subject to various quotation requirements, including bid/ask quote width requirements contained in Rule 8050. The Exchange also has an obvious error rule that contains provisions on erroneous pricing errors (
Second, the Exchange is proposing to retain Rule 8040(a)(9) as a guideline but to modify it to provide that an amount larger than $0.25 may be appropriate considering the particular market conditions (not just unusual conditions as the rule currently states). Currently, Market Makers are expected ordinarily, except in unusual market conditions, to refrain from purchasing a call option or a put option at a price more than $0.25 below parity. In the case of call options, parity is measured by the bid in the underlying security, and in the case of put options, parity is measured by the offer in the underlying security (“the parity rule”). The Exchange proposes to revise the rule to provide that the $0.25 guideline may be increased, or the rule waived, by the Exchange on a series-by-series basis.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as discussed above, the Exchange notes that the proposed rule change is substantially similar to rules at other options exchanges in the industry. As discussed above, the Exchange believes that the proposed change to revise the parity rule and eliminate the one point rule is consistent with the market maker obligations at other options exchanges.
The Exchange has neither solicited nor received comments on the proposed rule change.
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)
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Georgia (FEMA-4294-DR), dated 01/25/2017.
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.
Notice is hereby given that as a result of the President's major disaster declaration on 01/25/2017, 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 15027C and for economic injury is 150280.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-4295-DR), dated 01/25/2017.
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.
Notice is hereby given that as a result of the President's major disaster declaration on 01/25/2017, 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 15025C and for economic injury is 150260.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance only for the State of Oregon (FEMA-4296-DR), dated 01/25/2017.
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.
Notice is hereby given that as a result of the President's major disaster declaration on 01/25/2017, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15031B and for economic injury is 15032B.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Georgia (FEMA-4294-DR), dated 01/25/2017.
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.
Notice is hereby given that as a result of the President's major disaster declaration on 01/25/2017, Private Non-Profit organizations that provide essential
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 15029C and for economic injury is 15030C.
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 March 6, 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, to Carlyn Messinger, Junior Program Officer in the Office of Alumni Affairs, who may be reached on 202-632-6186 or 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.
Respondents to this registration form are U.S. government-sponsored exchange program participants and alumni. Alumni Affairs collects data from users not only to verify their status or participation in a program, but to help alumni network with one another and aid Embassy staff in their alumni outreach. Once a user account is activated, the same information may be used for contests, competitions, and other public diplomacy initiatives in support of Embassy and foreign policy goals.
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
Submit comments directly to the Office of Management and Budget (OMB) up to
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:
•
•
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Irum Zaidi, 1800 G St. NW., Suite 10300, SA-22, Washington DC 20006, who may be reached on 202-663-2588 or at
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.
West Branch Intermediate Holdings, LLC (West Branch) and Continental Rail LLC (Continental) have filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(2) for West Branch to continue in control of, and Continental to manage, New Mexico Central Railroad, LLC (NMCR), upon NMCR's becoming a Class III rail carrier. West Branch is a noncarrier limited liability company that currently controls Delta Southern Railroad, Inc. (Delta), a Class III carrier. Continental is a noncarrier formed for the purpose of managing and operating short line railroads.
This transaction is related to a concurrently filed verified notice of exemption in
The applicants certify that: (1) The carriers that are the subject of this notice do not connect with each other; (2) that this transaction is not part of a series of anticipated transactions that would connect these rail carriers with each other; and (3) the transaction does not involve a Class I carrier. The proposed transaction is therefore exempt from the prior approval requirements of 49 U.S.C. 11323 pursuant to 49 CFR 1180.2(d)(2).
The earliest the transaction could be consummated is February 16, 2017, the effective date of the exemption (30 days after the verified notice of exemption was filed). The parties expect to consummate the transaction on or about February 17, 2017.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed by February 9, 2017 (at least seven days before the exemption becomes effective).
An original and ten copies of all pleadings, referring to Docket No. FD 36087, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on: John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
On January 12, 2017, New Orleans Public Belt Railroad (NOPB), a Class III rail carrier, filed a request under 49 CFR 1180.2(d)(8) for a one-year extension of temporary overhead trackage rights over a line of railroad of the Illinois Central Railroad Company (IC), over two segments of IC's rail lines as follows: (1) IC's McComb Subdivision, between IC's connection with the Kansas City Southern Railway Company (KCS) at or near IC milepost 906.4 at East Bridge Junction in Shrewsbury, La., and IC milepost 900.8 at Orleans Junction in New Orleans, La. (approximately 5.6 miles); and (2) IC's Baton Rough Subdivision, between IC milepost 444.2 at Orleans Junction and IC milepost 443.5 at Frellsen Junction in New Orleans, La. (approximately 0.7 miles), for a total distance of approximately 6.3 miles (the Line).
NOPB was authorized to acquire the temporary overhead trackage rights over the Line by notice of exemption served and published in the
Under 49 CFR 1180.2(d)(8), the parties may, prior to the expiration of the temporary trackage rights, file a request for a renewal of the temporary rights for an additional period of up to one year, including the reasons for the extension. NOPB states that the temporary trackage rights are scheduled to expire on January 31, 2017. NOPB further states that the initial operations have been successful, and NOPB and IC have agreed to extend the rights for an additional year, to January 31, 2018, to confirm the longer-term feasibility of operations.
NOPB filed a copy of the amendment to the temporary trackage rights agreement with its request for the one-year extension. NOPB also acknowledges that any further extension of these rights, or a conversion of the rights from temporary to permanent, would require a separate notice of exemption filing pursuant to 49 CFR 1180.4(g).
In accordance with 49 CFR 1180.2(d)(8), NOPB's temporary trackage rights over the Line will be extended for one year and will expire on January 31, 2018. The employee protective conditions imposed in the October 14, 2016 notice remain in effect.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
David L. Durbano (Durbano), an individual, Saratoga Railroad, LLC (Saratoga), a noncarrier corporation wholly owned by Durbano, and Wyoming and Colorado Railroad Company, Inc. (WYCO), a Class III rail carrier controlled by Durbano,
According to the Parties, Durbano, individually and through his control and ownership of Western Group and Snowy Range Cattle Company, both noncarrier holding companies, currently owns and controls WYCO, SWRR, CVR and CACR.
The Parties state that the purpose of this transaction is to undertake a corporate reorganization for the eventual purpose of selling certain assets or stock of various Durbano-controlled railroad companies, except for Saratoga.
Unless stayed, the exemption will be effective on February 16, 2017 (30 days after the verified notice was filed).
This is a transaction within a corporate family of the type specifically exempted from prior review and approval under 49 CFR 1180.2(d)(3). The Parties state that the transaction will not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with carriers outside the corporate family.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III rail carriers.
If the notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than February 9, 2017 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36091, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW., Suite 300, Washington, DC 20037.
According to the Parties, this action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
New Mexico Central Railroad, LLC (NMCR),
On the same day NMCR filed its verified notice of exemption, West Branch and Continental also filed a verified notice of exemption in
NMCR has executed a letter of intent for it to purchase the Lines. NMCR and Southwestern are currently negotiating a purchase and sale agreement governing the purchase of the Lines as well as certain other assets. The parties expect to reach an agreement shortly, which NMCR states will not contain an interchange agreement.
NMCR certifies that its projected annual revenues resulting from the transaction will not result in its becoming a Class I or Class II rail carrier. NMCR notes, however, that its annual operating revenues will exceed $5 million. Accordingly, in compliance with 49 CFR 1150.32(e), NMCR submitted a letter on December 16, 2016, certifying that it posted the required 60-day labor notice of this transaction at the Southwestern employees' workplace at Deming. NMCR states that the notice was not served on the national offices of labor unions with employees who work on
The earliest the transaction could be consummated is February 16, 2017, and the parties expect to consummate the transaction at that time.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed by February 9, 2017 (at least seven days before the exemption becomes effective).
An original and ten copies of all pleadings, referring to Docket No. FD 36084, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on: John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
According to NMCR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
West Branch Intermediate Holdings, LLC (West Branch) and Continental Rail LLC (Continental) have filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(2), for West Branch to acquire control of, and for Continental to manage, the following Class III rail carriers: Cimarron Valley Railroad, L.C. (Cimarron), Clarkdale Arizona Central Railroad, L.C. (Clarkdale), and Wyoming and Colorado Railroad Company, Inc. (WYCO).
The applicants certify that: (1) The carriers that are the subject of this notice do not connect with each other, Delta, or NMCR; (2) this transaction is not part of a series of anticipated transactions that would connect these rail carriers with each other; and (3) the transaction does not involve a Class I carrier. The proposed transaction is therefore exempt from the prior approval requirements of 49 U.S.C. 11323 pursuant to 49 CFR 1180.2(d)(2).
The earliest the transaction could be consummated is February 16, 2017, the effective date of the exemption (30 days after the verified notice was filed). The parties expect to consummate the transaction on or about February 17, 2017.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under §§ 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed by February 9, 2017 (at least seven days before the exemption becomes effective).
An original and ten copies of all pleadings, referring to Docket No. FD 36084, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on: John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Financial Crimes Enforcement Network (“FinCEN”), U.S. Department of the Treasury.
Notice and request for comments.
FinCEN, a bureau of the U.S. Department of the Treasury (“Treasury”), invites all interested parties to comment on its proposed update and revisions to the collection of information filings by financial institutions required to file such reports under the Bank Secrecy Act (“BSA”). This notice does not propose any new regulatory requirements or changes to the requirements related to suspicious activity reporting. The data fields reflect the filing requirement for all filers of SARs under the BSA. This request for comments is being made pursuant to the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13, 44 U.S.C. 3506(c)(2)(A).
Written comments are welcome and must be received on or before April 3, 2017.
Written comments should be submitted to: Policy Division, Financial Crimes Enforcement Network,
The FinCEN Resource Center at 800-767-2825 or electronically at
The information collected on the “report” is required to be provided pursuant to 31 U.S.C. 5318(g), as implemented by FinCEN regulations 31 CFR 1020.320, § 1021.320, § 1022.320, § 1023.320, § 1024.320, § 1025.320, § 1026.320, § 1029.320, and § 1030.320. The information collected under this requirement is made available to appropriate agencies and organizations as disclosed in FinCEN's Privacy Act System of Records Notice relating to BSA Reports.
(1) Type of filing, 1e remove the reference to “document control number”
(2) Add new item 2 “Filing Institution Note to FinCEN” followed by a text field with 100 character limit. This item allows the filer to identify reports filed in response to geographical targeting orders and BSA advisories etc.
(3) Part I, item 24j, remove “no relationship to institution” option. No other changes.
(4) Part II, Items 32a and b, add “or cancels” to the current item, item 32c, remove the current item.
(5) Item 34b add “Advanced Fee” and remove “Business loan”, item 34i, remove mass marketing and replace with “Ponzi Scheme,” item 34l, add “Securities Fraud.”
(6) Item 35, change the section title to “Gaming Activities” item 35a, replace the current item with “Chip walking”, item 35b, replace the current item with “Minimal gaming with large transactions” item 35d, add “Unknown source of chips.
(7) Item 36b, remove the current item and replace with “Funnel account.”
(8) Item 37d, add “Provided questionable or false identification”.
(9) Item 38g, insert “Human Trafficking/Smuggling,” 38i, remove the current item. Item 38p, add “Transaction(s) involving foreign high risk jurisdiction”, item 38q, remove the current entry.
(10) Item 40b, remove “wash trading” from current item and add as a new item e.
(11) Item 41a add new “Application Fraud,” item 41c, add Foreclosure/Short sale fraud, item 41e, add origination fraud, and remove “reverse mortgage fraud.”
(12) Item 42, Add as new category “Cyber-event,” add new 42a “Against the Financial Institution(s),” 42b “Against the Financial Institutions customer(s),” add 42z, “Other” with the associated text field.
(13) Item 43n, remove the term “Penny Stocks”
(14) Item 48 IP Address, add item 48a, Date field (yyyy/mm/dd), and 48b Time field (hh:mm:ss in UTC).
(15) Add new item 49 Cyber-event Indicator (Multiple entries up to 99), add 49a, Command & Control IP Address, 49a1, value Text field,
(16) Part III, no change to the data items.
(17) Part IV, increase the field length for Part IV, Item 93, “Designated contact office,” to 50 characters.
(18) A comprehensive summary of the proposed SAR data fields appears as an appendix to this notice.
Request comments on the above-proposed updates/revisions and new cyber-event items to the report.
A joint filing will increase the burden to 90 minutes reporting and 60 minutes recordkeeping for a total of 2 and
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. Records required to be retained under the BSA must be retained for five years.
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, and (f) the new cyber-event items.
Critical fields are identified with the * symbol in front of the data element number.
FinCEN will derive the State through third party data as enhanced data if not provided and Country is US, Mexico or Canada and ZIP/Postal Code is provided.
FinCEN will derive ZIP + 4 through third party data as enhanced data if not provided or verified through third party data if provided.
New Data Element of County—FinCEN will derive through third party data as enhanced data.
New Data Elements for GEO Coding—FinCEN will derive through third party data as enhanced data.
New Data Element of HIFCA code—FinCEN will derive through third party data as enhanced data.
New Data Element of HIDTA code—FinCEN will derive through third party data as enhanced data.
Part I Subject Information can be repeated up to a total of 999 subjects.
* (
FinCEN will derive State through third party data as enhanced data if not provided and Country is US, Mexico or Canada and ZIP/Postal Code is provided.
FinCEN will derive ZIP + 4 through third party data as enhanced data if not provided or verified through third party data if provided.
New Data Element of County—FinCEN will derive through third party data as enhanced data.
FinCEN will derive State through third party data as enhanced data if not provided and Country is US, Mexico or Canada and ZIP/Postal Code is provided.
FinCEN will derive ZIP + 4 through third party data as enhanced data if not provided or verified through third party data if provided.
New Data Element of County—FinCEN will derive through third party data as enhanced data.
New Data Elements for GEO Coding—FinCEN will derive through third party data as enhanced data will be identified for the financial institution and any branches provided.
New Data Element of HIFCA code—FinCEN will derive through third party data as enhanced data will be identified for the financial institution and any branches provided.
New Data Element of HIDTA code—FinCEN will derive through third party data as enhanced data will be identified for the financial institution and any branches provided.
Part III Information about Financial Institution Where Activity Occurred can be repeated up to a total of 99 financial institutions.
FinCEN will derive State through third party data as enhanced data if not provided and Country is US, Mexico or Canada and ZIP/Postal Code is provided.
FinCEN will derive ZIP + 4 through third party data as enhanced data if not provided or verified through third party data if provided.
New Data Element of County—FinCEN will derive Derived through third party data as enhanced data.
New Data Elements for GEO Coding—FinCEN will derive through third party data as enhanced data.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice.
Comments should be received on or before March 6, 2017 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
44 U.S.C. 3501
Department of Veterans Affairs.
Notice of request for information.
The VA is requesting information to assist in implementing section 3 of the Veterans Mobility Safety Act of 2016 (H.R. 3471, hereafter referred to as “the Act”), which requires VA to develop a comprehensive policy regarding quality standards for
Comments in response to this request for information must be received by VA on or before February 17, 2017.
Written comments may be submitted through
Shayla Mitchell, Ph.D., MS, CRC, Rehabilitation and Prosthetic Services (10P4R), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-0366 or (202) 461-0389 (this is not a toll-free number).
Section 3 of the Act requires VA to develop a comprehensive policy regarding quality standards for automobile adaptive modification services provided to eligible Veterans and Servicemembers under VA's AAE program. In accordance with section 3(b) of the Act, the scope of this policy shall cover VA's management of its AAE program, the development of safety and quality standards for AAE and installation, provider certification by a third party organization or manufacturer, education and training of VA personnel, provider compliance with the Americans with Disabilities Act of 1990, and permitting eligible Veterans and Servicemembers to receive automobile adaptive modifications at their residence or location of choice. To comply with section 3(e) of the Act, VA must develop this policy in consultation with Veterans Service Organizations; the National Highway Transportation Administration, industry representatives; manufacturers of AAE; and other entities with expertise in installing, repairing, replacing, or manufacturing mobility equipment, or developing mobility accreditation standards for AAE. This notice and request for information serves as the means for VA to consult with these groups and entities. VA will use comments it receives to determine the best approach to developing a program that will meet the requirements in section 3(b) of the Act. VA will then draft and submit a proposed rule for public comment, and the resulting final rule and promulgated regulation will establish the policy required under section (3)(a) of the Act. Although section (3)(a) of the Act uses the term “policy,” VA contends that a regulation is required to establish the program required by section (3)(a) of the Act because of the effect this will have on VA's administration of AAE benefits. In order to publish a final rule that is effective prior to the 1-year deadline established in section 3(d)(1) of the Act, VA must expedite this consultation which will be foundational to the regulatory development process. Hence, this notice and request for information has a comment period of only 15 days in which groups and entities may reply to the questions presented in the next section below. VA believes that 15 days is sufficient to provide comments, as the groups and entities with expertise in installing, repairing, replacing, or manufacturing mobility equipment or developing mobility accreditation standards for AAE will likely have the information readily available, or can quickly compile and submit such information.
This notice is a request for information only. This does not constitute a Request for Proposal, applications, proposal abstracts, or quotations, and VA will not accept unsolicited proposals. Commenters are encouraged to provide complete but concise responses to the questions outlined below. Please note that VA will not respond to comments or other questions regarding policy plans, decisions, or issues with regard to this notice. VA may choose to contact individual commenters, and such communications would only serve to further clarify their written comments.
VA requests information that will assist in developing the program required by section (3)(a) of the Act. This includes information about VA's management of its AAE program, the development of safety and quality standards for AAE and installation, education and training of VA personnel, provider certification by a third party organization or manufacturer, provider compliance with the Americans with Disabilities Act of 1990, and permitting eligible Veterans and Servicemembers to receive automobile adaptive modifications at their residence or location of choice. Specifically, VA requests information related to the questions below:
1. How should VA define safety and quality standards for its AAE program?
a. Do such Federal government standards related to AAE safety and quality exist that VA can use or adopt? If so, what are those standards?
b. Do other government standards (
c. Do industry standards related to AAE safety and quality (as referenced above) exist that VA can use or adopt?
i. If so, what are those standards?
ii. Have such standards been tested for validity and reliability?
iii. What test(s) of validity and reliability were used to establish those standards?
2. What criteria should VA use to monitor and assess AAE safety and quality, and how should VA enforce compliance or address non-compliance with these criteria? For example:
a. Are there industry standards or checklists that are available for quality and safety inspections? If so, please provide.
b. How do other entities (
c. Should VA require all modifiers to comply with Federal Motor Vehicle Safety Standards, provide proof of insurance, provide 24-hour towing/emergency services, and provide
3. How often should VA assess the safety and quality standards referenced above?
4. How should VA define and differentiate levels of modification complexity for AAE installations?
a. How does complexity level impact adherence to the safety and quality standards referenced above?
5. What type(s) of certifications, licensure (to include state licensure), etc., should VA require from AAE modifiers?
6. What role or responsibility should beneficiaries of VA's AAE program have when there is a safety or quality concern with equipment or modifications provided under VA's AAE program?
7. What type of education or training should be required for VA personnel to be able to determine compliance and consistent application of standard for safety and quality for both AAE equipment and installation?
8. Are there suggestions of safety organizations (
This request for information constitutes a general solicitation of public comments as stated in the implementing regulations of the Paperwork Reduction Act of 1995 at 5 CFR 1320.3(h)(4). Therefore, this request for information does not impose information collection requirements (
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on January 27, 2017, for publication.
(A) a comprehensive strategy and plans for the defeat of ISIS;
(B) recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force against ISIS;
(C) public diplomacy, information operations, and cyber strategies to isolate and delegitimize ISIS and its radical Islamist ideology;
(D) identification of new coalition partners in the fight against ISIS and policies to empower coalition partners to fight ISIS and its affiliates;
(E) mechanisms to cut off or seize ISIS's financial support, including financial transfers, money laundering, oil revenue, human trafficking, sales of looted art and historical artifacts, and other revenue sources; and
(F) a detailed strategy to robustly fund the Plan.
(b)
(c)
(d) The Secretary of Defense is hereby authorized and directed to publish this memorandum in the
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 |