| Page Range | 50491-50797 | |
| FR Document |
| Page and Subject | |
|---|---|
| 82 FR 50580 - Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan | |
| 82 FR 50523 - Procedures To Adjust Customs COBRA User Fees To Reflect Inflation | |
| 82 FR 50659 - COBRA Fees To Be Adjusted for Inflation in Fiscal Year 2018 CBP Dec. 17-17 | |
| 82 FR 50578 - Safety Zone; Illinois River, Beardstown, IL | |
| 82 FR 50649 - FIFRA Scientific Advisory Panel; Notice of Public Meeting for the Clarification of Charge Questions on Alternate High-Throughput Screens To Determine Endocrine Disruption | |
| 82 FR 50652 - Meeting of the Advisory Committee on Minority Health | |
| 82 FR 50653 - National Institute of Environmental Health Sciences; Notice of Closed Meeting | |
| 82 FR 50654 - National Cancer Institute; Notice of Closed Meeting | |
| 82 FR 50653 - Center for Scientific Review; Notice of Closed Meetings | |
| 82 FR 50613 - Environmental Technologies Trade Advisory Committee (ETTAC) Public Meeting | |
| 82 FR 50638 - Meeting of the U.S. Naval Academy Board of Visitors | |
| 82 FR 50626 - Notice of Localization and Tracking System Testing Consortium | |
| 82 FR 50611 - Black Hills National Forest Advisory Board | |
| 82 FR 50580 - Report Prepared Pursuant to Executive Order 13783-Promoting Energy Independence and Economic Growth | |
| 82 FR 50666 - Notice of Intent To Amend Land Use Plans Regarding Greater Sage-Grouse Conservation and Prepare Associated Environmental Impact Statements or Environmental Assessments; Correction | |
| 82 FR 50609 - Newspapers for Publication of Legal Notices in the Eastern Region | |
| 82 FR 50666 - 2017 Second National Call for Nominations for Resource Advisory Councils and Other BLM Land Management Advisory Committees | |
| 82 FR 50650 - Notice of Issuance of Statement of Federal Financial Accounting Standards (SFFAS) 53, Budget and Accrual Reconciliation | |
| 82 FR 50662 - Louisiana; Major Disaster and Related Determinations | |
| 82 FR 50661 - Georgia; Amendment No. 6 to Notice of a Major Disaster Declaration | |
| 82 FR 50678 - Certain Stilbenic Optical Brightening Agents From China and Taiwan; Determinations | |
| 82 FR 50728 - Department of State Performance Review Board Members | |
| 82 FR 50667 - Notice of Inventory Completion: Sam Noble Oklahoma Museum of Natural History, Norman, OK | |
| 82 FR 50675 - Notice of Inventory Completion: Human Remains Repository, Department of Anthropology, University of Wyoming, Laramie, WY | |
| 82 FR 50727 - Review of the Designation as a Foreign Terrorist Organization of Haqqani Network (and Other Aliases) | |
| 82 FR 50728 - Review of the Designation as a Foreign Terrorist Organization of Islamic Jihad Union (and Other Aliases) | |
| 82 FR 50728 - Review of the Designation as a Foreign Terrorist Organization of Jaish-e-Mohammed (and Other Aliases) | |
| 82 FR 50678 - Certain Network Devices, Related Software and Components Thereof (II) Institution of Modification Proceeding | |
| 82 FR 50650 - Notice of Agreements Filed | |
| 82 FR 50733 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple IRS Information Collection Requests | |
| 82 FR 50647 - EnPowered; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 82 FR 50647 - Combined Notice of Filings #2 | |
| 82 FR 50641 - DV Trading, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 82 FR 50642 - Alabama Power Company; Notice of Institution of Section 206 Proceeding and Refund Effective Date | |
| 82 FR 50642 - Combined Notice of Filings | |
| 82 FR 50643 - Combined Notice of Filings | |
| 82 FR 50648 - Combined Notice of Filings #1 | |
| 82 FR 50648 - Lackawanna Energy Center LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 82 FR 50642 - Notice of Petition for Declaratory Order | |
| 82 FR 50644 - Combined Notice of Filings #1 | |
| 82 FR 50663 - Revision of Agency Information Collection Activity Under OMB Review: TSA Pre✓® Application Program | |
| 82 FR 50665 - New Agency Information Collection Activity Under OMB Review: Military Severely Injured Joint Support Operations Center (MSIJSOC) and Travel Protocol Office (TPO) Programs | |
| 82 FR 50654 - Current List of HHS-Certified Laboratories and Instrumented Initial Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal Agencies | |
| 82 FR 50640 - DOE/NSF High Energy Physics Advisory Panel | |
| 82 FR 50728 - Ohio River Partners Shareholders LLC-Exemption for Intra-Corporate Family Transaction-Ohio River Partners LLC | |
| 82 FR 50729 - Union Pacific Railroad Company-Abandonment and Discontinuance of Service Exemption-in Cerro Gordo County, Iowa | |
| 82 FR 50493 - Supplemental Standards of Ethical Conduct | |
| 82 FR 50612 - Initiation of Five-Year (Sunset) Reviews | |
| 82 FR 50641 - Revision of a Currently Approved Information Collection for the Energy Efficiency and Conservation Block Grant Financing Programs | |
| 82 FR 50620 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review | |
| 82 FR 50614 - Forged Steel Fittings From the People's Republic of China, Italy, and Taiwan: Initiation of Less-Than-Fair-Value Investigations | |
| 82 FR 50623 - Forged Steel Fittings From the People's Republic of China: Initiation of Countervailing Duty Investigation | |
| 82 FR 50696 - New Postal Products | |
| 82 FR 50730 - Agency Information Collection Activities: Request for Comments for a New Information Collection | |
| 82 FR 50651 - World War One Centennial Commission; Notification of Upcoming Public Advisory Meeting | |
| 82 FR 50730 - Agency Information Collection Activities: Notice of Request for Extension of Currently Approved Information Collection | |
| 82 FR 50652 - Notice of intent To Prepare a Supplemental Environmental Impact Statement for the San Ysidro Land Port of Entry (LPOE) Modernization and Expansion Project | |
| 82 FR 50622 - Citric Acid and Certain Citrate Salts From Belgium, Colombia, and Thailand: Postponement of Preliminary Determinations of Less-Than-Fair-Value Investigations | |
| 82 FR 50638 - National Assessment Governing Board Quarterly Board Meeting | |
| 82 FR 50731 - Request for Comments on the Renewal of a Previously Approved Information Collection: Cruise Vessel Security and Safety Training Provider Certification | |
| 82 FR 50628 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. 101/Chehalis River Bridge-Scour Repair in Washington State | |
| 82 FR 50656 - Modification and Clarification of the National Customs Automation Program Tests Regarding Post-Summary Corrections and Periodic Monthly Statements | |
| 82 FR 50577 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Alligator River, Columbia, NC | |
| 82 FR 50691 - Notice of Information Collection | |
| 82 FR 50689 - Standard on the Control of Hazardous Energy (Lockout/Tagout); Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) Requirements | |
| 82 FR 50530 - Medical Devices; Immunology and Microbiology Devices; Classification of the BCR-ABL Quantitation Test | |
| 82 FR 50735 - Advisory Committee on Homeless Veterans, Notice of Meeting | |
| 82 FR 50692 - Agency Information Collection Activities: Comment Request | |
| 82 FR 50697 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Reflect in the Exchange's Governing Documents, Rulebook and Fees Schedules, a Non-Substantive Corporate Branding Change, Including Changes to the Company's Name, the Intermediate's Name, and the Exchange's Name | |
| 82 FR 50711 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Reflect in the Exchange's Governing Documents, Rulebook and Fees Schedules, a Non-Substantive Corporate Branding Change, Including Changes to the Company's Name, the Intermediate's Name, and the Exchange's Name | |
| 82 FR 50716 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Reflect in the Exchange's Governing Documents, Rulebook and Fee Schedule, a Non-Substantive Corporate Branding Change, Including Changes to the Company's Name, the Intermediate's Name, and the Exchange's Name | |
| 82 FR 50703 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning Liquidity for Same Day Settlement | |
| 82 FR 50707 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Related to The Options Clearing Corporation's Default Management Policy | |
| 82 FR 50714 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Remove References To Surrender Feature for Auto-Match Submissions in the Price Improvement Auction | |
| 82 FR 50725 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Reflect in the Exchange's Governing Documents, Rulebook and Fee Schedule, a Non-Substantive Corporate Branding Change, Including Changes to the Company's Name, the Intermediate's Name, and the Exchange's Name | |
| 82 FR 50705 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Update Rule 21.1 To Adopt a New Time in Force Applicable to the Exchange's Equity Options Platform | |
| 82 FR 50719 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Related to The Options Clearing Corporation's Counterparty Credit Risk Management Policy | |
| 82 FR 50680 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 82 FR 50598 - DSM Nutritional Products, Inc.; Withdrawal of Food Additive Petition (Animal Use) | |
| 82 FR 50612 - Materials Technical Advisory Committee; Notice of Open Meeting | |
| 82 FR 50679 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 82 FR 50645 - Commission Information Collection Activities (FERC-725U); Comment Request | |
| 82 FR 50517 - Final Report: Review of Federal Energy Regulatory Commission Agency Actions Pursuant to Executive Order 13783, Promoting Energy Independence and Economic Growth | |
| 82 FR 50646 - RH energytrans, LLC; Notice of Application | |
| 82 FR 50662 - California; Major Disaster and Related Determinations | |
| 82 FR 50735 - Office of the General Counsel; Appointment of Members of the Legal Division to the Performance Review Board, Internal Revenue Service | |
| 82 FR 50661 - California; Amendment No. 1 to Notice of an Emergency Declaration | |
| 82 FR 50733 - Office of the General Counsel; Appointment of Members of the Legal Division to the Performance Review Board, Internal Revenue Service | |
| 82 FR 50661 - South Carolina; Major Disaster and Related Determinations | |
| 82 FR 50731 - Proposed Collection; Comment Request for Form 5305A-SEP | |
| 82 FR 50732 - Proposed Extension of Information Collection Request Submitted for Public Comment; Information Reporting by Applicable Large Employers on Health Insurance Coverage Offered Under Employer-Sponsored Plans | |
| 82 FR 50491 - Availability of Final Report on Regulatory Review Under Executive Order 13783 | |
| 82 FR 50511 - Clarifications to the Export Administration Regulations for the Use of License Exceptions | |
| 82 FR 50606 - Endangered and Threatened Wildlife and Plants; Removing Trichostema austromontanum ssp. compactum (Hidden Lake Bluecurls) From the Federal List of Endangered and Threatened Plants | |
| 82 FR 50640 - State Educational Agency and Local Educational Agency-School Data Collection and Reporting Under ESEA, Title I, Part A; ED-2017-ICCD-0130; Correction | |
| 82 FR 50608 - Submission for OMB Review; Comment Request | |
| 82 FR 50575 - Special Local Regulation; Atlantic Ocean, Ft. Lauderdale, FL | |
| 82 FR 50695 - New Postal Products | |
| 82 FR 50689 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection in Use Without an OMB Control Number, CJIS Name Check Form (1-791) | |
| 82 FR 50532 - Final Report: Review of the Department of the Interior Actions That Potentially Burden Domestic Energy | |
| 82 FR 50500 - Special Conditions: The Boeing Company Model 777-8 and 777-9 Airplanes; Design Roll Maneuver for Electronic Flight Controls | |
| 82 FR 50496 - Special Conditions: The Boeing Company Model 777-8 and 777-9 Airplanes; Interaction of Systems and Structures | |
| 82 FR 50581 - Special Conditions: The Boeing Company Model 777-8 and 777-9 Airplanes; Folding Wingtips | |
| 82 FR 50502 - Special Conditions: Embraer, S.A., Model ERJ 190-300 Airplane; Dive-Speed Definition With High-Speed-Protection System | |
| 82 FR 50609 - Submission for OMB Review; Comment Request | |
| 82 FR 50700 - The Relative Value Fund et al. | |
| 82 FR 50502 - Amendment of Class E Airspace; Lemoore NAS, CA | |
| 82 FR 50505 - Amendment of Class E Airspace; Prineville, OR | |
| 82 FR 50509 - Amendment of Class E Airspace; Bend, OR | |
| 82 FR 50738 - Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals With Acute Kidney Injury, and End-Stage Renal Disease Quality Incentive Program | |
| 82 FR 50686 - Steel Wire Garment Hangers From Taiwan and Vietnam; Institution of Five-Year Reviews | |
| 82 FR 50683 - Honey From China; Institution of a Five-Year Review | |
| 82 FR 50681 - Crystalline Silicon Photovoltaic Cells and Modules From China; Institution of Five-Year Reviews | |
| 82 FR 50503 - Amendment of Class E Airspace, for Stevens Point, WI | |
| 82 FR 50583 - Normal and Transport Category Rotorcraft Certification | |
| 82 FR 50508 - Establishment of Class E Airspace; Deblois, ME | |
| 82 FR 50506 - Amendment of Class D and Class E Airspace; Fort Knox, KY, and Louisville, KY | |
| 82 FR 50596 - Proposed Amendment of Class E Airspace, Greenville, NC | |
| 82 FR 50593 - Proposed Amendment of Class E Airspace, Berlin, NH | |
| 82 FR 50504 - Amendment of Class E Airspace; Scottsboro, AL | |
| 82 FR 50510 - Amendment of Class E Airspace; Oskaloosa, IA | |
| 82 FR 50594 - Proposed Amendment of Class E Airspace; Hanford, CA | |
| 82 FR 50598 - Assessment and Collection of Regulatory Fees for Fiscal Year 2017 |
Forest Service
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Navy Department
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Transportation Security Administration
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Federal Bureau of Investigation
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Office of the Secretary, Department of Energy.
Notification of final report on regulatory review.
Through this document, the Department of Energy (DOE) announces the availability of its report issued under Executive Order 13783, “
The Secretary signed the final report on October 24, 2017.
Copies of the report are available for public inspection at the U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585. Public inspection can be conducted between 9:00 a.m. and 4:00 p.m., Monday through Friday, except Federal holidays. This report is being published in its entirety and can also be accessed online at
Daniel Cohen, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW., Washington, DC 20585. Telephone: (202) 586-5000. Email:
The Department of Energy (DOE) announces the availability of its report issued under Executive Order 13783, “
On March 28, 2017, the President signed Executive Order (EO) 13783, entitled “Promoting Energy Independence and Economic Growth.” Among other things, EO 13783 requires the heads of agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, “agency actions”) that potentially burden
On May 18, 2017, I submitted to the Director of the Office of Management and Budget (OMB) the Department of Energy's (DOE) plan to review its agency actions under EO 13783. The plan was also sent to the Vice President, the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, and the Chair of the Council on Environmental Quality (CEQ). In the plan, I stated that DOE's Regulatory Reform Task Force (Task Force) would conduct the review of agency actions subject to review under EO 13783.
On May 30, 2017, DOE published in the
DOE's goal in publishing the RFI was to “create a systematic method for identifying those existing DOE rules that are obsolete, unnecessary, unjustified, or simply no longer make sense.” DOE decided to solicit views on: (a) How DOE could best conduct its analysis of existing agency actions, and (b) insights on specific rules or Department-imposed obligations that should be altered or eliminated.
The comment period on the RFI closed on July 14, 2017. DOE received 132 separate public comments from decision-makers, stakeholders, and the public on rules promulgated by DOE and the burdens some of those rules have imposed. The Task Force has evaluated these comments to achieve meaningful regulatory reform in a manner consistent with our commitment to public participation in the rulemaking process.
DOE sought views on the specific rules or Department-imposed obligations that should be altered or eliminated, because knowledge about the full effects of a rule is widely dispersed in society, and members of the public are likely to have useful information and perspectives on the benefits and burdens of existing requirements and how regulatory obligations may be updated, streamlined, revised, or repealed to better achieve regulatory objectives, while minimizing regulatory burdens, consistent with applicable law. Interested parties may also be well-positioned to identify those rules that are most in need of reform, and, thus, assist the Department in prioritizing and properly tailoring its review process.
Beyond the RFI, the Task Force reviewed DOE Directives, Orders, Manuals, and Policies designed to ensure the effective management and operation of the National Laboratories, which contribute to American economic growth and energy security. Also, with the help of the Office of Management and staff for the Under Secretary of Energy, we reviewed DOE's Directives, Orders, Manuals, and Policies specifically for burdens on domestic energy production.
In addition to the work conducted to comply with EO 13783, DOE will continue to review all agency actions to assure that DOE does not burden domestic energy production. For example, as discussed below, we will review agency actions concerning fossil fuel consumption in Federal buildings, impact of building codes, and nuclear export licensing. DOE is committed to reducing regulatory burdens on the American people to unleash domestic energy production and promote job creation and economic growth.
Based on a review of the comments received in response to the RFI, coupled with the work of the Task Force to identify both internal and external agency actions that inhibit domestic energy development and use, DOE's Task Force offers the following recommendations:
(1) Streamline Natural Gas Exports;
(2) Review National Laboratory Policies;
(3) Review National Environmental Policy Act (NEPA) Regulations; and
(4) Review the DOE Appliance Standards Program.
Several commenters encouraged DOE to expedite exports of Liquefied Natural Gas (LNG).
On September 1, 2017, DOE announced a proposed rule to provide faster approval of small-scale natural gas exports, including LNG. This measure will expedite the review and approval of applications to export small amounts of natural gas in the emerging small-scale LNG export market. Under the Natural Gas Act, DOE has jurisdiction over imports and exports of natural gas. For applications to export natural gas to countries without a qualifying free trade agreement (non-free trade agreement countries), DOE must conduct a public interest review before authorizing an export. This proposed rule provides that DOE, upon receipt of any complete application to export natural gas (including LNG) to non-free trade agreement countries, will grant the application if the application meets two criteria: The application proposes to export no more than 0.14 billion cubic feet per day (bcf/d), and the proposed export qualifies for a categorical exclusion under DOE's NEPA regulations.
For applications meeting these criteria, the exports are considered “small-scale natural gas exports” and are deemed in the public interest under the Natural Gas Act. Exports of natural gas to free trade agreement countries are already deemed in the public interest under the Act.
The Task Force will also consider whether future rulemakings can allow for expedited processing of larger-scale exports of natural gas as consistent with applicable law and DOE's statutory authority.
DOE manages several National Laboratories that support the Department's energy, science, and nuclear non-proliferation missions. As part of our review, the Task Force conducted a comprehensive review of operations and procedures at the National Labs. The National Labs conduct research and development of innovative technologies that have the potential to enable future energy production. The Task Force identified several areas for reform that would permit the National Laboratories to operate more efficiently, focusing more time and resources on their mission-critical work: Conducting early-stage research and development of innovative energy technologies that advance American economic growth and energy security.
DOE received comments on the RFI concerning streamlining and simplifying the agency's external regulations (10 CFR 1021) and internal operations to improve effectiveness and efficiency of NEPA document approval processes. The Task Force is comprehensively reviewing NEPA and offers several specific recommendations to reform DOE's NEPA processes to optimize and ensure compliance with existing statutes, CEQ regulations (40 CFR 1500-1508), and EO.
Specific NEPA recommendations include:
• Reform the NEPA process for permitting and export applications, including LNG and infrastructure.
• Review existing NEPA policies to assess whether DOE should grant more categorical exclusions. Further, enable DOE's adoption of categorical exclusions already approved by other Federal agencies, and foster interagency collaboration, such as working with the Bureau of Land Management to consider categorical exclusions for geothermal energy on Federal lands.
• Remove language in DOE Regulations (10 CFR 1021) that is not consistent with overarching CEQ regulations (40 CFR 1500-1508).
Pursuant to the Energy Policy and Conservation Act of 1975 (EPCA), DOE implements minimum energy conservation standards and separate test procedures for more than 60 categories of appliances. DOE's energy conservation standards apply to this EO because they impact U.S. energy consumption, the vast majority of which comes from oil, natural gas, coal, and nuclear resources.
Below is a summary of the various public comments and proposals that DOE has received and is considering:
•
•
○ Commenters offered similar feedback in response to the Department of Commerce's RFI pursuant to the Presidential Memorandum on Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing.
○ Commenters of both DOE's and Commerce's RFI suggest extending the time period between consideration of standards to give regulated industries more time to comply. This would require statutory changes, which are outside the scope of EO 13783.
However, DOE will consider other agency actions to reduce regulatory burdens on American families and businesses. As stated below, such reforms would give DOE more time to determine, before considering amending standards for a product, whether costs were accurately estimated and expected energy savings were realized.
The current 6-year review process may not provide adequate time for such a retrospective analysis, which is critical to determine whether energy conservation standards are working as intended and the underlying assumptions are sound.
○ In lieu of statutory changes to the 6-year review period, DOE should consider “no amended standards” determinations when supported by data and when small energy savings require significant upfront cost to achieve.
○ Consider voluntary, non-regulatory, and market-based alternatives to standards-setting. For example, when appropriate and consistent with the law, consider using established industry test procedures as the DOE test procedures.
○ Consider establishing a baseline for energy savings that qualify as not significant and thus not economically justified.
○ Refrain from enacting standards through a direct final rule because of the economic burden it may impose on households and the lack of consumer voice in the rulemaking process.
•
○ Establish internal DOE standards for how to regulate when large portions of the public would bear net costs (costs exceed benefits). Adopting a standard for determining a level at which the net cost is too large would preserve resources and mitigate burdens on consumers.
○ Conduct a retrospective review of previous standards to assess the validity of DOE's analysis before it is used in new rules. This would give DOE enough time to collect information on consumer preferences and behavior, including surveys of consumers.
•
○ Review standards for natural gas products to consider whether the standards are inconsistent with the intent of EO 13783 to minimize regulatory burdens on domestic energy resources.
○ Reconsider, or refrain from establishing, certain standards, including commercial packaged boilers, commercial and industrial fans and blowers, the refrigerated beverage vending machine standards rule published in 2016; the commercial refrigeration equipment standards rule published in 2014; the residential furnace fan rule published in 2014; and the residential water heaters standards published in 2010. Other commenters recommend maintaining many of these standards.
○ Repeal or reconsider several test procedures, including for compressors, residential central air conditioners and heat pumps, and consumer and commercial water heaters. Other commenters recommend maintaining current test procedures.
• Follow the requirements of EO 13783 when analyzing climate impacts. EO 13783 withdraws certain documents concerning the development of the Social Cost of Carbon (SCC) and requires agencies to follow the requirements of OMB Circular A-4 in climate analyses. DOE will follow these requirements in our regulations. Also, some commenters encouraged DOE not to use SCC to calculate the climate impacts of regulations.
In addition to the recommendations listed above, DOE is committed to enhancing engagement with stakeholders in an open and transparent process. Building on the listening session held on October 2, 2017, DOE is preparing to send a letter to each of the Department's Federal Advisory Committees requesting them to include regulatory reform on the agenda for their next meeting. DOE will also consider holding additional listening sessions on a semi-regular basis to gather feedback and hold the Department accountable to the public.
Furthermore, DOE will continue to consider other areas where it may be possible to relieve burdens on domestic energy production. For example, DOE will consider, consistent with Federal law, possible flexibility for regulations relating to fossil fuel consumption in Federal buildings, buildings codes, nuclear export licensing, and DOE's proposed nuclear damage contingent cost allocation rule. In short, we will remain committed to reducing burdens on all kinds of domestic energy production.
These recommendations comprise DOE's final report, which will be submitted to the Vice President, the OMB Director, the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, and the Chair of the Council on Environmental Quality, as required by section 2(d) of EO 13783.
If implemented, these recommendations would alleviate or eliminate aspects of agency actions that burden domestic energy development, production, and use.
October 24, 2017
Postal Regulatory Commission.
Final rule.
The Commission is issuing a set of rules that amend existing rules related to supplemental standards of ethical conduct for Postal Regulatory Commission employees. The rules revise the existing rules in order to better conform to Office of Government Ethics standards and accurately reflect the Commission's regulatory role under the Postal Accountability and Enhancement Act.
David A. Trissell, General Counsel, at 202-789-6820.
On May 24, 2017, the Postal Regulatory Commission (Commission) issued a notice of proposed rulemaking to revise its supplemental standards of ethical conduct, 5 CFR part 5601.
Executive branch employees are subject to multiple federal ethics laws, regulations issued by the Office of Government Ethics (OGE), and executive orders. The supplemental standards of ethical conduct at issue in this Order are additional restrictions applicable only to Commission employees. These supplemental standards of ethical conduct concern prohibited financial interests, prohibited outside employment, disqualification when seeking non-federal employment, and prior approval to engage in outside employment. For the reasons discussed below, the Commission adopts the proposed rules without alteration. OGE concurs with the Commission's proposed revisions to 5 CFR part 5601.
In 1991, Executive Order 12674, as amended by Executive Order 12731, authorized OGE to establish a single, comprehensive, and clear set of executive branch standards of ethical conduct.
In 2006, the Postal Accountability and Enhancement Act (PAEA), Public Law 109-435, 120 Stat. 3198 (2006) changed the agency's name from the Postal Rate Commission to the Postal Regulatory Commission and made several changes to the Commission's regulatory role. Order No. 3906 at 2-3. The supplemental standards of ethical conduct, existing 5 CFR part 5601, have never been amended or finalized since their 1993 adoption and remain attributed to the Postal Rate Commission. The PAEA's changes to the Commission's responsibilities drive the need to modernize the Commission's supplemental standards of ethical conduct. Moreover, experience has informed the Commission's view regarding linguistic and organizational revisions to clarify the supplemental standards of ethical conduct.
The Commission received two sets of comments pertaining to the proposed revisions to the supplemental standards of ethical conduct and the Commission's ethics rules.
Neither commenter suggested changes to the proposed rules. The Public Representative supports the proposed rules.
The proposed rules clarify the bounds of ethical conduct in several ways, including linguistic and organizational revisions to delete duplicative and outdated language as well as to improve the specificity of the provisions. For instance, the definition of “affected persons” used in existing § 5601.101(b) is being incorporated into proposed § 5601.102. Existing § 5601.101(b)'s non-exhaustive list of categories of prohibited financial interest are being restructured to form specific categories upon which the Commission will develop a prohibited securities list (PSL) applicable to Commission staff (and their spouses and dependent children). Based on years of experience with the existing rules, the Commission believes that developing the PSL will assist employees to identify financial holdings that may pose (or appear to pose) a financial conflict of interest. Having the PSL available to employees as a reference before purchasing securities will improve transparency and adherence to ethical standards. The six categories underlying the PSL properly reflect the Commission's modern regulatory role under the PAEA and are consistent with the laws prohibiting actual or apparent financial conflicts of interests.
The proposed revisions also improve the procedures related to the supplemental standards of ethical conduct. Proposed §§ 5601.101 and 5601.102 define additional terms and provide specific procedures related to exceptions, newly prohibited securities, new employees, acquisition of prohibited securities without specific intent, divestiture, and waiver. Proposed §§ 5601.103 and 5601.104 improve the procedures concerning employees that are seeking employment or prior approval for outside employment to better ensure any disqualification is prompt and appropriate. Therefore, the proposed revisions improve transparency and the ability of Commission employees to adhere to the highest ethical standards.
For these reasons and those reasons detailed in Order No. 3906, the Commission adopts the proposed rules without changes.
1. Part 5601 of title 5, Code of Federal Regulations, is amended as set forth below the signatures of this Order effective 30 days after the date of publication of this Order in the
2. The Secretary shall arrange for publication of this Order in the
Conflicts of interests.
By the Commission.
By the Office of Government Ethics.
5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); 39 U.S.C. 503; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403(a), 2635.802(a), 2635.803.
(a)
(b)
(1) The term
(2) The term
(3) The term
(4) The term
(5) The term
(6) The term
(7) The term
(8) The term
(i) Is unmarried, under age 21, and living in the household of the reporting individual; or
(ii) Is a dependent of the reporting individual within the meaning of section 152 of the Internal Revenue Code of 1986, 26 U.S.C. 152.
(a)
(b)
(1) The list shall include:
(i) An entity participating in a proceeding before the Commission in the last 4 years,
(ii) A party to a proceeding to which the Commission is a party,
(iii) An entity primarily engaged in the business of delivering packages, merchandise, or written communications,
(iv) An entity providing services or products to the Postal Service that can be expected to produce annual revenue:
(A) to a publicly held corporation exceeding $1,000,000,
(B) to any other entity exceeding $100,000,
(v) Any other entities not listed above for which a Commission employee holding a security may raise an actual or apparent loss of impartiality affecting the integrity of the Commission's programs and operations,
(vi) The parent corporation of any subsidiary described in paragraphs (b)(1)(i) through (v) of this section.
(2) The list shall not include an entity whose use of the mail is merely an incidental or minor factor in the general conduct of its business.
(c)
(d)
(e)
(f)
(2)
(3)
(g)
(a) An employee who has been assigned to or is supervising work on a particular matter that affects the financial interests of a prospective employer and who is required, in accordance with § 2635.604(a) of this title, to disqualify himself or herself from participation in that matter shall provide written notice of disqualification to the DAEO within 3 business days. The DAEO shall inform the employee's supervisor that the employee is disqualified from the matter. Public filers must comply with the notification requirement set forth in § 2635.607 of this title even when not required to disqualify from participation in a particular matter. Employees who file a notification statement in compliance with § 2635.607 of this title are not required to file a separate notice under this section.
(b) An employee may withdraw written notice under paragraph (a) of this section upon determining that disqualification from participation in the matter is no longer required. A withdrawal of disqualification shall be in writing and shall be provided to the DAEO. The DAEO shall inform the employee's supervisor that the employee is no longer disqualified from the matter.
An employee shall not engage in outside employment, either on a paid or unpaid basis, with or for an entity on the prohibited securities list described in § 5601.102(b)(1)(i) through (vi).
(a)
(b)
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for The Boeing Company (Boeing) Model 777-8 and 777-9 airplanes. These airplanes will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. These design features include systems that, directly or as a result of failure or malfunction, affect airplane structural performance. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Boeing on November 1, 2017. We must receive your comments by December 18, 2017.
Send comments identified by docket number FAA-2017-0717 using any of the following methods:
•
•
•
•
Mark Freisthler, FAA, Airframe and
The substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On April 19, 2017 (for the Model 777-8 airplane), and May 12, 2015 (for the 777-9 airplane), Boeing applied for an amendment to Type Certificate (TC) No. T00001SE to include the new Model 777-8 and 777-9 airplanes. These airplanes are derivatives of the Model 777-300ER airplane currently approved under TC No. T00001SE. The Model 777-9 airplane is a stretched-fuselage, large, twin-engine airplane with seating for 408 passengers and a maximum takeoff weight of 775,000 pounds.
The Model 777-8 airplane, a shortened-body derivative of the Model 777-9 airplane, is a large, twin-engine airplane with seating for 359 passengers and a maximum takeoff weight of 775,000 pounds.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-8 and 777-9 airplanes meet the applicable provisions of the regulations listed in TC No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 777-8 and 777-9 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Model 777-8 and 777-9 airplanes will incorporate the following novel or unusual design features:
These Boeing airplanes have full-time, digital, electronic flight-control systems (EFCS) affecting the pitch, yaw, and roll axes of the airplanes. In addition, the airplanes are equipped with on-ground load-alleviation systems to reduce braking loads. The current regulations are inadequate for considering the effects of these systems and their effects upon structural performance. These special conditions define the criteria to be used in the assessment of the effects of these systems on structures.
The general approach of accounting for the effect of system failures on structural performance would be extended to include any partial or complete system failure, alone or in combination with other partial or complete system failures, as would affect structural performance.
Active flight-control systems are capable of providing automatic responses to external inputs from sources other than pilots. These systems have been expanded in function, effectiveness, and reliability such that fly-by-wire flight controls, without a manual backup system in the event of system failures, are becoming standard equipment on larger transport-category airplanes. As a result of these advancements in flight-control technology, the current safety standards contained in part 25 do not provide an adequate basis to address an acceptable level of safety for airplanes equipped with these advanced systems. Instead, certification of these systems has been achieved by issuance of special conditions under the provisions of § 21.16.
For example, stability-augmentation systems (SAS), and to a lesser extent load-alleviation systems (LAS), have been used on transport-category airplanes for many years. Past approvals of these systems were based on both special conditions and individual findings of equivalent level of safety with existing rules.
Although autopilots are also considered active control systems, typically their control authority has been limited such that the consequences of system failures could be readily counteracted by the pilot. Now, autopilot functions are integrated into the primary flight controls and are given sufficient control authority to maneuver the airplane to its structural design limits. This advanced technology, with its expanded authority, requires a new approach to account for the interaction of control systems and structures.
The usual deterministic approach to defining the loads envelope contained in part 25 does not fully account for system effectiveness and system reliability. These automatic systems may be inoperative or may operate in a degraded mode with less than full system authority. Therefore, it is necessary to determine the structural factors of safety and operating margins such that the joint probability of structural failures, due to application of loads during system malfunctions, is not greater than that found in airplanes equipped with earlier-technology control systems. To achieve this objective, it is necessary to define the failure conditions, with their associated frequency of occurrence, to determine the structural factors of safety and operating margins that will ensure an acceptable level of safety.
Earlier automatic control systems usually provided two states: Either fully functioning, or a total loss of function. Flightcrew readily detected these conditions. The new, active, flight-control systems have failure modes that allow the system to function in the degraded mode without full authority. This degraded mode is not readily detectable by the flightcrew. Therefore, monitoring systems are required on these new systems to provide an annunciation of a condition of degraded system capability.
In these special conditions, and in the current standards and regulations, the term “any” requires the applicant to address all items covered by the term, rather than addressing only a portion of the items.
As discussed above, these special conditions are applicable to Boeing Model 777-8 and 777-9 airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-8 and 777-9 airplanes.
For airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the influence of these systems and their failure conditions must be taken into account when showing compliance with the requirements of part 25, subparts C and D.
For airplanes equipped with flight-control systems, autopilots, stability-augmentation systems, load-alleviation systems, fuel-management systems, and other systems that either directly, or as a result of failure or malfunction, affect structural performance, the following criteria must be used for showing compliance. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.
1. The criteria defined herein only address the direct structural consequences of the system responses and performance. They cannot be considered in isolation, but should be included in the overall safety evaluation of the airplane. These criteria may, in some instances, duplicate standards already established for this evaluation. These criteria are only applicable to structure the failure of which could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements, when operating in the system-degraded or inoperative mode, are not provided in these special conditions.
2. Depending upon the specific characteristics of the airplane, additional studies that go beyond the criteria provided in these special conditions may be required to demonstrate the airplane's capability to meet other realistic conditions, such as alternative gust or maneuver descriptions for an airplane equipped with a load-alleviation system.
3. The following definitions are applicable to these special conditions.
a.
b.
c.
d.
e.
1. General. The following criteria will be used in determining the influence of a system and its failure conditions on the airplane structure.
2. System fully operative. With the system fully operative, the following apply:
a. Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in part 25, subpart C (or defined by special conditions or findings of equivalent level of safety in lieu of those specified in subpart C), taking into account any special behavior of such a system or associated functions, or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds, or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.
b. The airplane must meet the strength requirements of part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure that the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.
c. The airplane must meet the aeroelastic stability requirements of § 25.629.
3. System in the failure condition. For any system-failure condition not shown to be extremely improbable, the following apply:
a. At the time of occurrence. Starting from 1g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after the failure.
i. For static-strength substantiation, these loads, multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure, are ultimate loads to be considered for design. The factor of safety is defined in Figure 1, below.
ii. For residual-strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in special condition 3.a.i. For pressurized cabins, these loads must be combined with the normal operating differential pressure.
iii. Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speeds beyond V
iv. Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.
b. For the continuation of the flight. For the airplane in the system-failed state, and considering any appropriate reconfiguration and flight limitations, the following apply:
i. The loads derived from the following conditions (or defined by special conditions or findings of equivalent level of safety in lieu of the following conditions) at speeds up to V
1. the limit symmetrical maneuvering conditions specified in §§ 25.331 and 25.345.
2. the limit gust and turbulence conditions specified in §§ 25.341 and 25.345.
3. the limit rolling conditions specified in § 25.349, and the limit unsymmetrical conditions specified in §§ 25.367, and 25.427(b) and (c).
4. the limit yaw-maneuvering conditions specified in § 25.351.
5. the limit ground-loading conditions specified in §§ 25.473, 25.491, 25.493(d), and 25.503.
ii. For static-strength substantiation, each part of the structure must be able to withstand the loads in special condition 3.b.i., multiplied by a factor of safety depending on the probability of being in this failure state.
The factor of safety is defined in Figure 2, below.
If P
iii. For residual-strength substantiation, the airplane must be able to withstand two-thirds of the ultimate loads defined in paragraph 3.b.ii. of these special conditions. For pressurized cabins, these loads must be combined with the normal operating differential pressure.
iv. If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance, then their effects must be taken into account.
v. Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3, below. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 25.629(b).
If P
vi. Freedom from aeroelastic instability must also be shown up to V′ in Figure 3, above, for any probable system-failure condition, combined with any damage required or selected for investigation by § 25.571(b).
c. Consideration of certain failure conditions may be required by other sections of part 25 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10
4. Failure indications. For system-failure detection and indication, the following apply:
a. The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by part 25, or that significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems, to achieve the objective of this requirement. These certification-maintenance requirements must be limited to components that are not readily detectable by normal detection-and-indication systems, and where service history shows that inspections will provide an adequate level of safety.
b. The existence of any failure condition, not extremely improbable, during flight, that could significantly affect the structural capability of the airplane, and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of part 25, subpart C below 1.25, or flutter margins below V″, must be signaled to the crew during flight.
5. Dispatch with known failure conditions. If the airplane is to be dispatched in a known system-failure condition that affects structural performance, or that affects the reliability of the remaining system to maintain structural performance, then the provisions of these special conditions must be met, including the provisions of special condition 2 for the dispatched condition, and special condition 3 for subsequent failures.
a. Expected operational limitations may be taken into account in establishing Pj as the probability of failure occurrence for determining the safety margin in Figure 1.
b. Flight limitations and expected operational limitations may be taken into account in establishing Qj as the combined probability of being in the dispatched failure condition, and the subsequent failure condition, for the safety margins in Figures 2 and 3.
c. These limitations must be such that the probability of being in this combined failure state, and then subsequently encountering limit load conditions, is extremely improbable. No reduction in these safety margins is allowed if the subsequent system-failure rate is greater than 10
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for The Boeing Company (Boeing) Model 777-8 and 777-9 airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is an electronic flight-control system (EFCS) that provides control of the airplane through pilot inputs to the flight computer. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Boeing on November 1, 2017. We must receive your comments by December 18, 2017.
Send comments identified by docket number FAA-2017-0718 using any of the following methods:
•
•
•
•
Mark Freisthler, FAA, Airframe and Cabin Safety Branch, AIR-675, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-1119; facsimile 425-227-1320.
The substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA finds it is unnecessary to delay the effective date and finds that good cause exists for adopting these special conditions upon publication in the
The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above. We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On April 19, 2017 (for the Model 777-8 airplane), and May 12, 2015 (for the 777-9 airplane), Boeing applied for an amendment to Type Certificate (TC) No. T00001SE to include the new Model 777-8 and 777-9 airplanes. These airplanes are derivatives of the Model 777-300ER airplane currently approved under TC No. T00001SE. The Model 777-9 is a stretched-fuselage, large, twin-engine airplane with seating for 408 passengers and a maximum takeoff weight of 775,000 pounds.
The Model 777-8, a shortened-body derivative of the 777-9, is a large, twin-engine airplane with seating for 359 passengers and a maximum takeoff weight of 775,000 pounds.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-8 and 777-9 airplanes meet the applicable provisions of the regulations listed in TC No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 777-8 and 777-9 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Model 777-8 and 777-9 airplanes will incorporate the following novel or unusual design feature:
An electronic flight-control system that provides control of the airplane through pilot inputs to the flight computer. Current part 25 airworthiness regulations account for control laws where aileron deflection is proportional to control-stick deflection. The regulations do not address nonlinearities, such as situations where output does not change in the same proportion as input, or other effects on aileron actuation that may be caused by electronic flight controls.
These special conditions differ from current regulatory requirements in that they require that the roll maneuver results from defined movements of the cockpit roll control, as opposed to defined aileron deflections. These special conditions also require an additional load condition at design maneuvering speed (V
These special conditions differ from similar special conditions previously issued on this topic. These special conditions are limited to the roll axis only, whereas other special conditions also included pitch and yaw axes. Special conditions are not required for the pitch or yaw axes, because § 25.331 at Amendment 25-141, and § 25.351 at Amendment 25-91, take into account the effects of an electronic flight-control system.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to Boeing Model 777-8 and 777-9 airplanes.
This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
In lieu of compliance to 14 CFR 25.349(a), the Model 777-8 and 777-9 airplanes must comply with the following:
The following conditions, speeds, and cockpit roll control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero, and of two-thirds of the positive maneuvering factor used in design. In determining the resulting control-surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b).
1. Conditions corresponding to steady rolling velocities must be investigated. In addition, conditions corresponding to maximum angular acceleration must be investigated for airplanes with engines or other weight concentrations outboard of the fuselage. For the angular acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time history investigation of the maneuver.
2. At V
3. At V
4. At V
Federal Aviation Administration (FAA), DOT.
Final special conditions; correction.
This document corrects an error that appeared in Docket No. FAA-2016-9403, Special Conditions No. 25-643-SC, which was published in the
The effective date of this correction is November 1, 2017.
Greg Schneider, FAA, Airframe and Cabin Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2116; facsimile 425-227-1320.
On March 17, 2017, the
In the final special conditions document (FR Doc. 2017-05329), published on March 17, 2017 (82 FR 14117), make the following correction.
On page 14119, second column, correct the last sentence in special condition no. 2 to read:
The upset maneuvers described in Advisory Circular 25-7C, “Flight Test Guide for Certification of Transport Category Airplanes,” Chapter 2, section 8, paragraph 32, sub-paragraphs c(3)(a) and (c), may be used to comply with this requirement.
Federal Aviation Administration (FAA), DOT.
Final rule, technical amendment, correction.
This action corrects a final rule, technical amendment published in
Effective 0901 UTC, November 1, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
Robert LaPlante, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4566.
The FAA published a final rule, technical amendment in the
Accordingly, pursuant to the authority delegated to me, in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward from 700 feet above the surface at Stevens Point Municipal Airport, Stevens Point, WI. Airspace reconfiguration is necessary due to the decommissioning of the Stevens Point co-located VHF omnidirectional range tactical air navigation system (VORTAC) and cancellation of the VOR approaches. This action enhances the safety and management of standard instrument approach procedures for instrument flight rules (IFR) operations at the airport.
Effective 0901 UTC, February 1, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Walter Tweedy, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5900.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E to support standard instrument approach procedures for IFR operations at the airport.
The FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface within a 6.6-mile (from a 6.5-mile) radius of Stevens Point Municipal Airport, Stevens Point, WI. The segments that extended 1.8 miles each side of the Stevens Point VORTAC extending from the 6.5-mile radius to 7 miles northeast, east, and southwest of the VORTAC, would be removed due to the decommissioning of the VORTAC and cancellation of the VOR approaches.
This action enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Scottsboro, AL, by updating the heliport name to Highland Medical Center Heliport, (formerly Jackson County Hospital), and updating the geographic coordinates of the heliport to coincide with the FAA's aeronautical database.
Effective 0901 UTC, February 1, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Highland Medical Center Heliport, Scottsboro, AL, by bringing the airport name and coordinates in line with the FAA's aeronautical database.
On August 16, 2017, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 6-mile radius of Highland
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward from 700 feet above the surface, and removes Class E airspace extending upward from 1,200 feet above the surface, at Prineville Airport, Prineville, OR, to accommodate airspace redesign for the safety and management of instrument flight rules (IFR) operations within the National Airspace System.
Effective 0901 UTC February 1, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class E airspace extending upward from 700 feet and removes Class E airspace upward from 1,200 feet above the surface at Prineville Airport, Prineville, OR, to support IFR operations under standard instrument approach procedures.
On July 5, 2017, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at Prineville Airport, Prineville, OR. Class E airspace extending upward from 700 feet above the surface is modified to within an 8-mile radius (from a 6.9-mile radius) of Prineville airport, with a 4.2-mile (from 10 miles) wide segment extending to 11.4 miles (from 12.3 miles) west of the airport. Additionally, the Class E airspace extending upward from 1,200 feet above the surface designated to Prineville Airport would be removed since this airspace area duplicates the larger Bend Class E en route airspace area. This airspace redesign is necessary for the safety and management of aircraft operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace designated as an extension to Class D airspace by removing the Notice to Airmen (NOTAM) part-time status at Godman Army Airfield (AAF) Fort Knox, KY; and Bowman Field Airport, Louisville, KY. This action also updates and corrects the geographic coordinates of these airports, and Louisville International Airport-Standiford Field (formerly Louisville Standiford Field) in the associated Class D and E airspace descriptions. This action enhances the safety and management of instrument flight rules (IFR) operations at the airport.
Effective 0901 UTC, February 1, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on-line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, GA 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D and E airspace in the Fort Knox, KY, and Louisville, KY areas, to support IFR operations at these airports.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class D and E airspace designations are published in paragraphs 5000, 6002, 6004, and 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes the NOTAM part-time status of the Class E airspace designated as an extension to a Class D surface area at Godman Army Airfield (AAF) Fort Knox, KY; and Bowman Field Airport, Louisville, KY.
Also, the geographic coordinates are amended and corrected at these airports and Louisville International-Standiford Field Airport, KY, in Class D airspace, Class E surface airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace areas extending upward from 700 feet or more above the surface to be in concert with the FAA's aeronautical database. Also, the name change of Louisville International Airport-Standiford Field, (formerly Louisville Standiford Field) is recognized.
These changes are necessary for continued safety and management of IFR operations at these airports.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace extending upward from 700 feet above the surface in Deblois, ME, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving Deblois Flight Strip. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport.
Effective 0901 UTC, February 1, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Deblois Flight Strip, Deblois, ME, to ensure the efficient use of airspace within the National Airspace System.
The FAA published a notice of proposed rulemaking (NPRM in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet or more above the surface within a 7-mile radius of Deblois Flight Strip, Deblois, ME, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for IFR operations at the airport.
Class E airspace designations are published in Paragraph 6005, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward From 700 feet above the surface at Bend Municipal Airport, Bend, OR to accommodate airspace redesign for the safety and management of instrument flight rules (IFR) operations within the National Airspace System.
Effective 0901 UTC, February 1, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class E airspace extending upward from 700 feet above the surface at Bend Municipal Airport, Bend, OR, to support IFR operations under standard instrument approach procedures.
On July 5, 2017, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at Bend Municipal Airport, Bend, OR. The airspace remains within the 4.3-mile radius of Bend Municipal Airport, with the segments extending northwest and south of the airport enlarged to 7 miles wide (from 5.2 miles) extending to 8.5 miles northwest (from 6.5 miles), and 5.8 miles wide (from 2.9 miles) extending to 8.8 miles south of the airport (from 9.3 miles south of the airport). This airspace redesign is necessary for the safety and management of aircraft operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace upward from 700 feet above the surface within a 4.3-mile radius of Bend Municipal Airport, and within the area bounded by a line starting at the point where a 300° bearing from the airport intersects the 4.3-mile radius from the airport to lat. 44°11′07″ N., long. 121°20′35″ W., to lat. 44°15′41″ N., long. 121°12′11″ W., to the point where a 054° bearing from the airport intersects the 4.3-mile radius from the airport, thence counter clockwise along the airport 4.3-mile radius to the point of beginning, and within 3.1 miles west and 2.8 miles east of the 167° bearing from the airport extending to 8.8 miles south of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This action corrects a final rule published in the
Effective 0901 UTC, December 7, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
Walter Tweedy, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX, 76177; telephone (817) 222-5900.
The FAA published a final rule in the
Subsequent to publication, The FAA found that reference to the Ottumwa, IA Class E airspace was inadvertently left in the airspace description. This action removes the wording from the legal description.
Class E airspace designations are published in paragraph 6005, respectively, of FAA Order 7400.11B, dated August 2, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
Accordingly, pursuant to the authority delegated to me, in the
Bureau of Industry and Security, Commerce.
Final rule.
This final rule makes clarifications to the Export Administration Regulations (EAR) to provide guidance based on existing agency understanding and practice on the use of two license exceptions. Specifically, this final rule makes three clarifications to License Exception Governments, International Organizations, International Inspections under the Chemical Weapons Convention, and the International Space Station (GOV) and adds five notes, along with making other minor clarifications, to License Exception Strategic Trade Authorization (STA). These revisions respond to questions BIS has received about the use of these two EAR license exceptions and provide the general public answers to frequently asked questions based on existing agency interpretive practice. Therefore, the clarifications in this final rule do not change the EAR requirements for the use of the license exceptions but are intended to assist exporters new to the EAR.
This rule is effective November 1, 2017.
Timothy Mooney, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-2440, Fax: (202) 482-3355, Email:
This final rule revises part 740 of the Export Administration Regulations (EAR) by clarifying two license exceptions based on existing agency understanding and practice. To provide the general public with guidance on using these license exceptions, this final rule makes three clarifications to License Exception Governments, International Organizations, International Inspections under the Chemical Weapons Convention, and the International Space Station (GOV) and adds five notes, along with making other minor clarifications, to License Exception Strategic Trade Authorization (STA). These changes are described below under sections: (A) Clarifications for License Exception GOV and (B) Clarifications for License Exception STA.
With these revisions, BIS is not changing the EAR requirements for the use of these license exceptions. Instead, the agency seeks to provide sufficient guidance within the EAR to answer questions the agency frequently receives from the public as to the application of the two license exceptions. These clarifications should be particularly helpful to exporters who are new to the EAR, including exporters of items that have recently moved to the EAR from the International Traffic in Arms Regulations (ITAR) as a result of the United States Munitions List to the Commerce Control List review process.
This final rule revises License Exception GOV, § 740.11, to make three clarifications. Specifically, this final rule revises paragraph (b)(2)(ii); adds a new note to paragraph (b)(2)(iii)(C); and adds a new note to paragraph (c)(1). These clarifications do not change the applicability or any other requirements of License Exception GOV and are limited to providing guidance on how BIS interprets these paragraphs of License Exception GOV in response to questions from the public.
As an example of persons directly employed who would meet the `contractor support personnel' definition, BIS provides the following: A U.S. Government agency plans to conduct a study of soy bean cultivation in Malaysia and the U.S. Government agency team will include three `contractor support personnel' providing scientific support to the U.S. Government agency's study. These three `contractor support personnel' will work at the U.S. Embassy in Malaysia to process and analyze agricultural field data being gathered by U.S. Government personnel as part of a study. These individuals meet the definition of contractor support personnel in paragraph (b)(2)(ii) because they will be working within a U.S. Government-owned and operated facility (a U.S embassy) and providing a form of support (scientific support) that is identified in the term's definition.
For an example of persons not directly employed who would be outside the scope of the `contractor support personnel' definition, BIS provides the following: A U.S. Government agency is evaluating the possibility of providing a grant to a company in Kenya that seeks financing for building three windmills. To evaluate the feasibility of providing a grant, this U.S. Government agency has entered into a contract with a U.S. company that provides feasibility analysis for windmill locations. To conduct the feasibility analysis study,
The second sentence this final rule adds to paragraph (b)(2)(ii) clarifies that private security contractors are not `contractor support personnel' for purposes of paragraph (b)(2)(ii). This new sentence clarifies that although in certain cases private security contractors may work within a U.S. Government owned or operated facility, such contractors do not provide administrative, managerial, scientific or technical support under contract to the U.S. Government, as required under the definition of `contractor support personnel.'
This final rule revises License Exception STA, § 740.20, to add five new clarification notes, along with making other minor clarifications. Specifically, this final rule adds the following notes to License Exception STA: Note 1 to paragraph (a) for applicability of transfers (in-country) under STA; Note 1 to paragraphs (b)(2) and (b)(3) for staying within the scope of the original authorization; Note 1 to paragraph (d)(2) for multiple consignees on a single prior consignee statement and minor clarifications to the text of paragraph (d)(2); and Note 2 to paragraph (d)(2) for exclusion for government consignees from prior consignee statement; and Note 1 to paragraph (d)(3) for exclusion for intangible exports, reexports or transfers (in-country). These new notes, along with the other minor clarifications, do not change the applicability or any other requirements of License Exception STA and simply provide guidance on how BIS interprets these provisions of License Exception STA. These new notes are consistent with the agency's responses to questions at numerous outreach events and in the Frequently Asked Questions (FAQs) available on the agency's Web site.
Similar to the changes described above for paragraph (d)(1), this final rule revises the introductory text of paragraph (d)(2) to remove the undefined term “shipment” in one place and the undefined term “shipping” in another, and add in their place the defined terms “exports, reexports, or transfers (in-country).” This final rule does not remove the undefined term “shipment” in the two additional instances where the term is used in the introductory text of paragraph (d)(2), which specifies the requirement to maintain a log or other record. This is because the requirement to maintain a log or other record is not intended to apply to intangible (
This final rule adds a new Note 1 to paragraph (d)(2) to clarify an existing BIS policy that allows for multiple consignees to be listed on a single prior consignee statement, provided certain requirements are met. This new Note 1 to paragraph (d)(2) addresses scenarios when multiple consignees who form a network engaged in a production process (or other type of collaborative activity, such as joint development) will be receiving items under License Exception STA. In such cases, it is existing BIS policy to allow the use of a single consignee statement identifying multiple consignees, provided all the applicable requirements of License Exception STA are met, including those specified in paragraph (d)(2).
This final rule revises paragraph (d)(2)(i) by adding the term “GENERAL” before the term “DESCRIPTION” and adding the parenthetical phrase, “aircraft parts and components classified under ECCN 9A610,” to provide an example of the level of specificity that BIS intends for the description on the prior consignee statement. BIS has received questions from the public asking whether the term “description” used in paragraph (d)(2)(i) is intended to mean that the prior consignee must include the make and model number of each part or component that the consignee would receive under License Exception STA. The term “DESCRIPTION,” as used in paragraph (d)(2)(i), does not require that level of specificity, as clarified by the changes in this final rule.
Lastly, specific to the clarifications to paragraph (d)(2), this final rule adds an “(s)” to the end of the term “CONSIGNEE” in the introductory text of paragraph (d)(2) and adds an “(S)” to the end of the terms “TITLE,” “NAME,” and “PERSON” in the undesignated text at the end of paragraph (d)(2)(viii). These changes, along with the new Note 1 to paragraph (d)(2), make explicit that it is permissible to list multiple consignees on a single consignee statement.
Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are either unnecessary or contrary to the public interest. BIS is making the changes to its regulations described above to provide guidance on existing interpretations of
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Accordingly, part 740 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:
50 U.S.C. 4601
(b) * * *
(2) * * *
(ii)
(iii) * * *
(C) This paragraph authorizes the `temporary' export, reexport, or transfer (in-country) of an item in support of any foreign assistance or sales program authorized by law and subject to the control of the President by other means, when:
`Temporary,' for purposes of paragraph (b)(2)(iii)(C) of this section, means that four years from the date of an item's initial export, reexport, or transfer (in-country), it must be returned to the exporter, reexporter, or transferor or its disposition otherwise authorized (e.g., pursuant to a license or another license exception) in accordance with the EAR.
(c) * * *
(1) * * *
Civil intergovernmental organizations (such as the European Space Agency (ESA)) where the membership is limited to national governments that are `cooperating governments' are also considered `cooperating governments' for purposes of paragraph (c)(1) of this section. If the membership of the civil intergovernmental organization includes any national governments or other organizations that are not `cooperating governments,' such civil intergovernmental organizations are not considered `cooperating governments' for purposes of paragraph (c)(1) of this section. For example, civil intergovernmental organizations such as the European Aviation Safety Agency (EASA), the United Nations, and the World Bank do not fall within paragraph (c)(1) of this section because their membership includes governments that are not `cooperating governments.'
(a) * * *
License Exception STA authorizes transfers (in-country) but is only needed to authorize a transfer (in-country) when an EAR authorization is required. If a transfer (in-country) is not being made under STA, the requirements specified in this section do not apply (see Note 1 to paragraphs (b)(2) and (b)(3) of this section for requirements specific to staying within the scope of the original License Exception STA authorization and the concept of `completing the chain' for purposes of “600 series” items originally authorized under License Exception STA).
(b) * * *
(3) * * *
Any export, reexport, or transfer (in-country) originally authorized under License Exception STA must stay within the scope of the original authorization. For example, for “600 series” items authorized under License Exception STA, such items must be provided to an eligible ultimate end user, such as a Country Group A:5 military, to stay in compliance with the original authorization. This requirement for the “600 series” is referred to as `completing the chain,' meaning regardless of how many times the “600 series” item is transferred (in-country) or whether the “600 series” item is incorporated into higher level assemblies or other items, the “600 series” item must ultimately be provided to an eligible ultimate end user, or be otherwise authorized under the EAR. This applies regardless of whether the “600 series” item has been incorporated into a foreign-made item that may no longer be “subject to the EAR.” Because the other items eligible for authorization under License Exception STA (9x515 and other non-600 series ECCNs) do not include the “600 series” requirements specific to ultimate end user, this `completing the chain' concept does not apply to 9x515 and other non-600 series ECCNs authorized under License Exception STA. However, the original export, reexport, or transfer (in-country) made under License Exception STA for 9x515 and other non-600 series ECCNs still must comply with the original authorization—meaning the terms and conditions of License Exception STA.
(d)
(ii) A reexporter or transferor must furnish to subsequent consignees the ECCN, provided by the exporter or a prior reexporter or transferor, of each item to be reexported or transferred (in-country) pursuant to this section. Once furnished to a particular consignee, the ECCN that applies to any item need not be refurnished to that consignee at the time the same reexporter or transferor makes an additional reexport or transfer (in-country) of the same item, if the information remains accurate at the time of the additional reexport or transfer (in-country).
(2)
(i) Is aware that [INSERT GENERAL DESCRIPTION AND APPLICABLE ECCN(S) OF ITEMS TO BE SHIPPED (
(ii) Has been informed of the ECCN(s) noted above by [INSERT NAME OF EXPORTER, REEXPORTER OR TRANSFEROR];
(iii) Understands that items shipped pursuant to License Exception STA may not subsequently be reexported pursuant to paragraphs (a) or (b) of License Exception APR (15 CFR 740.16(a) or (b));
(iv) Agrees to obtain a prior consignee statement when using License Exception STA for any reexport or transfer (in-country) of items previously received under License Exception STA;
(v) Agrees not to export, reexport, or transfer these items to any destination, use or user prohibited by the United States' Export Administration Regulations;
(vi) Agrees to provide copies of this document and all other export, reexport, or transfer records (
(vii) Understands that License Exception STA may be used to export, reexport, and transfer (in-country) “600 series” items to persons, whether non-governmental or governmental, only if they are in and, for natural persons, nationals of a country listed in Country Group A:5 (See supplement no. 1 to part 740 of the EAR) or the United States and if:
(A) The
(B) For the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item in one of the countries listed in Country Group A:5 or the United States that will be for one, or more, of the following purposes:
(C) The United States Government has otherwise authorized the ultimate end use, the license or other authorization is in effect, and the consignee verifies in writing that such authorization exists and has provided the license or other approval identifier to the exporter, reexporter or transferor (as applicable).
(viii) Agrees to permit a U.S. Government end-use check with respect to the items.
[INSERT NAME(S) AND TITLE(S) OF PERSON(S) SIGNING THIS
When multiple consignees who form a network engaged in a production process (or other type of collaborative activity, such as joint development) will be receiving items under License Exception STA, a single prior consignee statement for multiple consignees may be used for any item eligible for export, reexport, or transfer (in-country) under License Exception STA, provided all of the applicable requirements of License Exception STA are met, including those specified in paragraph (d)(2).
Country Group A:5 and A:6 government consignees are not required to sign or provide a prior consignee statement.
(3) * * *
While the exporter, reexporter, and transferor must furnish the applicable ECCN and obtain a consignee statement prior to export, reexport or transfer (in-country) made under License Exception STA in accordance with the requirements of paragraphs (d)(1) and (d)(2) of this section, intangible (i.e., electronic or in an otherwise intangible form) exports, reexports, and transfers (in-country) made under License Exception STA are not subject to the notification requirements of paragraph (d)(3) of this section. However, any export, reexport, or transfer (in-country) made under STA must stay within the scope of the original authorization.
Federal Energy Regulatory Commission, DOE.
Availability of Final Report.
This Final Report on the Review of Federal Energy Regulatory Commission Agency Actions is provided pursuant to Executive Order 13783, Promoting Energy Independence and Economic Growth.
November 1, 2017.
Report available through
On March 28, 2017, the President signed Executive Order 13783, titled Promoting Energy Independence and Economic Growth (Executive Order).
Of the agency actions reviewed, this final report identifies nine agency actions that potentially materially burden the development or use of domestic energy resources as contemplated by the Executive Order and clarified by OMB's May 8, 2017 Guidance Memo.
Section 2 of the Executive Order requires the heads of federal agencies to immediately “review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. Such review shall not include agency actions that are mandated by law, necessary for the public interest, and consistent with the policy set forth in section 1 of this order.”
On May 8, 2017, OMB issued a Guidance Memo providing additional information regarding compliance with the Executive Order, in particular section 2. The Guidance Memo noted that the Executive Order does not apply to independent agencies as defined in 44 U.S.C. 3502(5), but encouraged independent regulatory agencies, especially those that directly regulate the development or use of domestically produced energy resources, to provide the plan and report that are called for in section 2 of the Executive Order. The Guidance Memo further encourages agencies to coordinate their compliance with Section 2 of Executive Order 13783 with their compliance with Executive Order 13777, which directs agencies to establish Regulatory Reform Task Forces to evaluate existing regulations generally and make recommendations to the agency head regarding their repeal, replacement and modification, consistent with applicable law.
In the Plan, the Commission explained that it intended to review agency actions it has taken pursuant to legislative authority under: (1) the Natural Gas Act (NGA), 15 U.S.C. 717,
This final report identifies and classifies the potentially relevant agency actions based on: (1) the type of action undertaken; (2) the energy source potentially affected by that action; and (3) whether the potential effects of the action are direct or indirect.
This final report focuses on agency actions in four jurisdictional areas: (1) hydropower licensing; (2) LNG facility, and natural gas pipeline and storage facility siting; (3) centralized electric capacity market policies in PJM Interconnection, L.L.C. (PJM), ISO New England, Inc. (ISO-NE), and New York Independent System Operator, Inc. (NYISO); and (4) electric generator interconnection policies.
Commission actions in these four jurisdictional areas have the greatest potential to materially burden domestic energy resources as contemplated under the Executive Order. In particular, the Commission's hydropower licensing program has the potential to directly affect the design, location, and development of hydropower resources. In addition, the Commission's jurisdiction over the siting of LNG terminals and natural gas pipelines may affect the delivery to market of natural gas, and have a primary indirect effect on the use of that domestically produced energy resource.
Agency actions related to electric capacity market policies and generator interconnection policies may have a primary indirect effect on the development, retention, or retirement of domestic energy resources. As the Commission has recently recognized in its ongoing efforts concerning the interplay of wholesale electric markets and state policy, the centralized electric capacity markets in PJM, ISO-NE, and NYISO are intended to ensure long-term resource adequacy by sending accurate price signals for investment in electric capacity resources, when and where needed. By signaling the value of capacity, including the potential need for new generation resources, these markets serve a function in those regions that would otherwise typically be performed through integrated resource planning, often before a state public service commission. As a result, Commission actions related to electric capacity market policies could have a primary indirect effect on the development and use of generation resources.
Finally, agency actions involving generator interconnection policies could have a primary indirect effect on the development of domestic energy resources. For example, a wind or solar generator at utility scale typically must interconnect to the transmission grid in order to deliver the electricity produced by those domestic energy resources to the wholesale purchaser. If Commission policies or actions lead to a delay in interconnection or otherwise affect the generator's ability to interconnect, then the project developer may not develop that energy resource, which would impact the development or use of domestic energy resources.
This final report does not review agency actions involving oil and natural gas pipeline rates; electric energy and ancillary service rates and market policies;
Pursuant to the Guidance Memo's recommendation, this effort with respect to Executive Order 13783, to the extent appropriate, was coordinated with the Commission's Regulatory Reform Task Force created pursuant to Executive Order 13777.
This final report discusses those agency actions that rose to the level of a potential material burden as contemplated by the Executive Order and clarified by the Guidance Memo. For hydropower licensing and the LNG
Under Part I of the FPA, the Commission has the exclusive authority to issue licenses, small capacity exemptions (up to 10 megawatts (MW)), and conduit exemptions for non-federal hydropower projects. The Commission currently regulates over 1,600 licensed or exempted hydroelectric projects, representing about 56,000 MW of authorized installed capacity, which is more than half of all developed hydropower in the United States.
The Commission is responsible for coordinating and managing the processing of hydropower project license and exemption applications, as well as applications for preliminary permits (under which permittees study proposed projects). This includes determining the effects of constructing, operating, and maintaining hydropower projects on environmental resources, and the need for the project's power. Pursuant to the FPA, issues considered during the review of license applications include power production; fish, wildlife, recreation, and other environmental issues; flood control; irrigation; and other water uses. Various statutory requirements also give other agencies a significant role in project development, and several state and federal agencies have mandatory authorities that limit the Commission's control of the cost and time required for licensing.
Following the issuance of a license or exemption, the Commission oversees compliance with the terms and conditions of the license/exemption for the duration of the license. This includes processing the filing of plans, reports, and license amendments. Additionally, the Commission must determine if it has jurisdiction over proposed or unlicensed operating projects; determine and assess headwater benefit charges; approve transfers of licensed projects; resolve complaints alleging noncompliance with license and exemption conditions; and act on applications for license surrenders.
The Commission also is responsible for ensuring that the water-retaining features of hydropower projects are designed, constructed, operated, and maintained using current engineering standards and federal guidelines for dam safety. Commission staff inspects projects to investigate potential dam safety problems and, every five years, a Commission-approved independent consulting engineer must inspect and evaluate projects with dams higher than 32.8 feet or with a total storage capacity of more than 2,000 acre-feet. The Commission also requires licensees to prepare emergency action plans and conducts training sessions on how to develop and test these plans.
The vast majority of agency actions relating to the Commission's hydropower program do not present a material burden to hydropower resources. Specifically, most agency actions: (1) are necessary to administer the Commission's hydropower program and process hydropower license applications in an orderly manner; and/or (2) do not negatively affect the development of hydropower resources. As outlined below, however, this final report identifies three areas where potential material burdens may exist: licensing processes; exemption processes; and determinations on deficient applications.
The Commission's regulations include three hydropower licensing processes for applicants: the Integrated Licensing Process (ILP), the Traditional Licensing Process (TLP), and the Alternative Licensing Process (ALP). The Commission's regulations assign the ILP as the default process for all license requests, and an applicant must specifically request and justify the use of either the TLP or ALP. Assigning the ILP as the default process could be materially burdensome due to: (1) the time and costs associated with obtaining the Commission's approval to use the TLP or ALP; and (2) in the event the Commission denies the request to use the TLP/ALP, there may be additional time and costs associated with the ILP, due to the structured nature of the process. The level of burden caused by the ILP default regulation is largely project-specific, and may be negligible/non-existent for complex proceedings that could benefit from a more structured process such as the ILP. However, any material burden could be alleviated by making the ILP optional, and removing the requirement to seek Commission authorization to use the TLP and ALP (see 18 CFR 4.30, 5.1, 5.3, 5.8, 16.1).
In the final stages of the Commission's pre-filing process for hydropower projects, the Commission's regulations require a potential applicant to submit a draft license application or preliminary licensing proposal before submitting a final license application (18 CFR 4.38(c)(4) and 5.16, respectively). The Commission's regulations include minimum filing requirements for these documents (
The ILP contains comment and filing deadlines throughout the pre- and post-filing application process to ensure a structured approach to hydropower licensing. The ILP, however, may be materially burdensome in terms of the schedule established for the pre-filing process (3-3.5 years total). To alleviate this burden, the Commission could consider certain comment and filing deadline reductions to allow for an overall time savings of three months: (1) reduce the time that an applicant has to file a proposed study plan, and the Commission has to issue a second scoping document, from 45 days to 30 days after receiving comments (18 CFR 5.10 and 5.11); (2) reduce the time for entities to file comments on the proposed study plan, from 90 days to 60 days (18 CFR 5.12); (3) reduce the time an applicant has to file a revised study plan, from 30 days to 15 days (18 CFR 5.13); and (4) reduce the time for filing comments on an applicant's preliminary licensing proposal, from 90 days to 60 days (18 CFR 5.16).
Section 6 of the FPA provides that hydropower licenses shall be issued for a term not to exceed 50 years. There is no minimum license term for original licenses (16 U.S.C. 799). Section 15(e) of the FPA provides that any new license for an existing project (i.e., relicense) shall be for a term that the Commission determines to be in the public interest, but not less than 30 years or more than 50 years (16 U.S.C. 808(e)). Current Commission policy is to set a 30-year license term where there is little or no authorized redevelopment, new construction, or environmental mitigation and enhancement; a 40-year license term for a license involving a moderate amount of these activities; and a 50-year license term where there is an extensive amount of such activity.
The Commission's regulations contain minimum filing requirements depending on the size of a project, and whether construction or modification of a dam is needed for project operation. Part 4 of the Commission's regulations includes three subparts corresponding to these factors: (1) Subpart E—Application for License for Major Unconstructed Project and Major Modified Project (18 CFR 4.40); (2) Subpart F—Application for License for Major Project—Existing Dam (18 CFR 4.50); and (3) Subpart G—Application for License for Minor Water Power Projects and Major Water Power Projects 5 MW or Less (18 CFR 4.60). Subparts E and F apply to projects greater than 5 MW, and include more onerous filing requirements than Subpart G, which applies to projects less than or equal to 5 MW. The 5 MW threshold is based on section 405 of PURPA, which mandated a simplified and expeditious licensing procedure for small hydroelectric power projects with an installed capacity of 5 MW or less (
To qualify for a license exemption under section 405 of PURPA, an applicant must propose to install/increase the total capacity of a project to not more than 10 MW (18 CFR 4.30(b)(31), 4.31(c), and 4.103(a)). The regulatory requirement to add new capacity at the project is not specifically required by section 405 of PURPA, and it materially burdens existing licensees that would otherwise be eligible to seek an exemption at the end of the existing license term. To eliminate this burden, the Commission could consider revising the regulations to remove the requirement to install or increase the capacity of the facility to qualify for an exemption.
In the event that the Commission rejects an exemption application, the Commission's regulations do not explicitly provide an applicant with the ability to convert a small hydropower exemption application to a license application (18 CFR 4.105). The Commission's Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, issued April 2004, explicitly states at section 6.3.2:
If the exemption application is dismissed, the process is terminated. There is no opportunity to convert the exemption application to an application for license.
In comparison, the Commission has established a process for converting a small conduit exemption application to a license application (18 CFR 4.93). The process for small conduits allows the applicant to submit additional information necessary to conform the conduit exemption application to the relevant regulations for a license application, and then be accepted for filing as of the date the exemption application was accepted for filing. The inability of an applicant of a small hydropower exemption to convert its application to a license application is materially burdensome because the applicant must initiate an entirely new license process after its exemption is rejected, thereby causing delay to the development of the resource. To eliminate this burden, the Commission could consider amending its regulations to explicitly provide the small hydropower exemption applicant with the ability to convert its exemption application to a license application if the exemption application is rejected.
Pursuant to the authority provided in section 10(i) of the FPA (16 U.S.C. 803), the Commission routinely waives certain sections of Part I of the FPA when it issues a minor license. As relevant, the Commission routinely waives section 15 of the FPA, which governs the Commission's procedures for issuing a new license to an existing licensee (i.e., a relicense) (16 U.S.C. and 808). Yet, the Commission's regulations require the licensee to file an application for relicense at least 24 months before the expiration of the existing license (18 CFR 16.20(c)). Moreover, if the Commission rejects the application, it cannot be refiled (18 CFR 16.9(b)(4)). Rejecting a relicense application, and not providing the applicant with the opportunity to refile, is materially burdensome to the use of hydropower resources. To eliminate this burden, the Commission could consider revising its regulations at 18 CFR 16.20 to provide the applicant with the option of resubmitting the application if the deficiencies are corrected.
Under section 7 of the NGA, 15 U.S.C. 717f, the Commission authorizes the construction, operation, or abandonment of interstate natural gas pipeline and storage projects, as well as certain types of LNG facilities (
There are several distinct phases to the review process for interstate natural gas and LNG facilities under the Commission's jurisdiction: pre-filing review (if applicable); application review; and post-authorization compliance. During the pre-filing review, Commission staff begins work on the environmental review and engages with stakeholders with the goal of resolving issues before the filing of an application. Throughout the pre-filing process, Commission staff meets with stakeholders, visits the project site, and confers with federal, state, and local agencies.
Once a project sponsor files an application with the Commission under NGA section 3 for LNG import/export terminals or under NGA section 7 for interstate pipeline and storage facilities, Commission staff analyzes both environmental and non-environmental aspects for a proposed project, including for LNG terminals safety and engineering. An Environmental Assessment or Environmental Impact Statement typically is issued for public comment, and ultimately, the Commission will issue an order on an application after considering both environmental and non-environmental issues.
During the post-authorization compliance period, Commission staff monitors the project sponsor's compliance with the conditions directed by the Commission. Ultimately, Commission approval is required before the facility can begin operation and provide service.
Pursuant to Executive Order 13783, the review encompassed the Commission's regulations, guidance documents, and policies related to the certification of interstate natural gas transportation facilities, authorization of LNG import and export facilities, authorization of certain transportation by interstate and intrastate pipelines, and environmental review under NEPA.
The majority of agency actions relating to the siting and construction of interstate natural gas transportation and LNG facilities do not materially burden the transportation or delivery of domestically produced natural gas. Specifically, most of the Commission's actions: (1) Are necessary for the Commission to review and process NGA section 3 and 7 project applications; and/or (2) do not negatively affect the siting or construction of natural gas pipeline and storage facilities or LNG import/export facilities in a manner that has a direct or primary indirect effect on the development or use of domestic energy production.
However, the Commission's regulations require a prospective applicant for authorization under section 3 of the NGA to site and construct LNG terminals and related jurisdictional natural gas facilities to engage in the Commission's pre-filing process. (18 CFR 157.21(a)). The Commission's pre-filing regulations require applicants to use the pre-filing process for a minimum of 180 days before the filing of an application for any project that is required to engage in pre-filing. (18 CFR 157.21(a)(2)(1) and 153.6(c)). While, in general, the pre-filing process is designed to expedite the processing of applications, the mandatory imposition of the pre-filing process on LNG terminals and related pipeline projects for at least 180 days before an application can be filed may be materially burdensome for some projects in terms of the potential delay and costs associated with the process. Although the 180 day pre-filing process is required by statute for LNG terminals, 15 U.S.C. 717b-1(a), the statute did not mandate that the Commission also require “related jurisdictional natural gas facilities” to engage in pre-filing. However, related jurisdictional natural gas pipeline facilities need to be evaluated concurrent with a proposed LNG terminal to avoid segmentation under the National Environmental Policy Act. Further, the pre-filing process allows stakeholders to become involved in the overall Project at an early stage, and applicants can benefit from stakeholder's early identification and resolution of issues that may overlap with the LNG terminal. Without using the pre-filing process for related jurisdictional natural gas facilities, delays could occur during the application review, when issues are first identified and need resolution. Thus, although this regulation may result in delays or additional costs to the applicant early on in a project's development, its overall result is a more timely application review by considering all issues regarding a project concurrently. As such, there is no need for the Commission to consider any revision to this regulation.
Three of the Regional Transmission Operator/Independent System Operator (RTO/ISO) markets in the eastern U.S. have adopted centralized capacity markets to help address resource adequacy concerns.
The centralized capacity markets require load-serving entities to secure, either through self-supply
The Commission has issued multiple agency actions (i.e., Commission orders addressing the capacity market designs of the relevant organized markets) that govern the rules and design of the centralized capacity markets. Agency actions related to electric capacity markets were reviewed to determine if they impose a material burden on the development and use of domestic energy resources. In general, agency actions regarding centralized electricity capacity market design do not impose a material burden on the development and use of domestic energy resources because they generally seek to ensure adequate resources, and thereby facilitate the development of domestic energy resources, rather than create material burdens to the development and use of these resources. However, this final report discusses Commission actions regarding one aspect of centralized electricity capacity markets, buyer-side market power mitigation rules, due to the potentially material burdens Commission actions may have on the development of domestic energy resources.
All three eastern RTOs/ISOs use some form of a minimum offer price rule (MOPR) as approved by Commission order. MOPRs as currently designed establish offer floors for certain new resources to protect against subsidized new entry that has the potential to artificially suppress capacity market prices. New resources that trigger this rule are required to submit offers into the capacity market auction at or above the floor. If the resource's mitigated offer price is too high to clear in the market, then the resource would not receive a capacity obligation and the associated market payments. Depending on the terms of any out-of-market contracts, the resource also may not be eligible to receive out-of-market payments if it does not clear in the capacity market auction. Without such compensation, the developer may conclude it is not economic to develop the resource. In this way, Commission actions on the MOPR arguably impose a burden on certain new resources.
However, Commission actions on the MOPR do not rise to the level of a material burden, as the term is defined in the Executive Order and Guidance Memo. While application of the MOPR to a generator's bid may conceivably result in the developer deciding not to develop its generation resource, an individual generation developer's decision not to develop as a result of being subject to a MOPR would not in and of itself materially affect the use or development of oil, natural gas, coal, nuclear energy, or other domestic energy resources in the U.S. Therefore, Commission actions on MOPRs do not negatively affect the development and use of domestic energy resources by the electricity sector, despite the potential burden on those individual resources that are mitigated. Furthermore, from the perspective of other resources in the market, the MOPR can help preserve the integrity of the market price signals and revenue streams, thereby facilitating development and retention of other resources that might use domestic energy resources.
Electric generators use domestic energy resources to produce electricity. Electric generators at utility scale must interconnect to the transmission system to deliver the electricity they produce to customers and receive benefits from the wholesale electric markets. The interconnection process is designed to ensure a new resource can safely and reliably deliver its output to end-users and to assign the costs to the party causing the costs of any system upgrades required to maintain safety and reliability. If a generator is not able to interconnect to the transmission system, or if it is too difficult or expensive to do so, the developer may decide not to pursue investment in the electric generation resource. Therefore, the ability of an electric generator to interconnect to a transmission system could affect the development or use of domestic energy resources.
The Commission has issued multiple agency actions that govern and facilitate the interconnection of electric generators to public utility transmission systems. They include:
None of these orders materially burden the development or use of domestic energy resources. The Commission's generator interconnection orders establish an orderly, uniform process for all types of generators to interconnect to the grid safely and reliably, facilitating their development by providing them with the means to deliver the electricity they produce to the purchaser. As such, these requirements will not unnecessarily obstruct, delay, curtail or otherwise
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This document adopts as a final rule, with changes, the amendments proposed to the U.S. Customs and Border Protection (CBP) regulations to reflect that customs user fees and limitations established by the Consolidated Omnibus Budget Reconciliation Act (COBRA) will be adjusted for inflation in accordance with the Fixing America's Surface Transportation Act (FAST Act).
Effective November 1, 2017.
Bruce Ingalls, Director—Revenue Division, 317-298-1107,
On December 4, 2015, the Fixing America's Surface Transportation Act (FAST Act, Pub. L. 114-94) was signed into law. Section 32201 of the FAST Act amends section 13031 of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (19 U.S.C. 58c) by requiring certain customs COBRA user fees and corresponding limitations to be adjusted by the Secretary of the Treasury (Secretary) to reflect certain increases in inflation. The specific fees and corresponding limitations to be adjusted for inflation are set forth in Appendix A and Appendix B of part 24 in this final rule and include the commercial vessel arrival fees, commercial truck arrival fees, railroad car arrival fees, private vessel arrival fees, private aircraft arrival fees, commercial aircraft and vessel passenger arrival fees, dutiable mail fees, customs broker permit user fees, barges and other bulk carriers arrival fees, and merchandise processing fees as well as the corresponding limitations. (19 U.S.C. 58c(a) and (b)). Further, the FAST Act includes a particular measure of inflation for these purposes and special rules when considering adjustments.
According to the FAST Act, the customs COBRA user fees and limitations were to be adjusted on April 1, 2016, and at the beginning of each fiscal year to reflect the percent increase (if any) in the Consumer Price Index (CPI) for the preceding 12-month period compared to the CPI for fiscal year 2014. The statute permits the Secretary to ignore any CPI increase of less than one (1) percent from the time of the previous adjustment. As a result, if the increase in the CPI since the previous adjustment is less than one (1) percent, the Secretary has discretion to determine whether the fees should be adjusted.
On June 15, 2016, CBP published a notice in the
On July 17, 2017, CBP published a notice of proposed rulemaking (NPRM) in the
The FAST Act further requires the Secretary to round the amount of any increase in the CPI to the nearest dollar. The rounding requirement applies to the difference in the CPI from the comparison year to the current year when determining whether an adjustment is necessary. As written, the rounding requirement does not apply to the fee amount resulting from any adjustment. As noted above, if the difference in the CPI since the last adjustment is less than one (1) percent, the Secretary may elect not to adjust the fees and limitations. The statute requires CBP to use the Consumer Price Index—All Urban Consumers, U.S. All items, 1982-84 (CPI-U) which can be found on the U.S. Department of Labor, Bureau of Labor Statistics Web site:
In addition, CBP proposed technical updates to paragraph (g) of 19 CFR 24.22 to reflect the elimination of the user fee exemption for passengers arriving from Canada, Mexico or one of the adjacent islands pursuant to the United States—Colombia Trade Promotion Agreement Implementation Act. (Colombia TPA, Pub. L. 112-42, October 21, 2011). Section 601 of the Colombia TPA amended 19 U.S.C. 58c(b)(1)(A)(i) to limit the fee exemption exclusively to passengers whose journey originated in a territory or possession of the United States, or originated in the United States and was limited to the territories and possessions of the United States. (19 U.S.C. 58c(b)(1)(A)(i)). Since the law became effective on November 5, 2011,CBP has been collecting only the non-exempt user fees. In accordance with the statute, CBP is removing the exemption for passengers arriving from Canada, Mexico, or one of the adjacent islands, from the regulations found in paragraphs (g)(1)(i), (g)(1)(i)(A), (g)(1)(i)(B), (g)(1)(ii), (g)(1)(iii), (g)(2)(i), the chart in paragraph (g)(2)(iv), and the collection procedures in paragraphs (g)(4)(ii)(A), (g)(4)(ii)(B), (g)(4)(ii)(C), (g)(4)(iii)(A), (g)(4)(iii)(B), and (g)(4)(iii)(C). (19 CFR 24.22(g)). CBP is also removing the definition of “adjacent islands” from paragraph
Upon further review, CBP determined that certain technical corrections that were proposed needed further clarification.
Specifically, CBP has determined that paragraph (g)(1)(i) needs to be revised to more clearly identify when a fee is charged based on the arrival of a passenger aboard a commercial vessel or aircraft from one of the territories or possessions of the United States. Paragraph (g)(1)(i) is re-organized for clarity to provide for the three exceptions to the general rule stated in paragraph (g)(1)(i).
In paragraph (g)(1)(ii), CBP has determined that its proposed wording was incorrect. Instead, CBP is retaining current paragraph (g)(1)(ii) with revisions to remove the references to Canada, Mexico and the adjacent islands and adding the phrase that the fee amount is subject to adjustment by the terms of paragraph (k) of this section.
Further, the user fee chart in paragraph (g)(2) is intended as a tool to assist readers understand the application of the fee structure laid out in 19 U.S.C. 58c and 19 CFR 24.22(g)(1). The chart as proposed in the NPRM contained two errors and did not accurately reflect the existing statutory and regulatory rules. The chart is being amended to reflect “No fee” for aircraft arriving from a specified location regardless of where the journey originates. Additionally, the chart found in paragraph (g)(2) is corrected as the fees for vessels arriving from a specified location with a journey either originating in a place other than a specified location or the United States, or originating in the United States including travel to at least one place other than a Specified Location, were mistakenly changed from $1.93 to $5.50. These two fees will remain at $1.93 but will include the amendments adding the reference to paragraph (k).
In paragraph (g)(4)(ii)(A), the words “in and arrives” are no longer being removed because they are necessary to prevent charging for passengers whose journey may not have originated from a territory or possession of the United States but who are arriving from a territory or possession. Paragraph (g)(4)(ii)(B) is amended for greater clarity and accuracy by replacing the phrase at the end of the proposed text, “outside the United States” with “other than the territories and possessions of the United States.” This also makes the language consistent with that found in the following paragraph (g)(4)(ii)(C). Paragraph (g)(4)(ii)(C) is also amended for clarity by replacing the proposed phrase “outside the United States, unless that passenger's journey originated” with “other than one of the territories or possessions of the United States, is processed by CBP, and the journey does not originate.”
In paragraph (g)(4)(iii)(A), the word “from” after the words “the customs territory of the United States” is retained and the proposed new phrase “that originated in” will not be included. This retains the existing regulatory text while removing the references to Canada, Mexico and the adjacent islands. Similar changes are made to paragraph (g)(4)(iii)(B), so that the existing regulatory text is retained and only the references to Canada, Mexico and the adjacent islands are removed.
In paragraph (g)(4)(iii)(C), CBP will not adopt the proposed new text reading, “a place outside the United States and that passenger's journey originated in” and will instead retain the existing regulatory text while removing the references to Canada and Mexico or adjacent islands.
Finally, in the chart found in new Appendix A to Part 24, the description of the Commercial Vessel Passenger Arrival Fee is amended by removing the references to Canada and Mexico or adjacent islands from the parenthetical.
The notice of proposed rulemaking requested public comments. The public comment period closed on August 16, 2017, and five comments were received.
Five comments were received in response to the notice of proposed rulemaking.
In addition, the overarching intent of this statutory provision was to keep the COBRA fee and limitation amounts consistent with inflation. Rounding the fees and limitations to the nearest whole dollar amount would in some cases result in fee and limitation amounts that would far exceed the pace of inflation.
Lastly, while CBP acknowledges that the CPI is typically expressed as an index number rather than a dollar amount, as the CPI measures changes in prices, it is closely related to dollars and the Bureau of Labor Statistics has published materials explaining how to interpret the CPI in dollars.
Therefore, consistent with basic tenets of statutory interpretation, CBP's reading as articulated in the NPRM gives meaning to the plain language of the text. As Congress chose not to direct CBP to round the fees, but rather to round the CPI, and since the CPI is closely related to dollars, CBP believes that this interpretation is the best way to give meaning to the text as written. There is no need to render irrelevant Congress's explicit direction to round the difference in the CPI and to express such a difference in dollars, as urged by the commenter.
Finally, while CBP believes that the language of the FAST Act pertaining to rounding does not apply to the fee amounts, CBP has determined that it has separate authority to adjust the fee amount in the unique situation of the commercial truck fee for efficient processing purposes for both the public and the agency. The statute requires only that the fee and limitation amounts be adjusted “to reflect” the percentage change in inflation. The ordinary meaning of the word reflect is to “[e]mbody or represent (something) in a faithful or appropriate way.”
Based on the comments received and further review of the proposed technical corrections, CBP has decided to adopt as final the proposed amendments published in the
In accordance with this final rule, CBP is also publishing a separate notice in the
Section 553(d) of the Administrative Procedure Act (APA) generally provides that a rule may not take effect earlier than thirty (30) days after it is published in the
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and
The Regulatory Flexibility Act (5 U.S.C. 601
This rule will affect a combination of individuals and businesses. While most of the businesses that pay the customs COBRA user fees are large corporations, the rule affects all businesses that pay these fees, so this rule will affect a substantial number of small entities. However, the impact will be small and in line with inflation; for example, with the current inflation since the base year, the commercial truck fee will increase by 15 cents. Therefore, CBP certifies that this rule will not have a significant economic impact on a substantial number of small entities.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3507) an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. This rule does not involve any collection of information.
This regulation is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or that of his delegate) to approve regulations related to certain customs revenue functions.
Accounting, Claims, Customs duties and inspection, Harbors, Reporting and recordkeeping requirements, Taxes.
Administrative practice and procedure, Brokers, Customs duties and inspection, Penalties, Reporting and recordkeeping requirements
For the reasons stated above, parts 24 and 111 of title 19 of the Code of Federal Regulations (19 CFR parts 24 and 111) are amended as set forth below.
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 3717, 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1
Section 24.22 also issued under Sec. 892, Pub. L. 108-357, 118 Stat. 1418 (19 U.S.C. 58c); Sec. 32201, Pub. L. 114-94, 129 Stat. 1312 (19 U.S.C. 58c).
Section 24.23 also issued under 19 U.S.C. 3332; Sec. 892, Pub. L. 108-357, 118 Stat. 1418 (19 U.S.C. 58c); Sec. 32201, Pub. L. 114-94, 129 Stat. 1312 (19 U.S.C. 58c).
The revisions and additions read as follows:
This section sets forth the terms and conditions for when the fees and corresponding limitations for certain services are required. The specific customs user fee amounts and corresponding limitations that appear in this section are not the actual fees or limitations but represent the base year amounts that are subject to adjustment each fiscal year in accordance with the Fixing America's Surface Transportation Act (FAST Act) using Fiscal Year 2014 as the base year for comparison. (
(c)
(2)
(g) * * *
(1) * * *
(i) Subject to paragraphs (g)(1)(ii) and (g)(3) of this section, a fee of $5.50, as adjusted by the terms of paragraph (k) of this section, must be collected and remitted to CBP for services provided in connection with the arrival of each passenger aboard a commercial vessel or commercial aircraft from a place outside the United States except:
(A) When the journey of the arriving passenger originates in a territory or possession of the United States;
(B) When the journey of the arriving passenger originates in the United States and was limited to the territories and possessions of the United States; or
(C) When arriving from one of the territories or possessions of the United States.
(ii) Subject to paragraph (g)(3) of this section, a fee of $1.93, as adjusted by the terms of paragraph (k) of this section, must be collected and remitted to CBP for services provided in connection with the arrival of each passenger aboard a commercial vessel from a territory or possession of the United States, regardless of whether the journey of the arriving passenger originates in a place outside the United States or in the United States.
(iii) For the purposes of this paragraph (g), the term “territories and possessions of the United States” includes American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.
(2) * * *
(iv) * * *
(4) * * *
(ii) * * *
(B) When a return ticket or travel document is issued (or a receipt or other document that indicates an infant traveling without a return ticket or travel document is issued) in connection with a journey which originates in the United States, includes a stop in a place other than one of the territories and possessions of the United States and the return arrival to the United States is from a place other than the territories and possessions of the United States; and
(C) When a passenger on a journey through the United States to a foreign destination arrives in the customs territory of the United States from a place other than one of the territories or possessions of the United States, is processed by CBP, and the journey does not originate in the territories and possessions of the United States.
(iii) * * *
(C) When a passenger on a journey through the United States to a foreign destination arrives in the customs territory of the United States from one of the territories and possessions of the United States and is processed by CBP.
(h)
(k)
(2)
(i) Calculate the arithmetic average of the Consumer Price Index—All Urban Consumers, U.S. All items, 1982-84 = 100 (CPI-U) for the current year based on the most recent June-May period. This figure is referred to as (A).
(ii) Calculate the arithmetic average of the CPI-U for FY 2014. This figure is referred to as (B).
(iii) State the arithmetic average of CPI-U for the comparison year which will be either (B) if the fees have never been adjusted in accordance with this paragraph (k), or the arithmetic average of the CPI-U for the last year in which fees were adjusted in accordance with this paragraph (k) as set forth in the
(iv) Calculate the difference between the arithmetic averages of the CPI-U of the comparison year (C) and the current year (A). This difference is referred to as (D). (D) = (A)−(C).
(v) Round the difference (D) to the nearest whole number. This figure is referred to as (E).
(vi) Calculate the percentage change in the arithmetic averages of the CPI-U of the comparison year (C) and the current year (A) which is referred to as (F). (F) = ((E) ÷ (C)) × 100%.
(vii) If (F) is one percent or more, proceed to the next step (viii). If (F) is less than one percent, no adjustment will be made.
(viii) Calculate the difference in the arithmetic average of the CPI-U between the current year (the most recent June through May period) and the base year (FY 2014). This difference is referred to as (G). (G) = (A)−(B).
(ix) Calculate the percentage change in the CPI-U from the base year to the current year. This figure is referred to as (H). (H) = ((G) ÷ (B)) × 100%.
(x) Increase the fees and limitations that are subject to the rules of this paragraph by (H), calculating fees and limitations to the second decimal.
The addition and revision read as follows:
This section sets forth the terms and conditions for when the fees for processing merchandise are required. The specific merchandise processing fee amounts and corresponding limitations that appear in this section are not the actual fees or limitations, but represent the base year amounts that are subject to adjustment each fiscal year in accordance with the Fixing America's Surface Transportation Act (FAST Act) using Fiscal Year 2014 as the base year for comparison. (
(b) * * *
(4)
(ii)
(iii)
(A) The quarterly payment must conform to the requirements of § 24.1 of this part, must be submitted electronically via Fedwire or
(B) The following information must be included with the quarterly payment:
(
(
(
(C) Overpayments or underpayments may be accounted for by an explanation in, and adjustment of, the next due quarterly payment to CBP. In the case of an overpayment or underpayment that is not accounted for by an adjustment of the next due quarterly payment to CBP, the following procedures apply:
(
(
(D) The underpayment or failure of a carrier or operator using an express consignment carrier facility or a centralized hub facility to pay all applicable fees owed to CBP pursuant to paragraph (b)(4) of this section may result in the assessment of penalties under 19 U.S.C. 1592, liquidated damages, and any other action authorized by law.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 1641.
Section 111.96 also issued under 19 U.S.C. 58c, 31 U.S.C. 9701.
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA or we) is classifying the BCR-ABL quantitation test into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the BCR-ABL quantitation test's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective November 1, 2017. The classification was applicable on July 22, 2016.
Ryan Lubert, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4545, Silver Spring, MD 20993-0002, 240-402-6357,
Upon request, FDA has classified the BCR-ABL quantitation test as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval.
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On January 19, 2016, Asuragen, Inc., submitted a request for De Novo classification of the QuantideX qPCR BCR-ABL IS Kit. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on July 22, 2016, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 866.6060. We have named the generic type of device BCR-ABL quantitation test, and it is identified as a reverse transcription-quantitative polymerase chain reaction (RT-qPCR) test for the quantitation of BCR-ABL1 expressed on the International Scale (IS) and control transcripts in total RNA from whole blood of diagnosed t(9;22) positive chronic myeloid leukemia (CML) patients during monitoring of treatment with tyrosine kinase inhibitors. This test is not intended for the diagnosis of CML.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. In order for a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR parts 801 and 809, regarding labeling have been approved under OMB control number 0910-0485.
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) Premarket notification submissions must include the following information:
(i) The indication for use must indicate the variant(s) for which the assay was designed and validated, for example BCR-ABL e13a2 and/or e14a2.
(ii) A detailed description of all components in the test, including the following:
(A) A detailed description of the test components, all required reagents, instrumentation and equipment, including illustrations or photographs of non-standard equipment or methods;
(B) Detailed documentation of the device software including, but not limited to, standalone software applications and hardware-based devices that incorporate software;
(C) Methodology and protocols for control procedures for the assay to allow reporting on the International Scale;
(D) A description of the result outputs, analytical sensitivity of the assay, and the range of values that will be reported; and
(E) A description of appropriate internal and external controls that are recommended or provided. The description must identify those control elements that are incorporated into the testing procedure.
(iii) Information that demonstrates the performance characteristics of the test, including:
(A) For indications for use based on a threshold established in a predicate device of this generic type, device performance data from either a method comparison study to the predicate device or through a clinical study demonstrating clinical validity using well-characterized prospectively or retrospectively obtained clinical specimens, as appropriate, representative of the intended use population;
(B) For indications for use based on a threshold not established in a predicate device of this generic type, device performance data from a clinical study demonstrating clinical validity using well-characterized prospectively or retrospectively obtained clinical specimens, as appropriate, representative of the intended use population;
(C) Device reproducibility data generated, using a minimum of three sites, of which at least two sites must be external sites, with two operators at each site. Each site must conduct a minimum of three runs per operator over non-consecutive days evaluating a minimum of five different BCR-ABL concentrations that span and are well distributed over the measuring range and include MR3 (0.1 percent IS). Results shall be reported as the standard deviation and percentage coefficient of variation for each level tested. Prespecified acceptance criteria must be provided and followed;
(D) Device precision data using clinical samples to evaluate the within-lot, between-lot, within-run, between run, and total variation;
(E) Device linearity data using a dilution panel created from clinical samples;
(F) Device analytic sensitivity data, including limit of blank, limit of detection, and limit of quantification;
(G) Device specificity data, including interference and cross-contamination; and
(H) Device stability data, including real-time stability of samples under various storage times, temperatures, and freeze-thaw conditions.
(iv) Identification of risk mitigation elements used by your device, including a detailed description of all additional procedures, methods, and practices incorporated into the instructions for use that mitigate risks associated with testing using your device.
(2) Your 21 CFR 809.10 compliant labeling must include the following:
(i) The intended use in your 21 CFR 809.10(a)(2) and (b)(2) complaint labeling must include an indication for use statement that reads “This test is not intended for the diagnosis of CML”; and
(ii) A detailed description of the performance studies conducted to comply with paragraph (b)(1)(iii) of this section and a summary of the results.
(3) Your device output must include results on the International Scale (IS) and your assay must include multipoint calibration controls traceable to a relevant international reference panel (
Office of the Secretary, Interior.
Availability of Final Report.
The Department of the Interior (Interior or the Department) is announcing the availability of and publishing in its entirety the
November 1, 2017.
The report is available online at:
Mark Lawyer, 202-208-5257,
Executive Order 13783, “Promoting Energy Independence and Economic Growth,” 82 FR 16093 (March 31, 2017), declared a national policy of promoting clean and
The Department of the Interior has aggressively pursued a comprehensive review of Interior's energy activities. Interior is publishing the
This final report describes the Department of the Interior's (Interior or Department) progress in implementing Executive Order (EO) 13783,
Interior is the steward and manager of America's natural resources, including oil, gas, coal, hydropower, and renewable energy resources. Interior manages lands, subsurface rights, and offshore areas that produce approximately 19 percent of the Nation's energy. Energy development on public lands increases domestic energy production, provides alternatives to overseas energy resources, creates jobs, and enhances the Nation's energy security. The Office of Natural Resources Revenue (ONRR) collects an average of over $10 billion annual revenue from onshore and offshore energy production, one of the Federal Government's largest sources of non-tax revenue.
Nine of Interior's bureaus have energy programs and responsibilities:
• The Bureau of Land Management (BLM) administers onshore energy and subsurface minerals on certain public lands.
• The Office of Surface Mining Reclamation and Enforcement (OSMRE) works with states and tribes to oversee environmentally sound coal mining operations;
• The Bureau of Ocean Energy Management (BOEM) oversees offshore oil, gas, and wind development.
• The Bureau of Safety and Environmental Enforcement (BSEE) is the lead Federal agency charged with improving safety and ensuring environmental protection related to the offshore energy industry, primarily oil and natural gas, on the U.S. Outer Continental Shelf (OCS).
• The Bureau of Reclamation (BOR) is the second largest producer of hydroelectric power in the United States, generating over 40 million megawatt-hours of electricity each year;
• The Bureau of Indian Affairs (BIA) oversees leasing of tribal and Indian land for energy development.
• The Office of Natural Resources Revenue (ONRR) collects revenue from energy production and development.
• The United States Geological Survey (USGS) conducts research and assessments on the location, quantity, and quality of energy resources, including the economic and environmental effects of resource extraction and use.
The U.S. Fish and Wildlife Service (FWS) and National Park Service (NPS), while not directly involved in the production or development of energy as
When the United States is a leader in developing its energy resources, it is less dependent on other nations, leading to a stronger America. Interior is committed to an America-First energy strategy that fosters domestic energy production in order to keep energy prices low for American families, businesses, and manufacturers. Every drop of oil, Mcf of natural gas or MW of offshore wind energy produced here in the U.S. benefits the American workers employed in those operations and also frees us from dependence on foreign energy resources. Beyond enhancing America's energy security, low cost energy benefits the American consumer and enhances American manufacturing competitiveness, making American businesses more competitive globally. Secretary Zinke recognizes that development of energy resources on public lands increases the Nation's domestic energy supply, provides alternatives to overseas energy resources, generates revenue, creates jobs, and enhances national security. Eliminating harmful regulations and unnecessary policies will require a sustained and focused effort. That said, the Department will strike the appropriate balance in order to make use of our Nation's domestic resource wealth while also ensuring careful attention to safe and environmentally responsible operations both onshore and offshore, and promoting conservation stewardship.
Secretary Zinke has issued seven Secretarial Orders to improve domestic onshore and offshore energy production that further these principles. To ensure energy policies receive the highest level attention across Interior, the Secretary established the Counselor to the Secretary for Energy Policy position to coordinate the energy policy of Interior, including, but not limited to, promoting responsible development of energy on public lands managed and administered by Interior, developing strategies to eliminate or minimize regulatory burdens that unnecessarily encumber energy, and promoting efficient and effective processing of energy-related authorizations, permits, regulations, and agreements.
• Secretarial Order 3348—Concerning the Federal Coal Moratorium;
• Secretarial Order 3349—American Energy Independence;
• Secretarial Order 3350—America-First Offshore Energy Strategy;
• Secretarial Order 3352—National Petroleum Reserve—Alaska;
• Secretarial Order 3353—Greater Sage-Grouse Conservation and Cooperation with Western States; and
• Secretarial Order 3354—Supporting and Improving the Federal Onshore Oil and Gas Leasing Program and Federal Solid Mineral Leasing Program.
These Orders direct Interior bureaus and offices to take immediate and specific actions to identify and alleviate or eliminate burdens on domestic energy development. Within this framework, bureaus have identified actions and, in some cases, already made progress in alleviating or eliminating the energy burdens.
One of Secretary Zinke's first acts was to sign Secretarial Order 3348, “Concerning the Federal Coal Moratorium” (March 29, 2017), which removed the moratorium on the Federal coal leasing program by revoking a prior Secretarial Order (Secretarial Order 3338, “Discretionary Programmatic Environmental Impact Statement to Modernize the Federal Coal Program”). Secretarial Order 3348 promotes American energy security, job creation, and proper conservation stewardship. It directs BLM to process coal lease applications and modifications expeditiously and directs Interior bureaus and offices to make appropriate changes to policy and guidance documents to further President Donald Trump's policy of promoting American energy independence and economic growth. (See further discussion below at IV.x and E.)
In addition to lifting the coal moratorium, Secretary Zinke took other actions to advance American energy independence. In announcing these actions he said, “Today I signed a series of directives to put America on track to achieve the President's vision for energy independence and bringing jobs back to communities across the country.” These directives foster responsible development of coal, oil, gas, and renewable energy on Federal and tribal lands and initiate review of agency actions directed by EO13783.
The most overarching Secretarial Order reducing burdens on energy development is Secretarial Order 3349, “American Energy Independence” (March 29, 2017), which directed bureaus to examine specific actions impacting oil and gas development, and any other actions affecting other energy development. It revoked Secretarial Order 3330, “Improving Mitigation Policies and Practices of the Department of the Interior,” and directed bureaus and offices to review all actions taken pursuant to that Order for possible reconsideration, modification, or rescission. It also directed each bureau and office to review actions taken regarding rescinded Executive Orders related to climate change. Further, it directed the review of the following specific actions impacting energy development:
• BLM Hydraulic Fracturing Rule (RIN 1004-AE26) (see discussion below under IV.A.i.);
• BLM Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule (RIN 1004-AE14) (see discussion below under IV.A.ii);
• NPS Non-Federal Oil and Gas Rights Rule (RIN 1024-AD78); and
• FWS National Wildlife Refuge System; Management of Non-Federal Oil and Gas Rights (RIN 1018-AX36) (see discussion below under IV.F.).
This Order enhances opportunities for energy exploration, leasing, conservation stewardship, and development on the Outer Continental Shelf (OCS), thereby providing jobs, energy security, and revenue for the American people by reinitiating the five-year planning process. Among other actions, it directed the review of the following regulatory actions that impact offshore energy development:
• BOEM Notice to Lessees (NTL) No. 2016-N01 entitled, “Notice to Lessees and Operators of Federal Oil and Gas, and Sulfur Leases, and Holders of Pipeline Right-of-Way and Right-of-Use and Easement Grants in the Outer Continental Shelf”;
• BOEM Offshore Air Quality Control, Reporting, and Compliance Rule (RIN 1010-AD82);
• BSEE Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control (RIN 1014-AA11); and
• BOEM and BSEE Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf Rule (RIN 1082-AA00).
This Order provides for clean and safe development of oil and gas resources in the National Petroleum Reserve in Alaska, recognizing that prudent development of these resources is essential to ensuring the Nation's geopolitical security. (See discussion below at IV.J.)
Sage-grouse protections can affect energy development because these activities often share the same land across the 11 western states and 67 million acres of Federal land that are affected by sage grouse habitat. This Order establishes a Sage-Grouse Review Team that includes representatives from the BLM, FWS, and U.S. Geological Survey (USGS) to review the 2015 Sage-Grouse Plans and associated policies, giving appropriate weight to the value of energy and other development on public lands within BLM's overall multiple-use mission and to be consistent with the policy set forth in Secretarial Order 3349, “American Energy Independence.” (See discussion below at IV.A.vii.)
This Order intends to ensure that quarterly oil and gas lease sales are consistently held and to identify ways to promote the exploration and development of Federal onshore oil and gas and solid mineral resources, including improving quarterly lease sales, enhancing the Federal onshore solid mineral leasing program, and improving the permitting processes. See discussion below at IV.A.
Details of progress in accordance with the aforementioned Executive and Secretarial Orders are described below, as well as relevant proposed actions that are currently under review. Prior to reaching a final determination regarding any proposed action, Interior may be required to comply with the notice and comment requirements of the Administrative Procedure Act or other laws and regulations, and will weigh the results of such procedures accordingly in its decisionmaking process.
The Bureau of Land Management administers more land than any other Federal agency, consisting of more than 245 million surface acres and 700 million acres of subsurface mineral development. In response to EO13783 and Secretarial Orders 3348, 3349, and 3354, BLM is revising and reforming its leasing processes, improving the Coal Management Program, and delaying, revising, or rescinding burdensome regulations and policies to improve domestic energy production and support jobs.
Below is a list of specific actions BLM is undertaking to reduce burdens on the production of energy on BLM managed resources.
Executive Order 13783 required Interior to review the final rule entitled, “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,” 80 FR 16128 (Mar. 26, 2015). Secretarial Order 3349 directed BLM to undertake that review. On July 25, 2017, BLM published a proposed rule to rescind the 2015 hydraulic fracturing rule because the compliance costs of the existing 2015 rule are not justified (82 FR 34464). All 32 states with Federal oil and gas leases and some tribes currently have laws or regulations that address hydraulic fracturing operations. Thus, rescinding the rule has the potential to reduce regulatory burdens by enabling oil and gas operations to occur under one set of regulations within each state or tribal lands, rather than two. Rescinding this rule may result in additional interest in oil and gas development on public lands, especially under higher commodity prices.
Executive Order 13783 required Interior to review the final rule entitled, “Oil and Gas; Waste Prevention, Production Subject to Royalties, and Resource Conservation,” 81 FR 83008 (Nov. 18, 2016), also known as the “Venting and Flaring” rule. Secretarial Order 3349 ordered BLM to review the rule and report to the Assistant Secretary—Land and Minerals Management on whether the rule is fully consistent with the policy expressed in EO13783.
The BLM conducted an initial review of the rule and found that it was inconsistent with the policy stated in EO13783 that “it is in the national interest to promote clean and safe development of our nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” The BLM recognizes that the 2016 final rule poses a substantial burden on industry, particularly those requirements that are set to become effective on January 17, 2018. The BLM issued a proposed rule that was published in the
If finalized, the revised regulation will provide significant additional phase-in time to oil and gas operators.
The BLM intends to work with industry to develop metrics, including key timelines or benchmarks, and the reduction of flaring from Federal and Indian lands over time.
Following up on its initial review, BLM has reviewed the 2016 final rule in accordance with the policies set forth in EO13783. The BLM is currently drafting a proposed rule that would eliminate overlap with the Environmental Protection Agency's (EPA) Clean Air Act authorities while also clarifying regulatory provisions related to the beneficial use of gas on Federal and Indian lands.
The burdens placed on industry through these 3 new regulations are being reviewed as directed under EO13783. These 3 rulemakings, which were promulgated and issued concurrently, updated and replaced BLM's Onshore Orders for site security, oil measurement, and gas measurement regulations, respectively, that had been in place since 1989. They are codified in the Code of Federal Regulations at 43
• Order 3, Site Security: $31.2 million in one-time costs, plus an $11.7 million increase in annual operating costs;
• Order 4, Oil Measurement: $3.3 million in one-time costs, plus a $4.6 million increase in annual operating costs; and
• Order 5, Gas Measurement: $23.3 million one-time cost, plus $12.1 million increase in annual operating costs.
The new regulations also provide a process for approving new technology that meets defined performance goals. Some provisions of the rule may have added regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.
The BLM is currently assessing the rules to determine 1) if additional revisions are needed beyond the already-implemented phase-in period for certain provisions, 2) the ability for industry to introduce new technologies through a defined process, rather than through an exception request, and 3) the built-in waivers or variances. The BLM expects to complete its assessment of possible changes to alleviate burdens that may have added to constraints on energy production, economic growth and job creation by the end of the fourth quarter of FY 2017.
The new regulations have built in necessary waivers or variances. The BLM's establishment of a phase-in period for the new site security and production measurement regulations is an interim measure. The BLM will measure success over the phase-in period in terms of the production measurements, royalties paid, a reduction in under-reporting of production, and greater site security for production facilities.
This policy will be replaced with revised guidance for the purpose of establishing greater efficiencies in the oil and gas leasing process. Policy Instruction Memorandum (IM) 2010-117 established a process for leasing oil and gas resources on Federal lands. The BLM intended the IM to reduce the backlog of unissued leases. However, the IM has resulted in longer time frames in analyzing and responding to protests and appeals, as well as longer lead times for BLM to clear and make available parcels for oil and gas lease sales. It has also resulted in increased workload and staffing needs to conduct additional upfront environmental analysis.
The BLM has undertaken an effort to revise and reform its leasing policy and to streamline the leasing process from beginning (i.e. receipt of an Expression of Interest) to end (competitively offering the nominated acreage in a lease sale). Under existing policies and procedures, the process can take up to 16 months (and sometimes longer) from the time lands are nominated to the time a lease sale occurs. The BLM is examining ways to significantly reduce this time by as much as 8-10 months. The BLM plans to complete revisions to the leasing process in the first quarter of FY 2018.
A shorter period from nomination to sale will reduce the number of nominated acres awaiting competitive sale at any given time and will increase industry certainty regarding the acreage it holds. As a result, industry will be able to plan for and execute exploration and production strategies earlier, and respond more effectively to changing market conditions.
Reducing the average time from acreage nomination to lease sale will be BLM's measure of success. The BLM does not control what acreage industry nominates because market conditions can fluctuate dramatically; therefore, total nominated acreage awaiting sale is not likely to be a measure of success.
Until the policy revisions are completed, BLM is setting quarterly lease sale acreage targets to address the acreage currently nominated. The BLM is also identifying ways to augment staff support for potential sales in those offices with the greatest numbers of acres nominated.
This policy announced the incorporation of Master Leasing Plans (MLPs) in the oil and gas leasing process, further explained in Chapter V of the BLM Handbook H-1624-1, entitled “Planning for Fluid Mineral Resources.” The IM establishes a process for integrating an MLP into the land use planning process. The BLM has extended this IM several times while the BLM completes the public scoping and analysis for MLPs. An unintended consequence of this policy has been that many areas open to oil and gas leasing have been deferred from leasing while they await the completion of the MLP process.
The BLM has undertaken an effort to revise the leasing reform and MLP policy and to re-establish the BLM Resource Management Plans (RMPs) as the source of lands available for fluid minerals leasing. The BLM is currently evaluating existing MLP efforts with the goal of ending this approach. The BLM expects to rescind this IM and complete the revision of the above BLM Handbook, as well as any other relevant BLM handbooks, in the first quarter of FY 2018.
Because this change will re-establish the RMP as the source of land allocation decisions for fluid minerals, it will result in more streamlined National Environmental Policy Act (NEPA) analysis and a shorter timeframe for acreage nominations to make it to a competitive lease sale. Since extra time and NEPA analysis adds to uncertainty for industry and use of taxpayer dollars by the Department, removing these process-related steps has the effect of decreasing uncertainty.
The primary measure of success in removing regulatory burden from the rescission of the MLP policy will be in the elimination of related nominated acreage sale deferral pending completion of MLP NEPA. While there will continue to be acreage sale deferrals for various reasons, completion of MLP NEPA will no longer be one of them. The time frames will be shorter.
This IM directs all BLM oil and gas leasing Field Offices to: 1) ensure RMP conformance; 2) evaluate the adequacy of existing NEPA analysis and documentation; and 3) complete any necessary new or supplemental NEPA analysis and documentation before approving a Class I or Class II oil and gas lease reinstatement petition. This IM has resulted in additional analysis and review time that often involves another surface management agency and, in some instances, has led to adding new lease stipulations prior to lease reinstatement.
Lease reinstatements were previously considered a ministerial matter, entailing a commensurate level of
The BLM expects that changes to this policy will refocus the emphasis back to existing NEPA analysis and information, which will significantly shorten the time it takes to consider and process a lease reinstatement request. The policy changes will provide greater certainty and reduced expense for energy development companies and result in production occurring sooner.
The BLM will measure the reduction in burden in terms of the average time it takes to consider a complete lease reinstatement request.
Similar to MLPs, in the interim, BLM must identify and evaluate the status of each current lease reinstatement request in order to determine whether and how to expedite review and processing. There are no other interim measures, waivers or variances that are relevant to the process.
Policy IM 2016-140 is being reviewed for the purpose of enhancing consistency and certainty for oil and gas development in areas of sage-grouse habitat as directed by EO13783. This IM provides guidance on prioritizing implementation decisions for BLM oil and gas leasing and development, to be consistent with Approved Resource Management Plan Amendments for the Rocky Mountain and Great Basin Greater Sage-grouse Regions and nine Approved Resource Management Plans in the Rocky Mountain Greater Sage-grouse Region (collectively referred to as the Greater Sage-grouse Plans). The IM applies to activities in the areas covered by both the Rocky Mountain and Great Basin Regions Records of Decision, issued by BLM in September 2015, and also contains reporting requirements for communication between BLM State Offices and the Washington Office (WO). The IM may have added administrative burdens since it requires additional analysis and staff time to screen parcels and weigh potential impacts to the Greater Sage-grouse before the parcels are offered for leasing. It also requires additional analysis and staff time to process drilling permit approvals near Greater Sage-grouse areas.
The BLM's effort to avoid listing of the sage-grouse as an endangered species has affected many programs and a large area geographically. With new technologies and capabilities, such as long-reach horizontal boreholes in the oil and gas industry, the impacts are not as significant as once perceived. Likewise, the administrative burden is better understood and is likely less than once thought. Efforts are underway to better understand these conditions and define ways in which energy production and sage-grouse protection may continue to co-exist. Greater consistency and predictability will provide greater stability for industry. The BLM is currently assessing the policy to determine what revisions are needed and expects to complete this review in the fourth quarter of FY 2017.
When the BLM completes this effort, industry will have greater certainty in leasing, exploration and production activities due to availability of acreage for oil and gas development and a defined process and timeframe for consideration of Greater Sage-grouse impacts.
The BLM will measure success by assessing changes in industry's interest in nominating acreage for competitive sale and developing existing leases in areas affected by the Greater Sage-grouse amendments to RMPs. As industry increases its understanding and gains confidence in the consistency and predictability of BLM actions relative to Greater Sage-grouse, then acreage nominations, permit requests, and development should stabilize and be tied to market forces rather than tied to BLM Greater Sage-grouse decisions.
The BLM has been processing acreage nominations in Greater Sage-grouse areas and making them available for competitive sale. In addition, existing leases are being developed. This is evidence, in the interim, that both BLM and industry are developing innovative ways to adapt energy development in light of Greater Sage-grouse protections.
In September 2015, the BLM incorporated Greater Sage-grouse (GRSG) conservation measures into its land use plans within the range of the GRSG. In September 2016, the BLM issued a number of IMs to help guide the implementation of the GRSG plans. These GRSG plans and policies will affect where, when, and how energy and minerals are developed within the range of the GRSG.
Pursuant to Secretarial Order 3353, “Greater Sage-Grouse Conservation and Cooperation with Western States,” an Interior Sage-Grouse Review Team (Review Team) is working with the State-Federal Sage-Grouse Task Force to identify opportunities for greater collaboration, to better align Federal and State plans for the GRSG, to support local economies and jobs, and consider new and innovative ways to conserve GRSG in the long-term. Pursuant to the Secretarial Order, in August 2017, the Review Team submitted a report to the Secretary summarizing their review and providing recommendations regarding next steps.
The Review Team's report identified a number of potential actions to enhance the coordination and integration of state and Federal GRSG conservation efforts.
Success will be measured and evaluated in terms of improved working relationships among local, state, tribal, and Federal units of Government and in terms of improved partner and stakeholder understanding of effective GRSG conservation measures and of the science underlying them.
The BLM anticipates that some of the actions outlined in the Review Team's report to the Secretary could be implemented in the near future through changes in policy (through issuance of IMs, for example), technical assistance, or training. Other actions may require amending the land use plans. On October 11, 2017, the Department of the Interior, through BLM, initiated a public scoping process for RMP amendment(s) with associated NEPA documents. The comments may be submitted until November 27, 2017. Depending on the scope and significance, such amendments could take upwards of 9 months to 3 years to complete.
The BLM's land use planning regulations and policies are outlined in 43 CFR subparts 1601 and 1610, Resource Management Planning; BLM Manual Section 1601; and BLM Handbook 1601-1. The BLM's policies for complying with NEPA are outlined in BLM Handbook 1790-1 and the Interior NEPA implementing regulations are at 43 CFR part 46. Taken together, these regulations, manuals, and handbooks establish the policies and procedures BLM follows when conducting land use planning and NEPA compliance, including specific
Pursuant to the Secretarial Memorandum of March 27, 2017, entitled “Improving the Bureau of Land Management's Planning and National Environmental Policy Act Processes,” the BLM is identifying potential actions it could take to streamline its planning and NEPA review procedures. As part of this identification process, BLM is working with state and local elected officials and groups, including the Western Governors' Association and the National Association of Counties, to engage and gather input. The BLM also has invited tribes and the public to provide input on how the Agency can make its planning and NEPA review procedures timelier, less costly, and more responsive to local needs. Pursuant to the Secretarial Memorandum, in September 2017, BLM will submit a report to the Secretary outlining recommended actions.
Once implemented, the actions recommended in the report should reduce the time and/or cost of complying with BLM's statutory direction to conduct land use planning under section 202 of FLPMA and complying with NEPA when evaluating proposed actions. These recommendations also should lead to more-standardized analyses in BLM's NEPA reviews at the land use plan and project level.
The reduction in burden will be measured and evaluated in terms of processing times and/or costs of authorizing energy development.
Some of the actions outlined in BLM's report to the Secretary will be actions that BLM will be able to implement in the near future, such as improvements to business processes, or updates to internal manuals or handbooks. Other actions would require changes in statute or regulation (such as new Categorical Exclusions), may depend on other agencies to act, or may require front-end investments in data or information technology.
On March 29, 2017, Secretary Zinke issued Secretarial Order 3348 to lift the Federal coal moratorium imposed by previous Secretarial Order 3338. This Order conformed to the directive in EO13783 requiring the Secretary to lift the moratorium and commence Federal coal leasing activities consistent with all applicable laws and regulations.
The BLM is working to process coal lease applications and modifications “expeditiously” in accordance with regulations and guidance that existed before Secretarial Order 3338. The BLM also ceased activities associated with preparation of the Federal Coal Program Programmatic Environmental Impact Statement (PEIS).
Consistent with EO13783 and Secretarial Order 3348, the BLM is reviewing its policies, with the intent to update or rescind them.
The BLM land use planning process ensures that public lands are managed in accordance with the intent of Congress as stated in FLPMA (43 U.S.C. 1701 et seq.), under the principles of multiple use and sustained yield. The BLM's Resource Management Plans (RMPs) are the basis for every on-the-ground action the BLM undertakes, which includes determinations on lands suitable for future energy leasing and permitting opportunities. The BLM uses land use designations as a part of the land use planning process to guide the management of certain geographic areas towards particular objectives, values or uses.
While some land use designations are made by Congressional, Secretarial, or Presidential action (and therefore require specific land management principles), the BLM has used broad discretion in establishing other formal and less-formal land use designations to set additional management criteria for public lands. In some cases, these criteria may conflict with other multiple use objectives for the land—such as energy development—and therefore have the potential to burden domestic energy development on public lands by reducing access to leasable acreage.
At the time of this report, BLM identified over 60 different land use designations used in RMPs, many of which may lead to additional restrictions on the use of the land. One example is the Area of Critical Environmental Concern (ACEC) designation, which is authorized by Federal Land Policy and Management Act (FLPMA). The Eastern Interior RMP, finalized on January 3, 2017, designated over 2 million acres of ACEC—much of which was recommended for closure to mineral entry and mineral leasing in order to best meet the objectives of the ACEC. The chart included below provides a visual reference for the increased use of this land use designation especially in more recent RMPs.
The BLM will further evaluate the need for these numerous land use designations as a part of the ongoing review of their planning process. The BLM will also work with state, local, and tribal partners to incorporate efficiencies and update policies on the use of land use designations that may burden or hinder energy development on Federal lands.
Aside from providing for leasing with standard lease terms in the land use planning process, BLM may apply lease stipulations to a specific unit at the planning stage. Stipulations set additional criteria to which an operator must adhere once the acreage is leased. Stipulations include no surface occupancy restrictions (NSO), which close acreage to surface-disturbing activities, timing restrictions (TL), which close acreage to surface-disturbing activities during certain timeframes, and other controlled surface use (CSU) restrictions, which include more specific restrictions such as sound and visual impacts or construction requirements. In some cases, these stipulations may have an impact on the attractiveness of the lease sale parcel in the bidding process.
The BLM may also assign Conditions of Approval (COA) at the permitting stage when an operator first applies for an Application for Permit to Drill (APD). Once an APD is filed, the BLM will send an onsite inspection team to determine the best location for the well, road, and facilities; identify site-specific concerns and potential environmental impacts associated with the proposal and potential options for mitigating these impacts, including COAs. Site-specific concerns include, but are not limited to: Well spacing; riparian and wetland areas; visual resource management such as painting infrastructure specific colors; and cultural and wildlife survey needs to comply with the National Historic Preservation Act (NHPA) and the Endangered Species Act (ESA).
Lease stipulations and additional conditions of approval added at the permitting stage burden energy development on public lands by adding additional development costs; increasing the complexity of the drilling operations; and extending project timeframes. The 2008 Energy Policy and Conservation Act Phase III study found that of the 128 Federal land use plans surveyed for inventory, approximately 3,125 individual stipulations and 157 types of COAs were being used.
Current BLM regulations allow any party to file a protest on a BLM decision, such as a protest on a land use plan or on a subsequent decision to include a parcel in an oil and gas lease sale. This process provides multiple opportunities to protest every step of the process of offering public lands for oil and gas leasing. To date, many state offices, such as CO, MT, NM, UT, and WY are receiving protests on every oil and gas parcel offered through the Notice of Competitive Lease Sale process.
In the past, protests were parcel-specific on issues unique to the parcel in question. In recent years, the reasons for protesting every parcel in the sale are broad-based and non-parcel specific, such as general concerns on climate change or hydraulic fracturing. In FY 2016, 72 percent of parcels offered for lease were protested. By comparison, in FY 2012, only 17 percent of parcels received protests. The number of parcels offered on the original sale notice decreased from 2,247 in FY 2012 to 820 in FY 2016.
If a protest is still pending on the day of sale, the parcel can still be offered during the sale but the protest must be resolved prior to the lease being issued and the protest may diminish interest in bidding. This in turn can delay payment of the State's share of the bonus bids—which occurred most recently in the State of New Mexico. In September 2016, BLM hosted a record-setting lease sale generating $145 million in revenue, of which $80 million was owed to the state Mineral Leasing Act revenue
This uptick in the protest process and the inability to reach conclusive resolutions in a timely manner is a burden on oil and natural gas development on public lands. A regulatory change may be necessary to limit redundant protests that hinder orderly development. Alternatively, the BLM is investigating the value in creating regional leasing teams that could build sufficient capacity to offer parcels during the BLM's quarterly lease sales.
The BLM anticipates revising energy-related collections of information under the Paperwork Reduction Act (e.g., Approval of Operations (1004-0213) and Application for Permit to Drill (1014-0025)) to reduce administrative burden on energy development and use through simplification of forms and associated instructions/guidance and ceasing collection of information that is unnecessary or lacks practical utility.
The BOEM is responsible for managing development of the Nation's offshore energy and mineral resources through offshore leasing, resource evaluation, review, and administration of oil and gas exploration and development plans, renewable energy development, economic analysis, NEPA analysis, and environmental studies. The BOEM promotes energy security, environmental protection and economic development through responsible, science-informed management of offshore conventional and renewable energy and mineral resources. The BOEM carries out these responsibilities while ensuring the receipt of fair market value for U.S. taxpayers on OCS leases, and balancing the energy demands and mineral needs of the Nation with the protection of the human, marine, and coastal environments.
Since the publication of EO13771 on January 30, 2017, BOEM has been reviewing all aspects of its programs to identify regulations and guidance documents that potentially burden the development or use of domestically produced energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.
Below are specific actions BOEM is undertaking to reduce burdens on the production of energy offshore in the America-First Offshore Energy Strategy, as delineated in EO13795 and S.O. 3350:
The BOEM has been re-examining the provisions of the air quality proposed rule published on April 5, 2016 (81 FR 19718), which would provide the first substantive updates to the regulation since 1980. The proposed rule addressed air quality measurement, evaluation, and control with respect to oil, gas, and sulphur operations on the OCS of the United States in the central and western Gulf of Mexico and the area offshore the North Slope Borough in Alaska. Interior is currently reviewing recommendations on how to proceed, including promulgating final rules for certain necessary provisions and issuing a new proposed rule that may withdraw certain provisions and seek additional input on others.
Notice to Lessees No. 2016-N01, for which implementation has been suspended, would make substantial changes to BOEM's requirements for companies to provide financial assurance to meet decommissioning obligations. The BOEM has been undertaking a thorough review of the NTL, including gathering stakeholder input.
On July 15, 2016, BOEM and the BSEE promulgated a final rule, “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf” (81 FR 46478). Interior is reviewing the requirements for exploratory drilling conducted from mobile drilling units within the Arctic OCS (Beaufort Sea and Chukchi Sea Planning Areas). Interior is considering full rescission or revision of this rule, including associated information collection requirements. Review of this rule is expected to allow greater utilization of the Arctic drilling season.
Secretary Zinke directed development of a new 5-year OCS oil and gas leasing program to spur safe and responsible energy development offshore. On July 3, 2017, BOEM published a request for information and comments on the preparation of a new 5-year National OCS Leasing Program for 2019-2024 (82 FR 30886). Upon its completion, the new program will replace the 2017-2022 program.
Secretarial Order 3350 directly implements EO13795, and also advances Interior's implementation of EO13783 by providing for the reevaluation of actions that impact exploration, leasing, and development of our OCS energy resources. This Secretarial Order enhances opportunities for energy exploration, leasing, and development on the OCS by establishing regulatory certainty for OCS activities. In accordance with this Secretarial Order, Interior is reviewing potential regulatory changes to reduce burden on offshore energy production, development, and use.
In addition, on July 13, Secretary Zinke offered 75.9 million acres offshore Texas, Louisiana, Mississippi, Alabama, and Florida for oil and gas exploration and development. The region-wide lease sale conducted on August 16, 2017, was the first offshore sale under the OCS Oil and Gas Leasing Program for 2017-2022. Under this program, 10 region-wide lease sales are scheduled for the Gulf, where resource potential and industry interest are high, and oil and gas infrastructure is well established. Two Gulf lease sales will be held each year and include all available blocks in the combined Western, Central, and Eastern Gulf of Mexico Planning Areas.
Currently BOEM is one of two Federal agencies required to take separate regulatory actions in order to permit geological and geophysical surveying on the OCS. These seismic surveys, which are conducted by applicants, enable BOEM to make informed business decisions regarding oil and gas reserves, engineering decisions regarding the construction of renewable energy projects, and informed estimates regarding the composition and volume of marine mineral resources. This information is also used to ensure the proper use and conservation of OCS energy resources and the receipt of fair market value for the leasing of public lands.
The ongoing delay in reaching decisions on Federal authorization of seismic surveys is a burden that hinders domestic energy development by preventing industry from being able to better determine the size and location of potential energy resources below the seafloor. The BOEM experts believe that these surveys can be authorized with appropriate mitigation measures consistent with the protection required by applicable Federal laws, primarily the Marine Mammal Protection Act
The Department believes that some improvements can be made through simple program initiatives, such as NMFS assigning dedicated staff to the permits or allowing BOEM to determine MMPA compliance for the purposes of BOEM-related activities in accordance with EO 13807. Finding a genuinely effective solution may warrant statutory changes as well as reorganizing departmental responsibilities within the Executive Branch in order to streamline opportunities to increase efficiency.
The BOEM is reviewing four energy-related information collections, two of which are related to the Arctic Rule, and two of which collect information that is no longer needed.
The BSEE ensures the safe and responsible exploration, development, and production of America's offshore energy resources through regulatory oversight and enforcement. The BSEE is focused on fostering secure and reliable energy production for America's future through a program of efficient permitting, appropriate regulations, compliance monitoring and enforcement, technical assessments, inspections, and incident investigations. As a steward of the Nation's OCS oil, gas, and mineral resources, the Bureau protects Federal royalty interests by ensuring that oil and gas production methods maximize recovery from underground reservoirs.
The BSEE continues the efforts begun earlier this calendar year to review and seek stakeholder input on opportunities to reduce burden on the regulated community while maintaining necessary safety and environmental protections. Specifically, the BSEE is focusing its review on 2 final rules, published in 2016, regarding safety and environmental protection for oil and gas exploration, development and production activities on the OCS. The first is the Well Control and Blowout Preventer (BOP) Rule (81 FR 25888); the second is the Arctic Exploratory Drilling Rule (the Arctic Rule) (81 FR 46478), which was issued jointly by BSEE and BOEM. Both rules (as described below) revised older regulations and added some new requirements that potentially burden development of domestic offshore oil and gas production. The BSEE continues to identify specific issues in both final rules that, if revised or eliminated through a future rulemaking process, could alleviate those burdens without reducing the safety or environmental protections of the rules. The BSEE is beginning the process of drafting timelines and developing stakeholder engagement strategies for potential revision to both sets of regulations. These rules fit into the category of “Other Actions that Potentially Burden Development or Use of Energy.” The BSEE has also identified policies that should be re-examined. Those are:
• review decommissioning infrastructure removal requirements and timelines for infrastructure;
• clarify Civil Penalties Guidance; and
• review current policies associated with taking enforcement actions against contractors.
The BSEE already completed publication of a final rule revising requirements of 30 CFR 250.180 to extend the period of time before a lease expires due to cessation of operations from 180 days to 1 year, thus allowing operators greater flexibility to plan exploration activities.
The BSEE is also reviewing the Production Safety Systems Rule (30 CFR part 250, subpart H), based on Department guidance received between April and May of 2017. If areas for revision are identified, the BSEE would tier it behind the Well Control Rule (WCR) and the Arctic Rule in terms of potential burden reduction.
Below are the specific details of BSEE's review to identify additional regulations and policies that potentially burden development or use of energy.
The WCR was issued on April 29, 2016, and consolidated new equipment and operational requirements for well control, including drilling, completion, workover, and decommissioning operations. The rule also incorporated or updated references to numerous industry standards and established new requirements reflecting advances in areas such as well design and control, casing and cementing, real-time monitoring (RTM), subsea containment of leaks and discharges, and blowout preventer requirements. In addition, the final rule adopted several reforms recommended by several bodies that investigated the
The BSEE is considering several revisions to its regulations. Among those considerations is a rulemaking to revise the following aspects of the new well control regulations, including but not limited to:
• revising the requirements for sufficient accumulator capacity and remotely-operated vehicle (ROV) capability to both open and close reams on subsea BOPs (
• revising the requirement to shut in platforms when a lift boat approaches within 500 feet;
• extending the 14-day interval between pressure testing of BOP systems to 21 days in some situations;
• clarifying that the requirement for weekly testing of two BOP control stations means testing one station (not both stations) per week;
• simplifying testing pressures for verification of ram closure; and
• revising or deleting the requirement to submit test results to BSEE District Managers within 72 hours.
These changes are expected to strike the appropriate balance in order to maintain important safety and environmental protections while also ensuring development may continue.
The BSEE initiated review of potential regulatory changes to this rule in July 2017. The interim step before issuing a proposed rule to revise existing regulations is to seek input on potential areas of reform from the stakeholders. The BSEE is in the process of determining the most effective way to engage stakeholders to provide meaningful and constructive input on regulatory reform efforts related to well control. As a result of stakeholder outreach, the above list of potential reforms may be increased.
The Arctic Rule was published on July 15, 2016 (81 FR 46478), and revised existing regulations and added new prescriptive and performance-based requirements for exploratory drilling conducted from mobile drilling units and related operations on the OCS within the Beaufort Sea and Chukchi Sea Planning Areas (Arctic OCS). After conducting its review to eliminate burdens and increase economic opportunities, BSEE is considering a several revisions to the rule, including but not limited to:
• modifying requirement to capture water-based muds and cuttings;
• eliminating the requirement for a cap and flow system and containment dome that are capable of being located at the well site within 7 days of loss of well control;
• eliminating the reference to the expected return of sea ice from the requirement to be able to drill a relief well within 45 days of loss of well control; and
• eliminating the reference to equivalent technology from the mudline cellar requirement.
The BOEM has also identified an opportunity to reduce burden on operators. A joint rulemaking would likely be undertaken again.
Among the potential benefits of the items listed above is the possibility of allowing greater flexibility for operators to continue drilling into hydrocarbon zones later into the Arctic drilling season. Current leasing strategies in the Arctic constrain future exploratory activities to which this rule would apply.
Success will result in a reduction in burdens associated with exploration of the Nation's Arctic oil and gas reserves while also providing appropriate safety and environmental protection tailored to this unique environment.
Prior to proposing a rulemaking to make the changes above, BSEE and BOEM plan to undertake stakeholder engagement activities. As a result of stakeholder engagement, the list of potential areas for proposed reform may change or grow. This process will enhance our ability to engage the public and stakeholders, as well as ensure our ability to engage in a robust consultation with tribes and Alaska Native Claims Settlement Act corporations. Stakeholder engagement will have the added benefit of allowing BSEE and BOEM to receive input on how the agencies calculate the primary lease term in order to provide a more tailored approach to the limited drilling windows in the Arctic.
The BSEE will re-examine the NTL 2010-G05, “Decommissioning Guidance for Wells and Platforms,” to determine whether additional flexibility should be provided to better account for facility and well numbers and size, as well as timing consideration that can arise in the case of financial distress or bankruptcy of companies. Any changes to the NTL will not have an impact on companies' underlying decommissioning obligations, but could provide more flexibility to allow for cash-flow management and ultimately increase assurance that decommissioning obligations can be fulfilled without government expense.
This action was completed on June 9, 2017, when final rule 1014-AA35, “Oil and Gas and Sulphur Operations in the Outer Continental Shelf-Lease Continuation Through Operations,” was published in the
The BSEE currently has a policy that calls for issuing notices of noncompliance (INCs) to contractors as well as operators in certain instances. The BSEE will examine whether this policy is achieving the desired deterrence value or whether an alternative compliance incentive should be considered and the policy revised. There are currently several ongoing court actions that could result in adjustments to this policy. The BSEE will consider all of this information while examining the policy.
Since 2013, the BSEE civil penalty program has continued to improve its processes and programs. For example, in 2016, each of the Districts in the Gulf of Mexico Region (GOMR) created the position of Civil Penalty Enforcement Specialist to assist with the review of all INCs to determine which INCs are appropriate for civil penalty assessment, and to act as a liaison with the District and Headquarters (HQ) throughout a civil penalty case. This effort has greatly assisted in proving clarity and consistency to the development of civil penalty cases.
The BSEE has approximately 25 information collections associated with our regulations and guidance that must be renewed every 3 years on a rolling basis. The renewal process involves an analysis of whether each information collection continues to be necessary and if whether it requires modification. Through this process, BSEE continuously reviews our forms and the information we collect and reduces the collection burden wherever appropriate. Additionally, there may be further burden reduction associated with potential revisions to the Well Control and Arctic rules once final determinations have been made with respect to specific action on those regulations.
The ONRR is responsible for ensuring revenue from Federal and Indian mineral leases is effectively, efficiently, and accurately collected, accounted for, analyzed, audited, and disbursed to recipients. The ONRR collects an average of over $10 billion annual revenue from onshore and offshore energy production, one of the Federal government's largest sources of non-tax revenue.
In an effort to ensure the public continues to receive the full value of natural resources produced on Federal lands, Secretary Zinke signed a charter establishing a Royalty Policy Committee (RPC) to provide regular advice to the Secretary on the fair market value of and collection of revenues from Federal and Indian mineral and energy leases, including renewable energy sources. The RPC may also advise on the potential impacts of proposed policies and regulations related to revenue collection from such development, including whether a need exists for regulatory reform. The group consists of 28 local, tribal, state, and other stakeholders and will serve in an advisory nature. The Secretary's Counselor to the Secretary for Energy Policy chairs the RPC. The first meeting will be held on October 4, 2017.
On April 4, 2017, ONRR published a proposed rule that would rescind the 2017 Valuation Rule. The ONRR, after considering public feedback, recognized that implementing the 2017 Valuation Rule would be contrary to the rule's stated purpose of offering greater simplicity, certainty, clarity, and consistency in product valuation. The ONRR determined that the 2017 Valuation Rule unnecessarily burdened the development of Federal and Indian coal beyond what was necessary to protect the public interest or otherwise comply with the law. ONRR therefore repealed the rule in its entirety and reinstated the valuation regulations in effect prior that rule. (82 FR 36934, August 7, 2017).
The OSMRE ensures, through a nationwide regulatory program, that coal mining is conducted in a manner that protects communities and the environment during mining, restores the land to beneficial use following mining, and mitigates the effects of past mining by aggressively pursuing reclamation of abandoned mine lands. The OSMRE's statutory role is to promote and assist its partner states and tribes in establishing a stable regulatory environment for coal mining. The proposed level of regulatory grant funding provides for the efficient and effective operations of programs at a level consistent with the anticipated obligations of State and tribal regulatory programs to account for the Nation's demand for coal mine permitting and production.
On February 16, 2017, President Trump signed a resolution under the Congressional Review Act to annul the Stream Protection Rule (SPR) (81 FR 93066, December 20, 2016). This rule imposed substantial burdens on the coal industry and threatened jobs in communities dependent on coal. As described below, OSMRE has drafted a
The OSMRE is reviewing additional actions to reduce burdens on coal development, including, for example, reviewing the state program amendment process to reduce the time it takes to formally amend an approved Surface Mining Control and Reclamation Act (SMCRA) regulatory program.
In compiling the following list of actions for review, OSMRE considered direct and indirect impacts to the coal industry, as well as impacts to the states with primary responsibility for regulating coal mining activities, pursuant to the SMCRA.
The SPR was published on December 20, 2016, and became effective on January 19, 2017. In accordance with the Congressional Review Act, Congress passed, and the President signed, a resolution of disapproval of the SPR on February 16, 2017, as Public Law 115-5. No provisions of the SPR have been enforced since passage of the resolution. In addition, OSMRE will formally document the CRA nullification of the SPR by publishing in the
The OSMRE estimates the elimination of this rule will save industry approximately $82 million annually, and will reduce the amount of time states and OSMRE are expending in the processing of permit applications and monitoring performance during the life of the operation.
Under revisions to OSMRE Directive REG-8, which establishes policies, procedures and responsibilities for conducting oversight of state and tribal regulatory programs, OSMRE conducts 10 percent of all routine oversight inspections with 24 hours' notice to the state regulatory authority. If the state inspector is unavailable to accompany the OSMRE inspector, OSMRE will conduct the inspection alone. These and other oversight inspections sometimes result in the issuance of Ten-Day Notices (TDNs) to the state regulatory authority under Inspection and Enforcement (INE)-35. In addition, INE-24, issued on May 26, 1987, requires OSMRE to issue a TDN to state regulatory authorities upon receipt of a citizen's complaint.
Between 2011 and 2016, 882 TDNs were issued to state regulatory programs. On an annual basis, the majority (39 or 74 percent) of those resulted from citizen's complaints. In addition, an evaluation of data during 2013 found that the number of TDNs issued when the state inspector does not participate was determined to be 6.4 percent of the total oversight inspections, versus 1.5 percent when the state inspector accompanied the OSMRE inspector. State regulatory authorities, particularly in the Appalachian Region, have expressed concern that the number of hours required to prepare TDN responses can be significant.
In an effort to address these concerns, a joint OSMRE and State/Tribal Work Group assessed various topics, including the use of TDNs and independent inspections. In a report issued on July 30, 2014, the Work Group made six specific recommendations for the TDN process and four recommendations regarding the independent inspection process. Interstate Mining Compact Commission (IMCC) member states have requested OSMRE revisit these recommendations, and others, in an effort to implement the recommendations. In addition, OSMRE will revisit and revise, as needed, the specific policy directives governing the use of TDNs and independent inspections in cooperation with the IMCC to reduce the amount of time states and OSMRE are expending to process TDNs.
The review will commence this calendar year, following specific timelines and benchmarks to be established jointly with IMCC.
On November 15, 2010, the OSMRE Director issued a memorandum directing OSMRE staff to apply the TDN process and Federal enforcement to permitting issues under approved regulatory programs. In support of this memorandum, on January 31, 2011, the Director reissued Directive INE-35, regarding policy and procedures for the issuance of TDNs. This directive requires the issuance of a TDN whenever a permit issued by the state regulatory authority (RA) contains a “permit defect,” which the directive
Since the issuance of this policy and associated directive, concerns have been raised by some states and industry stakeholders regarding the potential impact on mining operations where the RA has issued a permit, revision, or renewal, and the operator has commenced activities based upon RA approval. The OSMRE in cooperation with the IMCC will revisit the policy and directive and revise or rescind, as appropriate to provide more certainty to the industry in the state RA permitting process.
The review will commence this calendar year; specific timelines and benchmarks will be established jointly with IMCC.
Directive STP-1, issued in October 2008, establishes policy and procedures for review and processing of amendments to state regulatory programs. Most changes in state law or regulations that impact an approved SMCRA regulatory program require submission of a formal program amendment to OSMRE for approval. Such changes to primacy programs cannot be implemented until a final amendment is approved by OSMRE. In addition, written concurrence must be received from the Administrator of the Environmental Protection Agency with respect to those aspects of a state/tribal program amendment which relates to air or water quality standards promulgated under the authority of the Clean Air Act or the Clean Water Act prior to OSMRE approval. In accordance with 30 CFR 732.17(h)(13), OSMRE must complete a final action on program amendments within 7 months of receipt. Often, due to the complexities of the process and other issues, including influences outside of OSMRE, it is difficult for OSMRE to meet the required processing times.
The result is that state regulatory authorities are occasionally unable to move forward in a timely manner with needed program amendments.
Based upon the results of an internal control review (ICR) and work with the state/tribal work group, OSMRE is developing new training guides and opportunities for states and revising Directive STP-1 to improve the state program amendment process. The OSMRE will also review the process with the Office of the Solicitor to evaluate opportunities for process improvement. In addition, the recent approval by OMB of the information collection requirements of 30 CFR part 732 was conditioned upon OSMRE developing new guidance and supporting documents for states to use when preparing amendments to approved programs. The OSMRE intends for these actions to reduce its processing time for state program amendments.
The revision of Directive STP-1 and development of training guides is anticipated to be completed this calendar year. OSMRE will track processing times once the revised directive and training have been implemented, and compare results to previous years. The OMB approval of new guidance for Part 732 is required by July 31, 2020.
On August 5, 2016, the OSMRE Director issued a policy advisory on self-bonding. The advisory was in direct response to three of the largest coal mine operators in the nation filing for Chapter 11 protection under the U.S. Bankruptcy Code between 2015 and 2016. Those companies held approximately $2.5 billion of unsecured or non-collateralized self-bonds that various states with federally-approved SMCRA regulatory programs previously accepted to guarantee reclamation of land disturbed by coal mining. The advisory stated that “the bankruptcy filings confirm the existence of significant issues about the future financial abilities of coal companies and how they will meet future reclamation obligations.” While recognizing the action of certain state programs to address self-bonding issues, the advisory went on to say that “each regulatory authority should exercise its discretion and not accept new or additional self-bonds for any permit until coal production and consumption market conditions reach equilibrium, events which are not likely to occur until at least 2021.” Since the issuance of this advisory, all three companies of concern have completed their plans for Chapter 11 reorganization, and either have or are expected to replace all self-bonds with other forms of financial guarantees.
In addition to the issuance of the policy advisory on self-bonding, OSMRE accepted a petition for rulemaking submitted March 3, 2016, by WildEarth Guardians. The petition requested that OSMRE revise its self-bonding regulations to ensure that companies with a history of insolvency, and their subsidiary companies, not be allowed to self-bond coal mining operations.
Limiting the use of self-bonds, as indicated in the policy advisory or potentially through a rulemaking, could impact a company's ability to continue mining. In addition, there will likely be an increased demand and potential negative impact on the availability of third party surety bonding.
On January 17, 2017, the GAO announced that it will conduct an audit of financial assurances for reclaiming coal mines (Job Code 101326) that will focus on the role of OSMRE in implementing and overseeing the Surface Mining Control and Reclamation Act's requirements related to financial assurances.
In view of the current status of the self-bonding bankruptcies and recent executive orders concerning rulemakings, OSMRE will reconsider the scope of the policy advisory and revise or rescind, as appropriate. In addition, OSMRE will revisit the need for and scope of any potential rulemaking in response to the previously accepted petition. Furthermore, OSMRE will carefully consider the report and recommendations of the pending GAO audit of financial assurances currently underway. The OSMRE will solicit public input prior to finalizing any decision on the need for further rulemaking.
The OSMRE will continue to monitor the status of self-bonding issues in state programs in cooperation with the IMCC and other stakeholders (sureties, industry, and environmental groups).
On July 27, 2016, the OSMRE Director issued a policy memo to staff providing direction on the enforcement of the existing regulations related to violations of the CWA caused by SMCRA-permitted operations and related issues, such as responses to self-reported violations of National Pollutant Discharge Elimination System (NPDES)
State regulatory authorities, as well as industry, have raised issues with this guidance document expressing concern with overlap and potential conflicts between section 702(a)(3)
The OSMRE will revisit the policy issues and concerns in cooperation with the IMCC and will revise or rescind the memorandum, as appropriate. Review of the policy with IMCC member states will commence this calendar year; the revised or rescinded policy should be complete by the end of this calendar year. The OSMRE will consider seeking public input prior to finalizing the policy.
On July 22, 1994, then-Director Robert Uram issued a memorandum outlining the conditions under which OSMRE would waive the assessment of reclamation fees on the removal of refuse or coal waste material for use as a waste fuel in a cogeneration facility. Recently, the Pennsylvania regulatory authority (PADEP) requested that OSMRE update this policy as outlined below to incentivize reclamation efforts on sites with coal refuse reprocessing activities.
The PADEP believes that the reclamation fees deter operators from reclamation efforts on sites with coal refuse reprocessing activities. Coal refuse sites located within the Anthracite Coal Region are unable or have ceased the removal of coal refuse to be used as waste fuel at co-generation facilities. This is partly or totally due to the assessment of reclamation fees on coal refuse used as waste fuel. In addition, PADEP recommended that OSMRE consider waste derived from filter presses at existing coal preparation plants to be a “no value”
The OSMRE will revisit the 1994 Uram Memo, with the goal of providing an incentive for use of coal refuse as a coal waste fuel. In addition, OSMRE will revisit the remining incentives provided by the 2006 amendments to SMCRA at section 415, some of which apply specifically to removal or reprocessing of abandoned coal mine waste. Additional incentives pursuant to Section 415 will require promulgation of rules, and, therefore, input from the public will be solicited.
Providing additional incentives to industry to promote remining of coal refuse and other abandoned mine sites will provide for additional reclamation of abandoned mines that would not otherwise be accomplished through the Abandoned Mine Lands (AML) program. Specific benchmarks for measuring success, such as acres of additional reclamation performed, will be developed consistent with the implementation of the incentives.
The OSMRE reviewed the current industry costs associated with the Paperwork Reduction Act and did not find any information collections that “potentially burden
The FWS is reviewing its final rule, “Management of Non-Federal Oil and Gas Rights,” 81 FR 79948 (Nov. 14, 2016) to determine whether revision would be appropriate to reduce burden on energy.
Additionally, below is a list of burdens and opportunities to fulfill the intent of the Executive Order:
The approval process for new ROW access can be overly restrictive and excessively lengthy. The National Wildlife Refuge System Administration Act, as amended, requires all uses, including rights-of-way, of National Wildlife Refuges to be compatible with the mission of the System. The FWS will work with stakeholders in a more timely fashion to determine if proposed ROW uses are compatible. Additionally, FWS will revise its ROW regulation to streamline the current ROW granting process to significantly decrease the time to obtain ROW approval from the current 3-12 month time frame.
The MMPA prohibits take (i.e., harass, hunt, capture, or kill) of marine mammals (16 U.S.C. 1361 et seq.) unless authorized by the Secretary. Existing measures in the MMPA incidental take regulations require: 1) maintaining a minimum spacing of 15 miles between all active seismic source vessels and/or drill rigs during exploration activities in the Chukchi Sea; 2) no more than two simultaneous seismic operations and three offshore exploratory drilling operations authorized in the Chukchi Sea region at any time; 3) time restrictions for transit through the Chukchi Sea; 4) time and vessel restrictions in the Hanna Shoal Walrus Use Area; 5) location of polar bear dens and 1-mile buffer; 6) maximum distance around Pacific walruses and polar bears on ice and groups of Pacific walruses in water; 7) sound producing mitigation zones & shut-down/ramp up procedures; 8) marine mammal observers and monitoring requirements; and 9) excessive reporting requirements.
The FWS has the opportunity to review the Chukchi Sea incidental take regulation which expires in 2018, and the regulation for the southern Beaufort Sea expires in 2021. They may either be allowed to expire or be revised and reissued.
Section 7(a)(2) of the Endangered Species Act requires Federal agencies, in consultation with the Secretary of the Interior or the Secretary of Commerce (delegated to the Fish and Wildlife Service and the National Marine Fisheries Service, respectively), to ensure that any action authorized, funded or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. However, the time and expense associated with satisfying the interagency consultation requirements are unnecessarily burdensome.
The FWS has discretion to create efficiencies and streamlining in the consultation process through targeted revision to regulations and/or guidance and is reviewing opportunities for further process improvements.
A number of groups, most prominently the Western Governors' Association, have worked to evaluate and develop recommendations to improve the application of the ESA. For example, the Western Governors' Association developed the
Federal Courts of Appeals have split on whether the Migratory Bird Treaty Act (MBTA) imposes criminal liability on companies and individuals for the inadvertent death of migratory birds resulting from industrial activities. Three circuits—the fifth, eighth, and ninth—have held that it does not, limiting taking liability to deliberate acts done directly and intentionally to migratory birds. Two circuits—the second and tenth—have held that it does. On January 10, 2017, the Office of the Solicitor issued an opinion regarding the issue, which was subsequently suspended pending further review of the opinion and the underlying regulations and decisions. This review is currently ongoing, and may serve as the basis for the development of new internal guidance or regulations that provide clarity to this longstanding issue.
The FWS intends to evaluate the merits of a general permit for incidental take under the Bald and Golden Eagle Protection Action Act (BGEPA). When the bald eagle was delisted under the ESA, FWS issued a rule establishing a permit program for incidental take under BGEPA. On December 16, 2016, FWS adopted a final rule intended to address some of industry's concerns regarding the BGEPA incidental take permit process (81 FR 91494). One measure strongly supported by industry, a general permit for activities that constitute a low risk of taking eagles, was not considered as part of this rulemaking process, though FWS did accept comments on the subject for consideration in a future rulemaking. The FWS is reviewing these comments to determine whether additional regulatory changes would be appropriate to reduce the burden on industry.
The BOR is the second largest producer of hydroelectric power in the United States, operating 53 hydroelectric power facilities, comprising 14,730 megawatts of capacity. Each year, BOR generates over 40 million megawatt-hours of electricity (the equivalent demand of approximately 3.5 million US homes),
The BOR is committed to facilitating the development of non-Federal hydropower at our existing Federal assets. Acting on this commitment, BOR has undertaken a number of activities, including:
Assessments identify technical hydropower potential at existing BOR facilities, irrespective of financial viability.
A BOR LOPP is a contractual right given to a non-Federal entity to use a BOR asset (e.g. dam or conduit) for electric power generation consistent with BOR project purposes.
The BOR has conducted LOPP outreach with stakeholder groups and hydropower industry associations; and made resources and staff available via a LOPP website:
Through these activities, BOR has made resources available to developers and peeled back the barriers that may burden non-Federal hydropower development—while continuing to protect the Federal assets that our customers, operating partners, and stakeholders have depended on for over a century. The response BOR has received from these groups (including the development community) in this effort has been overwhelmingly positive. LOPP projects provide a source of reliable, domestic, and sustainable generation—that supports rural economies and the underlying Federal water resource project.
The BIA provides services to nearly 2 million American Indians and Alaska Natives in 567 federally recognized tribes in the 48 contiguous States and Alaska. The BIA's natural resource programs assist tribes in the management, development, and protection of Indian trust land and natural resources on 56 million surface acres and 59 million subsurface mineral estates. These programs enable tribal trust landowners to optimize sustainable stewardship and use of resources, providing benefits such as
Tribal Energy Resource Agreements (TERAs) are authorized under Title V of the Energy Policy Act of 2005. A TERA is a means by which a tribe could be authorized to review, approve, and manage business agreements, leases, and rights-of-way pertaining to energy development on Indian trust lands, absent approval of each individual transaction by the Secretary. Interior promulgated TERA regulations in 2008 at 25 CFR part 224. The TERAs offer the opportunity to promote development of domestically produced energy resources on Indian land; however, 12 years after the passage of the Act and 9 years after the issuance of TERA regulations, not one tribe has sought Interior's approval for a TERA. One theory asserted by at least one tribe as to the failure of this legislation is the Act does not address precisely how much Federal oversight would disappear for tribes operating under TERAs. Specifically, Interior had not defined the term “inherently Federal functions” that Interior will retain following approval of a TERA. This term appears in Interior's regulations at 25 CFR 224.52(c) and 224.53(e)(2), but not in the Act. Without some assurance as to the benefits (in terms of less Federal oversight) a tribe would receive through clarification of “inherently Federal functions,” tribes have no incentive to undergo the intensive process of applying for a TERA. Clarification of this phrase would also address Recommendation 5 of GAO-15-502,
The BIA has been working closely with the Office of the Solicitor to develop guidance on how Interior will interpret the term “inherently Federal functions.” It is expected that by providing this certainty as to the scope of Federal oversight, tribes will better be able to justify the process of applying for a TERA. The BIA expects to have the guidance finalized and available on its website by October 2017.
The BIA anticipates that the benefits of this action will be to promote the use of TERAs, which will both save tribes the time and resources necessary to seek and obtain Interior approval of each transaction related to energy development on Indian land, and will help ease Interior's workload by eliminating the need for Departmental review of each individual transaction.
The reduction in burden will be measured by the number of tribes that choose to obtain TERAs. Once each tribe obtains a TERA, Interior will work with the tribe to estimate savings in terms of time and resources.
Noting that the National Petroleum Reserve—Alaska (NPR-A) is the largest block of federally managed land in the United States and offers economically recoverable oil and natural gas, the Secretary issued an order focusing on management of this area in a manner that appropriately balances promoting development and protecting surface resources.
Implemented properly, mitigation can be a beneficial tool for advancing the Administration's goals of American energy independence and security, while ensuring public resources are managed for the benefit and enjoyment of the public.
Interior seeks to establish consistent, effective and transparent mitigation principles and standards across all its Agencies. Interior and its bureaus and offices intends to develop consistent terminology, reduce redundancies, and simplify frameworks so that the Federal mitigation programs and stepped down programs are more predictable and consistent. Some mitigation is facilitated by goodwill and some is through our regulatory paradigm.
The Mitigation Manual Section and Handbook provide direction on the use of mitigation, including compensatory mitigation, to support BLM's multiple use and sustained yield mandates. The BLM is reviewing whether the 2016 Manual and Handbook replaced several IMs (IM Numbers 2005-069, 2008-204, and 2013-142) issued by BLM for the same purpose.
The BLM is considering revisions to the Manual and Handbook to provide greater predictability (internally and externally), ease conflicts, and may reduce permitting/authorizations times.
Measuring success would be largely quantitative. The BLM would continue to track impacts from land use authorizations and would also track the type and amount of compensatory mitigation implemented and its effectiveness, preferably in a centralized database.
The BLM is drafting an IM that provides interim direction regarding new and ongoing mitigation practices while the Manual and Handbook are being reviewed and revised. Use of the existing Manual and Handbook would continue, as modified and limited by this IM, until they are superseded.
Manual 6220 provides guidance for managing BLM National Conservation Lands designated by Congress or the President as National Monuments, National Conservation Areas, and similar designations (NM/NCA) in order to comply with the designating Acts of Congress and Presidential Proclamations, FLPMA, and the Omnibus Public Land Management Act of 2009 (16 U.S.C. 7202). Manual 6220 requires that when processing a new ROW application, BLM will determine, to the greatest extent possible, through the NEPA process, the consistency of the ROW with the Monument or NCA's objects and values; consider routing or siting the ROW outside of the Monument or NCA; and consider mitigation of the impacts from the ROW. Land use plans must identify management actions, allowable uses,
A review of Manual 6220 to identify where clarity could be provided for mitigation, notification standards, and compatible uses, may potentially reduce or eliminate burdens. The BLM will review Manual 6220 following the proposed revisions to BLM Mitigation Manual Section (MS-1794) and Handbook (H-1794-1) to ensure that Manual 6220 conforms to the BLM's revised mitigation guidance.
Addressing any potential issues, along with providing consistency with BLM Mitigation Manual is expected to provide greater predictability (internally and externally), reduce conflicts, and may reduce permitting/authorizations times.
Success will be measured in BLM meeting legal obligations under the designating Act or Proclamation for each unit and the allowance of compatible multiple uses, consistent with applicable provisions in the designating Act or Proclamation.
Secretarial Order 3349 also revoked a prior order regarding mitigation and directed bureaus to examine all existing policies and other documents related to mitigation and climate change. (
Manual 6400 provides guidance for managing eligible and suitable wild and scenic rivers and designated wild and scenic rivers in order to fulfill requirements found in the Wild and Scenic Rivers Act (WSRA). Subject to valid existing rights, the Manual states that minerals in any Federal lands that constitute the bed or bank or are situated within
Manual 6400 will be reviewed following the proposed revisions to BLM Mitigation Manual Section and Handbook to ensure that it conforms to BLM revised mitigation guidance. Although the requirements for minerals and mineral withdrawals are legally mandated under the mining and mineral leasing laws in sections 9(a) and 15(2) of the WSRA, Manual 6400 will be reviewed for opportunities to clarify discretionary decision-space.
Ensuring consistency with the BLM Mitigation Manual will foster greater predictability (internally and externally), reduce conflicts, and may reduce permitting/authorizations times.
Success will be measured in terms of complying with the WSRA and identifying and allowing compatible multiple uses.
Manual 6280 provides guidance for managing trails under study, trails recommended as suitable, and congressionally designated National Scenic and Historic Trails to fulfill the requirements of the National Trails System Act (NTSA) and the Federal Land Policy and Management Act. Manual 6280 identifies mitigation as one way to address substantial interference with the natural and purposes for which a National Trail is designated.
Manual 6280 will be reviewed following the proposed revisions to the BLM Mitigation Manual Section and Handbook to ensure it conforms to the BLM revised mitigation guidance. Although many of the requirements are legally mandated under the National Trails System Act, Manual 6280 will be reviewed for opportunities to clarify any discretionary decision-space to reduce or eliminate burdens.
Addressing any potential issues, along with providing consistency with the BLM Mitigation Manual is expected to provide greater predictability (internally and externally), reduce conflicts, and may reduce permitting/authorizations time.
Success will be measured in terms of complying with the NTSA and identifying and allowing compatible multiple uses.
The FWS has the authority to recommend, but not require, mitigation for impacts to migratory bird habitat under several Federal authorities. Pursuant to a Memoranda of Understanding with the Federal Energy Regulatory Commission (FERC), implementing EO13186 (January 10, 2001), FWS evaluates the impacts of FERC-licensed interstate pipelines to migratory bird habitat.
The FWS is developing Service-wide guidance to ensure the bureau is consistent, fair and objective, appropriately characterizes the voluntary nature of compensatory mitigation for impacts to migratory bird habitat, and demonstrates a reasonable nexus between anticipated impacts and recommended mitigation. The FWS anticipates it will take 3 months to finalize the guidance.
Guidance will result in timely and practicable licensing decisions, while providing for the conservation of migratory Birds of Conservation Concern.
Success will be measured by timely issuance of licenses that contain appropriate recommendations that do not impose burdensome costs to developers.
The FWS Regional and Field Offices will provide informal guidance through email and regularly scheduled conference calls to educate and remind staff of policy.
The CCAAs are developed to encourage voluntary conservation efforts to benefit species that are candidates for listing by providing the regulatory assurance that take associated with implementing an approved candidate conservation agreement will be permitted under section 10(a)(1)(A) for the Endangered Species Act if the species is ultimately listed, and that no additional mitigation requirements will be imposed.
Recent revisions to the CCAA regulations and policy and the adoption of “net conservation benefit” as an issuance standard has been perceived by
The FWS will solicit public review and comment on the need and basis for a revision of the CCAA regulation and associated policy for the purpose of evaluating whether it should maintain or revise the current regulation and policy or reinstate the former ones. The FWS anticipates that it will take 3 months to prepare the
The anticipated benefits will be ensuring the CCAA standard is clear and encourages stakeholder participation in voluntary conservation of candidate and other at-risk species.
Success will be measured by FWS providing timely assistance to developers if they seek a CCAA.
The FWS Headquarters will provide Regional and Field Offices with informal guidance through email and regularly scheduled conference calls to remind staff of the regulation and policy review.
In 2016, FWS finalized revisions to its 1981 Mitigation Policy, which guides FWS recommendations on mitigating the adverse impacts of land and water development on fish, wildlife, plants, and their habitats.
Some stakeholders believe the revised policy's mitigation planning goal exceeds statutory authority.
The FWS will solicit public review and comment for the purpose of evaluating the policy. The FWS anticipates that it will take 3 months to prepare the
The anticipated benefits will be timely and practicable mitigation recommendations by FWS staff to energy developers (and others) that promote conservation of species and their habitats.
Success will be measured by incorporation of recommendations without delays to the permitting or licensing process.
The FWS Headquarters will provide FWS Regional and Field Offices informal guidance through email and regularly scheduled conference calls to remind staff of the policy review.
In 2016, FWS finalized its ESA Compensatory Mitigation Policy (CMP), which steps down and implements the 2016 revised the FWS Mitigation Policy (including the mitigation planning goal). The CMP was established to improve consistency and effectiveness in the use of compensatory mitigation. Its primary intent is to provide FWS staff with direction and guidance in the planning and implementation of compensatory mitigation.
Some stakeholders believe the mitigation planning goal exceeds statutory authority.
The FWS will solicit public review and comment for the purpose of evaluating whether it should modify the policy. Additional legal review will be undertaken after comments are reviewed. The FWS anticipates that it will take three months to prepare the
The anticipated benefits will be timely and practicable mitigation recommendations by FWS staff to energy developers (and others) that promote conservation of species and their habitats.
Success will be measured by incorporation of recommendations without delays to the permitting or licensing process.
The FWS Headquarters will provide FWS Regional and Field Offices informal guidance through email and regularly scheduled conference calls to remind staff of the policy review.
This document provides interim guidance for implementing the Service's CMP. The guidance provides operational detail on the establishment, use, and operation of compensatory mitigation projects and programs as tools for offsetting adverse impacts to endangered and threatened species, species proposed as endangered or threatened, and designated and proposed critical habitat under the ESA.
Within 6 months of completing revisions to the ESA Compensatory Mitigation Policy (CMP) (or deciding revisions to the CMP are not necessary), FWS will revise the interim implementation guidance (to be consistent with the revised CMP) and make it available for public review and comment in the
The anticipated benefits will be timely and practicable mitigation recommendations by FWS staff to energy developers (and others) that promote conservation of species and their habitats.
Success will be measured by incorporation of recommendations without delays to the permitting or licensing process.
The FWS Headquarters will issue a memorandum to Regional and Field staff reiterating the limited applicability of the CMP's mitigation planning goal and that decisions related to compensatory mitigation must comply with the ESA and its implementing regulations.
Interior is reviewing bureau reports of the work conducted to identify requirements relevant to climate that can potentially burden the development or uses of domestically produced energy resources. Most of the bureaus found no existing requirements in place. A couple of bureaus have non-regulatory documents (i.e., handbook, memo, manual, guidance, etc.) that inwardly focus on their units and workforce management activities. Interior is reviewing these to better understand their connection to other management, operations and guidance documents.
The BLM rescinded its Permanent Instruction Memorandum (PIM) 2017-003 (Jan. 12, 2017).
This Permanent IM transmitted the CEQ guidance on consideration of greenhouse gas (GHG) emissions and the effects of climate change in NEPA reviews, and provided general guidelines for calculating reasonably foreseeable direct and indirect GHG emissions of proposed actions.
As the CEQ guidance was withdrawn pursuant to section 3 of EO13783, the
Any new IM would provide guidance on consideration of GHG emissions and the effects of climate change in NEPA reviews. The BLM is also developing a unified Air Resources Toolkit that can be used across all organizational levels to consistently calculate, as needed and appropriate, relevant air emissions for a variety of BLM resource management functions. Once available, this toolkit will expedite analysis of reasonably foreseeable GHG emissions associated with energy and mineral development.
To ensure that Interior is considering the input of all viewpoints affected by the identified actions to reduce the burden on domestic energy, Interior has been, and will continue to, seek from outside entities through various means of public outreach including, but not limited to, working closely with affected stakeholders. In accordance with Administrative Procedure Act requirements, the Department is seeking public input on each proposal to revise or rescind individual energy-related regulatory requirements. The Department is also considering input it receives as part of its regulatory reform efforts through
The Department's outreach efforts encompass state, local, and tribal governments, as well as stakeholders such as the Western Governors' Association, Interstate Mining Compact Commission, and natural resource and outdoorsmen groups. To comply with tribal consultation requirements, Interior will host a separate consultation with official representatives of tribal governments on matters that substantially affect tribes, in accordance with the Department's policy on consultation with tribal governments.
Interior is aggressively working to put America on track to achieve the President's vision for energy dominance and bring jobs back to communities across the country. Working with state, local and tribal communities, as well as other stakeholders, Secretary Zinke is instituting sweeping reforms to unleash America's energy opportunities.
Secretarial Orders and Secretary's Memorandum
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a recurring special local regulation for navigable waters of the Atlantic Ocean in the vicinity of Fort Lauderdale, FL for the Fort Lauderdale Grand Prix of the Seas. The Fort Lauderdale Grand Prix of the Seas race course is located east of South Beach Park and North of the Port Everglades inlet. Approximately 100 high-speed personal watercraft will be participating in the event. The special local regulation is needed to protect personnel, vessels, and the marine environment from potential hazards during the race event. All vessels and persons in the regulated area must follow the direction of Coast Guard personnel, law enforcement, and race officials.
This rule is effective November 1, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Mara J. Brown, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone (305) 535-4317, email
On June 7, 2017, the company Powerboat P1-USA, LLC notified the Coast Guard that it will be conducting the Ft. Lauderdale Grand Prix of the Seas race annually. This event will occur yearly on one weekend (Friday, Saturday, and Sunday) in November. The race course will be located directly east of South Beach Park in Ft. Lauderdale, FL. The special local regulation is intended to protect personnel, vessels, and the marine environment. On September 6, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, “Special Local Regulation; Atlantic Ocean, Ft. Lauderdale, FL” (82 FR 42050). Therein we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this race During the comment period that ended October 6, 2017, we received five comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Miami (COTP) has determined that that potential hazards associated with the high speeds of the participants during the races would be a safety concern for anyone who would enter the race area. The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the established race area, marked with buoys.
As noted above, we received five comments on our NPRM published September 6, 2017. All comments were in favor of this regulation. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a special local regulation for this event occuring annually on one weekend (Friday, Saturday, and Sunday) in November, with the precise date of the event each year to be published in a notice of enforcement in the
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and time-of-year of the special local regulation. Vessel traffic will be able to safely transit around this regulated area, which will impact a small designated area of the Atlantic Ocean in Fort Lauderdale, FL, directly adjacent to the shore, for three days.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting three days that will impact a small area in the vicinity of the Port Everglades Inlet. It is categorically excluded from further review under paragraph 34(h) of Figure 201 of the Commandant Instructions. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(1) The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, State, and Local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated areas.
(2) The term “Patrol Commander” means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the respective Coast Guard Sector Commander to enforce these regulations.
(3) The term “spectators” means all persons and vessels not registered with the event sponsor as participants or official patrol vessels.
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, remain within or transit in excess of wake speed within any of the regulated area may contact the Captain of the Port Miami by telephone at (305) 535-8701, or a designated representative via VHF-FM radio on channel 16 to request authorization. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.
(3) The Coast Guard will use all appropriate means to notify the public in advance of an event of the enforcement of the regulations in this section to include publishing a Notice of Enforcement in the
(d)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the US 64/Alligator River Bridge which carries US 64 over the Atlantic Intracoastal Waterway (AICW), Alligator River, mile 84.2, near Columbia, NC. The deviation is necessary to facilitate bridge maintenance. This deviation allows the bridge to remain in the closed-to-navigation position.
The deviation is effective from 7 a.m. on November 6, 2017, through 7 p.m. on November 17, 2017.
The docket for this deviation, USCG-2017-0967 is available at
If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email
The North Carolina Department of Transportation, owner and operator of the US 64/Alligator River Bridge that carries US 64 over the AICW, Alligator River, mile 84.2, at near Columbia, NC, has requested a temporary deviation from the current operating schedule to facilitate application of an epoxy overlay for the drawbridge's entire bridge deck. The bridge has a vertical clearance of 14 feet above mean high water in the closed position and unlimited feet above mean high water in the open position.
The current operating schedule is set out in 33 CFR 117.5. Under this temporary deviation, the bridge will be in the closed-to-navigation position from 7 a.m. to 7 p.m.; on Monday, November 6, 2017, through Saturday, November 11, 2017, and Monday, November 13, 2017, through Friday, November 17, 2017.
The AICW, Alligator River is used by a variety of vessels including, small commercial vessels, tug and barge traffic, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will open on signal during closure period, if at least 2 hours notice is given. The bridge will be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters on the Illinois River between mile marker (MM) 83.0 and MM 87.0. This action is necessary to provide for the safety of life and property on all navigable waters near Beardstown, IL while construction work is completed on new power lines extending across the river. During the period of enforcement, entry into the safety zone is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River (COTP) or a designated representative.
This rule is effective from 6 a.m. on November 1, 2017, through 6 p.m. on December 15, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Sean Peterson, Chief of Prevention, Sector Upper Mississippi River, U.S. Coast Guard; telephone 314-269-2332, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a Notice of Proposed Rulemaking (NPRM) with respect to this rule because it is impracticable.
The contractor for Ameren Electric Company, The L.E. Meyers Co., notified the Coast Guard on September 25, 2017 that the work would begin November 1, 2017 at 6 a.m. between Illinois River mile marker (MM) 83.0 and MM 87.0, which will cause safety concerns to vessels and obstruct the navigational channel. The contractor will be using helicopters in the placement of steel structures to support new power lines and to stretch the new power lines across the river. Due to the risks associated with power line work crossing the navigational channel, a safety zone is needed. We must establish this temporary safety zone by November 1, 2017 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with overhead power line construction presents a safety concern for all navigable waters of the Illinois River between MM 83.0 and MM 87.0. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the overhead power line work.
This rule establishes a safety zone each day from 6 a.m. to 6 p.m. beginning on November 1, 2017 and ending on December 15, 2017, or until conditions allow for safe navigation, whichever occurs earlier. The safety zone will cover all navigable waters between MM 83.0 and MM 87.0 on the Illinois River in Beardstown, IL. The safety zone is intended to ensure the safety of life and vessels on these navigable waters during overhead power line work. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Exact times of the closures and any changes to the planned schedule will be communicated to mariners using Broadcast and Local Notice to Mariners.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This temporary final rule establishes a temporary safety zone impacting a four mile area on the Illinois River for a limited time period of twelve hours on forty-five separate days. Additionally, from November 1, 2017 to November 11, 2017 the safety zone will be enforced for only five days while steel structures are being flown over the river and put in place to support the new power lines. During the dates from November 12, 2017 to December 15, 2017 new power lines will be stretched across the river. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. The contractor performing the work will communicate to the COTP when work is not being performed and allow for affected vessel traffic to pass through the area.
Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast and Local
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding these rules. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone lasting twelve hours on thirty-nine separate days that will prohibit entry from MM 83.0 to MM 87.0 on the Illinois River from November 1, 2017 to December 15, 2017. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through Coast Guard Sector Upper Mississippi River by telephone at 314-269-2332. Those in the safety zone must comply with all lawful orders or
(d)
(e)
Forest Service, USDA.
Notification of final report.
The U.S. Department of Agriculture's Forest Service (Forest Service) has prepared its final report pursuant to Section 2 of Executive Order 13783—Promoting Energy Independence and Economic Growth (E.O. 13783). Section 2 of E.O. 13783 mandates an immediate review of all Federal agency actions that potentially unduly burden the safe, efficient development of domestic energy resources, and requires heads of Federal agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially unduly burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. E.O. 13783 also requires Federal agencies to make recommendations that could alleviate or eliminate aspects of their actions that unduly burden domestic energy production.
November 1, 2017.
The report is available on the Forest Service's Web site at
Sherri Thompson at 303-275-5147 or by mail at 1617 Cole Boulevard, Building 7, Lakewood, CO 80401.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The purpose of E.O. 13783 is to eliminate unnecessary Federal procedures that obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources. On National Forest System lands, the USDA and the Forest Service play an important role in assuring that activities associated with Federal and private energy mineral resources, renewable energy projects, and energy-related transmission and distribution facilities are conducted in a manner that minimizes adverse effects on Federal surface resources while avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.
Pursuant to Section 2 of E.O. 13783, the Forest Service reviewed more than 70 agency actions, including regulations, policies, guidance, orders, agreements with partner agencies, and programmatic analyses at the Washington Office and field levels of the agency to assess whether they unduly burden clean and safe domestic energy development. As a result of that review, the Forest Service recommends revising or rescinding parts of 15 agency actions to alleviate or eliminate undue burdens on the prudent development or use of domestic energy sources. Consistent with E.O. 13783, it is in the national interest to promote the clean and safe development of America's vast energy resources. Adopting these recommendations would result in the revision of parts of three regulations, five policies, four agreements with other agencies, one programmatic analysis, and one order and rescinding part of one policy. The Forest Service's recommendations are principally associated with streamlining agency procedures or clarifying agency policy to facilitate more efficient processing of energy proposals by the agency alone or in coordination with its partners.
In rule document 2017-21947, appearing on pages 48324-48380 in the issue of Tuesday, October 17, 2017, make the following correction:
On page 48370, in the first column, in the sixteenth line from the top, “97.404(b)(1)”, should read “97.904(b)(1)”.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for Boeing Model 777-8 and 777-9 airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is folding wingtips. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before December 18, 2017.
Send comments identified by docket number FAA-2017-0636 using any of the following methods:
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Ian Won, FAA, Airframe and Cabin Safety Section, AIR-675, Policy and Innovation Division, Transport Standards Branch, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2145; facsimile 425-227-1360.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On April 19, 2017 (for the Model 777-8 airplane), and May 12, 2015 (for the 777-9 airplane), Boeing applied for an amendment to Type Certificate (TC) No. T00001SE to include the new Model 777-8 and 777-9 airplanes. These airplanes are constructed with new carbon-fiber-reinforced plastic (CFRP) wings with folding wingtips.
The Model 777-9 airplane, a derivative of the Model 777-300ER airplane currently approved under TC No. T00001SE, is a stretched-fuselage, large, twin-engine airplane with seating for 408 passengers and a maximum takeoff weight of 775,000 pounds.
The Model 777-8 airplane, a shortened-body derivative of the Model 777-9 airplane, is a large, twin-engine airplane with seating for 359 passengers and a maximum takeoff weight of 775,000 pounds.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-8 and 777-9 airplanes meet the applicable provisions of the regulations listed in TC No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 777-8 and 777-9 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of
The Model 777-8 and 777-9 airplanes will incorporate the following novel or unusual design features: CFRP wings with folding wingtips.
Boeing proposes to incorporate this on-ground wingtip-fold capability to reduce the wingspan from 235 to 212 feet when folded. These folding wingtips, when extended into the flight-deployed position, provide improved aerodynamic performance and efficiency, and comply with Code E
Boeing proposes adding folding wingtips to their Model 777-8 and 777-9 airplane wings to improve aerodynamic performance and efficiency when the wingtips are extended into the flight-deployed position, while maintaining Code E gate compatibility when folded during ground operations. This wing-folding feature will be operable on the ground only. Boeing has no plan to carry fuel in the folding sections of the wings.
Boeing has determined that a catastrophic event could occur if the 777-8 and 777-9 airplane wingtips are not properly positioned and secured for takeoff and during flight. In service, numerous takeoff operations with improper airplane configurations have occurred due to failures of the takeoff warning systems, or inadvertent crew actions. For these proposed special conditions, a parallel is drawn between taking off with gust locks engaged and taking off with the wingtips folded, as either condition could result in a catastrophic event. Consequently, the FAA has determined that the level of safety in protecting a misconfigured airplane from takeoff with wingtips folded should be the same as taking off with the gust locks engaged. Therefore, condition 2 of these proposed special conditions has the same intent as § 25.679(a)(2). Per § 25.1309, the applicant must show that such an event is extremely improbable, must not result from a single failure, and that appropriate alerting must be provided for the crew to manage unsafe system-operating conditions. In addition, the applicant must ensure that the wingtips are properly secured during ground operations to protect ground personnel against bodily injury.
Factors to be considered when showing compliance to these proposed special conditions include, but are not limited to:
• With wingtips in the folded position, the conventional airplane-wingtip-position lights may have reduced visibility due to the upward position of the wingtips, possibly impacting ground-operation safety. Light placement may require special consideration to retain the current ground-operation safety, and mitigate any adverse impact this light position may have on pilot visibility during night-lighting conditions.
• Due to upward wingtip positioning on the ground, significant loads may be imposed by wind gusts combined with taxi speed during the transition from the unfolded to the folded position.
• The FAA issued Policy Statement No. PS-ANM-25-12, “Certification of Structural Elements in Flight Control Systems,” to address structural elements in systems that act as both structure and as part of a system. This policy provides additional guidance on the appropriate application of the fatigue and damage-tolerance requirements of § 25.571, and the system-safety requirements of §§ 25.671 and 25.1309.
These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to Boeing Model 777-8 and 777-9 airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-8 and 777-9 airplanes.
The term “latch” refers to the mechanism that allows the wingtip to carry flight loads in the down (flight-deployed) position. The term “lock” refers to the mechanism that prevents disconnection of the latch when the wing tip is down.
1. More than one means must be available to alert the flightcrew that the wingtips are not properly positioned and secured prior to takeoff. Each of these means must be unique in their wingtip-monitoring function. When meeting this condition, the applicant must add a function to the takeoff warning system, as required by § 25.703(a)(1) and (2), to warn of an unlocked or improperly positioned wingtip, including indication to the flightcrew when a wingtip is in the folded position during taxi.
2. In addition to a takeoff warning in accordance with § 25.703, a means must be provided to prevent airplane takeoff if a wingtip is not properly positioned and secured for flight.
3. The applicant must consider the effects of folding-wingtip freeplay when evaluating compliance to the design load requirements of 14 CFR subpart C, and the aeroelastic stability (including flutter, divergence, control reversal, and any undue loss of stability and control as a result of structural deformation) requirements of § 25.629. Thus, the effects of normal wear, and other long-term durability conditions (such as corrosion) of the folding-wingtip operating mechanism on freeplay, and its impact on loads and aeroelastic stability, must be considered. Where freeplay limitations are required to ensure aeroelastic stability, acceptable freeplay limits and freeplay check procedures must be established. If lubrication is required to control excessive wear, lubrication intervals must be established. These procedures and limitations must be documented in accordance with § 25.1529. The freeplay-check and mechanism-lubrication intervals, if required, must be documented as a certification maintenance requirement (CMR). Guidance for CMRs can be found in Advisory Circular 25-19A, “Certification Maintenance Requirements.” The effects of freeplay on wing-joint torsional and bending stiffness, as well as wing frequencies, must be evaluated when showing compliance to loads and aeroelastic stability requirements. Also, the effects of freeplay on fatigue and damage
4. The folding wingtips and their operating mechanism must be designed for 65 knot, horizontal, ground-gust conditions in any direction as specified in § 25.415(a). Relevant design conditions must be defined using combinations of steady wind and taxi speeds determined by rational analysis utilizing airport wind data. The folding wingtip is not a control surface as specified in § 25.415(b)(c). Therefore, in lieu of the equation provided in § 25.415(b), the hinge moment may be calculated from rational wind-tunnel data. The 1.25 factor specified in § 25.415(d) need not be applied to the portion of the system that is isolated in flight and is not critical for safe flight and landing. The folding-wingtip system must be designed for the conditions specified in § 25.415(e), (f), and (g). Runway roughness, as specified in § 25.491, must be evaluated separately up to the maximum relevant airplane ground speeds. All of the above conditions must be applied to the folding wingtips in the extended (flight-deployed), folded, and transient positions.
5. The airplane must demonstrate acceptable handling qualities during rollout in a crosswind environment, as wingtips transition from the flight-deployed to folded position, as well as during the unlikely event of asymmetric wingtip folding.
6. The wingtip-fold operating mechanism must have stops that positively limit the range of motion of the wingtips. Each stop must be designed to the requirements of § 25.675.
7. The wingtip hinge structure must be designed for inertia loads acting parallel to the hinge line. In the absence of more rational data, the inertia loads may be assumed to be equal to KW as referenced in § 25.393. Hinge design must meet the requirements of § 25.657.
8. In lieu of § 25.1385(b): The forward position lights must be installed such that they consist of a red and a green light spaced laterally as far apart as practicable, and installed forward on the airplane, so that, with the airplane in the normal flying position and with the wingtips in the folded position for ground operations, the red light is on the left side and the green light is on the right side at approximately the level of the wingtips in the takeoff configuration. Each light must be approved and must meet the requirements of § 25.1385(a) and (d). The lights must not impair the vision of the flightcrew when the wingtips are in the folded and transient positions.
9. The applicant must include design features that ensure the wingtips are properly secured during ground operations, to protect ground personnel from bodily injury as well as to prevent damage to the airframe, ground structure, and ground support equipment.
10. The wingtips must have means to safeguard against unlocking from the extended, flight-deployed position in flight, as a result of failures, including the failure of any single structural element. All sources of airplane power that could initiate unlocking of the wingtips must be automatically isolated from the wingtip-fold operating system (including the latching and locking system) prior to flight, and it must not be possible to restore power to the system during flight. The wingtip latching and locking mechanisms must be designed so that, under all airplane flight-load conditions, no force or torque can unlatch or unlock the mechanisms. The latching system must include a means to secure the latches in the latched position, independent of the locking system. It must not be possible to position the lock in the locked position if the latches and the latching mechanisms are not in the latched position, and it must not be possible to unlatch the latches with the locks in the locked position.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to amend the certification standards of normal and transport category helicopters. The proposed changes are necessary to address modern designs currently used in the rotorcraft industry and would reduce the burden on applicants for certification of new rotorcraft designs. The proposed changes would reduce or eliminate the need for certain special conditions currently required to obtain certification of modern rotorcraft. The proposed changes would also incorporate the requirements of equivalent level of safety findings that the FAA has imposed as conditions for approving certain design features.
Send comments on or before January 30, 2018.
Send comments identified by docket number FAA-2017-0990 using any of the following methods:
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For questions concerning this action, contact Sandra Shelley, Aviation Safety Engineer, Safety Management Group, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Sections 44701 and 44704. Under section 44701, the FAA is charged with prescribing regulations promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft. Under section 44704, the Administrator issues type certificates for aircraft, aircraft engines, propellers, and specified appliances when the Administrator finds the product is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed under section 44701(a). This rulemaking is within the scope of these authorities because it would promote safety by updating the existing minimum prescribed standards used during the type certification process.
The FAA proposes to revise regulations in title 14 Code of Federal Regulations (14 CFR) part 27 (Airworthiness Standards: Normal Category Rotorcraft) and part 29 (Airworthiness Standards: Transport Category Rotorcraft) related to the certification of rotorcraft. The proposed changes are necessary due to the extensive application of advancing technologies to rotorcraft. Existing airworthiness standards are inadequate because they do not address increasing design complexity. To address these advances, the FAA currently issues reoccurring special conditions, equivalent level of safety findings (ELOS), and means of compliance (MOC) issue papers. This proposed rule would address these problem areas by updating those standards that cause unnecessary burdens in cost and time to both the FAA and the rotorcraft industry. Compliance with these proposed regulatory changes would continue to be shown by the same testing, analysis, and inspections as in the current certification process and there would be a reduced burden through clarification of the safety requirements for the installed systems.
The FAA is proposing to update parts 27 and 29 because the regulations were originally published in 1964 and revisions to the airworthiness standards have not kept pace with advances in technology for rotorcraft. The FAA addresses the changes to technology by issuing reoccurring special conditions, ELOS findings, and MOC issue papers. Special conditions are prescribed under 14 CFR 21.16 when the FAA finds the applicable airworthiness standards do not contain adequate or appropriate safety standards because of a novel or unusual design feature. The FAA issues ELOS findings under § 21.21(b)(1) where a design does not literally comply with the airworthiness standards, but compensating factors exist that provide an equivalent level of safety. MOC issue papers document compliance methodologies that fall outside existing guidance and policies. These three processes are necessary to address new design features for which airworthiness standards are lacking, literal compliance with a rule cannot be achieved, or alternative methods of compliance are proposed. In some cases, advancements in technology have rendered the regulations obsolete.
These special conditions, ELOS findings, and MOC issue papers impact FAA resources and applicants' schedules for obtaining FAA approval of their products. By updating the affected standards, many special conditions, ELOS findings, and MOC issue papers would be unnecessary, thus reducing the burden on both the FAA and industry. We also propose to update a few of these rules to correct typographical errors.
Sections 27.1329 and 29.1329 do not adequately address the latest technology in flight control automation. These standards adequately addressed the functionality of autopilots for many years until recently with the development of more sophisticated functions, especially in normal category helicopters. The rotorcraft autopilot systems of previous years controlled only altitude, attitude, and heading. The more advanced autopilot systems also control airspeed, vertical speed, and hover. The current rule is inconsistent with FAA-accepted industry standards and practices. The current rule does not adequately cover the growing changes in the marketplace toward increased automation in the primary flight controls.
Sections 27.1335 and 29.1335 were originally written to address a particular flight control concept called “flight director systems;” however, the term itself has long been considered a standard part of a modern autopilot covered under §§ 27.1329 and 29.1329. In addition, the text we propose to remove from §§ 27.1335 and 29.1335 has been added to the proposed §§ 27.1329 and 29.1329 rules. The impact to industry would be minimal since the current material associated with these rules in Advisory Circular (AC) 27-1B, Certification of Normal Category Rotorcraft, and AC 29-2C, Certification of Transport Category Rotorcraft,
In appendix B to parts 27 and 29, the reference to Amendment 29-14 in section VIII needs to be removed. By citing the amendment within the rule, appendix B requires updating every time a relevant part 27 or part 29 rule is changed.
As a result of incidents involving lithium-ion batteries installed on aircraft, the National Transportation Safety Board (NTSB) issued Safety Recommendations A-14-032 through 036 to the FAA on May 22, 2014.
AC 27-1B and AC 29-2C provide information on methods of compliance with 14 CFR parts 27 and 29, which contain the airworthiness standards for normal and transport category rotorcraft. These ACs include methods of compliance in the areas of basic design, ground tests, and flight tests. With these proposed rules, the FAA is also proposing related changes to these ACs.
Sections 27.1305 and 29.1305 prescribe the specific required powerplant instruments for rotorcraft.
Traditionally, pilots determine the powerplant performance conditions by monitoring individual gauges: Gas temperature, gas producer speed, and torque. Sections 27.1305 and 29.1305 establish the required powerplant instruments, and §§ 27.1321 and 29.1321 require that these instruments be easily visible to the pilot. These instruments measure the performance output of the engines and they collectively allow the pilot to continuously monitor the condition and health of the engines.
Many rotorcraft manufacturers have started to incorporate a synthesized power indicator (SPI) that provides a single indicator of engine performance. This single value displayed to the pilot is generally presented as a percentage of the nearest engine limit. The continuously displayed SPI presents the calculated value to the flight crew on the primary flight displays along with a caption indicating the nearest engine limiting parameter that is being used for the SPI displayed calculation. Acceptable designs allow the pilot to monitor engine performance and trends. Technologies such as an SPI, which combine multiple indicators into one, cannot meet the requirements of the current rules. By allowing means other than dedicated indicators, the proposed changes would permit designs incorporating an SPI or similar concepts. The FAA proposes to revise §§ 27.1305(e), (k), (n), and (o) and 29.1305(a)(5), (11), and (12) to allow other means of powerplant indication for these instruments. Section 27.1305(k) would continue to require a tachometer to indicate main rotor speed, but would also require a separate means to indicate the r.p.m. of each engine. The FAA also proposes to modify § 27.1305(o) by replacing “turboshaft” with “turbine” to be consistent with similar wording used throughout parts 27 and 29.
For part 29, the FAA proposes to add § 29.1305(b)(4) to permit manipulating the powerplant instruments to simulate one engine inoperative (OEI) conditions without damaging the engines. Section 29.1305 requires unbiased engine instrument indications to remain available to assure operation within safe limits. Several helicopter designs include, for Category A
The proposed changes to § 29.1305 would permit designs incorporating an OEI Training Mode. The FAA is not proposing changes to § 27.1305 because 14 CFR part 27 Category A rotorcraft are approved under appendix C to part 27, which requires compliance with § 29.1305.
Sections 27.1309 and 29.1309 apply generally to all systems on the aircraft that do not otherwise have specific language to analyze the safety aspects of a system. The proposed changes to § 27.1309 would address advances in technology and increases in performance of normal category rotorcraft that were not envisioned when this rule was originally promulgated. Manufacturers installed complex and highly integrated systems in part 27 rotorcraft certificated for instrument flight rules (IFR) under appendix B and Category A operations under appendix C. At that time, the FAA did not envision complex and highly integrated systems would be installed in non-IFR and non-Category A normal category rotorcraft because industry was not employing this advanced technology or the technology did not exist. The analysis methods used to identify and determine the effects of system failures required in § 27.1309 are not adequate for today's complex and highly integrated systems. The use of this advanced technology resulted in an exponential increase in the number of ways rotorcraft systems can fail and a decrease in the discernibility of such failures. To ensure the reliability of the rotorcraft system is not compromised when utilizing complex and highly integrated technology, the FAA is proposing a more structured repeatable failure analysis.
The proposed change would also eliminate the distinction between single-engine and multi-engine rotorcraft. Section 27.1309 currently requires applicants to assess the effects of failures that may be introduced by installed systems and equipment, and distinguishes that the methods for assessing these failures may be different between single and multi-engine rotorcraft. This distinction was envisioned because multi-engine rotorcraft employed complex systems or systems with more severe failure effects. This distinction is now irrelevant since current analysis tools for technologies and associated failure effects do not consider number of engines as required input.
The proposed rule would clarify the requirement to perform a proper failure analysis and also recognize that the severity of failures can vary. Since the current rule was promulgated, the number of failure condition categories has varied. Current industry standards and practices recognize five failure condition categories: Catastrophic, Hazardous, Major, Minor, and No-Safety Effect. The proposed rule recognizes the maximum and minimum failure effects without prescribing the number of failure effect severity categories. This proposed change would also accommodate future changes in industry failure analysis techniques and reflect current certification practices. Additionally, it would eliminate the need to issue recurring special conditions and remove the additional time and cost to industry.
The changes proposed for §§ 27.1309 and 29.1309 would make the sections consistent. These changes would remove the necessity to reference § 29.1309 in appendix C of part 27. Although a specific reference to § 27.1309 would not be added, appendix C of part 27 already requires compliance with all of part 27 for Category A certification. These proposed changes would not eliminate the requirement to reassess compliance with § 27.1309 for applicants who request Category A operations. The FAA proposes to change appendix C to delete the reference to § 29.1309.
The FAA proposes to update § 29.1309 to be consistent with industry standards and practices for conducting failure analysis. These proposed changes are intended to allow flexibility in the types of assessments applicants may provide for showing compliance.
Section 29.1309 currently requires applicants to assess the effects of failures resulting from installed systems and equipment. The current rule also identifies differences in the depth of assessing failures between Category A and Category B
The term “warning” in § 29.1309(c) and (d) has been interpreted as requiring a red level alert, when the intent was to notify the crew of all required annunciations. Therefore, the FAA proposes to modify paragraphs (c) and (d) by removing the terms “warning” and “probability” and replacing them with “annunciation” and “effect” respectively, and adding “misleading data” as a standard failure mode.
The FAA also proposes removing the requirements of § 29.1309(e) and (f) dealing specifically with electrical systems as they are covered by §§ 29.1351, 29.1353, 29.1355, and 29.1357.
The FAA proposes to standardize terminology and combine the requirements for automatic pilot and flight director systems into one rule. Sections 27.1329 and 29.1329 address automatic pilot systems while §§ 27.1335 and 29.1335 address flight director systems. At the time these rules were promulgated, the functionality of designs prompted a separate rule for each system. Since then, systems for automatic control of flight have evolved. Modern designs include both automatic pilot and flight director systems and are now referred to as automatic flight guidance and control systems. Having these systems in separate rules that use different terminology has resulted in some confusion. The proposed changes would remove §§ 27.1335 and 29.1335 and incorporate the requirements into §§ 27.1329 and 29.1329. The FAA also proposes to use the term “automatic flight guidance and control systems” to address both automatic pilot and flight director systems, as well as the components.
Currently, § 29.1333(a) requires isolating the pilot instrument system from any other operating systems. At the time the rule was promulgated, these systems were federated, and connecting these systems increased the likelihood that a fault in one system would cause a fault in the pilot instrument system. This physical independence between the pilot system and other operating systems prevented the pilot system's reliability from being compromised by other operating systems. With the adoption of microprocessor technology and the trend towards complex and highly integrated systems, the requirement for physical independence is no longer appropriate. The use of this technology resulted in an exponential increase in the number of ways rotorcraft systems can fail and a decrease in the discernibility of such failures. To ensure the reliability of the pilot system is not compromised when utilizing microprocessors or highly integrated systems, modern designs allow redundant systems in the rotorcraft to compare information. Rotorcraft cannot utilize current technology, and redundant systems cannot compare information, when the pilot instrument system is isolated.
The FAA proposes to revise § 29.1333(a) and section VIII(b)(5)(i) of appendix B to parts 27 and 29 to make them applicable only to pneumatic systems. These proposed changes would allow for the use of modern technology to monitor and display highly integrated information regarding the rotorcraft that is currently not permitted. The FAA also proposes revising appendix B to parts 27 and 29 to remove the amendment level as previously discussed in section B of the preamble.
The FAA proposes changing §§ 27.1353 and 29.1353 to provide a general regulation that is not directed at a particular battery or battery chemistry. The existing regulations were first written when backup electrical power was provided solely by a lead acid battery. The regulations were later amended to add requirements specific to the nickel-cadmium battery chemistry. Recently, batteries have been developed using various lithium chemistries. Lead acid, nickel-cadmium, and lithium batteries are all energy storage devices with different operational parameters and failure mechanisms. Rather than add specific lithium battery requirements, which would necessitate further amendments to address future energy storage chemistries, the FAA is proposing to generalize the regulation to accommodate any energy storage system. The proposed regulation would be less prescriptive than the existing regulation.
The FAA's intent with this proposal is that the modified regulation would be directly applicable to both lead acid and nickel-cadmium batteries without imposing additional requirements. In addition, this generalized approach would allow the FAA to consider batteries, fuel cells, or any other energy storage device not yet developed. Certain attributes tied to a specific battery chemistry currently found in the regulation would be addressed in AC 27-1B and AC 29-2C. These proposed changes to §§ 27.1353 and 29.1353 are intended to reduce the burden on the FAA and the rotorcraft industry associated with issuing special conditions and the related issue papers.
Section 29.1353, paragraphs (a) and (b) would be moved into § 29.1351 as paragraphs (e) and (f) respectively. These paragraphs are general requirements for all electrical systems and equipment installations. This change is proposed for consistency because those requirements are more appropriate in § 29.1351. This proposed change would standardize the requirements of §§ 27.1353 and 29.1353 and both section titles would be changed to “Energy storage systems” to properly reflect the new language.
The FAA proposes to modify §§ 27.1545(b)(4), 27.1549(b), 29.1545(b)(4), and 29.1549(b) by eliminating the restriction of only using
The FAA also proposes to remove the term “radial” from §§ 27.1545(b)(1), 27.1549(a), 29.1545(b)(1), and 29.1549(a). At the time these rules were promulgated, cockpit instruments were circular, and therefore the technically-correct term “radial line” was used. Technological advances have since produced linear-scale gauges rendering the term “radial” obsolete. The term “line” is intended to represent a radial for round instruments or a line for tape or other style instruments.
The FAA further proposes to replace “arc” with “range” in §§ 27.1545(b)(3), 27.1545(b)(4), 27.1549(b), 27.1549(c), 27.1549(d), 29.1545(b)(3), 29.1545(b)(4), 29.1549(b), 29.1549(c), and 29.1549(d). When these regulations were created, cockpit instruments were circular. “Arc” is a term that only applies to round gauges and not to tape or other style instruments, which are in popular use today. The FAA intends “range” to be applied to round, tape, or other style instruments.
Finally, the FAA proposes to move the requirement for indicating V
The FAA proposes to modify §§ 27.1555(c)(1) and 29.1555(c)(1) to permit more than one method to inform the pilot of the usable fuel system capacity. The existing rules require marking the usable fuel capacity at the fuel quantity indicator. Older, analog fuel gauges (many without numbers) used a placard to inform the pilot of the useful fuel quantity. With modern display systems, the location of the fuel quantity indicator, as well as the fact that the location may change, make it impractical to affix a placard next to the display. In addition, although useful fuel capacity is commonly included in the rotorcraft flight manual, the proposed alternate method would make this a requirement to address the lack of continuous display provided by a placard.
The FAA proposes to correct several typographical errors and to revise certain terminology differences between part 27 and part 29. First, the FAA proposes to revise the title of § 27.87 to coincide with the title of § 29.87, which is the equivalent transport category rotorcraft requirement. The title of § 29.87 was changed from “Limiting height-speed envelope” to “Height-velocity envelope” in order to “agree with the commonly used term.” However, the corresponding title to § 27.87 was not similarly changed at that time.
The FAA also proposes to replace the term “height-speed” with the term “height-velocity” throughout §§ 27.1587, 29.1587, and 29.1517 to be consistent with the title nomenclature of §§ 27.87 and 29.87. These proposed changes are intended to reduce confusion between and within parts 27 and 29.
The FAA also proposes to reformat § 27.903(d) so that it is consistent with the format of the § 29.903(e) engine restart capability requirement. When the § 27.903(d) restart capability requirements were adopted, the paragraph structure of the existing § 29.903(e) was not used even though the technical requirements were intended to be identical. The restart capability requirements of § 27.903(d) are not being changed in this proposal. These proposed changes are intended to reduce confusion between part 27 and part 29 by using a standard format for the same technical requirements.
The FAA proposes to correct a typographical error in §§ 29.955 and 29.1019. When § 29.1305 was updated to add a requirement for an oil pressure indicator for pressure-lubricated gearboxes, the numbering sequence was changed when the additional requirement was inserted at paragraph (a)(6). The § 29.1305(a)(17) fuel filter contamination warning was moved to paragraph (a)(18), and the § 29.1305(a)(18) turbine engine filter contamination warning was moved to paragraph (a)(19). However, the reference to the fuel filter contamination warning in § 29.955(a)(7) and the turbine engine filter contamination warning in § 29.1019(a)(5) were not updated to account for the change in numbering sequence. This proposed change would correct the reference at §§ 29.955(a)(7) and 29.1019(a)(5).
Finally, the FAA proposes to correct a typographical error in § 29.977. When § 29.977 was updated, it incorrectly carried over references to “airplanes” from an identical part 23 update. The proposed change would revise § 29.977 by removing the term “airplanes” and replacing it with the term “rotorcraft.”
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995).
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this proposed rule. The reasoning for this determination follows:
The FAA proposes to revise regulations in 14 CFR part 27 (Airworthiness Standards: Normal Category Rotorcraft) and part 29 (Airworthiness Standards: Transport Category Rotorcraft) related to the certification of rotorcraft. The proposed changes are necessary due to advancing technologies, which address a lack of adequate airworthiness standards resulting from increasing design complexity. As a result, many regulatory sections are subject to reoccurring special conditions, ELOS, and MOC issue papers. This proposed rulemaking would address these problem areas by updating the rules that cause unnecessary burdens in cost and time to both the FAA and the rotorcraft industry. The compliance cost to industry of these proposed regulation changes would be minimal. The justification for minimal cost by regulation is identified in sections 1 through 9 below.
Changes to this section would allow for other means of compliance for powerplant instrument indicators. Other means of compliance are voluntary and do not impose any new cost but could be cost relieving for those that choose to voluntarily comply. Additionally, for § 29.1305, the FAA would permit manipulating the powerplant instruments to simulate OEI conditions without damaging the engines. However, helicopters with OEI Training Mode would require additional indicators to differentiate the OEI condition from actual engine failure, but these indicators are already being installed in current rotorcraft. The FAA believes this proposed change would impose minimal new cost to industry, as these are current industry practice.
The FAA clarifies the requirement to perform proper failure analysis that would adopt the current industry practice of five failure category conditions. Additionally, the FAA eliminates the distinction between single-engine and multi-engine rotorcraft as this distinction is irrelevant because current analysis tools for technologies and associated failure effects no longer consider the number of engines. As these are current industry practice, the FAA asserts that the cost associated with these changes is minimal.
This section would be updated to be consistent with industry standards and practices for conducting failure analysis. The proposed rule would clarify the requirement to perform a proper failure analysis and also recognize that the severity of failures can vary. The FAA asserts that performing a proper failure analysis would be minimal cost as it would codify current industry practices. Additionally, this section would be changed to accommodate future changes in industry failure analysis techniques and reflects current certification practices. Moving to a performance based standard would reduce the need to issue recurring special conditions and potentially save manufactures that choose to use an alternative means of compliance. Thus, these proposed changes would impose minimal cost.
The FAA proposes to standardize terminology and combine the requirements for automatic pilot and flight director systems into one rule. Modern designs include both automatic pilot and flight director systems and are now referred to as automatic flight guidance and control systems. Changes to this section would match current industry practices at a minimal cost.
The FAA proposed change would allow for the use of more modern integrated systems to monitor and display highly integrated information regarding the rotorcraft. This section would impose minimal cost as the updates reflect modern industry practices of integrating instrument systems.
The FAA proposed changes are less prescriptive and performance-based to accommodate different energy storage systems. The modified regulation would be directly applicable to both lead acid and nickel-cadmium batteries without imposing additional requirements. The change would allow the FAA to keep up with changes in technology. Cost to the industry should be minimal as performance based requirements allow for minimal cost options to meet the current standard.
The proposed rule would remove the restrictive requirement for some instrument markings to allow alternative means of compliance,
The proposed rule would permit more than one method to inform the pilot of the usable fuel system capacity. However, alternative method must address the lack of continuous display. Changes to this section allows for more than one means of compliance. Offering alternative means of compliance allows industry to meet the requirement with the least costly option that can be cost relieving or the existing method of compliance, but either method would be no more than minimal cost.
Costs for proposed changes to this section are minimal as these are strictly typographical or standardizing corrections.
The FAA has, therefore, determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures. The FAA requests comments with supporting justification about the FAA determination of minimal cost impact.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The FAA proposes to amend the certification standards of normal and transport category helicopters. The proposed changes reflect modern designs currently used in the rotorcraft industry and would reduce the burden on applicants for certification of new rotorcraft designs. The proposed changes would reduce or eliminate the need for certain special conditions currently required to obtain certification of modern rotorcraft. This proposed rule would merely revise and clarify FAA rulemaking procedures; the expected outcome will have only a minimal cost impact on any small entity affected by this rulemaking action.
If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that the potential benefits are available to both domestic and international firms which would either have no affect or a positive effect on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6.f and involves no extraordinary circumstances.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Aircraft, Aviation safety.
Aircraft, Aviation safety.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(g), 40113, 44701-44702, 44704.
(a) If there is any combination of height and forward speed (including hover) under which a safe landing cannot be made under the applicable power failure condition in paragraph (b) of this section, a limiting height-velocity envelope must be established (including all pertinent information) for that condition, throughout the ranges of—
(d)
(2) Except for the in-flight shutdown of all engines, engine restart capability must be demonstrated throughout a flight envelope for the rotorcraft.
(3) Following the in-flight shutdown of all engines, in-flight engine restart capability must be provided.
(e) A means to indicate manifold pressure for each altitude engine.
(k) A means to indicate the r.p.m. of each engine and at least one tachometer, as applicable, for:
(n) A means to indicate the gas temperature for each turbine engine.
(o) A means to enable the pilot to determine the torque of each turbine engine, if a torque limitation is established for that engine under § 27.1521(e).
The equipment, systems, and installations whose functioning is required by this subchapter must be designed and installed to ensure that they perform their intended functions under any foreseeable operating condition. For any item of equipment or system whose failure has not been specifically addressed by another requirement in this chapter, the following requirements also apply:
(a) The design of each item of equipment, system, and installation must be analyzed separately and in relation to other rotorcraft systems and installations to determine and identify any failure that would affect the capability of the rotorcraft or the ability of the crew to perform their duties in all operating conditions.
(b) Each item of equipment, system, and installation must be designed and installed so that:
(1) The occurrence of any catastrophic failure condition is extremely improbable;
(2) The occurrence of any minor failure condition is no more than probable; and
(3) For the occurrence of any other failure condition, the probability of the failure condition must be inversely proportional to its consequences.
(c) A means to alert the crew in the event of a failure must be provided when an unsafe system operating condition exists to enable them to take corrective action. Systems, controls, and associated monitoring and crew alerting means must be designed to minimize crew errors that could create additional hazards.
(d) Compliance with the requirements of this section must be shown by analysis and, where necessary, by ground, flight, or simulator tests. The analysis must account for:
(1) Possible modes of failure, including malfunctions and misleading data and input from external sources;
(2) The effect of multiple failures and latent failures;
(3) The resulting effects on the rotorcraft and occupants, considering the stage of flight and operating conditions; and
(4) The crew warning cues and the corrective action required.
For the purpose of this subpart, an automatic flight guidance and control system may consist of an autopilot, flight director, or a component that interacts with stability augmentation or trim.
(a) Each automatic flight guidance and control system must be designed so that it:
(1) Can be overpowered by the pilot to allow control of the rotorcraft;
(2) Provides a means to disengage the system by the pilot to prevent it from interfering with the control of the rotorcraft; and
(3) Provides a means to indicate to the flight crew its current mode of operation.
Selector switch position is not acceptable as a means of indication.
(d) The system must be designed so that, within the range of adjustment available to the pilot, it cannot produce hazardous loads on the rotorcraft, or create hazardous deviations in the flight path, under any flight condition appropriate to its use or in the event of a malfunction.
(e) If the automatic flight guidance and control system integrates signals from auxiliary controls or furnishes signals for operation of other equipment, there must be a means to prevent improper operation.
Energy storage systems must be designed and installed as follows:
(a) Energy storage systems must provide automatic protective features for any conditions that could prevent continued safe flight and landing.
(b) Energy storage systems must not emit any explosive or toxic gases, smoke, or fluids except through designed venting provisions and must not accumulate in hazardous quantities within the rotorcraft.
(c) Corrosive fluids or gases that escape from the system must not damage surrounding structures, adjacent equipment, or systems necessary for continued safe flight and landing.
(d) The maximum amount of heat that can be generated during any operation or under any failure condition of the energy storage system or its individual components must not result in any hazardous effect on rotorcraft structure, equipment, or systems necessary for continued safe flight and landing.
(e) Energy storage system installations required for continued safe flight and landing of the rotorcraft must have monitoring features and a means to indicate to the pilot the status of all critical system parameters.
(b) The following markings must be made:
(1) A red line—
(i) For rotorcraft other than helicopters, at V
(ii) For helicopters, at V
(iii) For helicopters, at V
(2) [Reserved]
(3) For the caution range, a yellow range.
(4) For the normal operating range, a green or unmarked range.
(a) Each maximum and, if applicable, minimum safe operating limit must be marked with a red line;
(b) Each normal operating range must be marked as a green or unmarked range;
(c) Each takeoff and precautionary range must be marked with a yellow range or yellow line; and
(d) Each engine or propeller range that is restricted because of excessive vibration stresses must be marked with red ranges or red lines.
(c) * * *
(1) For fuel systems having no selector controls, the usable fuel capacity of the system must be indicated at the fuel quantity indicator unless it is:
(i) Provided by another system or equipment readily accessible to the pilot; and
(ii) Contained in the limitations section of the rotorcraft flight manual.
(a) * * *
(1) Enough information to determine the limiting height-velocity envelope.
VIII.
(b) * * *
(5) * * *
(i) For pneumatic systems, only the required flight instruments for the first pilot may be connected to that operating system;
49 U.S.C. 106(f), 106(g), 40113, 44701-44702, 44704.
(a) * * *
(7) The fuel filter required by § 29.997 is blocked to the degree necessary to simulate the accumulation of fuel contamination required to activate the indicator required by § 29.1305(a)(18).
(a) * * *
(1) For reciprocating engine powered rotorcraft, have 8 to 16 meshes per inch; and
(2) For turbine engine powered rotorcraft, prevent the passage of any object that could restrict fuel flow or damage any fuel system component.
(a) * * *
(5) An oil strainer or filter that has no bypass, except one that is installed at an oil tank outlet, must have a means to connect it to the warning system required in § 29.1305(a)(19).
(a) * * *
(5) A means to indicate manifold pressure for each reciprocating engine of the altitude type;
(11) A means to indicate the gas temperature for each turbine engine;
(12) A means to indicate the gas producer speed for each turbine engine;
(b) * * *
(4) For each Category A rotorcraft for which OEI Training Mode is requested, a means must be provided to indicate to the pilot the simulation of an engine failure, the annunciation of that simulation, and a representation of the OEI power being provided.
The equipment, systems, and installations whose functioning is required by this subchapter must be designed and installed to ensure that they perform their intended functions under any foreseeable operating condition. For any item of equipment or system whose failure has not been specifically addressed by another requirement in this chapter, the following requirements also apply:
(a) The design of each item of equipment, system, and installation must be analyzed separately and in relation to other rotorcraft systems and installations to determine and identify any failure that would affect the capability of the rotorcraft or the ability of the crew to perform their duties in all operating conditions.
(b) Each item of equipment, system, and installation must be designed and installed so that:
(1) The occurrence of any catastrophic failure condition is extremely improbable;
(2) The occurrence of any minor failure condition is no more than probable; and
(3) For the occurrence of any other failure condition, the probability of the failure condition must be inversely proportional to its consequences.
(c) A means to alert the crew in the event of a failure must be provided when an unsafe system operating condition exists and to enable them to take corrective action. Systems, controls, and associated monitoring and crew alerting means must be designed to minimize crew errors that could create additional hazards.
(d) Compliance with the requirements of this section must be shown by analysis and, where necessary, by ground, flight, or simulator tests. The analysis must account for:
(1) Possible modes of failure, including malfunctions and misleading data and input from external sources;
(2) The effect of multiple failures and latent failures;
(3) The resulting effects on the rotorcraft and occupants, considering the stage of flight and operating conditions; and
(4) The crew warning cues and the corrective action required.
For the purpose of this subpart, an automatic flight guidance and control system may consist of an autopilot, flight director, or a component that interacts with stability augmentation or trim.
(a) Each automatic flight guidance and control system must be designed so that it:
(1) Can be overpowered by the pilot to allow control of the rotorcraft;
(2) Provides a means to disengage the system by the pilot to prevent it from interfering with the control of the rotorcraft; and
(3) Provides a means to indicate to the flight crew its current mode of operation. Selector switch position is not acceptable as a means of indication.
(d) The system must be designed so that, within the range of adjustment available to the pilot, it cannot produce hazardous loads on the rotorcraft, or create hazardous deviations in the flight path, under any flight condition appropriate to its use or in the event of a malfunction.
(e) If the automatic flight guidance and control system integrates signals from auxiliary controls or furnishes signals for operation of other equipment, there must be a means to prevent improper operation.
(a) For pneumatic systems, only the required flight instruments for the first pilot may be connected to that operating system.
(e) Electrical equipment, controls, and wiring must be installed so that operation of any one unit or system of units will not adversely affect the simultaneous operation of any other electrical unit or system essential to safe operation.
(f) Cables must be grouped, routed, and spaced so that damage to essential circuits will be minimized if there are faults in heavy current-carrying cables.
Energy storage systems must be designed and installed as follows:
(a) Energy storage systems must provide automatic protective features for any conditions that could prevent continued safe flight and landing.
(b) Energy storage systems must not emit any explosive or toxic gases, smoke, or fluids except through designed venting provisions and must not accumulate in hazardous quantities within the rotorcraft.
(c) Corrosive fluids or gases that escape from the system must not damage surrounding structures, adjacent equipment, or systems necessary for continued safe flight and landing.
(d) The maximum amount of heat that can be generated during any operation or under any failure condition of the energy storage system or its individual components must not result in any hazardous effect on rotorcraft structure, equipment, or systems necessary for continued safe flight and landing.
(e) Energy storage system installations required for continued safe flight and landing of the rotorcraft must have monitoring features and a means to indicate to the pilot the status of all critical system parameters.
(b) The following markings must be made:
(1) A red line:
(i) For rotorcraft other than helicopters, at V
(ii) For helicopters, at a V
(iii) For helicopters, at V
(2) [Reserved]
(3) For the caution range, a yellow range.
(4) For the normal operating range, a green or unmarked range.
(a) Each maximum and, if applicable, minimum safe operating limit must be marked with a red line;
(b) Each normal operating range must be marked as a green or unmarked range;
(c) Each takeoff and precautionary range must be marked with a yellow range or yellow line;
(d) Each engine or propeller range that is restricted because of excessive vibration stresses must be marked with red ranges or red lines; and
(c) * * *
(1) For fuel systems having no selector controls, the usable fuel capacity of the system must be indicated at the fuel quantity indicator unless it is:
(i) Provided by another system or equipment readily accessible to the pilot; and
(ii) Contained in the limitations section of the rotorcraft flight manual.
(b) * * *
(6) The height-velocity envelope except for rotorcraft incorporating this as an operating limitation;
VIII.
(b) * * *
(5) * * *
(i) For pneumatic systems, only the required flight instruments for the first pilot may be connected to that operating system;
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Berlin, NH, due to the addition of a localizer performance with vertical guidance function (LPV) instrument procedure to runway 18 being created for Berlin Regional Airport (formerly Berlin Municipal Airport). This action also would update the geographic coordinates of the airport to coincide with the FAA's aeronautical database, and would enhance the safety and management of instrument flight rules operations (IFR) at the airport.
Comments must be received on or before December 18, 2017.
Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm. W12-140, Washington, DC 20590; Telephone: (202) 366-9826. You must identify the Docket No. FAA-2017-0848; Airspace Docket No. 13-ANE-2, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Berlin
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the Internet at
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0848; Airspace Docket No. 13-ANE-2.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet or more above the surface within a 10.5-mile radius of Berlin Regional Airport, Berlin, NH, due to the addition of LPV instrument procedures to runway 18. The Berlin VOR/DME navigation aid is no longer needed to define the airspace. Additionally, the geographic coordinates of the airport would be adjusted to coincide with the FAAs aeronautical database. Also, this action would update the airport name to Berlin Regional Airport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 10.5-mile radius of Berlin Regional Airport,
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace extending upward from 700 feet above the surface at Hanford Municipal Airport, Hanford, CA, by enlarging the airspace to accommodate area navigation (RNAV) procedures at the airport, removing the Visalia VHF omnidirectional range/distance measuring equipment (VOR/DME) from the airspace description, and amending the geographic coordinates of the airport. This action also would remove Blair Airport from the airport description as the airport no longer exists. This action is necessary for the safety and management of instrument flight rules (IFR) operations at the airport.
Comments must be received on or before December 18, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2017-0856; Airspace Docket No. 17-AWP-10, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Hanford Municipal Airport, Hanford, CA, in support of IFR operations at the airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (Docket No. FAA-2017-0856; Airspace Docket No. 17-AWP-10) and be submitted in triplicate to DOT Docket Operations (see
Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0856/Airspace Docket No. 17-AWP-10.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by enlarging the Class E airspace area extending upward from 700 feet above the surface at Hanford Municipal Airport, Hanford, CA to accommodate area navigation (RNAV) procedures at the airport. The Class E airspace area would be modified to within 1.8 miles southwest and 3.2 miles northeast of the 332° bearing from the airport extending to 6.2 miles northwest of the airport (from within a 2.6-mile radius), and within 1.8 miles southwest and 3.2 miles northeast (from within 1.5 miles each side) of the 152° bearing from the airport extending to 6.2 miles southeast of the airport (from 5 miles southeast), and within 1.3 miles each side of the 067° bearing from the airport (from 1.8 miles north and 2.3 miles south of the Visalia VOR/DME) extending to 7.7 miles northeast of the airport.
Also, this action would remove the reference to the Visalia VOR/DME in the legal description as the FAA transitions from ground-based to satellite-based navigation; and would remove Blair Airport from the legal description as the airport no longer exists.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.11B, dated August 3, 2017 and effective September 15, 2017, which
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within 1.8 miles southwest and 3.2 miles northeast of a 332° bearing from the Hanford Municipal Airport extending to 6.2 miles northwest of the airport, and within 1.8 miles southwest and 3.2 miles northeast of a 152° bearing from the airport extending to 6.2 miles southeast of the airport, and within 1.3 miles each side of a 067° bearing from the airport extending to 7.7 miles northeast of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E surface airspace at Greenville, NC, by removing Pitt County Memorial Hospital Heliport from the Class E surface area airspace associated with Pitt-Greenville Airport. Helicopters departing from the heliport must now receive clearance. Consequently, the cut out from Class E surface airspace is no longer required. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also would update the geographic coordinates of the airport under Class E surface airspace and Class E airspace extending upward from 700 feet or more above the surface of the earth, to coincide with the FAAs aeronautical database.
Comments must be received on or before December 18, 2017.
Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm W12-140, Washington, DC 20590; Telephone: 1-(800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2017-0801; Airspace Docket No. 17-ASO-17, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Pitt-Greenville Airport, Greenville, NC to support IFR operation at the airport.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the Internet at
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0801; Airspace Docket No. 17-ASO-17.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E surface airspace within a 4.4-mile radius of Pitt-Greenville Airport, Greenville, NC. The Pitt County Memorial Hospital Heliport no longer requires the southwest area below 200 feet from the airport for departures from the heliport. This action is for continued safety and management of IFR operations at the airport. The geographic coordinates of the airport also would be adjusted to coincide with the FAA's aeronautical database.
Class E airspace designations are published in Paragraphs 6002 and 6005, respectively, of FAA Order 7400.11B, dated August 3, 201B, and effective September 15, 201B, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Within a 4.4-mile radius of the Pitt-Greenville Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Pitt-Greenville Airport.
Food and Drug Administration, HHS.
Notification; withdrawal of petition for rulemaking.
The Food and Drug Administration (FDA or we) is announcing the withdrawal, without prejudice to a future filing, of a food additive petition (animal use) (FAP 2276) proposing that the food additive regulations be amended to provide for the safe use of ethoxyquin in vitamin D formulations, including 25-hydroxyvitamin D
The food additive petition was withdrawn on September 13, 2017.
For access to the docket to read background documents or comments received, go to
Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6729,
In a notice published in the
Food and Drug Administration, HHS.
Notification; withdrawal of petition for rulemaking.
The Food and Drug Administration (FDA or we) is announcing the withdrawal, without prejudice to a future filing, of a food additive petition (FAP 2280) proposing that the food additive regulations be amended to provide for the safe use of 25-hydroxyvitamin D
The food additive petition was withdrawn on September 13, 2017.
For access to the docket to read background documents or comments received, go to
Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6729,
In a notice published in the
Federal Communications Commission.
Notice of proposed rulemaking.
In this document, the Federal Communications Commission (Commission) seeks further comment on the appropriate tiers for calculating terrestrial and satellite international bearer circuit fees, and the methodology by which cable television subscribers in multiple dwelling units (MDUs) are calculated.
Comments are due on or before December 1, 2017 and reply comments are due on or before December 18, 2017.
You may submit comments, identified by MD Docket No. 17-134, by any of the following methods listed in the Comment Filing Procedures section below.
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Roland Helvajian, Office of Managing Director at (202) 418-0444.
This is a summary of the Commission's
1. This
2.
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
3.
4.
5. An initial regulatory flexibility analysis (IRFA) is contained in this summary. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on the Notice. The Commission will send a copy of the Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
6. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
7. In this
8. We seek further comment on this issue to have a more comprehensive record for adopting a new flat rate methodology for terrestrial and satellite IBCs and to revise the tiers for submarine cable systems. We also seek comment on the proposal to adopt a regulatory fee for all holders of section 214 international authorizations.
9. In the
10. We propose revising the tiers for submarine cable systems. We recognize that since we adopted the current tiers for submarine cable systems, the subsequent growth in the industry has moved all but two systems to the highest tier. We seek comment on whether we should revise the tiers. For example, we could adopt the following: Systems with capacity of 10,000 Gbps or more, paying 16 payment units each; systems with capacity equal to or greater than 5,000 Gbps but less than 10,000 Gbps, paying eight payment units; systems with capacity equal to or greater than 2,500 Gbps but less than 5,000 Gbps, paying four payment units; systems with capacity equal to or greater than 1,000 Gbps but less than 2,500 Gbps, paying two payment units; and systems with capacity below 1,000 Gbps paying one payment unit. We seek comment on this proposal.
11. We also propose adopting, for terrestrial and satellite IBCs, the same five tiers used for submarine cable systems. Level 3 contends that two tiers would be sufficient for terrestrial and satellite IBCs to ensure that larger carriers pay a fair amount and to avoid being a barrier to entry for new providers.
12. In its comments, the Coalition suggested that the Commission should adopt a fee methodology based on flat fee from every holder of an international section 214 authorization.
13. In the
Cable television system operators should compute their number of basic subscribers as follows: Number of single family dwellings + number of individual households in multiple dwelling unit (apartments, condominiums, mobile home parks, etc.) paying at the basic subscriber rate + bulk rate customers + courtesy and free service. Note: Bulk-Rate Customers = Total annual bulk-rate charge divided by basic annual subscription rate for individual households. Operators may base their count on “a typical day in the last full week” of December [year], rather than on a count as of December 31, [year].
14. We recognize that the cable television industry has evolved significantly and the bulk rate calculation may not be reasonable or feasible today because of the many services offered today by cable providers. Specifically, with offerings of different packages and bundles, it may no longer be feasible to use a bulk rate calculation. Commenters should discuss if they use the bulk rate calculation or if they separately count each subscriber, even those living in MDUs.
15. We seek comment on whether we should keep the bulk rate calculation, or alternatively, whether we should modify the methodology to more accurately calculate the numbers of subscribers in a MDU. We seek comment on whether we should eliminate the bulk rate calculation due to changes in today's cable market.
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
2. The
3. This action, including publication of proposed rules, is authorized under sections (4)(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended.
4. 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 and policies, if adopted.
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7.
8.
9.
10.
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14.
15.
16.
17. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
18. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.
19.
20. In assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
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26.
27.
28. The U.S. Census Bureau defines Wired Telecommunications Carriers as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.
29. The U.S. Census Bureau defines Wireless Telecommunications Carriers (except satellite) as establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services.
30.
31. The U.S. Census defines Other Services Related to Advertising as comprising establishments primarily engaged in providing advertising services (except advertising agency services, public relations agency services, media buying agency services, media representative services, display advertising services, direct mail advertising services, advertising material distribution services, and marketing consulting services).
32. The U.S. Census defines Other Management Consulting Services as establishments primarily engaged in providing management consulting services (except administrative and general management consulting; human resources consulting; marketing consulting; or process, physical distribution, and logistics consulting). Establishments providing telecommunications or utilities management consulting services are included in this industry.
33. In addition to the data contained in the four (see above) U.S. Census NAICS code categories that provide definitions of what services and functions the Carrier and Non-Carrier
34. This
35. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
36. The
37. None.
38. Accordingly,
Fish and Wildlife Service, Interior.
Proposed rule; reopening of the comment period.
We, the U.S. Fish and Wildlife Service (Service), announce that we are reopening the comment period for the proposed rule to remove the plant
The comment period on the proposed rule that published January 5, 2017 (82 FR 1297), is reopened. We will accept comments received or postmarked on or before December 1, 2017.
(1)
(2)
G. Mendel Stewart, Field Supervisor, Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 250, Carlsbad, CA 92008; telephone 760-431-9440; facsimile (fax) 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.
On January 5, 2017, we published a proposed rule to remove the plant
You may submit your comments and materials by one of the methods listed in
If you submit information via
If you mail or hand-deliver a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review, but we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on
The primary author of this document is the Carlsbad Fish and Wildlife Office in Carlsbad, California, in coordination with the Pacific Southwest Regional Office in Sacramento, California.
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by December 1, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.
Comments regarding this information collection received by December 1, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commentors are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are required regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by December 1, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice.
Forest Service administrative review procedures require agency officials to publish legal notices in newspapers of record for certain opportunities to comment and opportunities to file pre-decisional objections. Forest Service officials in the Eastern Region will publish those legal notices in the newspapers listed in this notice. The Eastern Region consists of Illinois, Indiana, Ohio, Michigan, Minnesota, Missouri, New Hampshire, Maine, Pennsylvania, Vermont, New York, West Virginia, and Wisconsin. The public shall be advised through a
Michael Tighe; Writer/Editor; 626 E. Wisconsin Avenue; Milwaukee, WI 53202. Phone: (414) 297-3439.
Responsible Officials in the Eastern Region will publish legal notice(s) regarding proposed land management plans as required under 36 CFR 219.16 and legal notice(s) regarding an opportunity to comment on proposed projects as required under 36 CFR 218.24 in the newspapers that are listed in this section by Forest Service administrative unit. Additionally, Responsible Officials in the Eastern Region will publish legal notice(s) of the opportunity to object to a proposed project under 36 CFR part 218 or to object to a land management plan developed, amended, or revised under 36 CFR part 219 in the legal notice section of the newspapers listed in this notice. Additional notice regarding an opportunity to comment or object under the above mentioned regulations may be provided in other newspapers not listed
The timeframe for comment on a proposed action shall be based on the date of publication of the legal notice of the proposed action in the newspaper of record. The timeframe for objection shall be based on the date of publication of the legal notice of the opportunity to object in the newspaper of record.
The following newspapers will be used to provide legal notice.
Affecting National Forest System lands in the Eastern Region, in the states of Illinois, Indiana, Ohio, Michigan, Minnesota, Missouri, New Hampshire, Maine, Pennsylvania, Vermont, New York, West Virginia, and Wisconsin,
Forest Service, USDA.
Notice of meeting.
The Black Hills National Forest Advisory Board (Board) will meet in Rapid City, South Dakota. The Board is established consistent with the Federal Advisory Committee Act, of 1972, the Forest and Rangeland Renewable Resources Planning Act of 1974, the National Forest Management Act of 1976, and the Federal Public Lands Recreation Enhancement Act. Additional information concerning the Board, including the meeting summary/minutes, can be found by visiting the Board's Web site at:
The meeting will be held on Wednesday, November 15, 2017, at 1:00 p.m.
All meetings are subject to cancellation. For updated status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Forest Service Center, 8221 Mount Rushmore Road, Rapid City, South Dakota.
Written comments may be submitted as described under
Scott Jacobson, Committee Coordinator, by phone at 605-440-1409 or by email at
The purpose of the meeting is to provide:
(1) Information Topic: Forest Range Program;
(2) Non-Motorized Trails Working Group Presentation;
(3) Motor Vehicle Use Permit Fees;
(4) Black Hills Resilient Landscape Project update; and
(5) Over Snow Use.
The meeting is open to the public. If time allows, the public may make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by November 6, 2017, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Board may file written statements with the Board's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Scott Jacobson, Black Hills National Forest Supervisor's Office, 1019 North Fifth Street, Custer, South Dakota 57730; by email to
The Materials Technical Advisory Committee will meet on November 16, 2017, 10:00 a.m., Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials and related technology.
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the materials should be forwarded prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (the Department) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) listed below. The International Trade Commission (the Commission) is publishing concurrently with this notice its notice of
Applicable (November 1, 2017).
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):
With respect to the orders on Steel Garment Hangers from Vietnam, we have advanced the initiation date of these Sunset Reviews upon determining that initiation of the Sunset Reviews for all of the Steel Garment Hangers orders on the same date would promote administrative efficiency.
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address:
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
International Trade Administration, DOC.
Notice of Federal Advisory Committee Meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The meeting is scheduled for Tuesday, November 14, 2017 from 8:30 a.m.-3:30 p.m. Eastern Daylight Time (EDT). The deadline for members of the public to register or to submit written comments for dissemination prior to the meeting is 5:00 p.m. EDT on Friday, November 3, 2017. The deadline for members of the public to request auxiliary aids is 5:00 p.m. EDT on Tuesday, November 7, 2017.
The meeting will be held in Room 6057-59 at the U.S. Department of Commerce, Herbert Clark Hoover Building, 1401 Constitution Avenue NW., Washington, DC 20230. The address to register, submit comments, or request auxiliary aids is: Ms. Amy Kreps, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 28018, 1401 Constitution Avenue NW., Washington, DC 20230 or email:
Ms. Amy Kreps, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 28018, 1401 Constitution Avenue NW., Washington, DC 20230 (Phone: 202-482-3835; Fax: 202-482-5665; email:
The meeting will take place on November 14 from 8:30 a.m. to 3:30 p.m. EDT. The general meeting is open to the public and time will be permitted for public comment from 3:00-3:30 p.m. EDT. Members of the public seeking to attend the meeting are required to register in advance. Those interested in attending must provide notification by Friday, November 3, 2017 at 5:00 p.m. EDT, via the contact information provided above. This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to OEEI at (202) 482-3835 no less than one week prior to the meeting. Requests received after this date will be accepted, but it may not be possible to accommodate them.
Written comments concerning ETTAC affairs are welcome any time before or after the meeting. To be considered during the meeting, written comments must be received by Friday, November 3, 2017 at 5:00 p.m. EDT to ensure transmission to the members before the meeting. Minutes will be available within 30 days of this meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable October 25, 2017.
Irene Gorelik at (202) 482-6905 or Robert Palmer at (202) 482-9068 (Taiwan), Katherine Johnson at (202) 482-4929 or Renato Barreda at (202) 482-0317 (the People's Republic of China (PRC)), and Denisa Ursu at (202) 482-2285 or Michael Bowen at (202) 482-0768 (Italy), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
On October 5, 2017, the U.S. Department of Commerce (the Department) received antidumping duty (AD) Petitions concerning imports of forged steel fittings from the People's Republic of China (PRC), Italy, and Taiwan, filed in proper form, on behalf of Bonney Forge Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) (collectively, the petitioners).
On October 6 and 10, 2017, the Department requested supplemental information pertaining to certain areas of the Petitions.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that imports of forged steel fittings from the PRC, Italy, and Taiwan are being, or likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, the domestic industry producing forged steel fittings in the United States. Also, consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to the petitioners supporting their allegations.
The Department finds that the petitioners filed these Petitions on behalf of the domestic industry because the petitioners are interested parties as defined in sections 771(9)(C) and (D) of the Act. The Department also finds that the petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigations that the petitioners are requesting.
Because the Petitions were filed on October 5, 2017, the period of investigation (POI) for Taiwan and Italy is October 1, 2016, through September 30, 2017. Because the PRC is a non-market economy (NME) country, the POI for this investigation is April 1, 2017, through September 30, 2017.
The products covered by these investigations are forged steel fittings from the PRC, Italy, and Taiwan. For a full description of the scope of these investigations,
During our review of the Petitions, the Department issued questions to, and received responses from, the petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).
The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All scope comments must be filed on the records of each of the concurrent AD and CVD investigations.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).
The Department will provide interested parties an opportunity to comment on the appropriate physical characteristics of forged steel fittings to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the merchandise under consideration in order to report the relevant costs of production accurately as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe forged steel fittings, it may be that only a select few product characteristics take
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on November 14, 2017. Any rebuttal comments must be filed by 5:00 p.m. ET on November 24, 2017. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of the PRC, Italy and Taiwan less-than-fair-value investigations.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that forged steel fittings, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether the petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the Appendix of this notice.
Our review of the data provided in the Petitions, supplements to the Petitions, and other information readily available to the Department indicates that the petitioners have established industry support.
The Department finds that the petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in sections 771(9)(C) and (D) of the Act and they have demonstrated sufficient industry support with respect to the AD
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, the petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioners contend that the industry's injured condition is illustrated by a significant and increasing volume of imports from the subject countries; reduced market share; underselling and price depression or suppression; and a negative impact on the domestic industry's capacity utilization, employment, and profits.
The following is a description of the allegations of sales at less than fair value upon which the Department based its decision to initiate AD investigations of imports of forged steel fittings from the PRC, Italy, and Taiwan. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.
For the PRC and Taiwan, the petitioners based U.S. price on export price (EP) using an average unit value (AUV) of publicly available import data.
With respect to the PRC, the petitioners stated that the Department has found this country to be a NME country in prior administrative proceedings.
The petitioners claim that Mexico is an appropriate surrogate country for the PRC, because it is a market economy country that is at a level of economic development comparable to that of the PRC, it is a significant producer of comparable merchandise, and public information from Mexico is available to value all material input factors.
Because information regarding the volume of inputs consumed by the PRC producers/exporters is not available, the petitioners relied on the production experience of a domestic producer of forged steel fittings in the United States as an estimate of PRC manufacturers' FOPs.
Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs no later than 30 days before the scheduled date of the preliminary determination.
For Italy, the petitioners based NV on a home market price quote obtained for ten selected forged steel fittings produced and sold in Italy within the proposed POI. The petitioners adjusted the price quotes for a distributor markup to obtain the ex-factory price.
For Taiwan, the petitioners provided an affidavit from a foreign market researcher with a home market sales offer for forged steel fittings produced in, and sold or offered for sale in Taiwan.
Based on the data provided by the petitioners, there is reason to believe that imports of forged steel fittings from the PRC, Italy, and Taiwan are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for forged steel fittings for each of the countries covered by this initiation are as follows: (1) PRC—142.72 percent;
Based upon the examination of the AD Petitions, we find that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of forged steel fittings from the PRC, Italy, and Taiwan are being, or are likely to be, sold in the United States at less than fair value. In accordance with
Under the Trade Preferences Extension Act of 2015, numerous amendments to the AD and CVD law were made.
The petitioners named six companies in Italy and three companies in Taiwan, as producers/exporters of forged steel fittings.
Interested parties may submit comments regarding the CBP data and respondent selection by 5:00 p.m. ET seven calendar days after the placement of the CBP data on the record of these investigations. Interested parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for initial comments.
Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. If respondent selection is necessary, within 20 days of publication of this notice, we intend to make our decisions regarding respondent selection based upon comments received from interested parties and our analysis of the record information.
With respect to the PRC, the petitioners named 14 producers/exporters of forged steel fittings from the PRC.
Producers/exporters of forged steel fittings from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy of the Q&V questionnaire from Enforcement & Compliance's Web site. The Q&V response must be submitted by the relevant PRC exporters/producers no later than 5:00 p.m. ET on November 9, 2017. All Q&V responses must be filed electronically via ACCESS.
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of the PRC, Italy, and Taiwan
We will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of forged steel fittings from the PRC, Italy, and/or Taiwan, are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). 19 CFR 351.301(b) requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).
The merchandise covered by these investigations is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings and unions. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.
While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, and MSS SP-83, ASTM A105, ASTM A350 and ASTM A182, the scope is not limited to fittings made to these specifications.
The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable standards, fittings may also be machined from bar stock or machined from seamless pipe and tube.
All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure,
Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, and nipples.
Subject carbon and alloy forged steel fittings are normally entered under HTSUS 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010.
The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (the Department) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after November 2017, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
Not later than the last day of November 2017,
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
The Department no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.
Following initiation of an antidumping administrative review when there is no review requested of the NME entity, the Department will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable November 1, 2017.
Paul Stolz at (202) 482-4474 (Belgium); Stephanie Moore at (202) 482-3692 (Colombia); and Joy Zhang at (202) 482-1168 (Thailand), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
On June 22, 2017, the Department of Commerce (the Department) initiated less-than-fair- value (LTFV) investigations of imports of citric acid and certain citrate salts (citric acid) from Belgium, Colombia, and Thailand.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a LTFV investigation within 140 days after the date on which the Department initiated the investigation. However, section 733(c)(1)) of the Act permits the Department to postpone the preliminary determination until no later than 190 days after the date on which the Department initiated the investigation if: (A) The petitioner makes a timely request for a postponement; or (B) the Department concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. The Department will grant the request unless it finds compelling reasons to deny the request.
On October 11, 2017, Archer Daniels Midland Company (ADM); Cargill Incorporated (Cargill); and Tate & Lyle Ingredients America LLC (Tate & Lyle) (collectively, the petitioners) submitted timely requests pursuant to section 703(c)(1)(A) of the Act and 19 CFR 351.205(e) to postpone the preliminary determinations in these LTFV investigations.
For the reasons stated above and because there are no compelling reasons to deny the request, the Department, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determinations by 50 days (
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable November 1, 2017.
Brian Smith at (202) 482-1766 or Jaron Moore at (202) 482-3640, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
On October 5, 2017, the U.S. Department of Commerce (the Department) received a countervailing duty (CVD) Petition concerning imports of forged steel fittings from the People's Republic of China (the PRC), filed in proper form on behalf of Bonney Forge Corporation and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (collectively, the petitioners). The CVD Petition was accompanied by antidumping duty (AD) Petitions concerning imports of forged steel fittings from the PRC, Italy, and Taiwan.
On October 6, 10, and 17, 2017, the Department requested supplemental information pertaining to certain areas of the Petition.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that the Government of the PRC is providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to imports of forged steel fittings from the PRC, and that such imports are materially injuring, or threatening material injury to, the domestic industry producing forged steel fittings in the United States. Also, consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), for those alleged programs on which we are initiating a CVD investigation, the Petition is accompanied by information reasonably available to the petitioners supporting their allegations.
The Department finds that the petitioners filed the Petition on behalf of the domestic industry because the petitioners are interested parties as defined in sections 771(9)(C) and (D) of the Act. The Department also finds that the petitioners demonstrated sufficient industry support with respect to the initiation of the CVD investigation that the petitioners are requesting.
Because the Petition was filed on October 5, 2017, the period of investigation (POI) is January 1, 2016, through December 31, 2016.
The product covered by this investigation is forged steel fittings from the PRC. For a full description of the scope of this investigation,
During our review of the Petition, the Department issued questions to, and received responses from, the petitioners pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).
The Department requests that any factual information the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact the Department and request permission to submit the additional information. All scope comments must be filed on the records of each of the concurrent AD and CVD investigations.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).
Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, the Department notified representatives of the Government of the PRC of the receipt of the Petition, and provided them the opportunity for consultations with respect to the CVD Petition.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioners do not offer a definition of the domestic like product distinct from the scope of this investigation. Based on our analysis of the information submitted on the record, we have determined that forged steel fittings, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether the petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the Appendix of this notice. The petitioners provided their own production of the domestic like product in 2016 and compared this to the total 2016 production of the domestic like product for the entire domestic industry.
Our review of the data provided in the Petition, the supplements to the Petition, and other information readily available to the Department indicates that the petitioners have established industry support.
The Department finds that the petitioners filed the Petition on behalf of the domestic industry because they are interested parties as defined in sections 771(9)(C) and (D) of the Act and they have demonstrated sufficient industry support with respect to the CVD
Because the PRC is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from the PRC materially injure, or threaten material injury to, a U.S. industry.
The petitioners allege that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, the petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioners contend that the industry's injured condition is illustrated by a significant and increasing volume of imports from the subject country; reduced market share; underselling and price depression or suppression; and a negative impact on the domestic industry's capacity utilization, employment, and profits.
Based on the examination of the CVD Petition, we find that the Petition meets the requirements of section 702 of the Act. Therefore, we are initiating a CVD investigation to determine whether imports of forged steel fittings from the PRC benefit from countervailable subsidies conferred by the Government of the PRC. In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.
Under the Trade Preferences Extension Act of 2015, numerous amendments to the AD and CVD laws were made.
Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on 23 alleged programs. For a full discussion of the basis for our decision to initiate on each program,
In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.
The petitioners named 14 companies as producers/exporters of forged steel fittings in the PRC.
On October 19, 2017, the Department released CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment regarding the CBP data and respondent selection must do so within three business days of the publication date of the notice of initiation of this CVD investigation.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Department's Web site at
Comments must be filed electronically using ACCESS. An electronically filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. We intend to finalize our decisions regarding respondent selection within 20 days of publication of this notice.
In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), copies of the public version of the Petition has been provided to the Government of the PRC
We will notify the ITC of our initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of forged steel fittings from the PRC are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires;
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to sections 702 and 777(i) of the Act, and 19 CFR 351.203(c).
The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings and unions. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.
While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, and MSS SP-83, ASTM A105, ASTM A350 and ASTM A182, the scope is not limited to fittings made to these specifications.
The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable standards, fittings may alsobe machined from bar stock or machined from seamless pipe and tube.
All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure,
Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, and nipples.
Subject carbon and alloy forged steel fittings are normally entered under HTSUS 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010.
The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
National Institute of Standards and Technology, Commerce.
Notice of Research Consortium.
The National Institute of Standards and Technology (NIST), an agency of the United States Department of Commerce, is establishing the Localization and Tracking System (LTS) Testing Consortium and invites organizations to participate in this Consortium. Participants in this Consortium will have the opportunity to test their LTS leveraging a unique capability on the NIST Gaithersburg campus. The goals of the LTS Testing Consortium are to demonstrate and further develop standardized localization and tracking system testing procedures, and to assess current state of the art. The LTS Testing Consortium will not evaluate whether any individual system is commercially feasible. Participants in the Consortium will be required to sign a Cooperative Research and Development Agreement (CRADA).
Letters of interest for participation in this LTS Testing Consortium will be accepted until December 15, 2017. LTS testing is expected to occur in April or May 2018, with a pre-event workshop in February, however dates are subject to change.
Letters of interest and requests for additional information can be directed to the NIST LTS Testing Consortium Manager, Nader Moayeri, of the Advanced Network Technologies Division of NIST's Information Technology Laboratory. Nader Moayeri's contact information are NIST, 100 Bureau Drive, Stop 8920, Gaithersburg, MD 20899-8920, USA, email:
For further information regarding the terms and conditions of NIST's CRADA, please contact Jeffrey DiVietro, CRADA and License Officer, NIST's Technology Partnerships Office, by mail to 100 Bureau Drive, Mail Stop 2200, Gaithersburg, Maryland 20899-2200, by email to
Consortium Objectives: ISO/IEC JTC 1/SC 31
1. Assessment of ISO/IEC 18305 to identify improvements that can be incorporated into the next version of the standard; and
2. Assessment of LTS technologies using the standardized test methods of ISO/IEC 18305 for the dual purposes of comparing technologies to identify strengths and weaknesses of various technological approaches and solutions, and to make it possible for Consortium Members to use that information as a basis for further developing their LTS. The results from the LTS Testing Consortium will allow the validation of ISO/IEC 18305. The results will also allow setting minimum performance requirements for various applications of LTS technology and enable comparisons based on common test methods. Results from this research are expected to improve the performance of LTS technologies.
Testing a LTS is complicated for several reasons:
• There are many categories of LTS. Some rely on presence of electronic infrastructure in the environment (building/tunnel/cave/underground mine) to facilitate localization and tracking. Some systems require site-specific training and calibration before they can be used. Some systems need to have access to the floor plans of the building or need to know the global coordinates of its boundaries to operate. Therefore, one must be careful when comparing the performance of various systems to ensure the comparisons are fair.
• A LTS often has RF components. RF propagation can vary considerably from one building to another depending on the construction material used in the building, its floor plans, and objects present in the building. Therefore, the LTS must be tested in a variety of buildings, including a high rise, because a LTS typically has more difficulty in estimating the floor where the ELT is located than in estimating its horizontal location.
• Given that the inertial sensors present in ubiquitous smartphones and other devices used for localization suffer from “drift” that worsens over time, it is important to test the LTS using long test scenarios, complex paths, different modes of mobility (
Considering the complexities of indoor localization testing above, vendors may not have the opportunity to test their LTS in a thorough and comprehensive manner. Therefore, potential users may be unable to determine whether a given LTS meets their needs. These issues demonstrate the need for standardized testing procedures that can be used to test and compare localization and tracking systems.
1. Whether the LTS to be tested is commercially available now or at an advanced productization stages so that it would be commercially available by the end of 2018.
2. Market the indoor LTS is targeting.
3. Given that large buildings will be used for testing, whether the number of units available to install in these buildings is sufficient for the system to go through a suite of tests, one building at a time. (As a point of information, the largest building to be used for testing covers 100,000 square feet of space.)
4. The willingness and ability to send an adequate number of staff members to install and uninstall the indoor LTS in test buildings and operate the equipment to administer the tests under NIST supervision for a period of about 3 days. If for any reason a LTS runs into technical problems and cannot complete the tests in each building in the allotted time slot, NIST has designated the last two days of the week as “make-up days”, where tests that were not completed in their allotted time slots can be redone. NIST will not be responsible for shipping equipment to NIST and back to your company.
5. Willingness to provide all data form T&E activities to the NIST Consortium Manager for purposes of this project.
6. A statement regarding whether the LTS requires deployment of equipment inside/outside a building in order to be tested; please specify the types of equipment that need to be deployed and how many per every 10,000 square feet of space.
7. If the LTS uses RF technology, please specify the frequency band(s) and power levels the LTS uses.
8. Whether the installation, uninstallation, or operation of the LTS is likely to cause damage of any type to the buildings or furnishing during testing.
Letters of interest may be submitted to the LTS Testing Consortium Manager electronically using the email address provided in the
15 U.S.C. 3710a.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to Washington State Department of Transportation (WSDOT) to take small numbers of marine mammals, by harassment, incidental to U.S. 101/Chehalis River Bridge—Scour Repair in Washington State.
This authorization is valid from July 1, 2018, through June 30, 2019.
Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as the issued IHA, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Issuance of an MMPA 101(a)(5)(D) authorization requires compliance with the National Environmental Policy Act.
NMFS determined the issuance of the proposed IHA is consistent with categories of activities identified in CE B4 (issuance of incidental harassment authorizations under section 101(a)(5)(A) and (D) of the MMPA for which no serious injury or mortality is
NMFS received a request from WSDOT for an IHA to take marine mammals incidental to U.S. 101/Chehalis River Bridge—Scour Repair in the State of Washington. WSDOT's request was for harassment only and NMFS concurs that serious injury or mortality is not expected to result from this activity. Therefore, an IHA is appropriate.
In November 2016, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammal species incidental to U.S. 101/Chehalis River Bridge-Scour Repair in Washington State, between July 16 to September 30, 2018. WSDOT subsequently updated its project scope and submitted a revised IHA application on July 5, 2017. NMFS determined the IHA application was complete on July 14, 2017. NMFS issued an IHA to WSDOT to take by Level B harassment of the following marine mammal species: Harbor seal (
WSDOT is proposing to repair an area of scour associated with Pier 14 of the U.S. 101 Chehalis River Bridge (Figures 1-3 and 1-4 in the IHA application). The bridge foundation at Pier 14 is “scour critical” due to the bridge foundation being unstable for calculated scour depths. The southwest quadrant of Pier 14 is undermined by scour void as much as 8 feet deep, and some of the untreated timber pilings have been directly exposed to river/estuary water since 2008. Marine borers may weaken enough pilings to require more extensive pier repair if this project is not built in the near future. In addition, the footing and seal are exposed at the other three quadrants of Pier 14.
The purpose of the U.S. 101/Chehalis River Bridge Project is to make the bridge foundation stable for calculated scour depths, protect the foundation from further scour by removing debris, filling the scour void under Pier 14 with cementitious material (to protect the pilings from marine borers), and filling the scour hole and protecting the pier with scour resistant material.
Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water work timing restrictions to protect ESA-listed salmonids, planned WSDOT in-water construction is limited each year to July 16 through February 15. For this project, in-water construction is planned to take place between July 16 to September 30, 2018. The total worst-case time for pile installation and removal is 50 hours over 12 days (Table 1).
The U.S. 101 Chehalis River Bridge is located in the City of Aberdeen, Grays Harbor County, Washington (Figure 1-1 in the IHA application). The bridge is located in Township 17 North, Range 9 West, Section 9, where the Chehalis River enters Grays Harbor. Land use in the Aberdeen area is a mix of residential, commercial, industrial, and open space and/or undeveloped lands (Figure 1-2 in the IHA application).
The proposed project involves noise production that may affect marine mammals: Vibratory hammer driving and removal. Details of the pile driving and pile removal activities are provided in the
A notice of NMFS' proposal to issue an IHA was published in the
We have reviewed the applicants' species information—which summarizes available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the applications, as well as to NMFS's Stock Assessment Reports (SAR;
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock.
Five species (with five managed stocks) are considered to have the potential to co-occur with the proposed construction activities. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2015 SARs (Carretta
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
Potential impacts to marine mammals from the proposed US 101/Chehalis Bridge repair project are from noise generated during in-water pile driving and pile removal activities.
Here, we first provide background information on marine mammal hearing before discussing the potential effects of the use of active acoustic sources on marine mammals.
Marine Mammal Hearing—Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
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The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Five marine mammal species (2 cetacean and 3 pinniped (2 otariid and 1 phocid) species) have the reasonable potential to co-occur with the proposed construction activities. Please refer to Table 2. Of the cetacean species that may be present, one species is classified as low-frequency cetaceans (
The WSDOT's US 101 Chehalis River Bridge Project using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift (TS)—an increase in the auditory threshold after exposure to noise (Finneran
For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Lucke
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions (Clark
Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand, 2009). For WSDOT's Chehalis Bridge repair activities, noises from vibratory pile driving and pile removal contribute to the elevated ambient noise levels in the project area, thus increasing potential for or severity of masking. Baseline ambient noise levels in the vicinity of project area are high due to ongoing shipping, construction and other activities in the Puget Sound.
Finally, marine mammals' exposure to certain sounds could lead to behavioral disturbance (Richardson
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.
The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.
With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga
The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas
During the coastal construction only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals' prey availability in the area where construction work is planned.
Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species.
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise generated from vibratory pile driving and removal. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Applicant's proposed activity includes the use of continuous (vibratory pile driving and removal) source, and therefore the 120 dB re 1 μPa (rms) is applicable.
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.
The project includes vibratory pile driving and removal of steel H piles and sheet piles. The dimension of the H piles is unknown, but not is expected to be more than 12 inches (in).
Source levels for the steel H pile vibratory driving are based on in-water measurements reported by CALTRANS (2015) of 12-in steel H pile, which are 150 dB
A summary of source levels from different pile driving and pile removal activities is provided in Table 4.
These source levels are used to compute the Level A injury zones and to estimate the Level B harassment zones. For Level A harassment zones, since the peak source levels for both pile driving are below the injury thresholds, cumulative SEL were used to do the calculations using the NMFS acoustic guidance (NMFS 2016).
When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate.
For cumulative SEL (
Isopleths to Level B behavioral zones are based on rms SPL (SPL
A summary of the measured and modeled harassment zones is provided in Table 5.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
In most cases, marine mammal density data are from the U.S. Navy Marine Species Density Database (U.S. Navy 2015). Harbor seal density is based on a counts of harbor seals at 44 low-tide haul outs in Grays Harbor by Jeffries,
The Navy Marine Species Density Database (U.S. Navy 2015) estimates the density of California sea lions in the waters offshore of Grays Harbor as 0.033 animals/km
The Navy Marine Species Density Database (U.S. Navy 2015) estimates the density of Steller sea lions in the waters offshore of Grays Harbor as 0.0145 animals/km
The Navy Marine Species Density Database (U.S. Navy 2015) estimates the density of harbor porpoises in the waters offshore of Grays Harbor as a range between 0.69 and 1.67 animals
According to counts conducted by Calambokidis
Here we describe how the information provided above is brought together to produce a quantitative take estimate. For all marine mammal species except gray whale, estimated takes are calculated based on ensonified area for a specific pile driving activity multiplied by the marine mammal density in the action area, multiplied by the number of pile driving (or removal) days. Distances to and areas of different harassment zones are listed in Tables 5 and 6. Total days for sheet pile driving and removal are five days each, and the total day for steel H pile driving and removal is one day each.
The results predicted that a total of 666 harbor seals, 1 California sea lion, 0 Steller sea lion, and 38 harbor porpoise could be exposure to received levels that would cause Level B harassment. However, owing to the prior observations that California sea lion and Steller sea lion's presence in the project area, we adjusted the take number of these species to 10.
For gray whales, the Level B takes were estimate based on an average sighting of 2.25 whales in Grays Harbor/south Washington Coast during the months of July through September (Calambokidis
Due to the extreme small injury zones (maximum zone is 0.009 km
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned) and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between July 16, 2018, and September 30, 2018.
Before the commencement of in-water construction activities, which include vibratory pile driving and pile removal, WSDOT shall establish Level A harassment zones where received underwater SEL
WSDOT shall also establish Level B harassment zones where received underwater SPLs are higher than 120 dB
WSDOT shall establish exclusion zones within which marine mammals could be taken by Level A harassment. For Level A harassment zones that is less than 10 m from the source, a minimum of 10 m distance should be established as an exclusion zone.
A summary of exclusion zones is provided in Table 8.
NMFS-approved protected species observers (PSO) shall conduct an initial survey of the exclusion zones to ensure that no marine mammals are seen within the Level A zones before pile driving and pile removal of a pile segment begins. If marine mammals are found within the exclusion zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 30 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone.
If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 30 minutes have elapsed since the last sighting.
WSDOT shall implement shutdown measures if a marine mammal is detected within an exclusion zone or is about to enter an exclusion zone listed in Table 8. In-water pile driving may not resume until the animal is seen leaving the exclusion zone, or 30 minutes have passed since the sighting of the animal within the exclusion zone.
Further, WSDOT shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA (if issued) and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.
Based on our evaluation of the required measures, NMFS has determined that the prescribed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
WSDOT shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its U.S. 101/Chehalis Bridge Repair Project. The purposes of marine mammal monitoring are to implement mitigation measures and learn more about impacts to marine mammals from WSDOT's construction activities. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements:
1. Independent observers (
2. At least one observer must have prior experience working as an observer;
3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;
4. Where a team of three or more observers are required, one observer
5. NMFS will require submission and approval of observer CVs.
Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (
• For vibratory pile driving and pile removal of sheet piles, a total of four land-based PSOs will monitor the exclusion zones and Level B harassment zone.
• For vibratory pile driving and pile removal of H piles, a total of three land-based PSOs will monitor the exclusion zones and Level B harassment zone.
Locations of the land-based PSOs and routes of monitoring vessels are shown in WSDOT's Marine Mammal Monitoring Plan, which is available online at
To verify the required monitoring distance, the exclusion zones and ZOIs will be determined by using a range finder or hand-held global positioning system device.
WSDOT is required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the IHA, whichever comes earlier. This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, WSDOT would address the comments and submit a final report to NMFS within 30 days.
In addition, NMFS would require WSDOT to notify NMFS' Office of Protected Resources and NMFS' West Coast Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. WSDOT shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video.
In the event that WSDOT finds an injured or dead marine mammal that is not in the construction area, WSDOT would report the same information as listed above to NMFS as soon as operationally feasible.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 7, given that the anticipated effects of WSDOT's Chehalis Bridge repair project activities involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed.
For all marine mammal species, takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral) because of the small scale (only a total of 100 piles to be installed and removed), lower source levels (small piles by vibratory pile driving and pile removal), and short durations (maximum five hours pile driving or pile removal per day). Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal. For these reasons, these behavioral impacts are not expected to affect marine mammals' growth, survival, and reproduction, especially considering the limited geographic area that would be affected in comparison to the much larger habitat for marine mammals in the Pacific Northwest.
The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. There is no ESA designated critical area in the vicinity of the Chehalis Bridge Project area. The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, WSDOT's proposed construction activity at Chehalis Bridge would not adversely affect marine mammal habitat.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No injury, series injury, or mortality is anticipated or authorized;
• All harassment is Level B harassment in the form of short-term behavioral modification; and
• No areas of specific importance to affected species are impacted.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the prescribed monitoring and mitigation measures, NMFS finds that the total take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals.
The estimated takes are below seven percent of the population for all marine mammals (Table 7).
Based on the analysis contained herein of the proposed activity (including the prescribed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these determinations, NMFS has issued an IHA to the Washington State Department of Transportation for the U.S. 101/Chehalis River Bridge—Scour Repair in Washington State, provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
Department of the Navy, DoD.
Notice of partially closed meeting.
The U.S. Naval Academy Board of Visitors will meet to make such inquiry, as the Board shall deem necessary, into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy.
The open session of the meeting will be held on December 4, 2017, from 9:00 a.m. to 11:15 a.m. The executive session held from 11:15 a.m. to 12:00 p.m., will be the closed portion of the meeting.
The meeting will be held at the United States Naval Academy in Annapolis, MD. The meeting will be handicap accessible.
Lieutenant Commander Lawrence Heyworth IV, USN, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, 410-293-1503.
This notice of meeting is provided per the Federal Advisory Committee Act, as amended (5 U.S.C. App.). The executive session of the meeting from 11:15 a.m. to 12:00 p.m. on December 4, 2017, will consist of discussions of new and pending administrative/minor disciplinary infractions and non-judicial punishments involving midshipmen attending the Naval Academy to include but not limited to, individual honor/conduct violations within the Brigade, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, the executive session of this meeting will be closed to the public, as the discussion of such information cannot be adequately segregated from other topics, which precludes opening the executive session of this meeting to the public. Accordingly, the Department of the Navy/Assistant for Administration has determined in writing that the meeting shall be partially closed to the public because the discussions during the executive session from 11:15 a.m. to 12:00 p.m. will be concerned with matters protected under sections 552b(c) (5), (6), and (7) of title 5, United States Code.
5 U.S.C. 552b
National Assessment Governing Board, U.S. Department of Education.
Announcement of open and closed meetings.
This notice sets forth the agenda for the November 16-18, 2017 Quarterly Board Meeting of the National Assessment Governing Board (hereafter referred to as Governing Board). This notice provides information to members of the public who may be interested in attending the meeting or providing written comments related to the work of the Governing Board. Notice of this meeting is required under § 10(a)(2) of the Federal Advisory Committee Act (FACA).
The Quarterly Board Meeting will be held on the following dates:
• November 16, 2017 from 11:15 a.m. to 6:00 p.m.
• November 17, 2017 from 8:30 a.m. to 4:30 p.m.
• November 18, 2017 from 7:30 a.m. to 12:00 p.m.
Washington Marriott Georgetown, 1221 22nd Street NW., Washington, DC 20037.
Munira Mwalimu, Executive Officer/Designated Federal Official for the Governing Board, 800 North Capitol Street NW., Suite 825, Washington, DC 20002, telephone: (202) 357-6938, fax: (202) 357-6945, email:
The Governing Board is established to formulate policy for the National
The Governing Board's standing committees will meet to conduct regularly scheduled work based on agenda items planned for this Quarterly Board Meeting and follow-up items as reported in the Governing Board's committee meeting minutes available at
On Thursday, November 16, 2017, ADC will meet in open session from 11:15 a.m. to 1:30 p.m. Thereafter, the Ad Hoc Committee on Measures of Postsecondary Preparedness will meet in open session from 1:45 p.m. to 3:45 p.m. The Executive Committee will convene in open session from 4:30 p.m. to 5:00 p.m. and in closed session from 5:00 p.m. to 6:00 p.m. During the closed session, the Executive Committee will receive and discuss cost estimates for implementing NAEP's Assessment Schedule for 2014-2024, and the implications of cost and funding estimates for the NAEP Assessment Schedule in relation to the Governing Board's Strategic Vision and draft policy priorities for the NAEP Assessment Schedule. This meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing confidential cost details and proprietary contract costs of current contractors to the public. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
On Friday, November 17, 2017, the Governing Board will meet in open session and also via webcast from 8:30 a.m. to 12:30 p.m.
From 8:30 a.m. to 8:45 a.m., the Governing Board will review and approve the November 17-18, 2017 Governing Board meeting agenda and meeting minutes from the August 2017 Quarterly Board Meeting. Thereafter, the Governing Board Chairman will provide remarks. From 8:45 a.m. to 9:15 a.m., the Secretary of Education, Betsy DeVos, will administer the oath of office to five new members and one reappointed member and provide remarks. See the news release at the following link:
On Friday, November 17, 2017, the Governing Board will hear from a panel of experts on international assessments, Thinking Beyond Borders: The Future of Student Assessment, from 9:15 a.m. to 12:30 p.m. This session will be available via webcast online at
At 12:30 p.m., the Governing Board will recess for a 15 minute break and convene for standing committee meetings which will take place from 12:45 p.m. to 3:15 p.m. The ADC and R&D Committees will meet in open session to conduct regular business. Thereafter, the two committees will meet in an open joint session from 2:15 p.m. to 3:15 p.m.
On Friday November 17, 2017, COSDAM will meet in open session from 12:45 p.m. to 2:30 p.m. and in closed session from 2:30 p.m. to 3:15 p.m. During the closed session, COSDAM will discuss information regarding analyses of the 2017 bridge studies for paper-and-pencil and digital-based assessments, and discuss secure NAEP Reading and Mathematics data. This part of the meeting must be conducted in closed session because the analysis involves the use of secure data for the NAEP Reading and Mathematics assessments on digital-based platforms. Public disclosure of secure data would significantly impede implementation of the NAEP assessment program if conducted in open session. Such matters are protected by exemption 9(B) of § 552b of Title 5 U.S.C.
Following the committee meetings, from 3:15 p.m. to 3:30 p.m., the Governing Board will take a 15 minute break and thereafter meet in open session from 3:30 p.m. to 4:30 p.m.
From 3:30 p.m. to 4:00 p.m., the Board will hear remarks from new members. The Governing Board will then receive their annual ethics briefing conducted by the U.S. Department of Education, Office of General Counsel Ethics Division staff from 4:00 p.m. to 4:30 p.m.
The November 17, 2017 session will adjourn at 4:30 p.m.
On November 18, 2017, the Nominations Committee will meet in closed session from 7:30 a.m. to 8:15 a.m. The Committee will discuss nominees for Governing Board vacancies for terms beginning October 1, 2018. The Nominations Committee's discussions pertain solely to internal personnel rules and practices of an agency and information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of § 552b(c) of Title 5 of the United States Code.
The Governing Board will meet in open session on November 18, 2017 from 8:30 a.m. to 12:00 p.m. From 8:30 a.m. to 9:30 a.m. the Governing Board will engage in discussion on the international assessment panel that was convened on Friday, November 17, 2017. Then, from 9:30 a.m. to 10:30 a.m., the Governing Board will discuss the draft resolution on Governing Board priorities for the NAEP Assessment Schedule vis-a-vis the Governing Board's Strategic Vision #9, which is to develop policy approaches to revise the NAEP assessment subjects and schedule.
Following this session, the Governing Board will take a break from 10:30 a.m. to 10:45 a.m.
From 10:45 a.m. to 11:15 a.m. the Governing Board will receive committee reports and take action on the Release Plan for the 2017 NAEP Reading and Mathematics Report Cards for Grades 4 and 8.
From 11:15 a.m. to 12:00 p.m., the Governing Board will engage in discussion on the NAEP Framework Policy Revision pursuant to the Governing Board's Strategic Vision #5, which is to develop new approaches to update NAEP subject area frameworks.
The November 18, 2017 meeting will adjourn at 12:00 p.m.
Pub. L. 107-279, Title III—National Assessment of Educational Progress § 301.
Department of Education.
Correction notice.
On October 26, 2017, the U.S. Department of Education published a 60-day comment period notice in the
Although the U.S. Department of Education (ED) determines Title I, Part A allocations for Local Educational Agencies (LEAs), the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act, requires State Educational Agencies (SEAs) to adjust ED-determined Title I, Part A LEA allocations to account for newly created LEAs and LEA boundary changes, to redistribute Title I, Part A funds to small LEAs (under 20,000 total population) using alternative poverty data (if an SEA has ED's approval to do so), and to reserve funds for school improvement, State administration, and, if applicable, Direct Student Services. This control number covers only the burden associated with the actual procedures an SEA must follow when adjusting ED-determined LEA allocations.
The Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management, hereby issues a correction notice as required by the Paperwork Reduction Act of 1995.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF High Energy Physics Advisory Panel (HEPAP). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
Thursday, November 30, 2017; 8:30 a.m. to 6:00 p.m. and Friday, December 1, 2017; 8:30 a.m. to 4:00 p.m.
Hilton Washington, DC North/Gaithersburg, 620 Perry Parkway, Gaithersburg, MD 20877.
John Kogut, Executive Secretary; High Energy Physics Advisory Panel (HEPAP); U.S. Department of Energy; Office of Science; SC-25/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585; Telephone: (301) 903-1298; email:
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Submission for Office of Management and Budget (OMB) review; public comment request.
The Department of Energy (DOE) invites public comment on a revision of a currently approved collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. The information collection requests a revision and three-year extension of its Energy Efficiency and Conservation Block Grant Program, OMB Control Number 1910-5150.
The proposed action will continue the collection of information on the status of financing program activities, expenditures, and results, to ensure that program funds are being used appropriately, effectively and expeditiously. No changes to the collection instrument are being proposed.
Comments regarding this revision to an approved information collection must be received on or before January 2, 2018. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to: Sallie Glaize, EE-5W, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585, Email:
Requests for additional information or copies of the information collection instrument and instructions should be directed to: James Carlisle, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585, Phone: (202) 287-1724, Fax: (412) 386-5835, Email:
Additional information and reporting guidance concerning the Energy Efficiency and Conservation Block Grant Program (EECBG) is available for review at the following Web site:
This information collection request contains: (1) OMB No. 1910-5150; (2) Information Collection Request Title: Energy Efficiency and Conservation Block Grant Program Financing Programs; (3) Type of Review: Revision of a Currently Approved Information Collection; (4) Purpose: To collect information on the status of Financing Program activities, expenditures, and results, to ensure that program funds are being used appropriately, effectively and expeditiously; (5) Annual Estimated Number of Respondents: 108; (6) Annual Estimated Number of Total Responses: 175; (7) Annual Estimated Number of Burden Hours: 525; (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $21,000. Respondents, total responses, burden hours and the annual cost burden have all been significantly reduced because of the retirement of grants, fewer programs and a lessened burden on reporting and recordkeeping costs.
This is a supplemental notice in the above-referenced proceeding of DV Trading, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 15, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
On October 25, 2017, the Commission issued an order in Docket No. EL18-21-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether Southern Companies'
The refund effective date in Docket No. EL18-21-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL18-21-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on October 24, 2017, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207 (2017), IGS ORIX Solar I, LLC and IGS Solar I, LLC (together Applicants) filed a petition for declaratory order requesting the Commission grant certain of Applicants' solar generating projects limited waivers of the qualifying facility certification requirement set forth in section 292.203(a)(3)
Any person desiring to intervene or to protest in this proceeding must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Energy Regulatory Commission.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is submitting its information collection (FERC-725U, Mandatory Reliability Standards: Mandatory Reliability Standard CIP-014) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission previously issued a Notice in the
Comments on the collection of information are due by December 1, 2017.
Comments filed with OMB, identified by the OMB Control No. 1902-0274, should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Commission, in Docket No. IC17-14-000, by either of the following methods:
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Ellen Brown may be reached by email at
Transmission owners and transmission operators must keep data or evidence to show compliance with the standard for three years unless directed by its Compliance Enforcement Authority. If a responsible entity is found non-compliant, it must keep information related to the non-compliance until mitigation is complete and approved, or for the three years, whichever is longer.
The hourly cost figures are based on data for wages plus benefits from the Bureau of Labor Statistics (as of 11/9/2016) at
1. For electrical engineers (occupation code: 17-2071), $64.29/hr., rounded to $64/hr.
2. For attorneys (occupation code: 23-0000), $129.12/hr., rounded to $129/hr.
3. For administrative staff (occupation code: 43-0000), $37.75/hr., rounded to $38/hr.
The record retention cost is based on the administrative staff category; R3 is based on the attorney category; Requirements R1, R4, R5 and R6 are based on the electrical engineer category; and R2 is a mix of the electrical engineer and related engineering review process (30 hrs. at $64/hr.) and attorney (4 hrs. at $129/hr.) categories. The resulting average hourly figure is $71.65, rounded to $72/hr.
Take notice that on October 16, 2017, RH energytrans, LLC (RH), 558 West 6th Street, Erie, PA 16507, filed an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Parts 157 and 284 of the Commission's Regulations requesting authority to construct and operate a new interstate natural gas pipeline system (referred to as the Risberg Line), including pipeline facilities, two compressor stations, metering and regulating stations and appurtenant facilities in Pennsylvania and Ohio.
Specifically, the project would include a total of 59.9 miles of pipeline incorporating 31.6 miles of existing 8-inch and 12-inch diameter gas pipeline currently used as gathering facilities and 28 miles of new 12-inch diameter pipeline. The pipeline facilities begin at a new point of interconnection with Tennessee Gas Pipeline Company, LLC adjacent to the Meadville Compressor Station in Crawford County, Pennsylvania and extend to a new delivery point interconnection with the distribution facilities of Dominion Energy Ohio (DEO) in North Kingsville in Ashtabula County, Ohio. The project also includes the reconstruction and conversion of two compressor stations totaling 1,862 hp. The Risberg Line would provide for 55,000 Dth/d of firm transportation service to northeast Ohio markets. The estimated cost to construct the project and to acquire the existing gathering pipeline is about $88 million.
The filing may be viewed on the Web at
Any questions concerning this application may be directed to James F. Bowe, Jr., King & Spalding LLP, 1700 Pennsylvania Avenue, Suite 200, Washington, DC 20006, Phone (202) 626-9601, email
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 5 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This is a supplemental notice in the above-referenced proceeding EnPowered's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 14, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Lackawanna Energy Center LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 14, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Environmental Protection Agency (EPA).
Notice.
There will be a three-hour meeting of the Federal Insecticide, Fungicide, and Rodenticide Act, Scientific Advisory Panel (FIFRA SAP) to review and consider the scope and clarity of the draft charge questions for the November 28-30, 2017 SAP Meeting on the Continuing Development of Alternative High-Throughput Screens to Determine Endocrine Disruption, Focusing on Androgen Receptor, Steroidogenesis, and Thyroid Pathways.
The meeting will be held on Monday, November 6, 2017 from approximately 2 p.m. to 5 p.m. (EST). This is an open public meeting that will be conducted via webcast using Adobe Connect and telephone. Registration is required to attend this meeting. Please visit:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Dr. Todd Peterson, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: 202-564-6428; email address:
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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You may participate in this meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA-HQ-OPP-2017-0214 in the subject line on the first page of your request.
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FIFRA SAP serves as the primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 pursuant to FIFRA and operates in accordance with requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix). FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. The FIFRA SAP is assisted in their reviews by ad hoc participation from the Science Review Board (SRB). As a scientific peer review mechanism, FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. The FIFRA SAP strives to reach consensus; however, is not required to reach consensus in its recommendations to the Agency.
During the meeting scheduled for Monday, November 6, 2017, the FIFRA SAP will review and consider the Charge Questions for the Panel's November 28-30, 2017 meeting on the Continuing Development of Alternative High-Throughput Screens to Determine Endocrine Disruption, Focusing on Androgen Receptor, Steroidogenesis, and Thyroid Pathways. The SAP will receive a short background briefing including the EPA's history and current position on the use of alternative high-throughput screens. In addition, the panel members will have the opportunity to comment on the scope and clarity of the draft charge questions. Subsequent to this meeting, final charge questions will be provided for the FIFRA SAP's deliberation on the white papers and supplemental information during the in-person meeting to be held on November 28-30, 2017.
EPA's background documents and charge questions to the FIFRA SAP are in the docket (identification number EPA-HQ-OPP-2017-0214). The Agenda for the virtual meeting will be posted at:
FIFRA SAP will prepare meeting minutes approximately 90 calendar days after the in-person meeting. The meeting minutes will be posted on the FIFRA SAP Web site:
7 U.S.C. 136
Federal Accounting Standards Advisory Board.
Notice.
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules Of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has issued Statement of Federal Financial Accounting Standards (SFFAS) 53,
The Statement is available on the FASAB Web site at http://www.fasab.gov/accounting-standards/. Copies can be obtained by contacting FASAB at (202) 512-7350.
Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mailstop 6H19, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
World War One Centennial Commission, General Services Administration.
Meeting Notice.
Notice of this meeting is being provided according to the requirements of the Federal Advisory Committee Act. This notice provides the schedule and agenda for the December 13, 2017 meeting of the World War One Centennial Commission (the Commission). The meeting is open to the public.
The meeting will be held at the Offices of the World War 1 Centennial Commission at 1800 G Street NW., Washington, DC 20006, Street Level. This location is handicapped accessible. The meeting will be open to the public. Persons attending in person are requested to refrain from using perfume, cologne, and other fragrances.
Written comments may be submitted to the Commission and will be made part of the permanent record of the Commission. Comments must be received by 5:00 p.m. (EST), December 8, 2017, and may be provided by email to
Contact Daniel S. Dayton at
Daniel S. Dayton, Designated Federal Officer, World War 1 Centennial Commission, 701 Pennsylvania Avenue NW., Room 123, Washington, DC 20004-2608, at 202-380-0725 (
The World War One Centennial Commission was established by Public Law 112-272 (as amended), as a commission to ensure a suitable observance of the centennial of World War I, to provide for the designation of memorials to the service of members of the United States Armed Forces in World War I, and for other purposes. Under this authority, the Committee will plan, develop, and execute programs, projects, and activities to commemorate the centennial of World War I, encourage private organizations and State and local governments to organize and participate in activities commemorating the centennial of World War I, facilitate and coordinate activities throughout the United States relating to the centennial of World War I, serve as a clearinghouse for the collection and dissemination of information about events and plans for the centennial of World War I, and develop recommendations for Congress and the President for commemorating the centennial of World War I. The Commission does not have an appropriation and operates on donated funds.
Public Building Service (PBS), General Services Administration (GSA).
Notice of intent; Announcement of meeting.
Pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality Regulations, and the GSA Public Buildings Service NEPA Desk Guide, GSA is issuing this notice to advise the public that a Supplemental Environmental Impact Statement (SEIS) will be prepared for the San Ysidro LPOE Modernization and Expansion Project (Project).
The public scoping meeting will be held at The Front, 147 West San Ysidro Boulevard, San Ysidro, CA 92173. Written comments must be sent to the General Services Administration, Attention: Osmahn Kadri, Regional Environmental Quality Advisor/NEPA Project Manager, 50 United Nations Plaza, Room 3345 Mailbox 9, San Francisco, CA 94102, or via email to
Osmahn A. Kadri, Regional Environmental Quality Advisor/NEPA Project Manager, GSA, Pacific Rim Region, at 415-522-3617. Please also call this number if special assistance is needed to attend and participate in the public scoping meeting.
GSA intends to prepare a SEIS to analyze the potential impacts resulting from proposed modifications and minor design changes to the San Ysidro LPOE Modernization and Expansion Project. The San Ysidro LPOE is located at the terminus of Interstate 5 at the United States-Mexico border in the San Ysidro community of San Diego, California.
A Final Environmental Impact Statement (EIS) and Record of Decision (ROD) were published in September 2009. Both addressed the reconfiguration and expansion of the San Ysidro LPOE in three independent construction phases to improve overall capacity and operational efficiency. In May 2014, GSA published a Final SEIS and ROD that evaluated changed circumstances and proposed modifications to the Project, including (1) the incorporation of northbound pedestrians inspections at the proposed southbound-only pedestrian crossing facility, on the west side of the LPOE, and modification of the phasing/timing of the construction of the pedestrian crossing facility; (2) changes to the development footprint on the west side of the LPOE and design refinements to the Virginia Avenue Transit Center; (3) a change in the number of vehicle lanes and the installation of southbound inspection booths and overhead canopies on the proposed southbound roadway; and (4) minor changes in the design and/or timing of implementation of several Project elements. GSA prepared a Revision to the Final SEIS in August 2015 that addressed minor changes to the alignment of the southbound roadway and employee access road, as well as specific information that was not known or available at the time the Final EIS or Final SEIS were prepared (regarding the details of the on-site wastewater treatment facility).
Phase 1 is complete and included the construction of a pedestrian bridge, additional northbound vehicle lanes and inspection facilities, a new southbound pedestrian crossing facility on the east side of the LPOE, a new bi-directional pedestrian crossing facility on the west side of the LPOE, and the Virginia Avenue Transit Center. Phase 2 is fully funded and involves the construction of new buildings. Phase 3 is fully funded and includes construction of a southbound roadway and associated inspection equipment. Phases 2 and 3 are anticipated to be completed in 2019.
The SEIS will address changes to the Project, which include acquisition of one parcel of land on the east side of the LPOE and incorporation of this additional land area into the LPOE.
Two action alternatives are under consideration in addition to the No-Action Alternative. Alternative 1 would include demolition of the existing building on the acquisition site and expansion of the LPOE pedestrian plaza. Alternative 2 would involve renovating the existing on-site building. The No Action Alternative assumes that the site would not be acquired by GSA and the additional land area would not be incorporated into the LPOE.
Scoping will be accomplished through a public scoping meeting, direct mail correspondence to appropriate federal, state, and local agencies, and to private organizations and citizens who have previously expressed, or are known to have, an interest in the Project.
Office of Minority Health, Office of the Secretary, Department of Health and Human Services.
Notice of meeting.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that the Advisory Committee on Minority Health (ACMH) will hold a meeting conducted as a telephone conference call. This call will be open to the public. Preregistration is required for both public participation and comment. Any individual who wishes to participate in the call should email
Information about the meeting is available from the designated contact and will be posted on the Web site for the Office of Minority Health (OMH),
The conference call will be held on December 5, 2017, 1:00 p.m.-3:00 p.m. ET.
Instructions regarding participating in the call will be given at the time of preregistration.
Dr. Minh Wendt, Designated Federal Officer, Advisory Committee on Minority Health, Office of Minority Health, Department of Health and Human Services, Tower Building, 1101 Wootton Parkway, Suite 600, Rockville, Maryland 20852. Phone: 240-453-8222; fax: 240-453-8223; email
In accordance with Public Law 105-392, the ACMH was established to provide advice to the Deputy Assistant Secretary for Minority Health on improving the health of each racial and ethnic minority group and on the development of goals and specific program activities of the OMH.
The topics to be discussed during the teleconference include finalizing recommendations regarding improving the access and quality of data related to the opioid usage and health disparities. The recommendations will be given to the Deputy Assistant Secretary for Minority Health.
This call will be limited to 125 participants. The OMH will make every effort to accommodate persons with special needs. Individuals who have special needs for which special accommodations may be required should contact Professional and Scientific Associates at (703) 234-1700 and reference this meeting. Requests for special accommodations should be made at least ten (10) business days prior to the meeting.
Members of the public will have an opportunity to provide comments at the meeting. Public comments will be limited to two minutes per speaker during the time allotted. Individuals who would like to submit written statements should email, mail, or fax their comments to the designated contact at least seven (7) business days prior to the meeting.
Any members of the public who wish to have electronic or printed material distributed to ACMH members should email
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines).
A notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N03A, Rockville, Maryland 20857; 240-276-2600 (voice).
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
The Mandatory Guidelines were initially developed in accordance with
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories and IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces U.S. Customs and Border Protection's (CBP's) modification and clarification to the National Customs Automation Program (NCAP) tests pertaining to the processing of post-summary correction (PSC) claims and periodic monthly statements (PMS). Except to the extent expressly announced or modified by this document, all aspects, rules, terms and conditions announced in previous notices regarding the PSC and PMS tests remain in effect.
As of November 1, 2017, the modification and clarification to the PSC and PMS tests will be operational.
Comments concerning this test program may be submitted via email to Monica Crockett at
For policy-related questions, contact Randy Mitchell, Director, Commercial Operations, Revenue and Entry, Trade Policy and Programs, Office of Trade, via email at
The National Customs Automation Program (NCAP) was established by Subtitle B of Title VI—Customs Modernization in the North American Free Trade Agreement (NAFTA) Implementation Act (Customs Modernization Act) (Pub. L. 103-182, 107 Stat. 2057, 2170, December 8, 1993) (19 U.S.C. 1411). Through NCAP, the thrust of customs modernization was on trade compliance and the development of the Automated Commercial Environment (ACE), the planned successor to the Automated Commercial System (ACS) as the CBP-authorized electronic data interchange (EDI) system. ACE is an automated and electronic system for commercial trade processing which is intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for U.S. Customs and Border Protection (CBP) and all of its communities of interest. The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions.
CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to replace specific legacy ACS functions and add new functionality. Section 101.9(b) of title 19 of the Code of Federal Regulations (19 CFR 101.9(b)) provides for the testing of NCAP components.
On June 24, 2011, CBP published a notice in the
Before the December 12, 2016 notice became effective, CBP published another notice on January 9, 2017, in the
On February 4, 2004, CBP published a notice in the
This document announces a modification and clarification of the PSC test, and a modification of the PMS test. The modifications and clarification are discussed separately below. Except to the extent expressly announced or modified by this document, all aspects, rules, terms, requirements, obligations and conditions announced in previous notices regarding the PSC and PMS tests remain in effect.
This document announces that CBP is extending the deadline for filing a PSC. The new deadline requires a PSC to be transmitted within 300 days of the date of entry or 15 days prior to the scheduled liquidation date, whichever
CBP announced in the December 12th notice that the types of entries that may be corrected by filing a PSC were expanded to additional entry types, one of them being entry type 23 (TIB). This notice clarifies that a PSC concerning a TIB may be filed only to correct data elements of a TIB that do not change a TIB entry to another entry type; in addition, this notice clarifies that a PSC may not change data elements that change another entry type to a TIB entry. For example, a PSC may correct the value declared on a TIB entry, but it may not change the classification of the article to a classification that is not entitled to be filed as a TIB entry, as that classification change would necessarily change a TIB entry to another entry type.
The proposed modification, published in the January 9, 2017 notice, considers a PMS as paid, in the event the importer uses the Automated Clearing House (ACH) debit process, when CBP receives notification from the Treasury Department that funds are available and transferred to CBP from the financial institution designated by the importer for payment of the ACH debit authorization. This modification reverses the proposed modification because ACE cannot accommodate the proposed change at this time due to technical constraints. Therefore, CBP will continue to consider a PMS as paid when CBP transmits the debit authorization to the designated financial institution.
A chronological listing of
• ACE Portal Accounts and Subsequent Revision Notices: 67 FR 21800 (May 1, 2002); 69 FR 5360 and 69 FR 5362 (February 4, 2004); 69 FR 54302 (September 8, 2004); 70 FR 5199 (February 1, 2005).
• ACE System of Records Notice: 71 FR 3109 (January 19, 2006).
• Terms/Conditions for Access to the ACE Portal and Subsequent Revisions: 72 FR 27632 (May 16, 2007); 73 FR 38464 (July 7, 2008).
• ACE Non-Portal Accounts and Related Notice: 70 FR 61466 (October 24, 2005); 71 FR 15756 (March 29, 2006).
• ACE Entry Summary, Accounts and Revenue (ESAR I) Capabilities: 72 FR 59105 (October 18, 2007).
• ACE Entry Summary, Accounts and Revenue (ESAR II) Capabilities: 73 FR 50337 (August 26, 2008); 74 FR 9826 (March 6, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR III) Capabilities: 74 FR 69129 (December 30, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR IV) Capabilities: 76 FR 37136 (June 24, 2011).
• Post-Entry Amendment (PEA) Processing Test: 76 FR 37136 (June 24, 2011).
• ACE Announcement of a New Start Date for the National Customs Automation Program Test of Automated Manifest Capabilities for Ocean and Rail Carriers: 76 FR 42721 (July 19, 2011).
• ACE Simplified Entry: 76 FR 69755 (November 9, 2011).
• National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS): 77 FR 20835 (April 6, 2012).
• National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Simplified Entry: Modification of Participant Selection Criteria and Application Process: 77 FR 48527 (August 14, 2012).
• Modification of National Customs Automation Program (NCAP) Test Regarding Reconciliation for Filing Certain Post-Importation Preferential Tariff Treatment Claims under Certain FTAs: 78 FR 27984 (May 13, 2013).
• Modification of Two National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS) and Simplified Entry (SE): 78 FR 44142 (July 23, 2013).
• Modification of Two National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS) and Simplified Entry (SE); Correction: 78 FR 53466 (August 29, 2013).
• Modification of National Customs Automation Program Test Concerning Automated Commercial Environment (ACE) Cargo Release (formerly known as Simplified Entry): 78 FR 66039 (November 4, 2013).
• Post-Summary Corrections to Entry Summaries Filed in ACE Pursuant to the ESAR IV Test: Modifications and Clarifications: 78 FR 69434 (November 19, 2013).
• National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Environmental Protection Agency and the Food Safety and Inspection Service Using the Partner Government Agency Message Set Through the Automated Commercial Environment (ACE): 78 FR 75931 (December 13, 2013).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Ocean and Rail Carriers: 79 FR 6210 (February 3, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release to Allow Importers and Brokers to Certify From ACE Entry Summary: 79 FR 24744 (May 1, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Truck Carriers: 79 FR 25142 (May 2, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Document Image System: 79 FR 36083 (June 25, 2014).
• Announcement of eBond Test: 79 FR 70881 (November 28, 2014).
• eBond Test Modifications and Clarifications: Continuous Bond Executed Prior to or Outside the eBond Test May Be Converted to an eBond by the Surety and Principal, Termination of an eBond by Filing Identification Number, and Email Address Correction: 80 FR 899 (January 7, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Document Image System Relating to Animal and Plant Health Inspection Service (APHIS) Document Submissions: 80 FR 5126 (January 30, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the use of Partner Government Agency Message Set through the Automated Commercial Environment (ACE) for the Submission of Certain Data Required by the Environmental Protection Agency (EPA): 80 FR 6098 (February 4, 2015).
• Announcement of Modification of ACE Cargo Release Test to Permit the Combined Filing of Cargo Release and Importer Security Filing (ISF) Data: 80 FR 7487 (February 10, 2015).
• Modification of NCAP Test Concerning ACE Cargo Release for Type 03 Entries and Advanced Capabilities for Truck Carriers: 80 FR 16414 (March 27, 2015).
• Automated Commercial Environment (ACE) Export Manifest for Air Cargo Test: 80 FR 39790 (July 10, 2015).
• National Customs Automation Program (NCAP) Concerning Remote Location Filing Entry Procedures in the Automated Commercial Environment (ACE) and the Use of the Document Image System for the Submission of Invoices and the Use of eBonds for the Transmission of Single Transaction Bonds: 80 FR 40079 (July 13, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Partner Government Agency (PGA) Message Set Regarding Types of Transportation Modes and Certain Data Required by the National Highway Traffic Safety Administration (NHTSA): 80 FR 47938 (August 10, 2015).
• Automated Commercial Environment (ACE) Export Manifest for Vessel Cargo Test: 80 FR 50644 (August 20, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Food and Drug Administration (FDA) Using the Partner Government Agency Message Set through the Automated Commercial Environment (ACE): 80 FR 52051 (August 27, 2015).
• Automated Commercial Environment (ACE) Export Manifest for Rail Cargo Test: 80 FR 54305 (September 9, 2015).
• Modification of the National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Document Image System (DIS) Regarding Future Updates and New Method of Submission of Accepted Documents: 80 FR 62082 (October 15, 2015).
• Modification of the National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Cargo Release for Entry Type 52 and Certain Other Modes of Transportation: 80 FR 63576 (October 20, 2015).
• Modification of the National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Entry Summary, Accounts and Revenue (ESAR) Test of Automated Entry Summary Types 51 and 52 and Certain Modes of Transportation: 80 FR 63815 (October 21, 2015).
• Modification of the National Customs Automation Program Test Concerning the Automated Commercial Environment Portal Account to Establish the Exporter Portal Account: 80 FR 63817 (October 21, 2015).
• Modification of National Customs Automation Program Test Concerning the Automated Commercial Environment Partner Government Agency Message Set Regarding the Toxic Substances Control Act Certification Required by the Environmental Protection Agency: 81 FR 7133 (February 10, 2016).
• Notice Announcing the Automated Commercial Environment (ACE) as the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Certain Electronic Entry and Entry Summary Filings: 81 FR 10264 (February 29, 2016).
• Modification of the National Customs Automation Program (NCAP); Test Concerning the Partner Government Agency Message Set for Certain Data Required by the Environmental Protection Agency (EPA): 81 FR 13399 (March 14, 2016).
• Cessation of National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Food and Drug Administration (FDA) Using the Partner Government Agency (PGA) Message Set Through the Automated Commercial Environment (ACE): 81 FR 18634 (March 31, 2016).
• Automated Commercial Environment (ACE); Announcement of National Customs Automation Program Test of the In-Transit Manifest Pilot Program: 81 FR 24837 (April 27, 2016).
• Announcement of National Customs Automation Program (NCAP) Test Concerning the Submission through the Automated Commercial Environment (ACE) of Certain Import Data and Documents Required by the U.S. Fish and Wildlife Service: 81 FR 27149 (May 5, 2016).
• Notice Announcing the Automated Commercial Environment (ACE) as the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Certain Electronic Entry and Entry Summary Filings Accompanied by Food and Drug Administration (FDA) Data: 81 FR 30320 (May 16, 2016).
• Notice Announcing the Automated Commercial Environment (ACE) as the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Electronic Entry and Entry Summary Filings: 81 FR 32339 (May 23, 2016).
• Notice Announcing the Automated Commercial Environment (ACE) Protest Module as the Sole CBP-Authorized Method for Filing Electronic Protests: 81 FR 49685 (July 28, 2016).
• Modification of the National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Portal Accounts to Establish the Protest Filer Account and Clarification that the Terms and Conditions for Account Access Apply to all ACE Portal Accounts: 81 FR 52453 (August 8, 2016).
• National Customs Automation Program (NCAP) Test Concerning Electronic Filing of Protests in the Automated Commercial Environment (ACE): 81 FR 53497 (August 12, 2016).
• Modification of the National Customs Automation Program (NCAP) Test Regarding Reconciliation and Transition of the Test from the Automated Commercial System (ACS) to the Automated Commercial Environment (ACE): 81 FR 89486 (December 12, 2016).
• Modification and Clarification of the National Customs Automation Program (NCAP) Test Regarding Post-Summary Corrections and Periodic Monthly Statements: 81 FR 89482 (December 12, 2016).
• Effective Date for the Automated Commercial Environment (ACE) Being the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Electronic Drawback and Duty Deferral Entry and Entry Summary Filings: 81 FR 89486 (December 12, 2016).
• Electronic Notice of Liquidation: 81 FR 89375 (December 12, 2016).
• Modification and Clarification of the National Customs Automation Program Tests Regarding Post-Summary Corrections and Periodic Monthly Statements; Republication with Correction and Further Clarification: 82 FR 2385 (January 9, 2017).
• Delay of Effective Date for the Automated Commercial Environment (ACE) Becoming the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Electronic Drawback and Duty Deferral Entry and Entry Summary Filings: 82 FR 4900 (January 17, 2017).
• Delayed Effective Date for Modifications of the National Customs Automation Program Tests Regarding Reconciliation, Post-Summary Corrections, and Periodic Monthly Statements: 82 FR 4901 (January 17, 2017).
• Effective Date for the Automated Commercial Environment (ACE) Becoming the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Electronic
• Effective Date for Modifications of the National Customs Automation Program Tests Regarding Reconciliation, Post-Summary Corrections, and Periodic Monthly Statements: 82 FR 26699 (June 8, 2017).
• Delayed Effective Date for Modifications of the National Customs Automation Program Tests Regarding Reconciliation, Post-Summary Corrections, and Periodic Monthly Statements: 82 FR 29910 (June 30, 2017).
• Delay of Effective Date for the Automated Commercial Environment (ACE) Becoming the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Electronic Drawback and Duty Deferral Entry and Entry Summary Filings: 82 FR 29910 (June 30, 2017).
• Extension and Clarification of Test Program Regarding Electronic Foreign Trade Zone Admission Applications and Transition of Test from the Automated Commercial System to the Automated Commercial Environment: 82 FR 38923 (August 16, 2017).
• Automated Commercial Environment (ACE) Becoming the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Duty Deferral Entry and Entry Summary Filings: 82 FR 38924 (August 16, 2017).
• Delay of Transition of Test Program Regarding Electronic Foreign Trade Zone Admission Applications from the Automated Commercial System to the Automated Commercial Environment: 82 FR 43395 (September 15, 2017).
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces that U.S. Customs and Border Protection (CBP) is adjusting certain customs user fees and limitations established by the Consolidated Omnibus Budget Reconciliation Act (COBRA) for Fiscal Year 2018 in accordance with the Fixing America's Surface Transportation Act (FAST Act) as implemented by CBP regulations published elsewhere in this issue of the
The adjusted amounts of customs COBRA user fees and their corresponding limitations set forth in this notice for Fiscal Year 2018 are required as of January 1, 2018.
Bruce Ingalls, Director—Revenue Division, 317-298-1107,
On December 4, 2015, the Fixing America's Surface Transportation Act (FAST Act, Pub. L. 114-94) was signed into law. Section 32201 of the FAST Act amended section 13031 of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (19 U.S.C. 58c) by requiring certain customs COBRA user fees and corresponding limitations to be adjusted by the Secretary of the Treasury (Secretary) to reflect certain increases in inflation.
In a final rule, CBP Dec. 17-16, published elsewhere in this issue of the
In accordance with the amended regulations in 19 CFR 24.22, CBP determines whether the fees and limitations must be adjusted to reflect inflation. For fiscal year 2018, this is done by comparing the average of the Consumer Price Index—All Urban Consumers, U.S. All items, 1982-84 (CPI-U) for the current year (June 2016-May 2017) with the average of the CPI-U for Fiscal Year 2014 to determine the change in inflation, if any. If there is an increase in the CPI of greater than one (1) percent, CBP must adjust the customs COBRA user fees and corresponding limitations using the methodology set forth in 19 CFR 24.22(k). Following the steps provided in paragraph (k)(2) of § 24.22, CBP has determined that the increase in the CPI between the most recent June to May 12-month period (June 2016-May 2017) and Fiscal Year 2014 is 2.542 percent. (19 CFR 24.22(k)). As the increase in the CPI is greater than one (1) percent, the customs COBRA user fees and corresponding limitations must be adjusted for Fiscal Year 2018.
Using the methodology set forth in § 24.22(k)(2) of the CBP regulations (19 CFR 24.22(k)), CBP has determined that the factor by which the fees and limitations will be adjusted is 2.677 percent. In reaching this determination, CBP calculated the values for each variable found in 19 CFR 24.22(k) as follows:
• The arithmetic average of the CPI-U for June 2016-May 2017, referred to as (A) in the CBP regulations, is 242.328
• The arithmetic average of the CPI-U for Fiscal Year 2014, referred to as (B), is 236.009;
• The arithmetic average of the CPI-U for the comparison year, referred to as (C), is 236.009;
• The difference between the arithmetic averages of the CPI-U of the comparison year (Fiscal Year 2014) and the current year (June 2016-May 2017), referred to as (D), is 6.320;
• This difference rounded to the nearest whole number, referred to as (E), is 6;
• The percentage change in the arithmetic averages of the CPI-U of the comparison year (Fiscal Year 2014) and the current year (June 2016-May 2017), referred to as (F), is 2.542 percent;
• The difference in the arithmetic average of the CPI-U between the current year (June 2016-May 2017) and the base year (Fiscal Year 2014), referred to as (G), is 6.320; and
• Lastly, the percentage change in the CPI-U from the base year (Fiscal Year 2014) to the current year (June 2016-May 2017), referred to as (H), is 2.677 percent.
The adjusted amounts of customs COBRA user fees and their corresponding limitations for Fiscal Year 2018 as adjusted by 2.677 percent set forth below are required as of January 1, 2018. Table 1 provides the fees and limitations found in 19 CFR 24.22 as adjusted for Fiscal Year 2018 and Table 2 provides the fees and limitations found in 19 CFR 24.23 as adjusted for Fiscal Year 2018.
Tables 1 and 2 setting forth the adjusted fees and limitations for Fiscal Year 2018 will also be maintained for the public's convenience on the CBP Web site at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of California (FEMA-3381-EM), dated February 14, 2017, and related determinations.
This amendment was issued October 20, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that the incident period for this emergency is closed effective February 23, 2017.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Georgia (FEMA-4338-DR), dated September 15, 2017, and related determinations.
This amendment was issued October 18, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Georgia is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 15, 2017.
Bibb, Chattahoochee, Clarke, Clinch, Decatur, Dodge, Dooly, Glascock, Grady, Gwinnett, Heard, Henry, Jefferson, Lanier, Lee, McDuffie, Mitchell, Pulaski, Stewart, Sumter, Terrell, Thomas, Towns, Twiggs, Union, Upson, Webster, White, and Wilkinson Counties for Public Assistance [Categories C-G] (already designated for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of South Carolina (FEMA-4346-DR), dated October 16, 2017, and related determinations.
The declaration was issued October 16, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated October 16, 2017, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of South Carolina resulting from Hurricane Irma during the period of September 6-13, 2017, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Warren J. Riley, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of South Carolina have been designated as adversely affected by this major disaster:
Allendale, Anderson, Bamberg, Barnwell, Beaufort, Berkeley, Charleston, Colleton, Dorchester, Edgefield, Georgetown, Hampton, Jasper, McCormick, Oconee, and Pickens Counties for Public Assistance.
All areas within the State of South Carolina are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Louisiana (FEMA-4345-DR), dated October 16, 2017, and related determinations.
The declaration was issued October 16, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated October 16, 2017, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Louisiana resulting from Tropical Storm Harvey during the period of August 27 to September 10, 2017, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, William J. Doran III, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Louisiana have been designated as adversely affected by this major disaster:
The parishes of Allen, Beauregard, Calcasieu, Cameron, Natchitoches, Red River, Sabine, St. Charles, and Vernon for all categories of Public Assistance.
The parishes of Acadia, Assumption, De Soto, Iberia, Jefferson Davis, Lafayette, Lafourche, Plaquemines, Rapides, St. Mary, and Vermillion for emergency protective measures (Category B), including direct federal assistance, under the Public Assistance program.
All areas within the State of Louisiana are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of California (FEMA-4344-DR), dated October 10, 2017, and related determinations.
The declaration was issued October 10, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated October 10, 2017, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of California resulting from wildfires beginning on October 8, 2017, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide assistance for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs). Direct Federal assistance is authorized.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, William Roche, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of California have been designated as adversely affected by this major disaster:
Butte, Lake, Mendocino, Napa, Nevada, Sonoma, and Yuba Counties for debris removal and emergency protective measures (Categories A and B), including direct federal assistance, under the Public Assistance program.
All areas within the State of California are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Transportation Security Administration, DHS.
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0059, abstracted below to OMB for review and approval of a revision of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by December 1, 2017. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Christina A. Walsh, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-2062; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Consistent with the requirements of Executive Order (EO) 13771, Reducing Regulation and Controlling Regulatory Costs, and EO 13777, Enforcing the Regulatory Reform Agenda, TSA is also requesting comments on the extent to which this request for information could be modified to reduce the burden on respondents.
The TSA Pre✓® Application Program enhances aviation security by
Under the TSA Pre✓® Application Program, individuals submit biographic (including, but not limited to, name, date of birth, gender, prior and current addresses, contact information, country of birth, images of identity documents, proof of citizenship/immigration status) and biometric (such as fingerprints, iris scans, or facial images) information to TSA's enrollment contractor. The enrollment contractor transmits this data via secure interface to TSA, which uses the information to conduct a security threat assessment (STA) based on checks of law enforcement, citizenship/immigration, regulatory violation, and intelligence databases, including a criminal history records check. TSA also uses the information submitted for identity verification during enrollment. The results are used by TSA to determine whether an individual poses a low risk to transportation or national security justifying eligibility for TSA Pre✓®.
TSA makes the final determination on eligibility for the TSA Pre✓® Application Program and notifies the applicant of the decision. On average, applicants receive notification from TSA within two to three weeks of the submission of their completed applications. Approved applicants are issued a Known Traveler Number (KTN) that is used for multiple purposes. Airline passengers who submit their KTN when making airline reservations may be eligible for expedited screening on flights originating from U.S. airports with TSA Pre✓® lanes.
Eligibility for the TSA Pre✓® Application Program is within the sole discretion of TSA, which provides written notification to applicants denied eligibility, including reasons for the denial. Applicants initially deemed ineligible have an opportunity to correct cases of misidentification or inaccurate criminal or citizenship/immigration records. For example, if advised during the application eligibility review process that the criminal record discloses a disqualifying criminal offense, the applicant has 60 days from the date of the denial letter to submit written notification of an intent to correct any information he or she believes to be inaccurate. The applicant must also provide a certified, revised record, or the appropriate court must forward a certified true copy of the information. TSA will review any information submitted and make a final decision. If neither notification nor a corrected record is received by TSA, the agency may make a final determination to deny eligibility. Individuals ineligible for the TSA Pre✓® Application Program are screened at airport security checkpoints pursuant to standard screening protocols.
TSA invites all TSA Pre✓® applicants to complete an optional survey to gather information on the applicants' overall customer satisfaction with the service received at the enrollment center. The optional survey is administered at the end of the enrollment service. TSA will use the information to determine whether any trends exist regarding customer service at a particular enrollment center, for potential customer utility and potential frequency of KTN usage for the overall program or particular application enrollment activity, and to take steps to improve service.
In June and July 2017, TSA launched a proof of concept initiative at Hartsfield-Jackson Atlanta International Airport and Denver International Airport to determine whether fingerprints from TSA Pre✓® Application Program applicants, who volunteered to participate in the proof of concept, could be used for identity verification at airport security checkpoints. TSA is using the operational throughput information from this proof of concept to determine how to implement optimally the use of biometrics collected during enrollment (fingerprints, iris, and/or facial image) for identity verification at airport checkpoints. TSA intends to continue to expand on the use of biometrics for identity verification at the time of travel.
TSA is seeking a revision to the currently approved request to allow for the collection of additional biometrics, particularly facial images but may include other biometrics such as iris, from TSA Pre✓® Application Program applicants. Currently, TSA collects fingerprints from these applicants, which are used for, among other things, criminal history records checks. The regular collection of biometrics, such as facial images, will provide TSA with the ability to use those biometrics for identity verification at TSA checkpoints, potentially eliminating the need to show identity documents and improving both security and the customer experience.
In addition, the TSA Pre✓® Application Program will begin accepting renewals in December 2018 for individuals whose five-year eligibility is expiring. To reduce applicant burden, TSA will allow most existing Program applicants to complete their renewal online rather than requiring the applicant to appear in person at an enrollment center. Certain individuals (
Transportation Security Administration, DHS.
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the new Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. On July 18, 2017, TSA published a
Send your comments by December 1, 2017. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Christina A. Walsh, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-2062; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Consistent with the requirements of Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, and E.O. 13777, Enforcing the Regulatory Reform Agenda, TSA is also requesting comments on the extent to which this request for information could be modified to reduce the burden on respondents.
To implement the MSIJSCO and TPO programs, TSA must collect the passenger's name, flight itinerary (scheduled flight departure and arrival information), and contact information to successfully facilitate movements through the screening process at U.S. airports and its territories. TSA shares this information with airports on the passenger's itinerary to coordinate efforts, to synchronize seamless transitions with the affected parties, and protect security operations.
Bureau of Land Management, Interior.
Notice of intent; correction.
This action corrects typographical errors in the
Comments regarding this Correction Notice should be sent to Johanna Munson by phone at (208) 373-3834, email at
You may submit comments or get further information by visiting
In the
On page 47248, column 3, which reads “State Office at (208) 373-7834” is hereby corrected to read, “State Office at (208) 373-3834”.
On page 47248, column 3, which reads “83708” is hereby corrected to read “83709”.
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of call for nominations.
The purpose of this Notice is to request a second call for public nominations for the Bureau of Land Management (BLM) Resource Advisory Councils (RAC) that have members whose terms are scheduled to expire or have expired. RACs provide advice and recommendations to the BLM on land use planning and management of the National System of Public Lands within their geographic areas.
All nominations must be received no later than December 1, 2017.
Nominations and completed applications for RACs should be sent to the appropriate BLM offices listed in the
Twinkle Thompson, BLM Communications, 1849 C Street NW., Room 5645, Washington, DC 20240, 202-208-7301.
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR subpart 1784 and include the following three membership categories:
Individuals may nominate themselves or others. Nominees must be residents of the State in which the RAC has jurisdiction. The BLM will evaluate nominees based on their education, training, experience, and knowledge of the geographic area of the RAC. Nominees should demonstrate a commitment to collaborative resource decision-making.
The following must accompany all nominations:
Simultaneous with this Notice, BLM State Offices will issue press releases providing additional information for submitting nominations, with specifics about the number and categories of member positions available for each RAC in the State.
Before including any address, phone number, email address, or other personal identifying information in the application, nominees should be aware this information may be made publicly available at any time. While the nominee can ask to withhold the personal identifying information from public review, BLM cannot guarantee that it will be able to do so.
Nominations and completed applications for RACs should be sent to the appropriate BLM offices listed below:
Lesli Ellis-Wouters, BLM Alaska State Office, 222 West 7th Avenue, #13, Anchorage, AK 99513, 907-271-4418.
Steve Razo, BLM California Desert District, 22835 Calle San Juan De Los Lagos, Moreno Valley, CA 92553, 951-697-5217.
Jeff Fontana, BLM Northern California District, 2550 Riverside Drive, Susanville, CA 96130, 530-252-5332.
Serena Baker, BLM Central California District Office, 5152 Hillsdale Circle, El Dorado Hills, CA 95762, 916-941-3146.
Michael Williamson, BLM Boise District Office, 3948 South Development Avenue, Boise, ID 83705, 208-384-3393.
Jonathan Moor, BLM Lewistown Field Office, 920 Northeast Main Street, Lewistown, MT 59457, 406-538-1943.
Mark Jacobsen, BLM Eastern Montana/Dakotas District, 111 Garryowen Road, Miles City, MT 59301, 406-233-2800.
Mark Jacobsen, BLM Eastern Montana/Dakotas District, 111 Garryowen Road, Miles City, MT 59301, 406-233-2800.
David Abrams, BLM Butte Field Office, 106 North Parkmont, Butte, MT 59701, 406-533-7617.
Glen Garnand, BLM Pecos District Office, 2909 West Second Street, Roswell, NM 88201, 575-627-0209.
Lisa Clark, BLM Prineville District Office, 3050 NE 3rd Street, Prineville, OR 97754, 541-416-6864.
Larisa Bogardus, BLM Lakeview District Office, 1301 South G Street, Lakeview, OR 97630, 541-947-6237.
Christina Breslin, BLM Medford District Office, 3040 Biddle Road, Medford, OR 97504, 541-618-2371.
Tara Thissell, BLM Burns District Office, 28910 Highway 20 West, Hine, OR 97738, 541-573-4519.
Lola Bird, BLM Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, UT 84101, 801-539-4033.
Larry Crutchfield, BLM Grand Staircase-Escalante National Monument Office, 669 South Highway 89 A, Kanab, UT 84741, 435-644-1209.
Kristen Lenhardt, BLM Wyoming State Office, 5353 Yellowstone Road, P.O. Box 1828, Cheyenne, WY 82003, 307-775-6015.
43 CFR 1784.4-1.
National Park Service, Interior.
Notice.
The Sam Noble Oklahoma Museum of Natural History (Museum) at the University of Oklahoma has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Museum. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Sam Noble Oklahoma Museum of Natural History at the address in this notice by December 1, 2017.
Dr. Marc Levine, Assistant Curator of Archaeology, Sam Noble Oklahoma Museum of Natural History, University of Oklahoma, 2401 Chautauqua Avenue, Norman, OK 73072-7029, telephone (405) 325-1994, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Sam Noble Oklahoma Museum of Natural History, Norman, OK. The human remains and associated funerary objects were removed from the following counties in the State of Oklahoma: Beckham, Caddo, Canadian, Cotton, Custer, Garfield, Garvin, Grady, Kiowa, Lincoln, McClain, Oklahoma, Pottawatomie, Roger Mills, and Washita.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Sam Noble Oklahoma Museum of Natural History professional staff in consultation with representatives of the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma.
In 1978 and 1981, human remains representing, at minimum, 5 individuals were removed from the Devils Canyon site (34Ki0001) in Kiowa County, OK. The site was first surveyed and recorded by David J. Werner of the University of Oklahoma in 1947, and later resurveyed in 1978 by Richard Drass of the Oklahoma Archeological Survey. Additional materials from the site were donated to the Museum by landowner Bernice Winters in 1978 and 1981. Individuals 1 and 2 are commingled fragmentary remains of adults of
In 1968, human remains representing, at minimum, 2 individuals were removed from the Edwards/Carter site (34Bk0002) in Beckham County, OK. This site was recorded for the Oklahoma Archeological Survey by Rex Wilson and Charles Robertson in October of 1955, and again in August of 1965. Most of the excavations were conducted by the University of Oklahoma Field School in 1968 and the associated collections were subsequently turned over to the Museum. The human remains consist of commingled cranial and long bone fragments and one molar tooth. The two individuals represented are adults, one probable male and one of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
The Edwards/Carter site is associated with the Edwards Complex, dating from approximately A.D. 1500-1650 and including the initial Spanish contact period. Based on continuity of the cultural material, these remains may be related to the western group of the Wichita. Oral history, as well as post-contact European records, supports the presence of the Wichita in the area at this time.
In 1955, human remains representing, at minimum, 5 individuals were removed from the Sandstone Creek 1 site (34Bk0001) in Beckham County, OK. The site was recorded by the University of Oklahoma by Cain in 1955 and surveyed by Fenton Wheeler. Materials from the site, including Burials 1 and 3, were transferred to the Museum at an unknown date. Remains from Burial 2 are not present at the Museum. Burial 1 contains, at minimum, two individuals. Burial 1A is a partial skeleton of a young adult male, 20-35 years old, and Burial 1B is a vertebral column of an adult of indeterminate sex. Burial 3 contains at least three individuals. Burial 3A is a fragmentary skeleton of an adult male, Burial 3B is a fragmentary skeleton of a probable male adult, and Burial 3C consists of cranial remains of a child, 4-6 years old. No known individuals were identified. The 4 associated funerary objects from Burial 3 are deer teeth.
In 1978, human remains representing, at minimum, 1 individual were removed from the Hubbard 2 site (34Bk0005) in Beckham County, OK. The burial and associated funerary objects from this site were excavated by amateur archeologists, reburied, later salvaged in 1978, and then transferred to the Museum in 1979. The human remains consist of a complete skeleton of a young adult female, 20-35 years old. No known individual was identified. The 41 associated funerary objects include 4 hammerstones, 1 ground stone fragment, 1 flint core, 1 quartzite core, 1 chipped stone axe, 28 chipped stone flakes, and 5 faunal bone fragments.
In 1959, human remains representing, at minimum, 2 individuals were removed from the Fowler site (34Bk0006) in Beckham County, OK. This site was exposed by erosion associated with an artificial pond on private land. The Oklahoma Archeological Survey Data Record indicates that, prior to 1959, the owner excavated, reburied, and re-excavated one of the three burials at the site. According to the Burial Data Records, Burial 2 was excavated by the State Crime Bureau and later turned over to the Museum. Burials 1 and 3 were either reburied or may still be in the possession of the land owner. Only Burial 2 was found to be in the possession of the Museum. Burial 2 consists of two individuals. Individual 1 is a partial skeleton of a young adult male, 25-30 years old. Individual 2 is an adult represented by three teeth and one cranial fragment. No known individuals were identified. No associated funerary objects are present.
In 1973, human remains representing, at minimum, 1 individual were removed from the I-40 Burial site (34Bk0049) in Beckham County, OK. The burial was salvaged on June 23, 1973, by the Oklahoma Highway Archeological Survey prior to highway construction on Interstate-40 near Sayre, OK (ODOT-state property). Materials from the site were turned over to the Museum in June of 1973. The burial consists of highly fragmentary skeletal remains of an adult, at least 35 years old, of indeterminate sex. No known individual was identified. The 10 associated funerary objects include 1 deer ulna fragment, 8 faunal bone awl fragments, and 1 chipped stone core.
In September of 1982, human remains representing, at minimum, 1 individual were removed from the Red Rock Canyon 1 site (34Cd0138) in Caddo County, OK. The site is located along a canyon wall in Red Rock Canyon State Park. The site had been disturbed by park personnel who had been removing dirt from the area. Collections were then made by the Oklahoma Archeological Survey in 1982, while further investigating construction damage in the park. Materials recovered were subsequently donated to the Museum in October of 1982. The human remains are a fragmentary skeleton of an adult male. No known individual was identified. The 14 associated funerary objects include 9 faunal bone fragments, three of which are burned, 1 small sample of charcoal, 1 pottery sherd, 2 chipped stone flakes, and 1 small fragment of dried organic matter.
In 1974 and 1975, human remains representing, at minimum, 2 individuals were removed from the Takoah site (34Cd0244) in Caddo County, OK. The site was first surveyed and recorded in 1974 by Charles Wallis of the Oklahoma Conservation Commission for the Oklahoma Archeological Survey and was excavated in 1975. Recovered materials were accessioned by the Museum in 1975 and 1988. Two burials were excavated at the site. Burial 1 is a partial skeleton of a young adult female, 20-35 years old. Burial 2 is a partial skeleton of an adult male, 25-45 years old. No known individuals were identified. A total of 172 associated funerary objects were-removed from site 34Cd0244. Burial 1 is associated with 76 faunal bones or bone fragments, 13 chipped stone cobble fragments, 24 chipped stone flakes, 1 chipped stone projectile point fragment, 1 ground stone mano, 1 ground stone fragment, 2 unmodified rocks, 1 piece of clay, 2 wood fragments, 2 shells, 17 shell fragments, and 1 soil sample from the burial. Burial 2 is associated with 18 faunal bone fragments, 4 chipped stone cobble fragments, 1 unmodified cobble, 6 chipped stone flakes, 1 shell fragment, and 1 soil sample taken from within the skull of the individual in Burial 2.
In 1988, human remains representing, at minimum, 1 individual were removed from the Majors 3 site (34Cd0299) in Caddo County, OK. The remains were excavated by Jack Hofman on private land and accessioned by the Museum in 1988. The human remains removed from the site consist of a partial skeleton of a young adult male, 20-35 years old. No known individual was identified. No associated funerary objects are present.
On August 27, 1976, human remains representing, at minimum, 1 individual were removed from an unnamed site (34Cn0036) in Canadian County, OK. This site was discovered on November 17, 1975, during a survey of land proposed for the construction of a rest
On November 10, 1987, human remains representing, at minimum, 3 individuals were removed from the Sanders site (34Ct0011) in Cotton County, OK. The human remains and associated artifacts from the Sanders Site were recovered by Robert Brooks of the Oklahoma Archeological Survey on November 10, 1987, after the site had been vandalized by unauthorized digging on private land, and subsequently donated to the Museum in 1988. Two burials were excavated at the site. Burial 1 contains a partial skeleton of an adult female, 18-25 years old. Burial 2 contains a fragmentary skeleton of a child, 5-6 years old, and 3 long bone fragments of an infant, both of indeterminate sex. No known individuals were identified. The 143 associated funerary objects are associated with both burials and include 49 chipped stone fragments, 26 ground stone fragments, 9 pottery sherds, 5 shell fragments, and 54 faunal bone fragments.
In 1971, human remains representing, at minimum, 2 individuals were removed from the Henry site (34Ct0017) in Cotton County, OK. The site was exposed on private land, recovered in 1971 by the Oklahoma Anthropological Society, supervised by Hofman, and subsequently donated to the Museum in the same year. Two burials were excavated. Burial 1 is a complete skeleton of a middle-aged adult female, 35-50 years old. Burial 2 is a complete skeleton of an older adult female, over 50 years old. No known individuals were identified. A total of 5 associated funerary objects were removed from site 34Ct0017. Burial 1 is associated with 1 chipped stone knife, 1 flake, and 1 shell pendant. Burial 2 is associated with 2 chipped stone flakes.
In 1985, human remains representing, at minimum, 1 individual were removed from the Austin site (34Ct0021) in Cotton County, OK. A burial was exposed by a road grader and reported to the Oklahoma Archeological Survey by private citizens. The skeletal remains and associated funerary objects were excavated by Robert Brooks in 1985, and donated to the Museum on July 29, 1985. The human remains consist of a very fragmentary skeleton representing a young adult, 20-25 years old, probably male. No known individual was identified. The 10 associated funerary objects include 7 shell fragments, 1 pottery sherd, 1 chipped stone flake, and 1 charcoal sample.
On September 22, 1978, human remains representing, at minimum, 3 individuals were removed from the Carley site (34Cu0082) in Custer County, OK. A private collector reported the site to the Oklahoma Archeological Survey and it was recorded by Survey staff on September 22, 1978. The collector gave materials from the site to the Survey who then transferred them to the Museum in 1980. The remains are commingled and fragmentary, representing at least 2 adult females and 1 adult male. No known individuals were identified. No associated funerary objects are present.
In June of 1965, human remains representing, at minimum, 2 individuals were removed from the Kingery site (34Gf0000) in Garfield County, OK. The site was excavated by the Oklahoma River Basin Survey, with field work directed by Barr and assisted by Slovacek, Brown, and Harwood from the Ponca City, OK, Chapter of the Anthropological Society. The human remains were transferred to the Museum in 1966. The human remains from the site are fragmentary and commingled and represent one young adult female, 20-35 years old and one middle-aged adult male, 35-50 years old. No known individuals were identified. No associated funerary objects are present.
In April of 1958, human remains representing, at minimum, 3 individuals were removed from an unnamed site (34Ml0000) in McClain County, OK. A pottery vessel was found in a grave exposed by erosion on the L.E. Howorton Farm near Rosedale, OK, by Bill Eddleman and donated to the Museum by William Villines on May 8, 1958. Additional skeletal material was discovered in the Museum collections in 1995, also from an unknown location near Rosedale. The skeletal remains and pottery vessel may have originated from the same burial. Individuals 1 and 2 are commingled remains of an adult female and an adult of indeterminate sex. Individual 3 is represented by a single long bone fragment of an infant, less than 3 years old. No known individuals were identified. The 9 associated funerary objects are associated with all 3 individuals from the site and include 1 partially restored pottery vessel, 1 chipped stone flake, 1 faunal bone, and 6 pottery sherds.
In December of 1958, human remains representing, at minimum, 1 individual were removed from the Willingham site (34Ml0005) in McClain County, OK. The site was first recorded by W.H. Villines in 1953. Excavations were conducted in 1958 by the Oklahoma Anthropological Society under the direction of Sherman Lawton and Robert Bell and material from the site was subsequently donated to the Museum the same year. In 1964, bulldozing operations at an oil well exposed additional material at the site and was excavated by the Oklahoma Archeological Survey. Three burials were discovered but are not in the possession of the Museum. It is unclear if they were excavated or left in the ground. The human remains from the site in the possession of the Museum consist of a long bone fragment and a heavily worn tooth of an adult of indeterminate sex. No known individual was identified. The 88 associated funerary objects include 3 chipped stone scrapers, 2 modified flint fragments, 10 chipped stone flakes, 1 lithic abrader fragment, 1 ground stone mano fragment, 3 unmodified sandstone fragments, 3 unmodified large stones, 15 faunal bone fragments, 7 shell fragments, and 43 pottery sherds.
In June of 1970, human remains representing, at minimum, 1 individual were removed from the Baker 1 site (34Rm0074) in Roger Mills County, OK. Material from the site was recovered during a surface survey after the site was disturbed by the construction of a dam. The collection was recorded by Don Wyckoff of the Oklahoma Archeological Survey and subsequently turned over to the Museum the same year. The human remains consist of a single tooth of an adult of indeterminate sex. No known individual was identified. The 24 associated funerary objects include 22 flakes, 1 flint core, and 1 quartzite core.
Sites 34Bk0001, 34Bk0005, 34Bk0006, 34Bk0049, 34Cd0138, 34Cd0244, 34Cd0299, 34Cn0036, 34Ct0011, 34Ct0017, 34Ct0021, 34Cu0082, 34Gf0000, 34Ml0000, 34Ml0005, and 34Rm0074 are Plains Village Period in age, dating from approximately A.D. 900-1500. The Carley site (34Cu0082) may have also been occupied into the period of initial Spanish contact. These determinations are based on archeological context and diagnostic cultural materials (
In 1957, human remains representing, at minimum, 3 individuals were removed from the Hubbard site (34Bk0004) in Beckham County, OK. The site was discovered on private property after the spring floods of 1957. The landowner contacted the Sheriff's
In 1987, human remains representing, at minimum, 2 individuals were removed from the Coy Nuttley site (34Bk0023) in Beckham County, OK. Material from the Coy Nuttley Site, an open habitation site on private land near Elk City, OK, was given to the Oklahoma Archeological Survey by an amateur collector and subsequently donated to the Museum in June of 1987. The human remains consist of a cranial fragment and two loose teeth of an adult of indeterminate sex and three loose teeth of a child, 9-12 years old. No known individuals were identified. The 11 associated funerary objects, linked to both individuals, are fragments of deer bone.
In 1984, human remains representing, at minimum, 1 individual were removed from an unnamed site (34Bk0094) in Beckham County, OK. The human remains were found by a private land owner and turned over to Larry Neal and Alan Wormser of the Oklahoma Archeological Survey in 1984 and later donated to the Museum in 1988. The human remains from this site consist of a partial cranium of a young adult, 20-35 years old, probably male. No known individual was identified. No associated funerary objects are present.
In 1951, human remains representing, at minimum, 1 individual were removed from the Goodman 1 site (34Cu0001) in Custer County, OK. The site was originally discovered by the landowner when a large piece of daub was discovered during plowing in 1941. In 1951, the tenant reported that, while digging a cellar, he uncovered two burials which were subsequently donated to the Museum the same year. Burial 1 is a complete skeleton of a young adult male, 20-35 years old. A second burial was recorded from the site but is not in the possession of the Museum. No known individual was identified. A total of 46 associated funerary objects were removed from site 34Cu0001. Burial 1 is associated with 3 shell fragments, 1 ground stone mano fragment, 1 stone elbow pipe, and 6 faunal bone fragments. Burial 2 is associated with 1 ceramic pot without handles, 1 ceramic pot with handles, 31 shell beads, 1 chipped stone projectile point, and 1 flint knife.
In 1957, human remains representing, at minimum, 3 individuals were removed from the Heerwald (Jordan) site (34Cu0027) in Custer County, OK. This site is on private land on a ridge south of Turkey Creek, a tributary of the Washita River. Material was recovered by James Schaeffer of the Highway Salvage Archaeology program in 1957, when I-40 was constructed south of old US 66, and was subsequently donated to the Museum. The burial contains 3 individuals. Individual 1 is a partial skeleton of a young adult female, 20-25 years old, Individual 2 is a partial skeleton of a child, 6-7 years old, and Individual 3 is a partial skeleton of a fetus. No known individuals were identified. The 45 associated funerary objects include 1 pottery sherd, 3 shells, 2 unmodified shell fragments, 1 modified shell, 6 unmodified sandstone fragments, 1 ground stone mano, 1 projectile point fragment, 1 Washita type projectile point, 1 Harrell type projectile point (embedded in the first lumbar vertebra of Individual 1), 3 chipped stone flakes, 1 chipped stone end scraper, 2 chipped stone fragments, 1 chipped stone cobble, 20 faunal bone fragments, and 1 charcoal sample.
In March and April of 1969, human remains representing, at minimum, 3 individuals were removed from the Cotter-Hutson site (34Cu0041) in Custer County, OK. The human remains and associated objects from Burial 1 of the Cotter-Hutson site were discovered by a private land owner while plowing and then recovered by members of the Oklahoma Archeological Survey and the Oklahoma Anthropological Society in March of 1969. Burial 2 was recovered in April of 1969. Both burials and associated funerary objects were donated to the Museum in 1981. Burial 1 is a fragmentary skeleton of a child, 6-7 years old. Burial 2 is a partial skeleton of a child, 4-5 years old. A third individual is an adult male represented by a mandible found on the surface. No known individuals were identified. A total of 119 associated funerary objects were recovered from site 34Cu0041. Burial 1 is associated with 5 deer bone and tooth fragments, 8 shell fragments, 3 pottery sherds, 8 ground stone fragments, 3 ground stone fragments, 2 pebbles, 6 flakes, 15 seeds, 1 faunal bone fragment, 17 chipped stone flakes from the surface directly above the burial, and 2 bags of soil from the burial itself. Burial 2 is associated with 38 seeds, 6 faunal bone fragments, 1 ground stone fragment, 1 shell scraper, 1 shell fragment, and 2 bags of burial soil and burned material.
In 1969, human remains representing, at minimum, 1 individual were removed from the Arrington site (34Cu0042) in Custer County, OK. The site was reported to the Oklahoma Archeological Survey in 1969 by a private landowner who had discovered a burial while plowing. Material from the site was subsequently donated to the Museum the same year. The human remains are a partial skeleton of a middle-aged adult female, 35-50 years old. No known individual was identified. The 10 associated funerary objects include 1 unburned faunal bone fragment, 4 burned faunal bone fragments, 2 shell fragments, and 3 chipped stone flakes.
In 1957, human remains representing, at minimum, 5 individuals were removed from the Selzer site (34Gd0016) in Grady County, OK. The site was exposed by flooding in 1957 on a terrace above the Washita River on privately held land. Three burials were excavated and later donated to the Museum. Burial 1 is a young adult female, 18-22 years old, Burial 2 is an adult male, and Burial 3 is an adult of indeterminate sex. There are two additional individuals that are fragmentary and commingled. Individual 4 is a probable young adult female, 20-35 years old. Individual 5 is an adolescent, 15-18 years old, of indeterminate sex. No known individuals were identified. A total of 29 associated funerary objects were removed from site 34Gd0016. Burial 3 is associated with 18 pottery sherds and 2 shell fragments. Individuals 4 and 5 are associated with 1 chipped stone flake, 1 ground stone mano, and 7 shell fragments.
In 1963, human remains representing, at minimum, 1 individual were removed from the WRP 9 site (34Gd0024) in Grady County, OK. The site was originally reported in 1963 by Dick McWilliams who discovered the burial eroding out of a road cut. The burial was salvaged by the Museum later that year. The burial is a complete skeleton of a young adult male, 20-35 years old. No known individual was identified. No associated funerary objects are present.
On September 13, 1977, human remains representing, at minimum, 6 individuals were removed from the Horne 1 site (34Gd0078) in Grady County, OK. The site was uncovered when an Oklahoma Natural Gas pipeline went through the area in 1977. The site was officially recorded by the Oklahoma Archeological Survey on
In June of 1992, human remains representing, at minimum, 4 individuals were removed from the Jewett site (34Gd0081) in Grady County, OK. This site is located on privately held land and was initially recorded by the staff of the Oklahoma Archeological Survey on November 4, 1977. Salvage was conducted by Robert Brooks, prompted by the discovery of a burial during construction of an oil field in 1992. Remains were removed under the state burial law and transferred to the Museum the same year. Burial 1 is a fragmentary skeleton of an adult of indeterminate sex. Burial 2 is a fragmentary skeleton of a probable young adult female, 20-35 years old. Burials 3 and 4 are both fragmentary skeletons of adults of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In November 1987, human remains representing, at minimum, 1 individual were removed from an unnamed site (34Gv0000) in Garvin County, OK. Human remains from the site were initially collected by Jesse Taylor from a creek bottom near Elmer City, OK, and then transferred to the State Archaeologist by the Oklahoma Medical Examiner's Office. The material was later received by the Museum from the Oklahoma Archeological Survey in May of 1988. The human remains consist of a single complete cranium of a young adult male, 20-35 years old. No known individual was identified. No associated funerary objects are present.
In the summer of 1937, human remains representing, at minimum, 3 individuals were removed from the Braiden site (34Gv0001) in Garvin County, OK. This site was excavated by the Works Progress Administration on private land in 1937, and formally recorded by Charles Bareis in February of 1955. The material was subsequently donated to the Museum. Burial 1 contains two individuals, a cranium of an adult male and loose teeth of a child, 3-6 years old. Burial 2 contains small bone fragments of an adult of indeterminate sex. No known individuals were identified. The 105 associated funerary objects from Burial 2 include 35 faunal bone fragments, 19 chipped stone fragments, 2 chipped stone knives, 3 chipped stone points, 4 chipped stone scrapers, and 42 pottery sherds.
In 1937, human remains representing, at minimum, 18 individuals were removed from the Grant Site (34Gv0002) in Garvin County, OK. Located on a terrace above the Washita River near Wynnewood, OK, the site was excavated by the Works Progress Administration in 1937, under the direction of Forrest E. Clements of the University of Oklahoma. Material from the site was taken to the University of Oklahoma for storage and the human remains and associated funerary objects were accessioned by the Museum in 1937 and 1948. Individual 1 is a partial skeleton of a middle-aged adult female, 35-50 years old. Individual 2 is a partial skeleton of a middle-aged adult male, 35-50 years old. Individual 3 is a partial skeleton of an infant, 1-2 years old. Individual 4 is a fragmentary skeleton of an infant, 1-3 years old. Individual 5 is a fragmentary skeleton of an infant, 6 months to 1 year old. Individual 6 is a fragmentary skeleton of a newborn infant. Individual 7 is a complete skeleton of a middle-aged adult female, 35-50 years old. Individual 8 is a partial skull of a young adult male, 20-35 years old. Individual 9 is a fragmentary skeleton of a middle-aged adult female, 35-50 years old. Individual 10 is a fragmentary skeleton of an adult of indeterminate sex. Individuals 11 and 12 are represented by fragmentary and commingled post-cranial remains. Both of these individuals are adults, one female, and the other of indeterminate sex. Individuals 13, 14, and 15 are represented by fragmentary and commingled remains of at least two adults of indeterminate sex and one child. Individual 16 is a fragmentary skeleton of a middle-aged to older adult female, 40-55 years old. Individuals 17 and 18 are represented by fragmentary and commingled post-cranial remains of at least two adults of indeterminate sex. No known individuals were identified. A total of 32 associated funerary objects were removed from site 34Gv0002. Individual 1 is associated with 1 pottery sherd. Individual 2 is associated with 1 complete ceramic bowl. Individual 3 is associated with 6 faunal bone fragments. Individual 4 is associated with 1 pottery sherd, 1 faunal bone fragment, and 1 shell scraper. Individual 5 is associated with 1 unmodified rock. Individual 7 is associated with 18 faunal bone fragments, 1 bison scapula hoe, and 1 bone awl.
In 1952, human remains representing, at minimum, 2 individuals were removed from the Lacey Farm 1 site (34Gv0005) in Garvin County, OK. The site is on a high ridge north of the Washita River. It was recorded by Charles Bareis in 1955, however, prior to that time many private collectors had visited the site. The site was resurveyed in 1993, by Richard Drass and material from the site was subsequently turned over to the Museum. Individual 1 is a partial cranium of an adult male. Individual 2 is a fragmentary cranium of an adult of indeterminate sex. No known individuals were identified. A total of 38 associated funerary objects were removed from site 34Gv0005. Individual 1 is associated with 5 pottery sherds and 2 modified faunal bone fragments. Individual 2 is associated with 1 two-handed ground stone mano, 1 faunal bone awl, 2 faunal skull and horn hoes, 7 faunal bone hoe fragments, 2 modified faunal bone fragments, 9 unmodified faunal bone fragments, 2 deer bone fragments, 1 deer tooth, and 6 pottery sherds.
In 1982, human remains representing, at minimum, 1 individual were removed from the Arthur site (34Gv0032) in Garvin County, OK. The remains were recovered in 1982, during excavations under a house by Robert Brooks and were accessioned by the Museum in 1987. The remains consist of a fragmentary skeleton of an infant approximately 1 year old. No known individual was identified. The 532 associated funerary objects include 135 shell fragments, 149 pottery sherds, 20 clay fragments, 15 sandstone fragments, 1 hammer stone, 170 chipped stone flakes, 1 chipped stone projectile point, 1 chipped stone biface fragment, 29 faunal bone fragments, 10 burned faunal bone fragments, and 1 charcoal sample.
Between 1982 and 1985, human remains representing, at minimum, 8 individuals were removed from the Thelma Wilson site (34Gv0043) in Garvin County, OK. This site, overlooking the Washita River east of Pauls Valley, was initially surveyed and recorded by Don Wyckoff of the Oklahoma Archeological Survey in 1970. In 1982, Jim Mayberry contacted the survey to report material eroding from a cut bank on the site. In early 1983, Richard Drass and Robert Brooks assisted Jim Mayberry in salvaging the material. The burials and associated objects were turned over to the Museum
In 1980 and 1981, human remains representing, at minimum, 3 individuals were removed from the Franklin Cordell site (34Wa0003) in Washita County, OK. Located on a cultivated and terraced hillside in Washita County, this site was first surveyed by Robert Bell of the University of Oklahoma in 1955. Prior to that time however, the site was often visited by amateur collectors. A subsequent survey was carried out by Richard Drass in 1977, after plowing had exposed additional material. In 1980, an extensive excavation was conducted by the Eastern Oklahoma County Chapter of the Oklahoma Archaeological Society under the direction of the Oklahoma Archeological Survey, supervised by David Hughes. The material was transferred to the Museum in 1980 and 1981. Individual 1 is an adult greater than 35 years old, of indeterminate sex, and represented by a single mandible fragment. Individual 2 is an adolescent or young adult, approximately 18-22 years old, of indeterminate sex, also represented by a single mandible fragment. Individual 3 is an adult greater than 20 years old, of indeterminate sex, and represented by 5 loose teeth and a manual phalange. No known individuals were identified. No associated funerary objects are present.
On September 7, 1974, human remains representing, at minimum, 7 individuals were removed from the Hinz site (34Wa0004) in Washita County, OK. This site was exposed by cultivation and erosion and first discovered by Denny Carley of Southwestern Oklahoma State University in 1974. Carley notified the Oklahoma Archeological Survey and on September 7, 1974, Roger Saunders, Jack Hoffman, and Daryl Wheaton of the Survey excavated the site. The material was transferred to the Museum in 1981. Three burials were excavated. Burial 1 is a complete skeleton of a child, 4-6 years old. Burial 2 is a partial skeleton of a young adult male, 20-35 years old. Burial 3 is a partial skeleton of an adult of indeterminate sex. Individual 4 is a fragmentary skeleton of an adult of indeterminate sex. Individual 5 is a fragmentary skeleton of a child. Individuals 6 and 7 are represented by loose teeth and commingled small bone fragments of an adult of indeterminate sex and a child, 5-7 years old. No known individuals were identified. A total of 54 associated funerary objects were removed from site 34Wa0004. Burial 1 is associated with 12 chipped stone flakes and fragments, 1 piece of sandstone, 1 pottery sherd, 2 mussel shells, and 2 conch shell pendants. Burial 2 is associated with 15 pottery sherds, 1 faunal bone fragment, and 7 shell fragments. Burial 3 is associated with 11 chipped stone flakes, 1 pottery sherd, and 1 piece of sandstone.
In 1955 and 1960, human remains representing, at minimum, 66 individuals were removed from the McLemore/Cross site (34Wa0005) in Washita County, OK. This site was discovered by a private citizen and recorded by Rex Wilson of the Oklahoma Archeological Survey in 1955. A large-scale excavation was conducted in 1960, directed by Don Wyckoff and Robert Bell. Most of the material from the McLemore site, including the human remains and associated funerary objects, were transferred to the Museum in 1960. An additional human bone was transferred to the Museum in 2008 by a private collector. Burial 1 has 2 individuals, both are infants, 0.5-1 year old. Burial 2 is a middle-aged adult female, 35-45 years old. Burial 3 is an infant, 1.5-2 years old. Burial 4 is a middle-aged adult female, 40-55 years old. Burial 5 is an infant, 0-0.5 year old. Burial 6 is an infant, 0.5-1 year old. There are 2 individuals from Burial 7, a young adult, 20-25 years old, probably a female, and an infant, 0-0.5 year old. Burial 8 is also a newborn infant. Burial 9 has 2 individuals, a child, 9-12 years old and an infant, 1-1.5 years old. Burial 10 is a middle-aged adult female, 35-40 years old. Burial 11 is an infant, 1-1.5 years old. Burial 12 is an infant, 0-0.5 year old. Burial 13 is an adolescent, 18-20 years old, probably a male. Burial 14 is a middle-aged adult male, 35-45 years old. Burial 15 is a middle-aged adult female, 35-50 years old. Burial 16 is an infant, 0.5-1 year old. Burial 17 is an infant, 0.5-1.5 years old. Burial 18 are two infants, 0-0.5 year old. Burial 19 is an infant, 0-0.5 year old. Burial 20 is a middle-aged adult female, 35-45 years old. Burial 21 is an infant, 0-0.5 year old. Burial 22 has 2 individuals, a young adult male, 30-35 years old and an infant, 0-0.5 year old. Burial 23 also has 2 individuals, a young adult female, 25-30 years old and a fetus. Burial 24 is an adult, 30-39 years old, probably a female. Burial 25 is an infant, 1.5-3 years old. Burial 27 has 3 individuals, a young adult female, 27-35 years old and 2 newborn infants. Burials 28 and 29 are both infants, 0-0.5 year old. Burial 30A is a middle-aged adult female, 45-50 years old and Burial 30B is a middle- aged adult, 40-44 years old, probably a male. Burial 31 is an infant, 0-0.5 year old. Burial 32 is an infant, 1.5-2 years old. Burial 33 is a middle-aged adult male, 45-55 years old. There are 2 individuals from Burial 34, a middle-aged adult male, 45-50 years old and a middle-aged adult of indeterminate sex, 40-44 years old. Burial 35 is an infant, 0-0.5 year old. Burial 36 has 2 individuals, a child, 2-3 years old and an infant, 0-0.5 year old. Burial 37 also has 2 individuals, a child, 2-3 years old and an infant, 0-0.5 year old. Burial 38 is an infant, 0-0.5 year old. Burial 39 is a child, 3-5 years old. Burial 40 is an infant, 0-0.5 year old. Burial 41 is a child, 2-3 years old. Burials 42 and 43 are both infants, 0-0.5 year old. Burial 44 is a child, 5-6 years old. Burial 45 is a middle-aged adult male, 45-55 years old. Burials 46 and 47 are two probable young adult females, 25-30 years old. Burial 48 is an infant, 0-0.5 year old. Burial 49 is a young adult of indeterminate sex, 20-35 years old. Burials 50 and 51 are middle-aged adults of indeterminate sex, 35-50 years old. Burial 52 is an infant, 0-0.5 year old. Burial 53 is an adult of indeterminate sex. Burial 54 is an infant, 0-0.5 year old. No known individuals were identified. There are 292 isolated and commingled bone and bone fragments from the site, likely belonging to the individuals listed above.
A total of 1,053 associated funerary objects were removed from site 34Wa0005. The two individuals from Burial 1 are associated with 2 chipped stone fragments, 3 pottery sherds, and 4 faunal bone fragments. Burial 2 is associated with 1 unmodified stone, 1 chipped stone scraper, 2 pottery sherds,
In 1977, human remains representing, at minimum, 1 individual were removed from the Duerksen site (34Wa0143) in Washita County, OK. The remains were found near the Washita River by Denny Carley, a member of the Oklahoma Anthropological Society. He donated the remains to the Oklahoma Archeological Survey in 1977, which were later transferred to the Museum in 1980. The human remains consist of a fragmentary cranium of a young adult male, 20-35 years old. No known individual was identified. No associated funerary objects are present.
Sites 34Bk0004, 34Bk0023, 34Bk0094, 34Cu0001, 34Cu0027, 34Cu0041, 34Cu0042, 34Gd0016, 34Gd0024, 34Gd0078, 34Gd0081, 34Gv0000, 34Gv0001, 34Gv0002, 34Gv0005, 34Gv0032, 34Gv0043, 34Wa0003, 34Wa0004, 34Wa0005, and 34Wa0143 are Plains Village Period, Washita River phase in age, dating approximately from A.D. 1250-1400. It is possible that the Braiden site (34Gv0001) could also date to the earlier Paoli phase (A.D. 900-1250), and the Lacey Farm 1 site (34Gv0005) has Paoli phase components in addition to Washita River phase components. These determinations are based on archeological context and diagnostic cultural materials (
In 1955, human remains representing, at minimum, 2 individuals were removed from the Coulter site (34Ml0008) in McClain County, OK. The human remains and associated funerary objects were salvaged from a slush pit in the middle of the Coulter Site by William Villines. The site was recorded
This site is Plains Village Period, Paoli phase in age, dating from approximately A.D. 900-1250. This determination is based on archeological context and diagnostic cultural materials (
In 1984, human remains representing, at minimum, 2 individuals were removed from the Patton site (34Bk0093) in Beckham County, OK. The human remains were collected in the field by Larry Neal and Alan Wormser of the Oklahoma Archeological Survey and later donated to the Museum in 1988. Individual 1 is a fragmentary skeleton of a young adult female, 20-35 years old. Individual 2 is a fragmentary skeleton of an adolescent, 12-15 years old, of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
In 1985, human remains representing, at minimum, 1 individual were removed from the Linville 2 site (34Rm0492) in Roger Mills County, OK. The site was exposed by a bulldozer and material was recovered as part of a salvage operation funded by the Oklahoma Archeological Survey, conducted by Richard Drass, Pete Thurmond, John Flick, Don Wyckoff, Louis Albert, Peggy Flynn, and Michael Moore. The material was transferred to the Museum in 1987. The burial is a fragmentary skeleton of an adult female. No known individual was identified. The 158 associated funerary objects include 24 pottery sherds, 27 chipped stone flakes, 1 small stone projectile point, 11 shell fragments, 32 faunal bone fragments, 1 faunal bone awl, 58 cobbles and cobble fragments, 1 cobble biface, 2 charred nutshells, and 1 sample of organic material.
Sites 34Bk0093 and 34Rm0492 are from the Plains Village Period and date to the Custer phase, from approximately A.D. 800-1250. These determinations are based on archeological context and diagnostic cultural materials (
In 1981 and 1983, human remains representing, at minimum, 2 individuals were removed from the Carnegie Canyon site (34Cd0076) in Caddo County, OK, by the Oklahoma Conservation Commission. Excavations by Christopher Lintz and Stephan Hall occurred in 1981 and 1983, and material from the site was transferred to the Museum in 1983 and 1985. Individual 1 is a fragmentary skeleton of a probable female adult. Individual 2 is a single long bone fragment of an adult of indeterminate sex. No known individuals were identified. The 13 associated funerary objects are 12 faunal bone fragments associated with Individual 1 and 1 soil sample associated with Individual 2.
In 1989, human remains representing, at minimum, 1 individual were removed from the Cut Bank Site (34Ln0101) in Lincoln County, OK. This site was surveyed and recorded in 1989 by Charles S. Wallis Jr. of the Oklahoma Conservation Commission as part of the Bellcow Reservoir Resurvey and Testing Program in conjunction with studies on the impact area of the Kickapoo Nations Watershed in northwestern Lincoln County, OK. Material from the site was turned over to the Museum in 1991. The human remains consist of a single cranial fragment of an adult of indeterminate sex. No known individual was identified. No associated funerary objects are present.
In 1952 and 1986, human remains representing, at minimum, 4 individuals were removed from the Brewer site (34Ml0003) in McClain County, OK. This site is on the south bank of the Canadian River and was originally surveyed and recorded in 1950, by the University of Oklahoma. William Villines of Rosedale, OK, brought a collection from the site to the Department of Anthropology at the University of Oklahoma in 1951. Additional material was salvaged by Richard Drass, Robert Brooks, and Alan Wormser of the Oklahoma Archeological Survey, after more material had been exposed by oil well workers in 1986. The material was accessioned by the Museum in 1953 and 1988. Burial 1 contains two individuals, an adult male and a young adult, 20-35 years old, of indeterminate sex. Burial 2 contains a young adult, 20-35 years old, of indeterminate sex. Burial 3 contains a probable young adult female, 20-35 years old. No known individuals were identified. A total of 61 associated funerary objects were removed from site 34Ml0003. Both individuals from Burial 1 are associated with 1 chipped stone flake tool, 1 modified cobble, 1 bone pin, 1 ground stone fragment, 11 pottery sherds, 1 shell fragment, 1 shell scraper, 5 faunal bone fragments, and 1 charcoal sample. Burial 2 is associated with 7 pottery sherds, 7 worked shell fragments, 6 chipped stone flakes, 1 ground stone fragment, 1 faunal bone fragment, 1 soil sample, and 10 soil flotation samples. Burial 3 is associated with 1 pottery sherd, 1 ground stone fragment, 1 shell fragment, and 2 faunal bone fragments.
On November 26, 1979, human remains representing, at minimum, 1 individual were removed from the Chevrolet site (34Ok0100) in Oklahoma County, OK. This site was exposed by heavy machinery during a construction project along Crutcho Creek in Oklahoma County and salvaged by Richard Drass and Sarah Herstand of the Oklahoma Archeological Survey. The material was transferred to the Museum in 1981. The human remains are a fragmentary skeleton of an adolescent, 13-16 years old, of indeterminate sex. No known individual was identified. The 42 associated funerary objects include 11 unmodified sandstone fragments, 1 chipped stone biface, 1 modified cobble, 11 chipped stone flakes, 2 pieces of charred material, 1 soil sample from the burial, 13 pieces of baked earth, and 2 pottery sherds.
In 1987, human remains representing, at minimum, 3 individuals were removed from an unnamed site (34Pt0000) in Pottawatomie County, OK. The human remains were collected by Michael Moore during a survey project near the Rose-Fast site and accessioned by the Museum in 1988. The human remains are highly fragmentary and commingled and represent an adult male, an adult female, and a child, 8-12 years old. No known individuals were identified. No associated funerary objects are present.
Sites 34Cd0076, 34Ln0101, 34Ml0003, 34Ok0100, and 34Pt0000 date to the Plains Woodland Period (A.D. 1-1000). The Brewer site (34Ml0003) may also date to the Plains Village Period. The unnamed site from Pottawatomie County is in close proximity to, and is believed to be associated with, the Rose-
Officials of the Sam Noble Oklahoma Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 193 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 3,389 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Marc Levine, Assistant Curator of Archaeology, Sam Noble Oklahoma Museum of Natural History, University of Oklahoma, 2401 Chautauqua Avenue, Norman, OK 73072-7029, telephone (405) 325-1994, email
The Sam Noble Oklahoma Museum of Natural History is responsible for notifying the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The Human Remains Repository, Department of Anthropology, University of Wyoming, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Human Remains Repository, Department of Anthropology, University of Wyoming. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Human Remains Repository, Department of Anthropology, University of Wyoming, at the address in this notice by December 1, 2017.
Dr. Rick L. Weathermon, Curator, Human Remains Repository, Department 3431, Anthropology, 1000 East University Avenue, University of Wyoming, Laramie, WY 82071, telephone (307) 314-2035, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Human Remains Repository, Department of Anthropology, University of Wyoming, Laramie, WY. The human remains and associated funerary objects were removed from multiple counties in the State of Wyoming.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Human Remains Repository, Department of Anthropology, University of Wyoming, professional staff in consultation with representatives of the Arapaho Tribe of the Wind River Reservation, Wyoming. The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Flandreau Santee Sioux Tribe of South Dakota; Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Lower Sioux Indian Community in the State of Minnesota; Oglala Sioux Tribe (previously listed as the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota); Prairie Island Indian Community in the State of Minnesota; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Santee Sioux Nation, Nebraska; Shakopee Mdewakanton Sioux Community of Minnesota; Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota; Spirit Lake Tribe, North Dakota; Standing Rock Sioux Tribe of North & South Dakota; Upper Sioux Community, Minnesota; and Yankton Sioux Tribe of South Dakota were invited to consult, but did not participate.
At some time prior to 1976, human remains representing, at minimum, three individuals were removed from the area of Pumpkin Buttes in Campbell County, WY, by members of the Wyoming Archaeological Society, Sheridan Chapter. In 1998, the
In 1984, human remains representing, at minimum, one individual were removed from the Rawhide site (48CA509) in Campbell County, WY, by the Wyoming State Archaeological Survey Office. The fragmentary human remains are recorded as HR145 in the Human Remains Repository records and represent a Native American child, about 8 years old, of undetermined sex. No known individual was identified. No associated funerary objects are present.
At some time prior to 1970, human remains representing, at minimum, one individual, were removed from a site located about 35 miles north and slightly east of Douglas in Converse County, WY, by unknown individuals. The human remains were kept at the Pioneer Museum in Douglas until 1975, when they were transferred to the Human Remains Repository. The fragmentary human remains are recorded as HR018 in the Human Remains Repository records and represent a Native American male, approximately 34-40 years old. No known individual was identified. No associated funerary objects are present.
In 1986, human remains representing, at minimum, one individual, were removed from the Antelope Coal Mine permit area (site 48CO481) in Converse County, WY. The human remains have been housed at the Human Remains Repository since that time. The fragmentary human remains are recorded as HR0111 in the Human Remains Repository records and represent a Native American female, 18-21 years old. No known individual was identified. No associated funerary objects are present.
In 1988, human remains representing, at minimum, one individual, were removed from site 48CO1432 in Converse County, WY, by the Wyoming State Archaeological Survey Office. The human remains have been housed at the Human Remains Repository since that time. The fragmentary human remains are recorded as HR144 in the Human Remains Repository records and represent a Native American male, over 50 years old. No known individual was identified. No associated funerary objects are present.
At some time prior to 1986, human remains representing, at minimum, one individual, were removed from a location near the town of Shawnee in Converse County, WY, by the landowner. The human remains have been housed at the Human Remains Repository since that time. The human remains are recorded as HR0152 in the Human Remains Repository records and represent a Native American male, over 50 years old. No known individual was identified. No associated funerary objects are present.
At some time in the mid-1980s, human remains representing, at minimum, one individual, were removed from an unknown location in Converse County, WY, by the Converse County Sheriff's Office. The remains have been housed at the Human Remains Repository since that time. The fragmentary human remains are recorded as HR155 in the Human Remains Repository records and represent a Native American individual of undetermined sex, over 40 years old. No known individual was identified. No associated funerary objects are present.
At some time during the early 1970s, human remains representing, at minimum, one individual, were removed from an unknown site near Bill in Converse County, WY, by the Converse County Sheriff's Office. The human remains were transferred to the Human Remains Repository in 2010. The fragmentary human remains are recorded as HR0282 in the Human Remains Repository records and represent an adult Native American male. No known individual was identified. No associated funerary objects are present.
In 1997, human remains representing, at minimum, one individual, were removed from an unknown site in Converse County, WY, by the Converse County Sheriff's Office. The human remains were transferred to the Human Remains Repository in 2010. The fragmentary human remains are recorded as HR0300 in the Human Remains Repository records and represent an adult Native American male. No known individual was identified. No associated funerary objects are present.
In 1974, human remains representing, at minimum, one individual, were removed from the Bishop Ranch in Crook County, WY, by the landowner. The human remains were given to the Rockpile Museum in Gillette, who transferred them to the Human Remains Repository in 1996. The human remains are recorded as DB052 in the Human Remains Repository records and represent a Native male, over 60 years old. No known individual was identified. No associated funerary objects are present.
In 1983, human remains representing, at minimum, one individual, were removed from a location south of Keyhole Reservoir in Crook County, WY, by the Crook County Sheriff's Office and then transferred to the Human Remains Repository in 1984. The fragmentary human remains are recorded as FC044 in the Human Remains Repository records and represent a Native American female, over 50 years old. No known individual was identified. No associated funerary objects are present.
In 1881, human remains representing, at minimum, one individual, were removed from the area of Rifle Pit Road in Crook County, WY, by unknown individuals. The human remains were given to the Sundance Museum in 1975, and transferred to the Human Remains Repository in 2009. The fragmentary human remains are recorded as HR264 in the Human Remains Repository records and represent a Native American young adult female. No known individual was identified. No associated funerary objects are present.
In 1975, human remains representing, at minimum, one individual, were removed from site 48GO8 near the North Platte River in Goshen County, WY, by University of Wyoming Department of Anthropology personnel and transferred to the Human Remains Repository in approximately 1987. The fragmentary human remains are recorded as HR043 in the Human Remains Repository records and represent a Native American female, 25-27 years old. No known individual was identified. No associated funerary objects are present.
In 1975, human remains representing, at minimum, one individual, were removed from site 48NA67 north of Casper in Natrona County, WY, by University of Wyoming Department of Anthropology personnel. The human remains have been at the Human Remains Repository since that time and, based on radiocarbon dating, are between 5100 and 5500 years old. The fragmentary human remains are recorded as HR045 in the Human Remains Repository records and represent a Native American male, 50-65 years old. No known individual was identified. No associated funerary objects are present.
In 1992, human remains representing, at minimum, one individual, were removed from the North Platte River drainage west of Casper in Natrona County, WY, by the Natrona County Sheriff's Office and transferred to the Human Remains Repository in 1993.
In 1993, human remains representing, at minimum, one individual, were removed from a location a few miles north of Casper in Natrona County, WY, by the Natrona County Sheriff's Office. The human remains have been at the Human Remains Repository since that time. The fragmentary human remains are recorded as FC107 in the Human Remains Repository records and represent a Native American child, of indeterminate sex, 8-9 years old. No known individual was identified. The one associated funerary object consists of a bison bone fragment.
At some time prior to the 1970s, human remains representing, at minimum, one individual, were removed from an unknown location and given to the Casper, WY, Police Department. The human remains had been in the police department evidence lockup from 30 to over 40 years. No other provenience information is available. In 2009, the human remains were accessioned into the University of Wyoming Human Remains Repository. The fragmentary human remains are recorded as HR263 in the Human Remains Repository records and represent a Native American older adult male. No known individual was identified. No associated funerary objects are present.
In 1956, human remains representing, at minimum, one individual, were removed from site 48NO2 about 8 miles southwest of Lusk in Niobrara County, WY, by Wyoming State Museum personnel and transferred to the University of Wyoming Anthropology Department in 1983. Additional associated remains were located in the State Museum in 1995 and transferred to University of Wyoming, Anthropology, in 1996. The fragmentary human remains are recorded as HR110 in the Human Remains Repository records and represent a Native American male, 50-65 years of age. No known individual was identified. No associated funerary objects are present.
At some time prior to 1971, human remains representing, at minimum, one individual, were removed from site 48WE34, about 4 miles south southeast of Upton, Weston County, WY, by the landowner and given to the University of Wyoming Anthropology Department in 1971. The fragmentary human remains are recorded as HR007 in the Human Remains Repository records and represent a Native American female, 50-65 years old. No known individual was identified. The two associated funerary objects include a bone awl fragment and small piece of hematite.
At some time in the 1930s, human remains representing, at minimum, one individual, were removed from site 48WE487, about 7 miles west of the Wyoming-South Dakota state line, in Weston County, WY, by a sheepherder. The human remains have been at the University of Wyoming Anthropology Department since the mid-1980s. The fragmentary human remains are recorded as HR203 in the Human Remains Repository records and represent a possible Native American, approximately 20 years of age, of indeterminate sex. No known individual was identified. The 42 associated funerary objects include 42 red ocher-stained non-diagnostic bifacial stone tools.
In 1978, human remains representing, at minimum, one individual, were removed from a location approximately two miles north of Newcastle in Weston County, WY, by Weston County Sherriff's Department personnel and stored at the Anna Miller Museum in Newcastle until 1992, when they were transferred to the University of Wyoming Anthropology Department. The fragmentary human remains are recorded as FC008 in the Human Remains Repository records and represent a Native American male, 48-60 years old. No known individual was identified. No associated funerary objects are present.
Officials of the Human Remains Repository, Department of Anthropology, University of Wyoming have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on features of the skeletal elements or their archeological contexts.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 23 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 47 funerary objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian Tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Arapaho Tribe of the Wind River Reservation, Wyoming.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Arapaho Tribe of the Wind River Reservation, Wyoming.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Arapaho Tribe of the Wind River Reservation, Wyoming.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Rick L. Weathermon, Curator, Human Remains Repository, Department 3431, Anthropology, 1000 East University Avenue, University of Wyoming, Laramie, WY 82071, telephone (307) 314-2035, email
The Human Remains Repository, Department of Anthropology, University of Wyoming, is responsible for notifying the Arapaho Tribe of the Wind River Reservation, Wyoming, that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to institute a modification proceeding in the above-captioned investigation.
Amanda P. Fisherow, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2737. 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 at
The Commission instituted this investigation on January 27, 2015, based on a Complaint filed by Cisco Systems, Inc. of San Jose, California (“Cisco”). 80 FR 4313-14 (Jan. 27, 2015). The Complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), by reason of infringement of certain claims of U.S. Patent Nos. 7,023,853 (“the '853 patent”); 6,377,577 (“the '577 patent”); 7,460,492 (“the '492 patent”); 7,061,875 (“the '875 patent”); 7,224,668 (“the '668 patent”); and 8,051,211 (“the '211 patent”). The Complaint further alleges the existence of a domestic industry. The Commission's Notice of Investigation named Arista Networks, Inc. of Santa Clara, California (“Arista”) as the respondent. The Office of Unfair Import Investigations (“OUII”) was also named as a party to the investigation. The Commission terminated the investigation in part as to certain claims of the asserted patents. Notice (Nov. 18, 2015) (see Order No. 38 (Oct. 27, 2015)); Notice (Dec. 1, 2015) (see Order No. 47 (Nov. 9, 2015)).
On May 4, 2017, the Commission found a violation of section 337 with respect to certain of the asserted claims of the '577 and '668 patents. Notice (May 4, 2017); 82 FR 21827-29 (May 10, 2017);
On June 30, 2017, Cisco filed a notice of appeal with the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), seeking review of the Commission's finding of no violation.
On August 25, 2017, Arista filed a motion with the Federal Circuit seeking to stay the Commission's remedial orders pending resolution of the appeal on the merits. On September 22, 2017, the Federal Circuit denied this request “subject to the condition that the product redesign on which Cisco relies to deny irreparable harm must be permitted to enter the country, without being blocked by the Commission order under review in this case, unless and until Commission proceedings are initiated and completed to produce an enforceable determination that such a redesign is barred by the order here under review or by a new or amended order.”
On September 27, 2017, Cisco petitioned for a modification proceeding to determine whether Arista's redesigned switches infringe the patent claims that are the subject of the LEO and CDO issued in this investigation and for modification of the remedial orders to specify the status of these redesigned products. On October 10, 2017, Arista filed its opposition to Cisco's petition. On October 17, 2017, Cisco filed a Motion for Leave to Submit a Reply in Support of Its Petition for a Modification Proceeding. The Commission grants Cisco's motion to file a reply.
The Commission has determined that the request complies with the requirements for institution of a modification proceeding under Commission Rule 210.76. Accordingly, the Commission has determined to institute a modification proceeding and has delegated the proceeding to the Chief Administrative Law Judge to designate a presiding Administrative Law Judge. Cisco, Arista, and OUII are named as parties to the proceeding.
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 the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted these reviews on April 3, 2017 (82 FR 16226) and determined on July 7, 2017 that it would conduct expedited reviews (82 FR 37237, August 9, 2017).
The Commission made these determinations pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determinations
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of LG Chem, Ltd.; LG Chem Michigan Inc.; LG Chem Power Inc.; and Toray Industries, Inc. on October 25, 2017. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain batteries and electrochemical devices containing composite separators, components thereof, and products containing same. The complaint names as respondents Amperex Technology Limited of Hong Kong; DJI Technology Co., Ltd. of China; DJI Technology, Inc. of Burbank, CA; Guangdong OPPO Mobile Telecommunications Corp., Ltd. of China; and OPPO Digital, Inc. of Menlo Park, CA. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3269”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Caterpillar Inc. and Caterpillar Paving Products, Inc. on October 26, 2017. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain road construction machines and components thereof. The complaint names as respondents Wirtgen GmbH of Germany; Joseph V gele AG of Germany; Wirtgen Group Holding GmbH of Germany; and Wirtgen America, Inc. of Antioch, TN. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3270”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on crystalline silicon photovoltaic cells and modules from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted November 1, 2017. To be assured of consideration, the deadline for responses is December 1, 2017. Comments on the adequacy of responses may be filed with the Commission by January 16, 2018.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 17-5-397, expiration date June 30, 2020. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) The quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on honey from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted November 1, 2017. To be assured of consideration, the deadline for responses is December 1, 2017. Comments on the adequacy of responses may be filed with the Commission by January 16, 2018.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Deputy Agency Ethics Official, at 202-205-3408.
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 17-5-398, expiration date June 30, 2020. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production and/or packing (quantity) and, if known, an estimate of the percentage of total U.S. production and/or packing of the
(b) Number of domestic honey producing colonies, including yield per colony (quantity), and/or capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) The quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on steel wire garment hangers from Taiwan and Vietnam would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted November 1, 2017. To be assured of consideration, the deadline for responses is December 1, 2017. Comments on the adequacy of responses may be filed with the Commission by January 16, 2018.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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(5) The
(6) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Deputy Agency Ethics Official, at 202-205-3408.
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 17-5-399, expiration date June 30, 2020. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
By order of the Commission.
Criminal Justice Information Services Division, Federal Bureau of Investigation, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until January 2, 2018.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306 (facsimile: 304-625-5093) or email
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend OMB approval of the information collection requirements specified in the Standard on the Control of Hazardous Energy (Lockout/Tagout).
Comments must be submitted (postmarked, sent, or received) by January 2, 2018.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The standard specifies several information collection requirements. The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements is to control the release of hazardous energy while workers service, maintain, or repair machines or equipment when activation, start up, or release of energy from an energy source is possible; proper control of hazardous energy prevents death or serious injury among these workers.
Paragraph (c)(4)(ii) states that the required documentation must clearly and specifically outline the scope, purpose, authorization, rules, and techniques workers are to use to control hazardous energy, and the means to enforce compliance. The document must include at least the following elements:
(A) A specific statement regarding the use of the procedure;
(B) Detailed procedural steps for shutting down, isolating, blocking, and securing machines or equipment to control hazardous energy;
(C) Detailed procedural steps for placing, removing, and transferring lockout or tagout devices, including the responsibility for doing so; and
(D) Requirements for testing a machine or equipment to determine and verify the effectiveness of lockout or tagout devices, as well as other energy control measures.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply—for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting an adjustment increase of 102,613 burden hours (from 2,646,702 hours to 2,749,315 hours). This increase is a result of updated data showing an increase in the number of affected low-impact establishments (from 435,063 establishments to 461,523 establishments). In addition, OSHA is requesting an adjustment increase of $52,265 in operation and maintenance costs (from $1,426,421 to $1,478,686) associated with the purchase of tags and ties by employers. This increase is also a result of updated data showing an increase in the number of affected low-impact establishments.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Lori Parker, National Aeronautics and Space Administration, 300 E Street SW., Washington, DC 20546-0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Lori Parker, NASA Clearance Officer, NASA Headquarters, 300 E Street SW., JF0000, Washington, DC 20546, (202) 358-1351.
Citizen science and crowdsourcing are tools that engage, educate and empower the public to apply their curiosity and contribute their talents to a wide range of scientific and societal issues. NASA's mission to
Citizen science and crowdsourcing collections submitted under this generic clearance can be stand-alone projects or
Data gathering projects. These projects may include: (1) Observation, characterization and documentation of natural phenomena or general environmental health observations, opinions, or preferences or (2) surveying participants or screening environmental conditions, including using specialized equipment provided by project leaders to record and submit data, or submitting samples plus descriptors (
Classification/problem solving projects. Participants' tasks may include: (1) Observation of recorded materials provided by project organizers (images, video, etc.) through structured data submission forms, surveys or questionnaires in an online or computer program, clicking boxes, highlighting parts of text or image, and providing comments and/or annotations; (2) Classification of images or sounds using structured data submission forms or clicking boxes in an online or computer program; (3) Transcribing information, by typing handwritten logs or notes; (4) Performing a function meant to generate human behavior data; or (5) Problem-solving or manipulation of data. Tasks 1-5 may be conducted via structured actions or instructions or through the use of “human-based computational game” or “game with a purpose”, a human-based computational technique in which a computational process performs its function by presenting certain steps to humans in an entertaining way.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Science Foundation.
Submission for OMB Review; Comment Request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995 on the National Science Foundation Proposal and Award Policies and Procedures Guide. NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Comments regarding these information collections are best assured of having their full effect if received December 1, 2017.
Comments should be addressed to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for National Science Foundation, 725 17th Street NW., Room 10235, Washington, DC 20503, and to Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Suite W182000, Alexandria, Virginia 22314 or send email to
Suzanne Plimpton at the address above. Copies of the submission(s) may be obtained by calling 703-292-7556.
This is the second notice for public comment; the first was published in the
The National Science Foundation (NSF) is announcing plans to request renewed clearance of this collection. The primary purpose of this revision is to implement changes described in the Supplementary Information section of this notice. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of 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.
In 2003, to comply with E-government requirements, the nomination processes
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Subsequently, Executive Order 10961 specified procedures for the Award by establishing a National Medal of Science Committee which would “receive recommendations made by any other nationally representative scientific or engineering organization.” On the basis of these recommendations, the Committee was directed to select its candidates and to forward its recommendations to the President.
In 1962, to comply with these directives, the Committee initiated a solicitation form letter to invite these nominations. In 1979, the Committee initiated a nomination form as an attachment to the solicitation letter. A slightly modified version of the nomination form was used in 1980.
The Committee has established the following considerations for selection of candidates:
a. The impact of an individual's body of work on the current state of his or her field of science or engineering;
b. Whether the individual's achievements are of an unusually significant nature in relation to the potential effects on the development of thought in his or her field of science or engineering;
c. Whether the nominee has demonstrated unusually distinguished service in the general advancement of science and/or engineering for the Nation, especially when accompanied by substantial contributions to the content of science;
d. The recognition of the nominee by peers within his or her community, and whether s/he is recognized for substantial impact in fields in addition to his/her discipline;
e. If the nominee has made contributions to innovation and industry;
f. Whether the nominee has demonstrated sustained influence on education through publications, teaching activities, outreach, mentoring, etc., and;
g. Whether the nominee's contributions have created significant positive impact for the Nation.
In 2003, the Committee changed the active period of eligibility to three years, including the year of nomination. After that time, candidates must be re-nominated with a new nomination package for them to be considered by the Committee.
Narratives are now restricted to three pages of text, as stipulated in the guidelines at:
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The Alan T. Waterman Award Committee was established by NSF to comply with the directive contained in Public Law 94-86. The Committee solicits nominations from members of the National Academy of Sciences, National Academy of Engineering, scientific and technical organizations, and any other source, public or private, as appropriate.
In 1976, the Committee initiated a form letter to solicit these nominations. In 1980, a nomination form was used which standardized the nomination procedures, allowed for more effective Committee review, and permitted better staff work in a short period of time. On the basis of its review, the Committee forwards its recommendation to the Director, NSF, and the National Science Board (NSB).
Candidates must be U.S. citizens or permanent residents and must be 35 years of age or younger or not more than seven years beyond receipt of the Ph.D. degree by December 31 of the year in which they are nominated. Candidates should have demonstrated exceptional individual achievements in scientific or engineering research of sufficient quality to place them at the forefront of their peers. Criteria include originality, innovation, and significant impact on the field.
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The Vannevar Bush Award recipient is selected annually by the National Science Board's Subcommittee on Honorary Awards (AWD), which is established to solicit nominations from scientific, engineering, and educational societies and institutions, in both the public and private sectors.
Candidates for the Vannevar Bush Award should have demonstrated outstanding leadership and accomplishment in meeting at least two of the following selection criteria:
1. Candidates must be U.S. citizens.
2. Distinguished himself/herself through public service activities in science and technology.
3. Pioneered the exploration, charting, and settlement of new frontiers in science, technology, education, and public service.
4. Demonstrated leadership and creativity that have inspired others to distinguished careers in science and technology.
5. Contributed to the welfare of the Nation and mankind through activities in science and technology.
6. Demonstrated leadership and creativity that has helped mold the history of advancements in the Nation's science, technology, and education.
Nomination Submissions must include:
1. A current curriculum vita without publications (no more than 5 pages).
2. A narrative statement (no more than 8 pages) addressing the candidate's activities and contributions related to the selection criteria.
3. A proposed award citation addressing the candidate's activities in and contributions to national public service activities in science, technology, and public policy.
4. Contact information for award candidate and nominator (mailing address, email address, and phone number).
5. Two reference letters (no more than 2 pages each) from individuals familiar with the candidate's accomplishments, and not affiliated with the candidate's home institution. Letters should be submitted by email to
Nominations remain active for three years, including the year of nomination. After that time, candidates must be renominated with a new nomination for them to be considered by the selection committee.
The award recipient is presented with a medal and honored at the NSF Annual Awards Ceremony and Dinner in Washington, DC.
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Eligibility includes any individual or group (company, corporation or organization) that has increased the public understanding of science or engineering.
Candidates for the NSB Public Service Award should have demonstrated outstanding leadership and accomplishment in meeting the following selection criteria:
1. Increased the public's understanding of the processes of science and engineering through scientific discovery, innovation, and its communication to the public.
2. Encouraged others to help raise the public understanding of science and technology.
3. Promoted the engagement of scientists and engineers in public outreach and scientific literacy.
4. Contributed to the development of broad science and engineering policy and its support.
5. Influenced and encouraged the next generation of scientists and engineers.
6. Achieved broad recognition outside of the candidate's area of specialization.
7. Fostered awareness of science and technology among broad segments of the population.
Nomination Procedures:
Nominations for an individual must include:
1. A current curriculum vita without publications (no more than 3 pages).
2. A narrative statement (no more than 5 pages) addressing the following:
a. The candidate's public service activities in science and engineering, and
b. the candidate's contributions to public understanding of science and engineering, as they relate to the selection criteria.
3. Contact information of candidate and nominator (mailing address, email address, phone number).
Nominations must be submitted by email to:
Nominations for a group must include:
1. A narrative statement (no more than 5 pages) addressing the following:
a. The group's activities, and how it accomplishes the selection criteria for the award,
b. length of years of the program,
c. number and type of individuals served by the group's activities; and
d. data on the success of the program (if available).
2. Contact information of candidate and nominator (mailing address, email address, phone number).
3. Reference letters are optional, and up to 3 letters (no more than to 2 pages each) may be submitted on letterhead as a PDF file.
Nominations must be submitted by email to:
Nominations remain active for three years, including the year of nomination. After that time, candidates must be re-nominated with a new nomination for them to be considered by the selection committee.
Award recipients are presented with a medal and honored at the NSF Annual Awards Ceremony and Dinner in Washington, DC.
In 1996, the White House, through the National Science and Technology Council (NSTC) and the Office of Science and Technology Policy (OSTP), established the Presidential Awards for Excellence in Science, Mathematics and Engineering Mentoring (PAESMEM) program. The program, administered on behalf of the White House by the National Science Foundation, seeks to identify outstanding mentoring efforts or programs designed to enhance the participation of groups (women, minorities and persons with disabilities as well as groups from low socioeconomic regions) underrepresented in science, mathematics and engineering. The awardees will serve as exemplars to their colleagues and will be leaders in the national effort to more fully develop the Nation's human resources in science, mathematics and engineering. This award is managed at NSF by the Directorate for Education and Human Resources (EHR).
The award will be made to U.S. citizens or U.S. permanent residents based on the following: (1) An individual who has demonstrated outstanding and sustained mentoring and effective guidance to a significant number of early career STEM professionals, students at the K-12, undergraduate, or graduate education level or (2) to an organization that, through its programming, has enabled a substantial number of students underrepresented in science, mathematics and engineering to successfully pursue and complete the relevant degree programs as well as mentoring of early career STEM professionals. Nominees must have served in a mentoring role for at least five years. Nominations are reviewed for impact, significance of the mentoring activity and quality of the mentoring activity. Nominations for organizational awards must demonstrate rigorous evaluation and/or assessment during the five-year period of the mentoring activity.
The awardees are hosted for two days in Washington, DC, for celebratory activities. Recipients of the PAESMEM award receive a monetary award in the amount of $10,000 from NSF and a commemorative Presidential certificate. If scheduling permits, the President meets with the mentors for a photo opportunity at the White House. The Director of OSTP and the Director of
The Presidential Award for Excellence in Mathematics and Science Teaching (PAEMST) is the highest recognition that a kindergarten through 12th-grade mathematics or science teacher may receive for outstanding teaching in the United States. Enacted by Congress in 1983, this program authorizes the President to bestow 108 awards, assuming there are qualified applicants. In even-numbered years, nominations are accepted for elementary teachers (grades K-6); in odd-numbered years, secondary teachers (grades 7-12) are nominated. This award is managed at NSF by the Directorate for Education and Human Resources (EHR).
A teacher may be nominated by a principal, another teacher, students, members of the community, or the general public. Self-nominations are allowed. Awardees must be either U.S. Citizens or U.S. Permanent Residents. A Nominee must meet the following criteria to apply:
• Be highly qualified as deemed by their states, districts, or schools;
• Teach in one of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the four U.S. territories, including the Department of Defense Schools (DoDEA).
• Hold a degree or appropriate credentials in the category for which they are applying.
• Be a full-time employee of the school or school district.
• Have at least 5 years of mathematics or science teaching (including computer science) experience prior to application.
• Teach mathematics or science at the kindergarten through 6th grade level or at the 7th through 12th grade level in a public or private school.
• Not have received the national PAEMST award in any prior competition or category.
• Applicants complete a 12-page written document on five dimensions of outstanding teaching (content knowledge, pedagogy, assessment, leadership and professional development) and submit a video of one class. Three letters of reference including one from a school official are required, along with a resume or biographical sketch.
• The applicant has a 7-month period (October to May) to complete applications and submit them for state review. The nomination period is from October to April.
• State coordinators convene state selection committees of prominent mathematicians, scientists, mathematics and science educators, and past awardees to select up to five mathematics and five science finalists for recognition at the state level and for submission to NSF. To ensure consistency, state selection committees review their applications using the same criteria and scoring information that was approved by OSTP.
• NSF (EHR) convenes a National Selection Committee of prominent mathematicians, scientists, mathematics and science educators, and past awardees that review the application packets of the state finalists and make recommendations to NSF. NSF reviews these recommendations and recommends one awardee in both mathematics and science for all eligible jurisdictions, when possible, to OSTP. Alternatively, NSF may recommend two awardees from a discipline in a jurisdiction, when warranted.
The awardees are hosted for 3-4 days in Washington, DC, for a variety of professional development sessions and celebratory activities. Each awardee receives a citation signed by the President and $10,000 from NSF. If scheduling permits, the President meets the teachers for a photo opportunity at the White House. The Director of OSTP and the Director of NSF present the citations to the teachers at an awards ceremony. Awardees also have the opportunity to meet their congressional representatives and education representatives from other federal agencies.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing 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 proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
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.
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This notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing 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 proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
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.
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This notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange file a proposed rule change with respect to amendments of the Second Amended and Restated Certificate of Incorporation (the “Company's Certificate”) and Third Amended and Restated Bylaws (the ”Company's Bylaws”) of its parent corporation, CBOE Holdings, Inc. (“CBOE Holdings” or the “Company”) to change the name of the Company to Cboe Global Markets, Inc. With respect to CBOE V, LLC, an intermediate Holding Company of the Exchange (the “Intermediate”), the Exchange proposes to amend the Certificate of Formation and Limited Liability Company Operating Agreement of CBOE V, LLC (the “Operating Agreement”), in connection with a related name change for the Intermediate. The Exchange also proposes to amend its Second Amended and Restated Certificate of Incorporation (the “Exchange Certificate”), Seventh Amended and Restated Bylaws of Bats EDGX Exchange, Inc. (the “Exchange Bylaws”), rulebook and fees schedules (collectively “operative documents”) in connection with the name change of its parent Company, Intermediate, and the Exchange.
The text of the proposed rule change is also available on the Exchange's Web site (
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 filing is to reflect in the Exchange's governing documents (and the governing documents of its parent company, CBOE Holdings) and the Exchange's rulebook and fees schedules, a non-substantive corporate branding change, including changes to the Company's name, the Intermediate's name, and the Exchange's name. Particularly, references to Company's, Intermediate's and Exchange's names will be deleted and revised to state the new names, as described more fully below. No other substantive changes are being proposed in this filing. The Exchange represents that these changes are concerned solely with the administration of the Exchange and do not affect the meaning, administration, or enforcement of any rules of the Exchange or the rights, obligations, or privileges of Exchange members or their associated persons is any way. Accordingly, this filing is being submitted under Rule 19b-4(f)(3). In lieu of providing a copy of the marked name changes, the Exchange represents that it will make the necessary non-substantive revisions described below to the Exchange's corporate governance documents, rulebook, and fees schedules, and post updated versions of each on the Exchange's Web site pursuant to Rule 19b-4(m)(2).
In connection with the corporate name change of its parent company, the Exchange is proposing to amend the Company's Certificate and Bylaws. Specifically, the Company is changing its name from “CBOE Holdings, Inc.” to “Cboe Global Markets, Inc.”.
The Exchange proposes to (i) delete the following language from Paragraph (1) of the introductory paragraph: “The name of the Corporation is CBOE Holdings, Inc.” and (ii) amend Article First of the Company's Certificate to reflect the new name, “Cboe Global Markets, Inc.” The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Company's name in the title or signature line as the name changes will not be effective until the Company, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line. The Exchange also notes that although the name of “Chicago Board Options Exchange, Incorporated” is changing to “Cboe Exchange Inc.”, it is not amending the name of Chicago Board Options Exchange, Incorporated (“CBOE”) referenced in Article Fifth(a)(iii) at this time. Particularly, the Exchange notes that unlike the exception applicable to proposed changes to the Company's name,
With respect to the Company's Bylaws, references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.” The Exchange also proposes to eliminate the reference to “Chicago Board Options Exchange, Incorporated” in Article 10, Section 10.2. Particularly, Section 10.2 provides that “for so long as the Corporation shall control, directly or indirectly, any national securities exchange, including, but not limited to Chicago Board Options Exchange, Incorporated (a “Regulated Securities Exchange Subsidiary”), before any amendment, alteration or repeal of any provision of the Bylaws shall be effective, such amendment, alteration or repeal shall be submitted to the board of directors of each Regulated Securities Exchange Subsidiary, and if such amendment, alteration or repeal must be filed with or filed with and approved by the Securities and Exchange Commission, then such amendment, alteration or repeal shall not become effective until filed with or filed with and approved by the Securities and Exchange Commission, as the case may be.” As the Company currently controls a number of Regulated Securities Exchange Subsidiaries, it does not believe it is necessary to explicitly reference only Chicago Board Options Exchange, Incorporated and therefore proposes to delete the following language: “including, but not limited to Chicago Board Options Exchange, Incorporated”.
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change the name of the Intermediate from “CBOE V, LLC” to “Cboe Bats, LLC.”
As it relates to the Certificate of Formation of CBOE V, LLC, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC”. The Exchange also proposes to add clarifying and conforming language in order to conform to, as well as cite to, the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes to conform with the revised language in the introductory paragraph, it also proposes to amend references to “LLC” to “limited liability company”. The Exchange also notes that it is not amending the Intermediate's name in the title or signature line as the name changes will not be effective until the Intermediate, as currently named, files the proposed changes in Delaware.
As it relates to the Operating Agreement of the Intermediate, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC” and references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.”. The Exchange also proposes to add clarifying and conforming language in connection with the proposed name change, including new Section 12.5 (“Effect of Amendment”), which provides that the “Agreement amends, restates and supersedes the Original Agreement in all respects. From and after the date hereof, this Agreement shall be the limited liability company operating agreement of the Company for all purposes.”
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change its name from “Bats EDGX Exchange, Inc.” to “Cboe EDGX Exchange, Inc.” throughout its rules, fees schedules and corporate documents. Additionally, the Exchange notes that its affiliated exchanges Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Chicago Board Options Exchange, Incorporated, C2 Options Exchange, Incorporated, and CBOE Futures Exchange, LLC (collectively the “affiliates”) have also proposed name changes to Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe Exchange, Inc., Cboe C2 Exchange, Inc. and Cboe Futures Exchange, LLC, respectively. Lastly, the Exchange is changing the name of “Bats Trading, Inc.” to “Cboe Trading, Inc.”
Therefore, the Exchange proposes to amend its: (i) Second Amended and Restated Certificate of Incorporation of Bats EDGX Exchange, Inc., (ii) Seventh Amended and Restated Bylaws of Bats EDGX Exchange, Inc., (iii) Rulebook, (iv) Fee Schedule for EDGX Equities and (v) Fee Schedule for EDGX Options (collectively, the “Operative Documents”) to reflect the name changes.
The Exchange proposes to (i) delete the following language from the introductory paragraph: “The name of the Corporation is Bats EDGX Exchange, Inc.” and (ii) amend Article First of the Exchange's Certificate to reflect the new name, “Cboe EDGX Exchange, Inc.”. The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of
For the Exchange's Bylaws, all references to “Bats EDGX Exchange, Inc.” will be deleted and revised to state “Cboe EDGX Exchange, Inc.”.
For the Rules of Bats EDGX Exchange, Inc., all references to “Bats EDGX Exchange, Inc.” will be deleted and revised to state “Cboe EDGX Exchange, Inc.”. Additionally, the Exchange's affiliates are also filing similar rule filings to change their names, as noted above. As such, all references to “Bats BYX Exchange, Inc.”, “Bats EDGA Exchange, Inc.”, “Bats BZX Exchange, Inc.”, “C2 Options Exchange, Incorporated”, “Chicago Board Options Exchange, Incorporated”
The Exchange will also delete references to “Bats Trading, Inc.” and “Bats Trading” and replace it with references to “Cboe Trading, Inc.” and “Cboe Trading”, respectively. References to “Bats One” will be deleted and revised to state “Cboe One”, all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”, and all references to “CBOE Livevol, LLC” will be deleted and revised to state “Cboe Livevol, LLC”.
For the EDGX Equities Fee Schedule, any reference to “Bats EDGX Exchange” will be deleted and revised to state “Cboe EDGX Exchange”. Additionally, all references to “Bats One” will be deleted and revised to state “Cboe One” and all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”.
For the EDGX Options Fee Schedule, all references to “Bats EDGX Options Exchange” will be deleted and revised to state “Cboe EDGX Options Exchange” and all references to “CBOE” will be deleted and revised to state “Cboe Options”. Lastly, all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed change is a non-substantive change and does not impact the governance, ownership or operations of the Exchange. The Exchange believes that by ensuring that its parent company's governance documents and the Exchange's operative documents accurately reflect the new legal names, the proposed rule change would reduce potential investor or market participant confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with updating the Company's and Exchange's governance and operative documents to reflect the abovementioned name changes.
The Exchange neither solicited nor received comments on the proposed rule change.
Pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is 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 will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 18(a)(2), 18(c) and 18(i) of the Act, under sections 6(c) and 23(c) of the Act for an exemption from rule 23c-3 under the Act, and for an order pursuant to section 17(d) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain registered closed-end management investment companies to issue multiple classes of shares and to impose asset-based distribution and/or service fees, early withdrawal charges (“EWCs”) and early repurchase fees.
The Relative Value Fund and the Infinity Core Alternative Fund (the “Initial Funds”) and Vivaldi Asset Management, LLC (the “Adviser”).
The application was filed on August 8, 2016 and amended on March 8, 2017 and June 30, 2017.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail.
Hearing requests should be received by the Commission by 5:30 p.m. on November 20, 2017, and should be accompanied by proof of service on the applicants, in the form of an affidavit, or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: Vivaldi Asset Management, LLC, 225 W. Wacker Drive, Suite 2100, Chicago IL 60606; The Relative Value Fund and the Infinity Core Alternative Fund c/o UMB Fund Services, Inc., 235 West Galena Street, Milwaukee, WI 53212.
Rachel Loko, Senior Counsel or Holly Hunter-Ceci, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
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 Relative Value Fund is a Delaware statutory trust that is registered under the Act as a non-diversified, closed-end management investment company. The Relative Value Fund's investment objective is long-term capital appreciation. The Relative Value Fund seeks to achieve its investment objective by generating attractive long-term returns with low sensitivity to traditional equity and fixed income indices through a “multi-manager” approach implementing strategies including without limitation, global macro, opportunistic equity anf fixed income, systematic and arbitrage strategies that invest in different asset classes, securities and derivatives instruments. The Infinity Core Alternative Fund is a Maryland statutory trust that is registered under the Act as a non-diversified, continuously offered closed-end management investment company. The Infinity Core Alternative Fund's investment objective is long-term capital growth. The Infinity Core Alternative Fund seeks to achieve its investment objective by operating as a “fund of funds” that invests primarily in general or limited partnerships, funds, corporations, trusts or other investment vehicles based primarily in the United States that invest or trade in a wide range of securities, and, to a lesser extent, other property and currency interests. The Infinity Core Alternative Fund may also make investments meant to hedge exposures deemed too risky or to invest in strategies not employed by investment funds or to hedge a position in an investment fund that is locked-up or difficult to sell.
2. The Adviser, a Delaware limited liability company, is registered as an investment adviser under the Investment Advisers Act of 1940, as amended. The Adviser serves as investment adviser to the Initial Funds.
3. The applicants seek an order to permit the Initial Funds to issue multiple classes of shares and to impose asset-based distribution and/or service fees and EWCs.
4. Applicants request that the order also apply to any continuously offered registered closed-end management investment company that may be organized in the future for which the Adviser, or any entity controlling, controlled by, or under common control with the Adviser, or any successor in interest to any such entity,
5. The Initial Funds are currently making a continuous public offering of beneficial interest in connection with their registration statement. Applicants state that additional offerings by any Fund relying on the order may be on a private placement or public offering basis. Shares of the Funds will not be listed on any securities exchange nor quoted on any quotation medium. The Funds do not expect there to be a secondary trading market for their shares.
6. If the requested relief is granted, the Relative Value Fund will offer Advisor Class Shares alongside its current CIA Class Shares and the Infinity Core Alternative Fund will amend its registration statement to continuously offer at least one additional class of shares (the “New Class Shares”) alongside its currently offered Initial Class Shares. Each of the Adviser Class Shares, the CIA Class Shares, the Initial Class Shares and the New Class Shares will have their own fee and expense structure. The Funds may in the future offer additional classes of shares and/or another sales charges structure. Because of the different distribution fees, services and any other class expenses that may be attributable to the each class of shares, the net income attributable to, and the dividends payable on, each class of shares may differ from each other.
7. Applicants state that, from time to time, the Funds may create additional classes of shares, the terms of which may differ from other share classes in the following respects: (i) The amount of fees permitted by different distribution plans or different service fee arrangements; (ii) voting rights with respect to a distribution plan of a class; (iii) different class designations; (iv) the impact of any class expenses directly attributable to a particular class of shares allocated on a class basis as described in the application; (v) any differences in dividends and net asset value resulting from differences in fees under a distribution or service fee arrangement or in class expenses; (vi) any EWC or other sales load structure; and (vii) exchange or conversion privileges of the classes as permitted under the Act.
8. Applicants state that shares of a Fund may be subject to an early repurchase fee (“Early Repurchase Fee”) at a rate of no greater than 2% of the aggregate net asset value of a shareholder's shares repurchased by the Fund if the interval between the date of purchase of the shares and the valuation date with respect to the repurchase of those shares is less than one year. Any Early Repurchase Fees will apply equally to all classes of shares of a Fund, consistent with section 18 of the Act and rule 18f-3 thereunder. To the extent a Fund determines to waive, impose scheduled variations of, or eliminate any Early Repurchase Fee, it will do so consistently with the requirements of rule 22d-1 under the Act as if the Early Repurchase Fee were a CDSL (defined below) and as if the Fund were an open-end investment company and the Fund's waiver of, scheduled variation in, or elimination of, any such Early Repurchase Fee will apply uniformly to all shareholders of the Fund regardless of class. Applicants state that the Initial Funds do not intend to impose an Early Repurchase Fee.
9. Applicants state that the Relative Value Fund has adopted a fundamental policy to repurchase a specified percentage of its shares at net asset value on a quarterly basis. Such repurchase offers will be conducted pursuant to rule 23c-3 under the Act. The Infinity Core Alternative Fund provides periodic liquidity with respect to its shares pursuant to Rule 13e-4 under the Exchange Act. Each of the Future Funds will likewise adopt fundamental investment policies and make periodic repurchase offers to its shareholders in compliance with rule 23c-3 or will provide periodic liquidity with respect to its shares pursuant to rule 13e-4 under the Exchange Act.
10. Applicants represent that any asset-based service and/or distribution fees for each class of shares of the Funds will comply with the provisions of the NASD Rule 2830(d) (“NASD Sales Charge Rule”).
11. Each of the Funds will comply with any requirements that the Commission or FINRA may adopt regarding disclosure at the point of sale and in transaction confirmations about the costs and conflicts of interest arising out of the distribution of open-end investment company shares, and regarding prospectus disclosure of sales loads and revenue sharing arrangements, as if those requirements applied to the Fund. In addition, each Fund will contractually require that any distributor of the Fund's shares comply with such requirements in connection with the distribution of such Fund's shares.
12. Each Fund will allocate all expenses incurred by it among the various classes of shares based on the net assets of that Fund attributable to each class, except that the net asset value and expenses of each class will reflect the expenses associated with the distribution plan of that class, service fees attributable to that class (if any), including transfer agency fees, and any other incremental expenses of that class. Expenses of a Fund allocated to a particular class of shares will be borne on a pro rata basis by each outstanding share of that class. Applicants state that each Fund will comply with the provisions of rule 18f-3 under the Act as if it were an open-end investment company.
13. Applicants state that each Fund may impose an EWC on shares submitted for repurchase that have been held less than a specified period and may waive the EWC for certain categories of shareholders or transactions to be established from time to time. Applicants state that each Fund will apply the EWC (and any waivers or
14. Each Fund operating as an interval fund pursuant to rule 23c-3 under the Act may offer its shareholders an exchange feature under which the shareholders of the Fund may, in connection with such Fund's periodic repurchase offers, exchange their shares of the Fund for shares of the same class of (i) registered open-end investment companies or (ii) other registered closed-end investment companies that comply with rule 23c-3 under the Act and continuously offer their shares at net asset value, that are in the Fund's group of investment companies (collectively, “Other Funds”). Shares of a Fund operating pursuant to rule 23c-3 that are exchanged for shares of Other Funds will be included as part of the amount of the repurchase offer amount for such Fund as specified in rule 23c-3 under the Act. Any exchange option will comply with rule 11a-3 under the Act, as if the Fund were an open-end investment company subject to rule 11a-3. In complying with rule 11a-3, each Fund will treat an EWC as if it were a contingent deferred sales load (“CDSL”).
1. Section 18(a)(2) of the Act provides that a closed-end investment company may not issue or sell a senior security that is a stock unless certain requirements are met. Applicants state that the creation of multiple classes of shares of the Funds may violate section 18(a)(2) because the Funds may not meet such requirements with respect to a class of shares that may be a senior security.
2. Section 18(c) of the Act provides, in relevant part, that a closed-end investment company may not issue or sell any senior security if, immediately thereafter, the company has outstanding more than one class of senior security. Applicants state that the creation of multiple classes of shares of the Funds may be prohibited by section 18(c), as a class may have priority over another class as to payment of dividends because shareholders of different classes would pay different fees and expenses.
3. Section 18(i) of the Act provides that each share of stock issued by a registered management investment company will be a voting stock and have equal voting rights with every other outstanding voting stock. Applicants state that multiple classes of shares of the Funds may violate section 18(i) of the Act because each class would be entitled to exclusive voting rights with respect to matters solely related to that class.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction or any class or classes of persons, securities or transactions from any provision of the Act, or from any rule or regulation under the Act, if and to the extent 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. Applicants request an exemption under section 6(c) from sections 18(a)(2), 18(c) and 18(i) to permit the Funds to issue multiple classes of shares.
5. Applicants submit that the proposed allocation of expenses relating to distribution and voting rights among multiple classes is equitable and will not discriminate against any group or class of shareholders. Applicants submit that the proposed arrangements would permit a Fund to facilitate the distribution of its securities and provide investors with a broader choice of shareholder services. Applicants assert that the proposed closed-end investment company multiple class structure does not raise the concerns underlying section 18 of the Act to any greater degree than open-end investment companies' multiple class structures that are permitted by rule 18f-3 under the Act. Applicants state that each Fund will comply with the provisions of rule 18f-3 as if it were an open-end investment company.
1. Section 23(c) of the Act provides, in relevant part, that no registered closed-end investment company shall purchase securities of which it is the issuer, except: (a) On a securities exchange or other open market; (b) pursuant to tenders, after reasonable opportunity to submit tenders given to all holders of securities of the class to be purchased; or (c) under other circumstances as the Commission may permit by rules and regulations or orders for the protection of investors.
2. Rule 23c-3 under the Act permits an “interval fund” to make repurchase offers of between five and twenty-five percent of its outstanding shares at net asset value at periodic intervals pursuant to a fundamental policy of the interval fund. Rule 23c-3(b)(1) under the Act permits an interval fund to deduct from repurchase proceeds only a repurchase fee, not to exceed two percent of the proceeds, that is paid to the interval fund and is reasonably intended to compensate the fund for expenses directly related to the repurchase.
3. Section 23(c)(3) provides that the Commission may issue an order that would permit a closed-end investment company to repurchase its shares in circumstances in which the repurchase is made in a manner or on a basis that does not unfairly discriminate against any holders of the class or classes of securities to be purchased.
4. Applicants request relief under section 6(c), discussed above, and section 23(c)(3) from rule 23c-3 to the extent necessary for the Funds to impose EWCs on shares of the Funds submitted for repurchase that have been held for less than a specified period.
5. Applicants state that the EWCs they intend to impose are functionally similar to CDSLs imposed by open-end investment companies under rule 6c-10 under the Act. Rule 6c-10 permits open-end investment companies to impose CDSLs, subject to certain conditions. Applicants note that rule 6c-10 is grounded in policy considerations supporting the employment of CDSLs where there are adequate safeguards for the investor and state that the same policy considerations support imposition of EWCs in the interval fund context. In addition, applicants state that EWCs may be necessary for the distributor to recover distribution costs. Applicants represent that any EWC imposed by the Funds will comply with rule 6c-10 under the Act as if the rule were applicable to closed-end investment companies. The Funds will disclose EWCs in accordance with the requirements of Form N-1A concerning CDSLs.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit an affiliated person of a registered investment company, or an affiliated person of such person, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates unless the Commission issues an order permitting the transaction. In reviewing applications submitted under section 17(d) and rule 17d-1, the Commission considers whether the participation of the investment company in a joint enterprise or joint arrangement is consistent with the provisions, policies and purposes of the Act, and the extent to which the participation is on a basis
2. Rule 17d-3 under the Act provides an exemption from section 17(d) and rule 17d-1 to permit open-end investment companies to enter into distribution arrangements pursuant to rule 12b-1 under the Act. Applicants request an order under section 17(d) and rule 17d-1 under the Act to the extent necessary to permit the Fund to impose asset-based distribution and/or service fees. Applicants have agreed to comply with rules 12b-1 and 17d-3 as if those rules applied to closed-end investment companies, which they believe will resolve any concerns that might arise in connection with a Fund financing the distribution of its shares through asset-based distribution fees.
3. For the reasons stated above, applicants submit that the exemptions requested under section 6(c) are necessary and appropriate in the public interest and are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants further submit that the relief requested pursuant to section 23(c)(3) will be consistent with the protection of investors and will insure that applicants do not unfairly discriminate against any holders of the class of securities to be purchased. Finally, applicants state that the Funds' imposition of asset-based distribution and/or service fees is consistent with the provisions, policies and purposes of the Act and does not involve participation on a basis different from or less advantageous than that of other participants.
Applicants agree that any order granting the requested relief will be subject to the following condition:
Each Fund relying on the order will comply with the provisions of rules 6c-10, 12b-1, 17d-3, 18f-3, 22d-1, and, where applicable, 11a-3 under the Act, as amended from time to time, as if those rules applied to closed-end management investment companies, and will comply with the NASD Sales Charge Rule, as amended from time to time, as if that rule applied to all closed-end management investment companies.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This proposed rule change by the OCC would revise OCC's By-Laws to expand upon existing authority to borrow against the Clearing Fund.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of the proposed change is to modify the tools available to OCC in order to provide a mechanism for addressing the risks of liquidity shortfalls, specifically, in the extraordinary situation where OCC faces a liquidity need to meet its same-day settlement obligations as a result of a bank or securities or commodities clearing organization failing to achieve daily settlement.
Presently, Article VIII, Section 5(e) of OCC's By-Laws provides OCC with the authority to borrow against the Clearing Fund in two circumstances. First, Article VIII, Section 5(e) of OCC's By-Laws provides OCC the authority to borrow where OCC “deems it necessary or advisable to borrow or otherwise obtain funds from third parties in order to meet obligations arising out of the default or suspension of a Clearing Member or any action taken by the Corporation in connection therewith pursuant to Chapter XI of the Rules or otherwise.” Second, Article VIII, Section 5(e) of OCC's By-Laws provides OCC the authority to borrow against the Clearing Fund where OCC “sustains a loss reimbursable out of the Clearing Fund pursuant to [Article VIII, Section 5(b) of OCC's By-Laws] but [OCC] elects to borrow or otherwise obtain funds from third parties in lieu of immediately charging such loss to the Clearing Fund.” In order for a loss to be reimbursable out of the Clearing Fund under Article VIII, Section 5(b) of OCC's By-Laws, it must arise from a situation in which any bank or securities or commodities clearing organization has failed “to perform any obligation to [OCC] when due because of its bankruptcy, insolvency, receivership, suspension of operations, or because of any similar event.”
Under either of the two aforementioned circumstances, OCC is authorized to borrow against the Clearing Fund for a period not to exceed 30 days, and during such period, the borrowing shall not affect the amount or timing of any charges otherwise required to be made against the Clearing Fund pursuant to Article VIII, Section 5. However, if any part of the borrowing remains outstanding after 30 days, then at the close of business on the 30th day (or the first Business Day thereafter) such amount must be considered an actual loss to the Clearing Fund, and OCC must immediately allocate such loss in accordance with Article VIII, Section 5.
While Article VIII, Section 5(e) of OCC's By-Laws currently provides for borrowing authority in the more extreme scenarios involving a bank's or securities or commodities clearing
The proposed rule change would expand upon the existing borrowing authority in Article VIII, Section 5(e) of OCC's By-Laws. As expanded, OCC would be authorized to borrow (or otherwise obtain funds through any means determined to be reasonable by the Executive Chairman, COO or CAO) against the Clearing Fund in the extraordinary event that OCC faces a liquidity need in order to complete same-day settlement. As specified in the proposed rule text, the funds obtained from any such transaction can be used only for their stated purpose, namely, to satisfy a need for liquidity for same-day settlement. Consistent with the existing borrowing authority in Article VIII, Section 5(e) of OCC's By-Laws, OCC would be authorized to borrow against the Clearing Fund for a period not to exceed 30 days, and during such period, the funds obtained would not be deemed to be charges against the Clearing Fund, irrespective of how such funds are applied, and the borrowing shall not affect the amount or timing of any charges otherwise required to be made against the Clearing Fund pursuant to Article VIII, Section 5. However, in the unlikely event that any part of the borrowing were to remain outstanding after 30 days, then at the close of business on the 30th day (or the first Business Day thereafter), such amount would be considered an actual loss to the Clearing Fund, and OCC must immediately allocate such loss in accordance with Article VIII, Section 5.
Like the existing borrowing authority in Article VIII, Section 5(e) of OCC's By-Laws, OCC envisions that the proposed expanded authority only would be relevant in extraordinary circumstances and, even then, only would be used where OCC, exercising its discretion, believes the employment of this particular authority would be appropriate to address OCC's immediate liquidity need.
OCC proposes to amend Sections 1(a), 5(b) and 5(e) of Article VIII of its By-Laws in order to give effect to the expanded borrowing authority discussed herein. Section 5(e) of Article VIII of OCC's By-Laws would be amended to permit OCC to borrow against the Clearing Fund if it reasonably believes such borrowing is necessary to meet its liquidity needs for same-day settlement as a result of the failure of any bank or securities or commodities clearing organization to achieve daily settlement.
Section 1(a) of Article VIII of OCC's By-Laws would be amended to include conforming changes that would reflect that the purpose of the Clearing Fund includes borrowing against the Clearing Fund as permitted under Section 5(e) of Article VIII of the By-Laws.
Section 5(b) of Article VIII of the By-Laws would be amended to include conforming changes that would declare that any borrowing remaining outstanding for less than 30 days may be considered, in OCC's discretion, an actual loss and the amount of any such loss then shall be charged proportionately against all Clearing Members' computed contributions to the Clearing Fund as fixed at the time, and any borrowing remaining outstanding on the 30th day shall be considered an actual loss to the Clearing Fund and the amount of any such loss shall be charged proportionately against all Clearing Members' computed contributions to the Clearing Fund as fixed at the time. The OCC proposes to include discretionary authority to declare any borrowing outstanding for less than 30 days as an actual loss chargeable against the Clearing Fund because the proposed borrowing authority is intended only to address same-day liquidity needs, and intended to be promptly repaid upon the bank's or securities or commodities clearing organization's resolution of the temporary disruption. In the unlikely circumstance that a disruption of a bank or securities or commodities clearing organization is not timely resolved, OCC may need to exercise its discretion to declare an actual loss, depending on the size of the borrowing, to ensure that OCC replenishes its “Cover 1” financial resources.
Section 17A(b)(3)(F) of the Act
It is conceivable, though extremely unlikely, that parties may fail to make timely settlement with OCC as the result of an event that does not result in a loss to OCC from the bankruptcy, insolvency, resolution, suspension of operations or similar event of a bank or securities or commodities clearing organization. A hypothetical example of one such event might be a temporary disruption to the ordinary operation of a settlement bank resulting from a technology issue. The issue presents no concern about the bank's creditworthiness (or the creditworthiness of any Clearing Member that has selected such institution as its settlement bank) but the bank's technology issue nonetheless temporarily interferes with the ability of the bank to timely move funds in accordance with OCC's daily settlement cycle. In this hypothetical, the most likely alternative for OCC is to exercise its ability under Rule 505 to extend the settlement window to the close of Fedwire. The proposed rule change would provide OCC with an alternative tool with which to address the type of extraordinary circumstance highlighted by OCC's hypothetical. The proposed rule change would improve OCC's ability to address the situation in the hypothetical example because use of the proposed expanded borrowing authority would enable OCC to borrow against the Clearing Fund in order to avoid
Additionally, Rule 17Ad-22(e)(7)(viii) requires that a covered clearing agency (“CCA”) address foreseeable liquidity shortfalls that would not be covered by the CCA's liquid resources and seek to avoid unwinding, revoking, or delaying the same-day settlement of payment obligations.
The proposed rule change is not inconsistent with the existing rules of OCC, including any other rules proposed to be amended.
Section 17A(b)(3)(I) of the Act
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commissions Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2017-017 and should be submitted on or before November 22, 2017.
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 filed a proposal to update Rule 21.1 to adopt a new Time in Force applicable to the Exchange's equity options platform (“BZX Options”).
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
In 2016, the Exchange and its affiliates Bats BYX Exchange, Inc. (now known as Cboe BYX Exchange, Inc.) (“BYX”), Bats EDGA Exchange, Inc. (now known as Cboe EDGA Exchange, Inc.) (“EDGA”), and Bats EDGX Exchange, Inc. (now known as Cboe EDGX Exchange, Inc.) (“EDGX”) received approval to affect a merger (the “Merger”) of the Exchange's indirect parent company, Bats Global Markets, Inc. (“BGM”), with CBOE Holdings, Inc. (now known as Cboe Global Markets, Inc.) (“CBOE Holdings”), the direct parent of Chicago Board Options Exchange, Incorporated (now known as Cboe Exchange, Inc.) (“Cboe Options”) and C2 Options Exchange, Incorporated (now known as Cboe C2 Exchange, Inc.) (“C2 Options”, and together with the Exchange, BYX, EDGA, EDGX, and Cboe Options the “Cboe Affiliated Exchanges”).
The Exchange proposes to amend Exchange Rule 21.1, Definitions, to add a new Time in Force, namely the time in force of “At the Open” or “OPG”.
As proposed, “At the Open” or “OPG” shall mean, for an order so designated, an order that shall only participate in the opening process on the Exchange. An OPG order not executed in the opening process will be cancelled. The Exchange's affiliate, EDGX Options, recently received approval of various rule changes, including the adoption of a Time in Force of OPG that is identical to the Exchange's proposed rule.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes the proposed amendment will reduce complexity and increase the understanding of the Exchange's operations for all Users of the Exchange. In particular, by offering the same Times in Force as EDGX Options, the Exchange will avoid confusion from market participants that participate on both the Exchange and EDGX Options. In turn, when Cboe Options and C2 Options are migrated to the same technology as that of the Exchange, Users of the Exchange and other Cboe Affiliated Exchanges will have access to similar functionality on all Cboe Affiliated Exchanges. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposal will promote consistency between the Exchange and its affiliated exchanges, and is part of a larger technology integration that will ultimately reduce complexity for Users of the Exchange that are also participants on other Cboe Affiliated Exchanges. The Exchange does not believe that the proposed changes will have any direct impact on competition. Thus, the Exchange does not believe that the proposal creates any significant impact on competition.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
This proposed rule change by The Options Clearing Corporation (“OCC”) would formalize and update OCC's Default Management Policy, which would promote compliance with multiple requirements applicable to OCC under Rule 17Ad-22, including Rules 17Ad-22(e)(4)(ix) (Replenishment of Resources) and (e)(13) (Default Management).
The proposed rule change does not require any changes to the text of OCC's By-Laws or Rules. All terms with initial capitalization that are not otherwise defined herein have the same meaning as set forth in the OCC By-Laws and Rules.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
On September 28, 2016, the Commission adopted amendments to Rule 17Ad-22
Certain of the CCA rules relate to matters that, as described below, are addressed by OCC's Default Management Policy (“DM Policy”). Specifically, Rules 17Ad-22(e)(4)(ix) and (e)(13) respectively require OCC to, among other things, establish, implement, maintain, and enforce written policies and procedures reasonably designed to: (i) Effectively identify, measure, and manage its credit exposures to participants and those arising from its payment, clearing and settlement processes, including by “describing [OCC's] process to replenish any financial resources it may use following a default or other event in which use of such resources is contemplated”
OCC proposes to formalize its DM Policy, which would apply in the event of a default by a Clearing Member, settlement bank or a financial market utility with which OCC has a relationship (“FMU”).
OCC notes that the DM Policy is part of a broader framework used by OCC to manage the default of a Clearing Member, settlement bank or FMU, including OCC's By-Laws, Rules, and other policies and procedures. The broader framework is designed to collectively ensure that OCC would appropriately manage any such default consistent with OCC's obligations as a covered clearing agency, including under Rule 17Ad-22.
The DM Policy describes the authority of OCC's Board of Directors (“Board”) or a Designated Officer
In the event of a Clearing Member suspension, the DM Policy provides that OCC's Financial Risk Management department (“FRM”) shall prepare an exposure summary report to be provided to OCC's Management Committee detailing, among other things, the open obligations of the suspended Clearing Member, collateral deposited by the Clearing Member, obligations to other FMUs and a summary of related entity exposure. The report summarizes the net settlement obligation of the suspended Clearing Member at the time of default. The DM Policy further provides that a recommendation as to any liquidity needs requiring a draw on OCC's credit facilities would be provided to OCC's Management Committee and subsequently be authorized, as applicable, by the Executive Chairman, CAO, or COO, as provided for in Article VIII, Section 5 of the By-Laws. These practices ensure that OCC's Management Committee remains properly informed and can make
The DM Policy describes OCC's existing authority under OCC Rule 505 to extend the time for OCC's settlement obligations (
To address situations in which a Clearing Member's settlement bank fails or experiences an operational outage that prevents the Clearing Member from meeting its settlement obligations to OCC, the DM Policy provides that OCC requires each Clearing Member to maintain procedures detailing how it would meet its settlement obligations in such an event. The DM Policy further provides that a Designated Officer would determine whether to enact these alternate settlement procedures in the event that a Clearing Member's settlement bank is unable to perform.
The DM Policy sets forth the sequence or “waterfall” of financial resources that OCC may use to meet its obligations in the event of a Clearing Member suspension to provide certainty regarding the order in which these resources would be applied. Specifically, the DM Policy describes that OCC is able to use the following financial resources: (i) Margin deposits of the suspended Clearing Member; (ii) deposits in lieu of margin of the suspended Clearing Member;
In the case of a suspended Clearing Member, the DM Policy outlines the means by which OCC may determine close out positions and collateral of the suspended Clearing Member pursuant to OCC's Rules, including certain provisions under Chapter XI of the Rules. Based upon recommendations from OCC's risk staff, the EVP-FRM may take any one, or any combination, of the following actions pursuant to the terms of OCC's By-Laws and Rules: (i) Net the suspended Clearing Member's positions by offset; (ii) effect market transactions to close out open short positions, long positions, and collateral; (iii) transfer the positions and related collateral to a non-suspended Clearing Member; (iv) effect hedging transactions to reduce the risk to OCC of open positions; (v) conduct a private auction of the positions and collateral of the suspended Clearing Member; (vi) exercise unsegregated and segregated long options; (vii) set cash settlement values or perform buy-in or sell-out processes; and (viii) defer close-out, as may be authorized by certain officers of OCC.
In addition, the DM Policy specifies that OCC risk staff will develop a Close-out Action Plan (“CAP”) and present it to the EVP-FRM for approval. The DM Policy provides that upon approval of the CAP by the EVP-FRM, FRM and other designated business OCC business units and personnel will be responsible for its execution. The DM Policy also provides that OCC's legal department would advise OCC's Management Committee on OCC's authority to execute the proposed CAP and describe the responsibilities for the execution, monitoring and reporting of the CAP and escalation of issues to OCC's Management Committee. The CAP process is designed to ensure that OCC has an appropriate process in place to analyze its exposures, take into consideration current and expected market conditions, and evaluate the tools and resources available to deal with those exposures under the circumstances so that OCC can appropriately manage any default in a manner that would protect Clearing Members, investors, the public interest, and the markets that OCC serves.
The DM Policy provides that OCC would generally liquidate all positions and collateral of a suspended Clearing Member, and the proceeds would be attributed to the account type from which they originated. It also specifies that as a registered clearing agency with the Commission and a registered derivatives clearing organization with the CFTC, OCC is required to comply with regulatory requirements to safeguard customer assets.
In the event of a default, OCC would immediately demand any pledged collateral of the suspended Clearing Member from custodian(s) to ensure those resources are available for default management purposes. For example, the DM Policy provides that, among other things, cash and proceeds from any liquidated collateral or demand of payment on a letter of credit would be placed in the appropriate liquidating settlement account, pursuant to OCC Rule 1104. The DM Policy further provides that all pledged valued margin collateral will be moved by the Collateral Services Department into an OCC account and may be transferred to an auction recipient, delivered to a liquidating agent or delivered to a liquidating settlement account. In the case of deposits in lieu of margin, however, the DM Policy states that OCC would only demand such collateral to meet obligations arising from the assignment of a related contract.
After the close-out of the suspended Clearing Member is completed, the DM Policy describes that the Executive Chairman, CAO, or COO would determine whether, consistent with Article VIII, Section 5(a) of OCC's By-Laws, an assessment must be made against the Clearing Fund in connection with the liquidation. In the event of a shortfall whereby the close-out of the suspended Clearing Member does not result in enough resources to cover its obligations, the DM Policy states that each Clearing Member, consistent with Article VIII, Section 6 of OCC's By-Laws, may be assessed an additional amount equal to the amount of its initial Clearing Fund deposit, as determined by the Executive Chairman, CAO, or COO. The DM Policy notes that any such assessment decision would be communicated via email in accordance with the procedure covering the assessment process. The DM Policy also specifies that a Clearing Member is liable for further assessments until the balance of OCC's losses are covered or the Clearing Member has withdrawn from membership as set forth in Article VIII, Sections 6 and 7 of OCC's By-Laws.
The DM Policy provides that, on at least an annual basis, OCC's default management working group will provide OCC's Management Committee with recommended areas for testing, including close-out procedures, and that the Management Committee is responsible for reviewing and ultimately
In addition, the DM Policy outlines the execution of the testing plan and the review of the results of the testing plan, including the production of annual reports to OCC's Management Committee and Risk Committee regarding the results of OCC's default tests to provide appropriate oversight over the default testing process.
Section 17A(b)(3)(F) of the Act
Rules 17Ad-22(e)(4)(ix) and (e)(13) respectively require a covered clearing agency to, among other things, establish, implement, maintain, and enforce written policies and procedures reasonably designed to: (i) Effectively identify, measure, and manage its credit exposures to participants and those arising from its payment, clearing and settlement processes, including by describing its process to replenish any financial resources it may use following a default or other event in which use of such resources is contemplated
OCC also believes that the DM Policy is consistent with Rule 17Ad-22(e)(4)(ix)
The proposed rule change is not inconsistent with the existing rules of OCC, including any other rules proposed to be amended.
Section 17A(b)(3)(I) of the Act
For the foregoing reasons, OCC believes that the proposed rule change is in the public interest, would be consistent with the requirements of the Act applicable to clearing agencies, and would not impact or impose a burden on competition.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that the Commission does not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2017-010 and should be submitted on or before November 22, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to delegated Authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposed rule change with respect to amendments of the Second Amended and Restated Certificate of Incorporation (the “Company's Certificate”) and Third Amended and Restated Bylaws (the ” Company's Bylaws”) of its parent corporation, CBOE Holdings, Inc. (“CBOE Holdings” or the “Company”) to change the name of the Company to Cboe Global Markets, Inc. With respect to CBOE V, LLC, an intermediate Holding Company of the Exchange (the “Intermediate”), the Exchange proposes to amend the Certificate of Formation and Limited Liability Company Operating Agreement of CBOE V, LLC (the “Operating Agreement”), in connection with a related name change for the Intermediate. The Exchange also proposes to amend its Amended and Restated Certificate of Incorporation (the “Exchange Certificate”), Sixth Amended and Restated Bylaws of Bats BZX Exchange, Inc. (the “Exchange Bylaws”), rulebook and fees schedules (collectively “operative documents”) in connection with the name change of its parent Company, Intermediate, and the Exchange.
The text of the proposed rule change is also available on the Exchange's Web site (
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 filing is to reflect in the Exchange's governing documents (and the governing documents of its parent company, CBOE Holdings) and the Exchange's rulebook and fees schedules, a non-substantive corporate branding change, including changes to the Company's name, the Intermediate's name, and the Exchange's name. Particularly, references to Company's, Intermediate's and Exchange's names will be deleted and revised to state the new names, as described more fully below. No other substantive changes are being proposed in this filing. The Exchange represents that these changes are concerned solely with the administration of the Exchange and do not affect the meaning, administration, or enforcement of any rules of the Exchange or the rights, obligations, or privileges of Exchange members or their associated persons is any way. Accordingly, this filing is being submitted under Rule 19b-4(f)(3). In lieu of providing a copy of the marked name changes, the Exchange represents that it will make the necessary non-substantive revisions described below to the Exchange's corporate governance documents, rulebook, and fees schedules, and post updated versions of each on the Exchange's Web site pursuant to Rule 19b-4(m)(2).
In connection with the corporate name change of its parent company, the Exchange is proposing to amend the Company's Certificate and Bylaws. Specifically, the Company is changing its name from “CBOE Holdings, Inc.” to “Cboe Global Markets, Inc.”.
The Exchange proposes to (i) delete the following language from Paragraph (1) of the introductory paragraph: “The name of the Corporation is CBOE Holdings, Inc.” and (ii) amend Article First of the Company's Certificate to reflect the new name, “Cboe Global Markets, Inc.” The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Company's name in the title or signature line as the name changes will not be effective until the Company, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line. The Exchange also notes that although the name of “Chicago Board Options Exchange, Incorporated” is changing to “Cboe Exchange Inc.”, it is not amending the name of Chicago Board Options Exchange, Incorporated (“CBOE”) referenced in Article Fifth(a)(iii) at this time. Particularly, the Exchange notes that unlike the exception applicable to proposed changes to the Company's name,
With respect to the Company's Bylaws, references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.” The Exchange also proposes to eliminate the reference to “Chicago Board Options Exchange, Incorporated” in Article 10, Section 10.2. Particularly, Section 10.2 provides that “for so long as the Corporation shall control, directly or indirectly, any national securities exchange, including, but not limited to Chicago Board Options Exchange, Incorporated (a “Regulated Securities Exchange Subsidiary”), before any amendment, alteration or repeal of any provision of the Bylaws shall be effective, such amendment, alteration or repeal shall be submitted to the board of directors of each Regulated Securities Exchange Subsidiary, and if such amendment, alteration or repeal must be filed with or filed with and approved by the Securities and Exchange Commission, then such amendment, alteration or repeal shall not become effective until filed with or filed with and approved by the Securities and Exchange Commission, as the case may be.” As the Company currently controls a number of Regulated Securities Exchange Subsidiaries, it does not believe it is necessary to explicitly reference only Chicago Board Options Exchange, Incorporated and therefore proposes to delete the following language: “including, but not limited to Chicago Board Options Exchange, Incorporated”.
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change the name of the Intermediate from “CBOE V, LLC” to “Cboe Bats, LLC.”
As it relates to the Certificate of Formation of CBOE V, LLC, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC”. The Exchange also proposes to add clarifying and conforming language in order to conform to, as well as cite to, the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes to conform with the revised language in the introductory paragraph, it also proposes to amend references to “LLC” to “limited liability company”. The Exchange also notes that it is not amending the Intermediate's name in the title or signature line as the name changes will not be effective until the Intermediate, as currently named, files the proposed changes in Delaware.
As it relates to the Operating Agreement of the Intermediate,
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change its name from “Bats BZX Exchange, Inc.” to “Cboe BZX Exchange, Inc.” throughout its rules, fees schedules and corporate documents. Additionally, the Exchange notes that its affiliated exchanges Bats BYX Exchange, Inc., Bats EDGX Exchange, Inc., Bats EDGA Exchange, Inc., Chicago Board Options Exchange, Incorporated and C2 Options Exchange, Incorporated (collectively the “affiliates”) have also proposed name changes to Cboe BYX Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe Exchange, Inc. and Cboe C2 Exchange, Inc., respectively. Lastly, the Exchange is changing the name of “Bats Trading, Inc.” to “Cboe Trading, Inc.”
Therefore, the Exchange proposes to amend its: (i) Amended and Restated Certificate of Incorporation of Bats BZX Exchange, Inc., (ii) Sixth Amended and Restated Bylaws of Bats BZX Exchange, Inc., (iii) Rulebook and (iv) Exchange Fee Schedules (collectively, the “Operative Documents”) to reflect the name changes.
The Exchange proposes to (i) delete the following language from the introductory paragraph: “The name of the Corporation is Bats BZX Exchange, Inc.” and (ii) amend Article First of the Exchange's Certificate to reflect the new name, “Cboe BZX Exchange, Inc.”. The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Exchange's name in the title or signature line as the name changes will not be effective until the Exchange, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line.
For the Exchange's Bylaws, all references to “Bats BZX Exchange, Inc.” will be deleted and revised to state “Cboe BZX Exchange, Inc.”.
For the Rules of Bats BZX Exchange, Inc., all references to “Bats BZX Exchange, Inc.” and “Bats BZX Exchange” will be deleted and revised to state “Cboe BZX Exchange, Inc.” and “Cboe BZX Exchange”, respectively. All references to “Bats BZX Options” will be deleted and revised to state “Cboe BZX Options”. Additionally, the Exchange's affiliates are also filing similar rule filings to change their names, as noted above. As such, all references to “Bats BYX Exchange, Inc.”, “Bats EDGA Exchange, Inc.”, “Bats EDGX Exchange, Inc.”, “C2 Options Exchange, Inc.” and “Chicago Board Options Exchange”
The Exchange will also delete references to “Bats Trading, Inc.” and “Bats Trading” and replace it with references to “Cboe Trading, Inc.” and “Cboe Trading”, respectively. References to “Bats One Feed” will be deleted and revised to state “Cboe One Feed”, all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”, all references to “CBOE Volatility Index (VIX)” will be deleted and revised to state “Cboe Volatility Index (VIX)”, all references to “CBOE S&P 500 BuyWrite Index(sm)” will be deleted and revised to state “Cboe S&P 500 BuyWrite Index(sm)”, all references to “CBOE DJIA Buy Write Index(sm)” will be deleted and revised to state “Cboe DJIA Buy Write Index(sm)”, all references to “CBOE Nasdaq-100 BuyWrite Index(sm)” will be deleted and revised to state “Cboe Nasdaq-100 BuyWrite Index(sm)”, and all references to “CBOE Livevol, LLC” will be deleted and revised to state “Cboe Livevol, LLC”.
For the BZX Equities Fee Schedule, any reference to “Bats BZX Exchange” will be deleted and revised to state “Cboe BZX Exchange”, “Bats-listed” will be deleted and revised to state “Cboe listed”. Additionally, all references to “Bats One” will be deleted and revised to state “Cboe One” and all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”.
For the BZX Options Fee Schedule, all references to “Bats BZX Options Exchange” will be deleted and revised to state “Cboe BZX Options Exchange”, all references to “CBOE” will be deleted and revised to state “Cboe Options” and lastly, all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed change is a non-substantive change and does not impact the governance, ownership or operations of the Exchange. The Exchange believes that by ensuring that its parent company's governance documents and the Exchange's
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with updating the Company's and Exchange's governance and operative documents to reflect the abovementioned name changes.
The Exchange neither solicited nor received comments on the proposed rule change.
Pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is 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 will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify BX rules at Chapter VI, Section 9, entitled “Price Improvement Auction (“PRISM”)” to correct an error.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange filed a proposed rule change to establish a price improvement mechanism.
When starting an Auction, the Initiating Participant may submit the Initiating Order with a designation of “surrender” to other PRISM Participants (“Surrender”), which will result in the Initiating Participant forfeiting priority and trade allocation privileges. If Surrender is specified the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price.
The Exchange inadvertently included the references to Section 9(ii)(E)(2)(b) and Section 9(ii)(F)(2)(b) when discussing Surrender. Surrender only applies to the single stop price feature. The Exchange proposes to amend its rule text to update its rules to delete these references to make the rule text accurate.
The Exchange believes that its proposal is consistent with 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. The Exchange inadvertently referenced the auto-match feature as applicable to Surrender provision. No BX Participant is able today to utilize the Surrender feature when selecting auto-match. This amendment will correct the references within the BX PRISM rule to make clear the manner in which the auction operates.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes a rule change with respect to amendments of the Second Amended and Restated Certificate of Incorporation (the “Company's Certificate”) and Third Amended and Restated Bylaws (the “Company's Bylaws”) of its parent corporation, CBOE Holdings, Inc. (“CBOE Holdings” or the “Company”) to change the name of the Company to Cboe Global Markets, Inc. With respect to CBOE V, LLC, an intermediate Holding Company of the Exchange (the “Intermediate”), the Exchange proposes to amend the Certificate of Formation and Limited Liability Company Operating Agreement of CBOE V, LLC (the “Operating Agreement”), in connection with a related name change for the Intermediate. The Exchange also proposes to amend its Second Amended
The text of the proposed rule change is also available on the Exchange's Web site (
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 filing is to reflect in the Exchange's governing documents (and the governing documents of its parent company, CBOE Holdings) and the Exchange's rulebook and fees schedules, a non-substantive corporate branding change, including changes to the Company's name, the Intermediate's name, and the Exchange's name. Particularly, references to Company's, Intermediate's and Exchange's names will be deleted and revised to state the new names, as described more fully below. No other substantive changes are being proposed in this filing. The Exchange represents that these changes are concerned solely with the administration of the Exchange and do not affect the meaning, administration, or enforcement of any rules of the Exchange or the rights, obligations, or privileges of Exchange members or their associated persons is any way. Accordingly, this filing is being submitted under Rule 19b-4(f)(3). In lieu of providing a copy of the marked name changes, the Exchange represents that it will make the necessary non-substantive revisions described below to the Exchange's corporate governance documents, rulebook, and fees schedules, and post updated versions of each on the Exchange's Web site pursuant to Rule 19b-4(m)(2).
In connection with the corporate name change of its parent company, the Exchange is proposing to amend the Company's Certificate and Bylaws. Specifically, the Company is changing its name from “CBOE Holdings, Inc.” to “Cboe Global Markets, Inc.”.
The Exchange proposes to (i) delete the following language from Paragraph (1) of the introductory paragraph: “The name of the Corporation is CBOE Holdings, Inc.” and (ii) amend Article First of the Company's Certificate to reflect the new name, “Cboe Global Markets, Inc.” The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Company's name in the title or signature line as the name changes will not be effective until the Company, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line. The Exchange also notes that although the name of “Chicago Board Options Exchange, Incorporated” is changing to “Cboe Exchange Inc.”, it is not amending the name of Chicago Board Options Exchange, Incorporated (“CBOE”) referenced in Article Fifth(a)(iii) at this time. Particularly, the Exchange notes that unlike the exception applicable to proposed changes to the Company's name,
With respect to the Company's Bylaws, references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.” The Exchange also proposes to eliminate the reference to “Chicago Board Options Exchange, Incorporated” in Article 10, Section 10.2. Particularly, Section 10.2 provides that “for so long as the Corporation shall control, directly or indirectly, any national securities exchange, including, but not limited to Chicago Board Options Exchange, Incorporated (a “Regulated Securities Exchange Subsidiary”), before any amendment, alteration or repeal of any provision of the Bylaws shall be effective, such amendment, alteration or repeal shall be submitted to the board of directors of each Regulated Securities Exchange Subsidiary, and if such amendment, alteration or repeal must be filed with or filed with and approved by the Securities and Exchange Commission, then such amendment, alteration or repeal shall not become effective until filed with or filed with and approved by the Securities and Exchange Commission, as the case may be.” As the Company currently controls a number of Regulated Securities Exchange Subsidiaries, it does not believe it is necessary to explicitly reference only Chicago Board Options Exchange, Incorporated and therefore proposes to delete the following language: “including, but not limited to Chicago Board Options Exchange, Incorporated”.
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change the name of the Intermediate from “CBOE V, LLC” to “Cboe Bats, LLC.”
As it relates to the Certificate of Formation of CBOE V, LLC, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC”. The Exchange also proposes to add clarifying and conforming language in order to conform to, as well as cite to, the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes to conform with the revised language in the introductory paragraph, it also proposes to amend references to “LLC” to “limited liability company”. The Exchange also notes that it is not amending the Intermediate's name in the title or signature line as the name changes will not be effective until the Intermediate, as currently named, files the proposed changes in Delaware.
As it relates to the Operating Agreement of the Intermediate, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC” and references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.”. The Exchange also proposes to add clarifying and conforming language in connection with the proposed name change, including new Section 12.5 (“Effect of Amendment”), which provides that the “Agreement amends, restates and supersedes the Original Agreement in all respects. From and after the date hereof, this Agreement shall be the limited liability company operating agreement of the Company for all purposes.”
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change its name from “Bats EDGA Exchange, Inc.” to “Cboe EDGA Exchange, Inc.” throughout its rules, fees schedules and corporate documents. Additionally, the Exchange notes that its affiliated exchanges Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGX Exchange, Inc., Chicago Board Options Exchange, Incorporated, C2 Options Exchange, Incorporated, and “CBOE Futures Exchange, LLC” (collectively the “affiliates”) have also proposed name changes to Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe Exchange, Inc., Cboe C2 Exchange, Inc. and Cboe Futures Exchange, LLC, respectively. Lastly, the Exchange is changing the name of “Bats Trading, Inc.” to “Cboe Trading, Inc.”
Therefore, the Exchange proposes to amend its: (i) Second Amended and Restated Certificate of Incorporation of Bats EDGA Exchange, Inc., (ii) Seventh Amended and Restated Bylaws of Bats EDGA Exchange, Inc., (iii) Rulebook, (iv) Fee Schedule for EDGA Equities (collectively, the “Operative Documents”) to reflect the name changes.
The Exchange proposes to (i) delete the following language from the introductory paragraph: “The name of the Corporation is Bats EDGA Exchange, Inc.” and (ii) amend Article First of the Exchange's Certificate to reflect the new name, “Cboe EDGA Exchange, Inc.”. The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Exchange's name in the title or signature line as the name changes will not be effective until the Exchange, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line.
For the Exchange's Bylaws, all references to “Bats EDGA Exchange, Inc.” will be deleted and revised to state “Cboe EDGA Exchange, Inc.”.
For the Rules of Bats EDGA Exchange, Inc., all references to “Bats EDGA Exchange, Inc.” will be deleted and revised to state “Cboe EDGA Exchange, Inc.”. Additionally, the Exchange's affiliates are also filing similar rule filings to change their names, as noted above. As such, all references to “Bats BYX Exchange, Inc.”, “Bats EDGX Exchange, Inc.”, “Bats BZX Exchange, Inc.”, “C2 Options Exchange, Incorporated”,
For the EDGA Equities Fee Schedule, any reference to “Bats EDGA Exchange” will be deleted and revised to state “Cboe EDGA Exchange”. Additionally, all references to “Bats One” will be deleted and revised to state “Cboe One” and all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed change is a non-substantive change and does not impact the governance, ownership or operations of the Exchange. The Exchange believes that by ensuring that its parent company's governance documents and the Exchanges operative documents accurately reflect the new legal names, the proposed rule change would reduce potential investor or market participant confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with updating the Company's and Exchange's governance and operative documents to reflect the abovementioned name changes.
The Exchange neither solicited nor received comments on the proposed rule change.
Pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is 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 will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
This proposed rule change by OCC would formalize OCC's Counterparty Credit Risk Management Policy (“CCRM Policy” or “Policy”), which promotes compliance with multiple requirements applicable to OCC under Rule 17Ad-22, including Rules 17Ad-22(e)(3) concerning frameworks for the comprehensive management of risks, (e)(4) concerning credit risk management, (e)(16) concerning the safeguarding of assets, (e)(18) concerning risk-based participation criteria, (e)(19) concerning risks form indirect participants, and (e)(20) concerning linkages.
The proposed rule change does not require any changes to the text of OCC's By-Laws or Rules. All terms with initial capitalization that are not otherwise defined herein have the same meaning as set forth in the OCC By-Laws and Rules.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
As a central counterparty providing clearance, settlement, and risk management services, OCC is exposed to and must manage a range of risks, including credit risk. The purpose of the CCRM Policy is to outline OCC's overall approach to identify, measure, monitor, and manage its exposures to direct and indirect participants, Liquidity
The CCRM Policy would be maintained by OCC to promote compliance with a number of rules adopted under Section 17A of the Securities Exchange Act of 1934, as amended (“Act”),
OCC's CCRM Policy outlines the key components of OCC's framework for identifying, measuring, monitoring, and managing OCC's exposures to its Counterparties. This framework includes: (1) The identification of credit risk, (2) Counterparty access and participation standards, (3) the measurement of its Counterparty exposures, (4) the monitoring and managing of Counterparty exposures, and (5) voluntary termination of Counterparty relationships. Each of these components is described in more detail below.
The CCRM Policy identifies various ways in which credit risk originates from the failure of a Counterparty to perform. With respect to a Clearing Member, the CCRM Policy details a number of different ways in which OCC may be exposed to credit risk. This includes the potential failure of a Clearing Member to pay for purchased options, to meet expiration-related settlement obligations, or to make certain mark-to-market variation payments or initial margin deposits. It also includes the potential insufficiency of a defaulting Clearing Member's margin and Clearing Fund deposits in a liquidation scenario. Other sources of credit risk identified in the CCRM Policy include the inability of OCC to access collateral (
Under the CCRM Policy, OCC's management of Counterparty credit risks begins with an initial evaluation process intended to ascertain that Counterparties meet certain minimum financial and operational standards and are considered as having a low probability of defaulting on their obligations prior to engaging or effecting any new transactions or expansion of business with OCC. To accomplish this objective, OCC shall evaluate each Counterparty against established minimum standards of creditworthiness, overall financial condition, and operational capabilities. Pursuant to the Policy, the standards used to evaluate Counterparties shall be objective, risk-based, and publicly-disclosed in order to permit fair and open access. These standards shall be developed independently for Clearing Members, Commercial and Central Banks, investment counterparties, Liquidity Providers and FMUs, accounting for differences in their regulatory reporting and overall business operations.
OCC's minimum participation standards for Clearing Member are found in Article V of OCC's By-Laws, Chapters II and III of OCC's Rules, and other publicly-disclosed supplemental documentation (together, “Participation Standards Documentation”). Under the Policy, OCC's Credit Risk Management and Member Services departments shall evaluate each Clearing Member applicant against the minimum standards of creditworthiness and for its overall financial condition and operational capabilities as provided in the Participation Standards Documentation. Such evaluation shall also consider the Counterparty's aggregation of exposure on an individual and related-entities level, as applicable, as well as any material exposure that may arise from tiered participation arrangements. The Credit Risk Management and Member Services departments shall document the results of this evaluation in a memorandum, including the Clearing Member applicant's ability to meet relevant participation standards, and report those results to OCC's Executive Chairman, Chief Operating Officer or Chief Administrative Officer for review and approval, where appropriate, or for recommendation to the Risk Committee or Board of Directors.
OCC's minimum standards for asset custodians, settlement banks, letter of credit issuers and investment counterparties are found in OCC Rule 604 and relevant OCC procedures. The Credit Risk Management department shall coordinate with various
Under the Policy, OCC maintains internal procedures outlining the minimum standards for Commercial Banks
Under the Policy, OCC maintains internal procedures outlining minimum standards for FMUs. OCC's Business Operations and Credit Risk Management departments shall evaluate each FMU for its overall financial condition and operational capabilities as provided in the procedure. Pursuant to the Policy, before entering into any link arrangement, the Legal department shall assist the aforementioned business units to identify legal risks relating to rights and interests, collateral arrangements, settlement finality and netting arrangements, and financial and custody risks. The Business Operations, Credit Risk Management and Legal departments shall document the results of its evaluation in a memorandum, including the FMU's ability to meet relevant standards. All new and expanded FMU relationships shall be reviewed and approved by the Risk Committee and subsequently recommended for approval to the Board of Directors.
The CCRM Policy describes various ways in which OCC measures the credit risk posed by different Counterparties. With respect to Clearing Members, the CCRM Policy provides that OCC measures its credit exposures to Clearing Members under normal market conditions through the calculation of margin requirements and its credit exposures to Clearing Members under extreme but plausible conditions through stress testing and the calculation of Clearing Fund requirements, in accordance with applicable OCC policies. Margin, Clearing Fund and stress test results may be used by OCC's Financial Risk Management department (“FRM”) to evaluate OCC's counterparty credit risk framework and inform Clearing Member surveillance processes.
With respect to Commercial Banks, Central Banks,
FMUs provide a range of services to OCC, including the Depository Trust Company (“DTC”) as collateral custodian and provider of book order entry of securities transfers, Chicago Mercantile Exchange Inc. (“CME”) and ICE Clear U.S. as cross-margin clearing organizations, and the National Securities Clearing Corporation (“NSCC”) as a provider of securities settlement. Under the Policy, DTC credit exposures shall be measured by the collateral balances held and the value of securities lending/borrowing transactions facilitated. CME and ICE Clear U.S. credit exposures shall be measured by the projected margin impact in the event of suspension of a cross-margin program and, therefore, the absence of risk reducing positions cleared away from OCC. NSCC exposure shall be measured by the value of securities and cash to be settled in connection with the delivery obligations settled through NSCC.
The CCRM Policy also describes the manner in which OCC monitors and manages credit risk from its Counterparties. Under the Policy, OCC's monitoring and management of such risks is comprised of “Watch Level Reporting” processes in conjunction with other tools including margin adjustments, internal credit ratings, risk examinations, and monitoring of tiered participation arrangements and dormant Counterparties.
Under the Policy, Counterparties are monitored by OCC's FRM, Business Operations, and Treasury departments for ongoing compliance with the minimum participation standards described above to identify any trends that might signal the deterioration of a Counterparty's ability to timely meet its obligations. When these trends are identified, Credit Risk Management shall report on a Counterparty through OCC's Watch Level Reporting processes, which are described in further detail
Pursuant to the Policy, the Watch Level Reporting process shall be administered by OCC's Management Committee, which maintains approval authority of Watch Level parameter changes. The Watch Level Reporting process provides each of the Executive Chairman, Chief Operating Officer and Chief Administrative Officer with authority to take action to protect OCC given the facts and circumstances of the exposure presented by a Clearing Member or Commercial Bank. Under the Policy, Credit Risk Management shall provide monthly internal reporting to FRM summarizing the circumstances relating to a violation, additional risks observed and any corrective measure taken by any Clearing Member, Commercial Bank, or FMU at or above Watch Level II (described below); and monthly reporting to OCC's Credit and Liquidity Risk Working Group, Management Committee and the Risk Committee of any Clearing Member or Commercial Bank at or above Watch Level III (described below).
Pursuant to the CCRM Policy, the Clearing Member Watch Level Reporting process and Bank Watch Level Reporting process shall support initial and on-going participation standards by allowing OCC's Credit Risk Management department, with the support of other FRM business units, Business Operations and Treasury, to detect business-related concerns and/or financial or operational deterioration of a Counterparty in order to protect OCC and its Clearing Members against the potential default of a Clearing Member or Commercial Bank. Pursuant to the Policy, the Clearing Member Watch Level Reporting process and Bank Watch Level Reporting process shall be organized into four-tiered surveillance structures.
1.
2.
3.
4.
In addition, under the Policy, a Clearing Member reporting (1) aggregate uncollateralized stress test exposure under normal market conditions less (2) the sum of base expected shortfall and stress test charges as computed under OCC's margin methodology, exceeding 75% of the Clearing Member's excess net capital shall be identified and reported on Watch Level II. When this exposure exceeds 100% of net capital, a Clearing Member shall be identified and reported on Watch Level III and shall be subject to a margin call for the amount of exposure exceeding net capital. A margin call shall be the standard form of protective measures for position risk monitoring and shall not require officer approval or further prompt escalation. However, Clearing Members may be reported to the Executive Chairman, Chief Operating Officer or Chief Administrative officer for consideration of additional protective measures.
The FMU Watch Level Reporting process allows Credit Risk Management, with the support of other FRM business units and Business Operations, to detect business-related concerns and/or financial or operational deterioration of a FMU. Pursuant to the CCRM Policy, the FMU Watch Level Reporting process is organized into a two-tiered surveillance structure.
1.
2.
In addition to the Watch Level Reporting processes discussed above, the CCRM Policy discusses other tools and processes used by OCC to monitor and manage credit risks arising from its Counterparties. For example, in cases where ongoing monitoring of Clearing Members identifies circumstances impacting margin levels due to changing portfolio characteristics, market conditions, elevated Clearing Fund stress test results, upcoming holidays where trading is allowed but OCC is unable to call for additional margin deposits, and certain other situations, OCC shall have the authority to call for additional margin deposits or otherwise adjust margin requirements as further detailed in OCC's margin and Clearing Fund-related policies.
Under the Policy, OCC's Credit Risk Management department also maintains Internal Credit Ratings (“ICRs”) which shall be incorporated into the Watch Level Reporting process and shall be designed to identify quarterly creditworthiness scores of Clearing Members and Commercial Banks. ICR reporting shall summarize the underlying cause of the ICR score, recent scoring trend and exposure introduced by a Clearing Member or Commercial Bank.
In addition, the Policy provides that Credit Risk Management shall perform examinations of the risk management frameworks, policies, procedures and practices of each Clearing Member no less than once in a three calendar year period focusing on the risks posed to OCC. For certain exams, Credit Risk Management may coordinate with external parties to realize operational efficiencies for both the Clearing Member and OCC.
The CCRM Policy also provides that OCC's Counterparty monitoring includes managing the material risks that arise from indirect participants through tiered participation arrangements. In particular, Credit Risk Management, supported by other FRM business units and Business Operations, shall monitor the material risks that arise from indirect participants through tiered participation arrangements. Credit Risk Management (or other FRM business units, as appropriate) shall identify these tiered participation arrangements through standard monitoring processes when they present elevated risk to the Clearing Member or OCC. Furthermore, Clearing Member risk examinations shall seek to understand how direct participants identify, measure and manage the risks posed to OCC from indirect participants. In this regard, the CCRM Policy is designed to promote compliance with Rule 17Ad-22(e)(19) by addressing the material risks that may arise from indirect participants.
Additionally, under the CCRM Policy, OCC shall monitor Clearing Members, Commercial Banks and investment counterparties during prolonged periods of inactivity, and Clearing Members shall be allowed to voluntarily enter a dormant state in order to reduce credit risk originating from unexpected trading activity. A dormant Clearing Member shall continuously adhere to all operational and financial standards and may reactivate its membership after submitting to an operational and financial review. OCC shall maintain sole discretion to terminate inactive Commercial Banks and investment counterparties in order to reduce credit risk.
Finally, the CCRM Policy addresses the voluntary off-boarding of Counterparties. Under the Policy, voluntary off-boarding shall be performed in a manner designed to wind down all credit exposures in an orderly fashion before a relationship is terminated.
Section 17A(b)(3)(F) of the Act
OCC also believes that that the CCRM Policy is consistent with several requirements under Rule 17Ad-22. For example, Rules 17Ad-22(e)(3) and (e)(4)
In addition, Rule 17Ad-22(e)(16)
Rule 17Ad-22(e)(18)
Rule 17Ad-22(e)(19)
Finally, Rule 17Ad-22(e)(20)
The proposed rule change is not inconsistent with the existing rules of OCC, including any other rules proposed to be amended.
Section 17A(b)(3)(I) of the Act
For the foregoing reasons, OCC believes that the proposed rule change is in the public interest, would be consistent with the requirements of the Act applicable to clearing agencies, and would not impact or impose a burden on competition.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that the Commission does not redact or edit personal identifying information from
All submissions should refer to File Number SR-OCC-2017-009 and should be submitted on or before November 22, 2017.
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 a proposed rule change with respect to amendments of the Second Amended and Restated Certificate of Incorporation (the “Company's Certificate”) and Third Amended and Restated Bylaws (the “Company's Bylaws”) of its parent corporation, CBOE Holdings, Inc. (“CBOE Holdings” or the “Company”) to change the name of the Company to Cboe Global Markets, Inc. With respect to CBOE V, LLC, an intermediate Holding Company of the Exchange (the “Intermediate”), the Exchange proposes to amend the Certificate of Formation and Limited Liability Company Operating Agreement of CBOE V, LLC (the “Operating Agreement”), in connection with a related name change for the Intermediate. The Exchange also proposes to amend its Amended and Restated Certificate of Incorporation (the “Exchange Certificate”), Sixth Amended and Restated Bylaws of Bats BYX Exchange, Inc. (the “Exchange Bylaws”), rulebook and fee schedule (collectively “operative documents”) in connection with the name change of its parent Company, Intermediate, and the Exchange.
The text of the proposed rule change is also available on the Exchange's Web site (
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 filing is to reflect in the Exchange's governing documents (and the governing documents of its parent company, CBOE Holdings) and the Exchange's rulebook and fees schedules, a non-substantive corporate branding change, including changes to the Company's name, the Intermediate's name, and the Exchange's name. Particularly, references to Company's, Intermediate's and Exchange's names will be deleted and revised to state the new names, as described more fully below. No other substantive changes are being proposed in this filing. The Exchange represents that these changes are concerned solely with the administration of the Exchange and do not affect the meaning, administration, or enforcement of any rules of the Exchange or the rights, obligations, or privileges of Exchange members or their associated persons is any way. Accordingly, this filing is being submitted under Rule 19b-4(f)(3). In lieu of providing a copy of the marked name changes, the Exchange represents that it will make the necessary non-substantive revisions described below to the Exchange's corporate governance documents, rulebook, and fees schedules, and post updated versions of each on the Exchange's Web site pursuant to Rule 19b-4(m)(2).
In connection with the corporate name change of its parent company, the Exchange is proposing to amend the Company's Certificate and Bylaws. Specifically, the Company is changing its name from “CBOE Holdings, Inc.” to “Cboe Global Markets, Inc.”.
The Exchange proposes to (i) delete the following language from Paragraph (1) of the introductory paragraph: “The name of the Corporation is CBOE Holdings, Inc.” and (ii) amend Article First of the Company's Certificate to reflect the new name, “Cboe Global Markets, Inc.” The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Company's name in the title or signature line as the name changes will not be effective until the Company, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line. The Exchange also notes that although the name of “Chicago Board Options Exchange, Incorporated” is changing to “Cboe Exchange Inc.”, it is not amending the name of Chicago Board Options Exchange, Incorporated (“CBOE”) referenced in Article Fifth(a)(iii) at this time. Particularly, the Exchange notes that unlike the exception applicable to proposed changes to the Company's name,
With respect to the Company's Bylaws, references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.” The Exchange also proposes to eliminate the reference to “Chicago Board Options Exchange, Incorporated” in Article 10, Section 10.2. Particularly, Section 10.2 provides that “for so long as the Corporation shall control, directly or indirectly, any national securities exchange, including, but not limited to Chicago Board Options Exchange, Incorporated (a “Regulated Securities Exchange Subsidiary”), before any amendment, alteration or repeal of any provision of the Bylaws shall be effective, such amendment, alteration or repeal shall be submitted to the board of directors of each Regulated Securities Exchange Subsidiary, and if such amendment, alteration or repeal must be filed with or filed with and approved by the Securities and Exchange Commission, then such amendment, alteration or repeal shall not become effective until filed with or filed with and approved by the Securities and Exchange Commission, as the case may be.” As the Company currently controls a number of Regulated Securities Exchange Subsidiaries, it does not believe it is necessary to explicitly reference only Chicago Board Options Exchange, Incorporated and therefore proposes to delete the following language: “including, but not limited to Chicago Board Options Exchange, Incorporated”.
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change the name of the Intermediate from “CBOE V, LLC” to “Cboe Bats, LLC.”
As it relates to the Certificate of Formation of CBOE V, LLC, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC”. The Exchange also proposes to add clarifying and conforming language in order to conform to, as well as cite to, the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes to conform with the revised language in the introductory paragraph, it also proposes to amend references to “LLC” to “limited liability company”. The Exchange also notes that it is not amending the Intermediate's name in the title or signature line as the name changes will not be effective until the Intermediate, as currently named, files the proposed changes in Delaware.
As it relates to the Operating Agreement of the Intermediate, references to “CBOE V, LLC” will be deleted and revised to state its new name “Cboe Bats, LLC” and references to “CBOE Holdings, Inc.” will be deleted and revised to state “Cboe Global Markets, Inc.”. The Exchange also proposes to add clarifying and conforming language in connection with the proposed name change, including new Section 12.5 (“Effect of Amendment”), which provides that the “Agreement amends, restates and supersedes the Original Agreement in all respects. From and after the date hereof, this Agreement shall be the limited liability company operating agreement of the Company for all purposes.”
For purposes of consistency, certain of the Parent's subsidiaries have also undertaken to change their legal names. As a result, the Exchange also proposes to change its name from “Bats BYX Exchange, Inc.” to “Cboe BYX Exchange, Inc.” throughout its rules, fees schedules and corporate documents. Additionally, the Exchange notes that its affiliated exchanges Bats BZX Exchange, Inc., Bats EDGX Exchange, Inc., Bats EDGA Exchange, Inc., and C2 Options Exchange, Inc. (collectively the “affiliates”) have also proposed name changes to Cboe BZX Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe EDGA Exchange, Inc., and Cboe C2 Exchange, Inc. respectively. Lastly, the Exchange is changing the name of “Bats Trading, Inc.” to “Cboe Trading, Inc.”
Therefore, the Exchange proposes to amend its: (i) Amended and Restated Certificate of Incorporation of Bats BYX Exchange, Inc., (ii) Sixth Amended and Restated Bylaws of Bats BYX Exchange, Inc., (iii) Rulebook, (iv) Fee Schedule for BYX Equities (collectively, the “Operative Documents”) to reflect the name changes.
The Exchange proposes to (i) delete the following language from the introductory paragraph: “The name of the Corporation is Bats BYX Exchange, Inc.” and (ii) amend Article First of the Exchange's Certificate to reflect the new name, “Cboe BYX Exchange, Inc.”. The Exchange also proposes to add clarifying language and cite to the applicable provisions of the General Corporation Law of the State of Delaware in connection with the proposed name change. The Exchange notes that it is not amending the Exchange's name in the title or signature line as the name changes will not be effective until the Exchange, as currently named, files the proposed changes in Delaware. Thereafter, the Exchange will amend the Certificate to reflect the new name in the title and signature line.
For the Exchange's Bylaws, all references to “Bats BYX Exchange, Inc.” will be deleted and revised to state “Cboe BYX Exchange, Inc.”.
For the Rules of Bats BYX Exchange, Inc., all references to “Bats BYX Exchange, Inc.” and “Bats BYX Exchange” will be deleted and revised to state “Cboe BYX Exchange, Inc.” and “Bats [sic] BYX Exchange”, respectively. Additionally, the Exchange's affiliates are also filing similar rule filings to change their names, as noted above. As such, all references to “Bats BZX Exchange, Inc.”, “Bats EDGA Exchange, Inc.”, “Bats EDGX Exchange, Inc.” and “C2 Options Exchange, Inc.”
For the BYX Equities Fee Schedule, any reference to “Bats BYX Exchange” will be deleted and revised to state “Cboe BYX Exchange”. Additionally, all references to “Bats One” will be deleted and revised to state “Cboe One” and all references to “Bats Connect” will be deleted and revised to state “Cboe Connect”.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed change is a non-substantive change and does not impact the governance, ownership or operations of the Exchange. The Exchange believes that by ensuring that its parent company's governance documents and the Exchanges operative documents accurately reflect the new legal names, the proposed rule change would reduce potential investor or market participant confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with updating the Company's and Exchange's governance and operative documents to reflect the abovementioned name changes.
The Exchange neither solicited nor received comments on the proposed rule change.
Pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is 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 will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Based upon a review of the Administrative Record assembled pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, I hereby determine that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of
This determination shall be published in the
Based upon a review of the Administrative Record assembled pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, I hereby determine that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained.
This determination shall be published in the
Based upon a review of the Administrative Record assembled pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, I hereby determine that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained.
This determination shall be published in the
In accordance with section 4314(c)(4) of 5 United States Code, the Department of State has appointed the following individuals to the Department of State Performance Review Board for Senior Executive Service members: James Walsh, Chairperson, Deputy Assistant Secretary, Bureau of International Narcotics and Law Enforcement, Department of State; Lisa Grosh, Assistant Legal Adviser, Office of the Legal Adviser, Department of State; Nancy Jackson, Deputy Assistant Secretary, Bureau of Population, Refugees and Migration, Department of State; Eliot Kang, Deputy Assistant Secretary, Bureau of International Security and Nonproliferation, Department of State; and, Gail Neelon, Associate Dean, Foreign Service Institute, Department of State.
Ohio River Partners Shareholder LLC (ORPS) and Ohio River Partners LLC (ORP) (collectively, the Parties) have jointly filed a verified notice of exemption under 49 CFR 1180.2(d)(3) for an intra-corporate family transaction. ORP is a Delaware limited liability company, and in 2016 the Board authorized it to acquire and operate a 12.2-mile rail line between milepost 60.5 at or near Powhatan Point, Ohio, and milepost 72.2 at or near Hannibal, Ohio (the Omal Line).
According to the Parties, the purpose of this transaction is to vest both fee title to the Omal Line and the right (and common carrier obligation) to operate the Omal Line in a single entity (ORPS).
The Parties state that the transaction does not impose or involve any interchange commitment by, or affecting, the Parties.
Unless stayed, the exemption will be effective on November 15, 2017 (30 days after the verified notice was filed). The Parties state that they intend to consummate the proposed transaction as soon as practicable after the effective date of the exemption.
This is a transaction within a corporate family of the type specially exempted from prior review and approval under 49 CFR 1180.2(d)(3). The Parties state that the transaction will not result in any adverse change in service levels or significant operational changes because ORP has not yet commenced operations over the Omal Line. Nor will the merger of ORP with and into ORPS result in any change in
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 Sections 11324 and 11325 that involve only Class III rail carriers. The exemption here was filed by ORP and ORPS. Only Class III carriers are involved. Accordingly, labor protective conditions will not be imposed.
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 exemption. Petitions for stay must be filed no later than November 8, 2017 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36152, 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 Terrence M. Hynes, Sidley Austin LLP, 1501 K Street NW., Washington, DC 20005.
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, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Union Pacific Railroad Company (UP) has filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will become effective on December 1, 2017, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to UP's representative: Jeremy M. Berman, General Attorney, 1400 Douglas Street, Stop 1580, Omaha, NE 68179.
If the verified notice contains false or misleading information, the exemption is void ab initio.
UP has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by November 6, 2017. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or interim trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), UP shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by UP's filing of a notice of consummation by November 1, 2018, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by January 2, 2018.
You may submit comments identified by DOT Docket ID 2017-0046 by any of the following methods:
Carolyn Winbourn-James, 202-493-0353, Department of Transportation, Federal Highway Administration, Office of Real Estate Services, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
Similarly, FHWA established the Excellence in Right-of-Way Awards Program to honor the use of innovative practices and outstanding achievements associated with highway improvement projects as it relates to the Right-of-Way program. The goal of the program is to showcase exemplary and innovative projects, programs, initiatives, and practices that successfully integrate the consideration of the Right-of-Way program along with the association of the acquisition of land required to construct transportation facilities.
Award
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that FHWA will submit the collection of information described below to the Office of Management and Budget (OMB) for review and comment. The
Please submit comments by December 1, 2017.
You may submit comments identified by DOT Docket ID 2017-0045 by any of the following methods:
Rochelle Zellars-Crawford, (202) 366-2862, Office of the Chief Financial
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Maritime Administration, Department of Transportation.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Request (ICR) abstracted below is being forwarded to the Office of Management and Budget (OMB) for review and comments. A
Comments must be submitted on or before December 1, 2017.
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW., Washington, DC 20503.
Quinton Ellis, Telephone: 202-366-5906; Office of Security, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W25-305, Washington, DC 20590.
By Order of the Maritime Administrator.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), 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 information collections, as required by the Paperwork Reduction Act of 1995. The
Written comments should be received on or before January 2, 2018 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, at (202) 317-5753 or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning the requirements relating to the information reporting by applicable large employers on health insurance coverage offered under employer-sponsored plans.
Written comments should be received on or before January 2, 2018 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Tuawana Pinkston, at (202) 317-6038 or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice: An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Under the authority granted to me as Acting Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Directive 15, pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
Alternate—Joseph Spires, Deputy Division Counsel (Small Business & Self Employed)
This publication is required by 5 U.S.C. 4314(c)(4).
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. The public is invited to submit comments on these requests.
Comments should be received on or before December 1, 2017 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, 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 from Jennifer Leonard by emailing
44 U.S.C. 3501
Under the authority granted to me as Acting Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Directive 15, pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
Alternate—Doug W. O'Donnell, Commissioner (Large Business & International), IRS
This publication is required by 5 U.S.C. 4314(c)(4).
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that a meeting of the Advisory Committee on Homeless Veterans will be held on December 1, 2017. On December 1, the Committee will meet via conference call at 1-800-767-1750; Access Code: 53308# from 2:00 p.m.-5:00 p.m. (EST). The meeting will be open to the public.
The purpose of the Committee is to provide the Secretary of Veterans Affairs with an on-going assessment of the effectiveness of the policies, organizational structures, and services of VA in assisting Veterans at-risk and experiencing homelessness. The Committee shall assemble and review information related to the needs of homeless Veterans and provide advice on the most appropriate means of providing assistance to that subset of the Veteran population. The Committee will make recommendations to the Secretary regarding such activities.
The agenda will include briefings from officials at VA regarding services for homeless Veterans and a discussion regarding VA budgetary support to homeless programs.
No time will be allocated at this meeting for receiving oral presentations from the public. Interested parties should provide written comments on issues affecting homeless Veterans for review by the Committee to Mr. Anthony Love, Designated Federal Officer, VHA Homeless Programs Office (10NC1), Department of Veterans Affairs, 811 Vermont Ave. NW., Washington, DC 20571 or via email at
Members of the public who wish to attend may call-in, using the following number: 1-800-767-1750; Access Code: 53308#. Attendees who require reasonable accommodation should contact Charles Selby and Alexandra Logsdon of the Veterans Health Administration, Homeless Programs Office no later than November 17, 2017, at
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This rule updates and makes revisions to the end-stage renal disease (ESRD) prospective payment system (PPS) for calendar year (CY) 2018. It also updates the payment rate for renal dialysis services furnished by an ESRD facility to individuals with acute kidney injury (AKI). This rule also sets forth requirements for the ESRD Quality Incentive Program (QIP), including for payment years (PYs) 2019 through 2021.
These regulations are effective January 1, 2018.
Delia Houseal, (410) 786-2724, for issues related to the ESRD QIP.
Joel Andress, (410) 786-5237, for measure related issues with ESRD QIP.
This
In the past, a majority of the Addenda referred to throughout the preamble of our proposed and final rules were available in the
To assist readers in referencing sections contained in this preamble, we are providing a Table of Contents. Some of the issues discussed in this preamble affect the payment policies, but do not require changes to the regulations in the Code of Federal Regulations (CFR).
Because of the many terms to which we refer by acronym in this final rule, we are listing the acronyms used and their corresponding meanings in alphabetical order below:
On January 1, 2011, we implemented the end-stage renal disease (ESRD) prospective payment system (PPS), a case-mix adjusted, bundled prospective payment system for renal dialysis services furnished by ESRD facilities. This rule updates and makes revisions to the ESRD PPS for calendar year (CY) 2018. Section 1881(b)(14) of the Social Security Act (the Act), as added by section 153(b) of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) (Pub. L. 110-275), and section 1881(b)(14)(F) of the Act, as added by section 153(b) of MIPPA and amended by section 3401(h) of the Patient Protection and Affordable Care Act (the Affordable Care Act) (Pub. L. 111-148), established that beginning CY 2012, and each subsequent year, the Secretary of the Department of Health and Human Services (the Secretary) shall annually increase payment amounts by an ESRD market basket increase factor, reduced by the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act.
On June 29, 2015, the President signed the Trade Preferences Extension Act of 2015 (TPEA) (Pub. L. 114-27). Section 808(a) of TPEA amended section 1861(s)(2)(F) of the Act to provide coverage for renal dialysis services furnished on or after January 1,
This rule also finalizes requirements for the end-stage renal disease (ESRD) quality incentive program (QIP), including for payment years (PYs) 2019, 2020, and 2021. The program is authorized under section 1881(h) of the Social Security Act (the Act). The ESRD QIP is the most recent step in fostering improved patient outcomes by establishing incentives for dialysis facilities to meet or exceed performance standards established by the Centers for Medicare & Medicaid Services (CMS).
•
•
•
•
We are updating the AKI payment rate for CY 2018. The final CY 2018 payment rate is $232.37, which is equal to the CY 2018 ESRD PPS base rate.
This rule sets forth requirements for the ESRD QIP, for payment years (PYs) 2019, 2020 and 2021 as follows:
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•
•
•
For PY 2020, we are also continuing the National Healthcare Safety Network (NHSN) Bloodstream Infection (BSI) Data Validation study that we finalized in the CY 2017 ESRD PPS final rule (81 FR 77894 through 77896), with a minor update to the sampling methodology. Under the updated sampling methodology, we will incorporate a targeted sample to select 35 facilities to participate in an NHSN dialysis event validation study for two quarters of data reported in CY 2018.
In section VII of this final rule, we set forth a detailed analysis of the impacts of the finalized changes for affected entities and beneficiaries. The impacts include the following:
The impact chart in section VII of this final rule displays the estimated change in payments to ESRD facilities in CY 2018 compared to estimated payments in CY 2017. The overall impact of the CY 2018 changes is projected to be a 0.5 percent increase in payments. Hospital-based ESRD facilities have an estimated 0.7 percent increase in payments compared with freestanding facilities with an estimated 0.5 percent increase.
We estimate that the aggregate ESRD PPS expenditures will increase by approximately $60 million from CY 2017 to CY 2018. This reflects a $40 million increase from the payment rate update and a $20 million increase due to the updates to the outlier threshold amounts. We note that the decrease in the projection of aggregate ESRD PPS
We anticipate an estimated $20 million will be paid to ESRD facilities in CY 2018 as a result of AKI patients receiving renal dialysis services in the ESRD facility at the ESRD PPS base rate versus receiving those services in the hospital outpatient setting. In the CY 2018 ESRD PPS proposed rule, we estimated $2 million would be paid to ESRD facilities in CY 2018 for AKI patients. Based on actual preliminary ESRD facility claims data available after publication of the CY 2018 ESRD PPS proposed rule, we have updated this estimate for the final rule.
The impact chart in section VII of this final rule displays estimated impacts of the ESRD QIP for payment year (PY) 2021. The overall impact is an expected reduction in payment to all facilities of $29 million. The PY 2021 estimated total facility burden for the collection of data is $91 million, which represents a zero net increase from PY 2020.
On January 1, 2011, we implemented the end-stage renal disease (ESRD) prospective payment system (PPS), a case-mix adjusted bundled PPS for renal dialysis services furnished by ESRD facilities as required by section 1881(b)(14) of the Social Security Act (the Act), as added by section 153(b) of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) (Pub. L. 110-275). Section 1881(b)(14)(F) of the Act, as added by section 153(b) of MIPPA and amended by section 3401(h) of the Patient Protection and Affordable Care Act (the Affordable Care Act) (Pub. L. 111-148), established that beginning with calendar year (CY) 2012, and each subsequent year, the Secretary of the Department of Health and Human Services (the Secretary) shall annually increase payment amounts by an ESRD market basket increase factor, reduced by the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act.
Section 632 of the American Taxpayer Relief Act of 2012 (ATRA) (Pub. L. 112-240) included several provisions that apply to the ESRD PPS. Section 632(a) of ATRA added section 1881(b)(14)(I) to the Act, which required the Secretary, by comparing per patient utilization data from 2007 with such data from 2012, to reduce the single payment for renal dialysis services furnished on or after January 1, 2014 to reflect the Secretary's estimate of the change in the utilization of ESRD-related drugs and biologicals (excluding oral-only ESRD-related drugs). Consistent with this requirement, we finalized $29.93 as the total drug utilization reduction and finalized a policy to implement the amount over a 3- to 4-year transition period in the CY 2014 ESRD PPS final rule (78 FR 72161 through 72170).
Section 632(b) of ATRA prohibited the Secretary from paying for oral-only ESRD-related drugs and biologicals under the ESRD PPS prior to January 1, 2016. And section 632(c) of ATRA required the Secretary, by no later than January 1, 2016, to analyze the case-mix payment adjustments under section 1881(b)(14)(D)(i) of the Act and make appropriate revisions to those adjustments.
On April 1, 2014, the Protecting Access to Medicare Act of 2014 (PAMA) (Pub. L. 113-93) was enacted. Section 217 of PAMA included several provisions that apply to the ESRD PPS. Specifically, sections 217(b)(1) and (2) of PAMA amended sections 1881(b)(14)(F) and (I) of the Act and replaced the drug utilization adjustment that was finalized in the CY 2014 ESRD PPS final rule (78 FR 72161 through 72170) with specific provisions that dictated the market basket update for CY 2015 (0.0 percent) and how the market basket should be reduced in CYs 2016 through CY 2018.
Section 217(a)(1) of PAMA amended section 632(b)(1) of ATRA to provide that the Secretary may not pay for oral-only ESRD-related drugs under the ESRD PPS prior to January 1, 2024. Section 217(a)(2) of PAMA further amended section 632(b)(1) of ATRA by requiring that in establishing payment for oral-only drugs under the ESRD PPS, the Secretary must use data from the most recent year available. Section 217(c) of PAMA provided that as part of the CY 2016 ESRD PPS rulemaking, the Secretary shall establish a process for (1) determining when a product is no longer an oral-only drug; and (2) including new injectable and intravenous products into the ESRD PPS bundled payment.
Finally, on December 19, 2014, the President signed the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014 (ABLE) (Pub. L. 113-295). Section 204 of ABLE amended section 632(b)(1) of ATRA, as amended by section 217(a)(1) of PAMA, to provide that payment for oral-only renal dialysis services cannot be made under the ESRD PPS bundled payment prior to January 1, 2025.
Under the ESRD PPS, a single, per-treatment payment is made to an ESRD facility for all of the renal dialysis services defined in section 1881(b)(14)(B) of the Act and furnished to individuals for the treatment of ESRD in the ESRD facility or in a patient's home. We have codified our definitions of renal dialysis services at 42 CFR 413.171, which is in subpart H of 42 CFR part 413. Our other payment policies are also included in regulations in subpart H of 42 CFR part 413. The ESRD PPS base rate is adjusted for characteristics of both adult and pediatric patients and accounts for patient case-mix variability. The ESRD PPS provides for the following adult and pediatric patient-level adjustments: The adult patient-level adjusters include five age categories, body surface area, low body mass index, onset of dialysis, and four co-morbidity categories; while the pediatric patient-level adjusters include two age categories and two dialysis modalities (§§ 413.235(a) and (b)).
The ESRD PPS provides for three facility-level adjustments. The first payment adjustment accounts for ESRD facilities furnishing a low volume of dialysis treatments (§ 413.232). The second adjustment reflects differences in area wage levels developed from Core Based Statistical Areas (CBSAs) (§ 413.231). The third payment adjustment accounts for ESRD facilities furnishing renal dialysis services in a rural area (§ 413.233).
The ESRD PPS allows for a training add-on for home and self-dialysis modalities (§ 413.235(c)) and an additional payment for high cost outliers due to unusual variations in the type or amount of medically necessary care when applicable (§ 413.237).
The ESRD PPS also provides for a transitional drug add-on payment adjustment (TDAPA) to pay for a new injectable or intravenous product that is not considered included in the ESRD PPS base rate, meaning a product that is used to treat or manage a condition for
Policy changes to the ESRD PPS are proposed and finalized annually in the
On November 4, 2016, we published in the
The proposed rule, entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, and End-Stage Renal Disease Quality Incentive Program” (82 FR 31190 through 31233), hereinafter referred to as the CY 2018 ESRD PPS proposed rule, was published in the
In this final rule, we provide a summary of each proposed provision, a summary of the public comments received and our responses to them, and the policies we are finalizing for the CY 2018 ESRD PPS.
Our regulations at 42 CFR 413.237 specify the methodology used to calculate outlier payments. Under the ESRD PPS outlier policy, an ESRD facility is eligible for an outlier payment when the facility's per treatment imputed Medicare Allowable Payment (MAP) amount for ESRD outlier services furnished to a beneficiary exceeds the predicted ESRD outlier services MAP amount for outlier services plus the fixed-dollar loss (FDL) amount, as specified in § 413.237(b). In the CY 2011 ESRD PPS final rule (75 FR 49134 through 49147), we discussed the details of establishing the outlier policy under the ESRD PPS, including determining eligibility for outlier payments. We discussed the proposed CY 2018 updates to the outlier policy in the CY 2018 ESRD PPS proposed rule (82 FR 31198 through 31200).
Under § 413.237(a)(1), ESRD outlier services include (1) certain items and services included in the ESRD PPS bundle that were or would have been separately billable under Medicare Part B prior to the implementation of the ESRD PPS, including ESRD-related drugs and biologicals, ESRD-related laboratory tests, and other ESRD-related medical/surgical supplies; and (2) certain renal dialysis service drugs included in the ESRD PPS bundle that were covered under Medicare Part D prior to the implementation of the ESRD PPS. For the Centers for Medicare & Medicaid Services (CMS) to calculate outlier eligibility and payments, ESRD facilities must identify on the monthly claim which outlier services have been furnished. CMS provides a list of outlier services on the CMS Web site,
It is important for ESRD facilities to report the outlier services on the claim because imputed outlier service MAP amounts for a beneficiary are based on the actual utilization of outlier services. Specifically, we estimate an ESRD facility's imputed costs for ESRD outlier services based on available pricing data. In the CY 2011 ESRD PPS final rule we finalized the pricing data that we use to estimate imputed outlier services MAP amounts for the different categories of outlier services (75 FR 49141). With regard to Part B ESRD-related drugs and biologicals that were separately billable prior to implementation of the ESRD PPS, we finalized a policy to base the prices for these items on the most current average sales price (ASP) data plus 6 percent. Our rationale for this decision was that ASP data for ESRD-related drugs and biologicals is updated quarterly and was the basis for payment of these drugs and biologicals prior to the implementation of the ESRD PPS.
Since the implementation of the ESRD PPS, we have referred to the use of the ASP methodology when we needed to price ESRD-related drugs and biologicals previously paid separately under Part B (prior to the ESRD PPS) for purposes of ESRD PPS policies or calculations. For example, in the CY 2011 ESRD PPS final rule, we finalized the use of the ASP plus 6 percent methodology for pricing Part B ESRD-related drugs and biologicals under the
In the CY 2013 ESRD PPS final rule (77 FR 67463), we finalized that for CY 2013 and subsequent years we would continue to use the ASP methodology, including any modifications finalized in the Physician Fee Schedule final rules, to compute outlier MAP amounts. (We referred to the Physician Fee Schedule since this is typically the rulemaking vehicle CMS uses for provisions related to covered Part B drugs and biologicals, however, we note that other vehicles such as standalone rules or the outpatient prospective payment system rules, are used as well.) In the CY 2013 ESRD PPS final rule, we also finalized the use of the ASP methodology for any other policy that requires the use of payment amounts for drugs and biologicals that, absent the ESRD PPS, would be paid separately.
In accordance with this policy, in the CY 2016 ESRD PPS proposed rule (80 FR 37829 through 37833), we proposed to use ASP methodology for purposes of two policies (pricing new injectable and intravenous products included in the ESRD PPS bundled payment amount for outlier payments and determining the TDAPA under the ESRD PPS drug designation process. A detailed discussion of our proposals can be found in the CY 2016 ESRD PPS proposed rule (80 FR 37831 through 37833).
As we discussed in the CY 2016 ESRD PPS final rule (80 FR 69023 through 69024), commenters expressed concern regarding the availability of ASP data when including new injectable or intravenous products into the ESRD PPS bundled payment, for purposes of both the outlier calculation and TDAPA. A commenter pointed out that under the proposal, new products would qualify as outlier services, and if we fail to allow separate payment at launch, there would be no ASP upon which to base an outlier payment. That commenter recommended that we consider how to avoid jeopardizing beneficiary access by implementing an outlier payment based on wholesale acquisition cost (WAC) or another readily available price. We agreed with the commenter, and stated that in the event we do not establish an ASP, WAC could be used. We explained that we consider WAC pricing to be a part of the pricing methodologies specified in section 1847A of the Act, and we would use the methodologies available to us under that authority in order to accurately determine a price for the calculation of outlier payments for new injectable and intravenous drugs that fit into one of the existing ESRD PPS functional categories. However, we did not address extending this policy to Part B ESRD-related drugs and biologicals that are currently eligible for outlier consideration that may not have ASP data.
Also, in the CY 2016 ESRD PPS final rule (80 FR 69024), other commenters expressed concern regarding the use of ASP data for purposes of the TDAPA. The commenters suggested that ASP would not be truly reflective of the actual cost of the drugs. One commenter pointed out that there is often a data lag between ASP and the actual cost of the drugs and as a result, the TDAPA may not reflect the actual cost of the drug. We responded that the ASP methodology is a part of the pricing methodologies specified in section 1847A of the Act, which may also include WAC pricing during the first quarter of sales as specified in section 1847A(c)(4) of the Act. We agreed with commenters that ASP pricing may not always be the most appropriate way to calculate the TDAPA. Therefore, we revised the regulation text at § 413.234(c)(1) to refer to the pricing methodologies under section 1847A of the Act, rather than ASP pricing methodology, because these methodologies include ASP as well as WAC.
Medicare Part B follows the provisions under section 1847A of the Act for purposes of determining the payment amounts for drugs and biologicals that are described in section 1842(o)(1)(C) of the Act and that are furnished on or after January 1, 2005. While most Part B drugs (excluding those paid on a cost or prospective payment basis) are paid at ASP plus 6 percent, there are cases where ASP is unavailable. For example, when a new drug or biological is brought to market, sales data is not sufficiently available for the manufacturer to compute an ASP. In these cases, the payment amount for these drugs could be determined using WAC (as specified in section 1847A(c)(4) of the Act) or, when WAC is not available, the Medicare Administrative Contractor has discretion in determining the payment amount. Under section 1847A(d) of the Act, CMS also has the authority to substitute an Average Manufacturer Price (AMP) or Widely Available Market Price (WAMP)-based payment amount for the ASP-based payment amount when the ASP exceeds the AMP or WAMP by a threshold amount. As discussed in the CY 2013 Physician Fee Schedule final rule (77 FR 69140 through 69141), published in the
For newly approved drugs, ASP-based payment limits typically become effective two quarters after the drug's first quarter of sales (a discussion about the use of partial quarter ASP data is available in the CY 2012 Physician Fee Schedule final rule, 75 FR 73465). We note that if WAC-based partial quarter payment amounts are used, such payment amounts will typically exceed payments based on ASP. Thus, there may be circumstances where WAC-based partial quarter pricing of the drug increases the beneficiary's cost sharing payment. In order to minimize financial impact on beneficiaries, in situations where less than a quarter's worth of ASP data is available, an ASP-based payment limit will be used, if it is available.
As we have described above, section 1847A of the Act provides methods that are used to determine payment amounts for most separately paid Part B drugs, that is, drugs and biologicals that are not paid on a cost or PPS basis (see section 1842(o)(1) of the Act). We are aware of several circumstances in which an ASP-based payment amount is not available. For example, an ASP-based payment amount is not available when drugs or biologicals are new to market and manufacturers have not yet reported ASP data. Based on CMS' experience with determining Part B drug payment limits under section 1847A of the Act, we believe the instances are limited when ASP data would not be available for drugs or biologicals that could qualify for the ESRD outlier calculation. Nevertheless, we believe that these drugs and biologicals, when they are determined to be an ESRD outlier service, should count toward the outlier calculation, regardless of the limited frequency.
In the CY 2018 ESRD PPS proposed rule, we proposed to extend the use of all pricing methodologies under section 1847A of the Act for purposes of the ESRD PPS outlier policy, specifically for
We explained in the CY 2018 ESRD PPS proposed rule that we believe using the pricing methodologies under section 1847A of the Act is consistent with the ESRD PPS drug designation process, including TDAPA, and how covered drugs and biologicals are paid under Medicare Part B. We stated that we believe consistency with Medicare Part B payment for drugs and biologicals would be beneficial to ESRD facilities because this is the way CMS pays for injectable drugs and biologicals reported on the ESRD claim with the AY modifier; and therefore facilities would be able to predict outlier payments. Therefore, we proposed to apply any pricing methodology available under section 1847A of the Act as appropriate when ASP pricing is unavailable for eligible drugs and biologicals under the outlier policy that were or would have been separately billable under Part B prior to the implementation of the ESRD PPS.
We noted in the CY 2018 ESRD PPS proposed rule that, in situations in which ASP data is not available and other methodologies under section 1847A of the Act do not apply (including but not limited to AMP price substitution or carryover pricing), we believe that a WAC-based payment amount can be determined instead. Based on our experience with determining Part B drug payments under section 1847A of the Act, we stated, we believe that drugs and biologicals that are approved by the Food and Drug Administration and are being sold in the United States nearly always have WAC amounts published in pricing compendia. We noted that we believe this proposal is consistent with the intent of the ESRD PPS outlier policy, which is to provide a payment adjustment for high cost patients due to unusual variations in the type or amount of medically necessary care. If there are drugs and biologicals that ESRD facilities furnish for the treatment of ESRD that qualify as ESRD outlier services and do not have ASP data, we stated that we would want these items counted toward an outlier payment since they are a part of the cost the facility is incurring. When a drug or biological does not have ASP data or WAC data or cannot otherwise be priced under section 1847A of the Act, we proposed that it would not count toward the outlier calculation. When the utilization of a drug or biological is not counted toward the outlier calculation, it may result in a lower outlier payment or no outlier payment to the ESRD facility.
We solicited comment on our proposal to use any pricing methodology available under section 1847A of the Act for purposes of the ESRD PPS outlier policy. We also solicited comment on our proposal that when pricing methodologies are not available under section 1847A of the Act, the drug or biological would not count toward the outlier calculation.
The comments and our responses to the comments on our outlier proposals are set forth below.
Commenters noted that, historically, new drugs and biologicals used in the treatment of ESRD that come to market can be expensive and not having access to outlier payments may create an unintended barrier. While they believe that it is unlikely a new drug or biological will not have an ASP or WAC, they indicated that it is important to ensure that payment policies do not disincentivize the use of drugs and biologicals. Another commenter stated patients who require outlier drugs should not be denied the individualized care they need and deserve due to revisions to the pricing methodology.
Another commenter recommended pricing the drug or biological by the hospital's cost-to-charge ratio for Cost Center 7300, Drugs Charged to Patients, for hospital-based ESRD facilities or the hospital-specific Reasonable Cost Factor that is currently used for payment of vaccines and blood products on ESRD claims from hospital-based facilities. Since this Reasonable Cost Factor is already used in the ESRD PPS, the commenter stated that applying it to this category of drugs and biologicals should be relatively easy administratively. The commenter indicated that adding an additional last resort pricing method would allow for hospital-based ESRD facilities to receive outlier payments or payments for non-ESRD related services (meaning, we believe, separately billable items and services reported with the AY modifier) that reflect the costs of drugs or biologicals for which no other pricing method is possible.
As we stated in the CY 2018 ESRD PPS proposed rule (82 FR 31196), we believe that using the pricing
Upon further review and discussion, while we believe the ASP and WAC pricing methodologies under section 1847A of the Act are sufficient to price most eligible drugs and biologicals for the purposes of outlier payment, we note that Medicare Administrative Contractors are authorized to use invoice pricing in scenarios in which neither ASP nor WAC data is available. This is consistent with chapter 17, section 20.1.3 of the Medicare Claims Processing Manual, which directs the Medicare Administrative Contractors to develop payment allowance limits for covered drugs and biologicals that are not included in the ASP Medicare Part B Drug Pricing File or Not Otherwise Classified Pricing File based on the published WAC or invoice pricing. Invoice pricing is not as robust a measure of actual sales price as ASP, but it is nearly universally available. Therefore, as we now believe the pricing methodologies under section 1847A of the Act and related guidance are sufficiently comprehensive, we are not finalizing the proposal to not count certain drugs and biologicals toward the outlier calculation when pricing methodologies are not available under section 1847A of the Act.
We intend to analyze the utilization of drugs and biologicals and how they are priced on a consistent basis to monitor the use of those methodologies described in section 1847A of the Act.
With regard to the comment that we provide an analysis of the impact of this proposal, currently we are aware of only 2 drugs with low utilization that were unable to be priced using ASP for outlier purposes. Those particular drugs had WAC prices and thus could be priced using the pricing methods under section 1847A of the Act; therefore, we believe the impact is negligible.
MedPAC referred to its June 2017 report to the Congress, entitled “Medicare and the Health Care Delivery System,” which raised concerns about the accuracy of WAC data. MedPAC stated that unlike an ASP, a product's WAC does not incorporate prompt-pay or other discounts. If discounts are available, then a product's WAC price would be greater than it otherwise would be under the ASP-based formula. Consequently, MedPAC noted that using WAC data to determine payments under the outlier policy could result in higher spending for beneficiaries and taxpayers.
MedPAC further commented that, to reduce the need to use less accurate prices, such as WAC, and to improve the accuracy of ASP data, it recommended in the June 2017 report that Congress improve ASP data reporting by requiring all manufacturers of Part B drugs and biologics to report ASP and impose civil monetary penalties for failure to report. As noted by MedPAC, under current policy, not all manufacturers of Part B drugs are required to submit their ASP data. Section 1927(b)(3) of the Act requires only manufacturers with Medicaid drug rebate agreements in place to report their sales data to calculate ASP for each of their Part B drugs.
In accordance with section 1881(b)(14)(F)(i) of the Act, as added by section 153(b) of MIPPA and amended by section 3401(h) of the Affordable Care Act, beginning in 2012, the ESRD PPS payment amounts are required to be annually increased by an ESRD market basket increase factor and reduced by the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act. The application of the productivity adjustment may result in the increase factor being less than 0.0 for a year and may result in payment rates for a year being less than the payment rates for the preceding year. The statute also provides that the market basket increase factor should reflect the changes over time in the prices of an appropriate mix of goods and services used to furnish renal dialysis services.
Section 1881(b)(14)(F)(i)(I) of the Act, as added by section 217(b)(2)(A) of PAMA, provides that in order to accomplish the purposes of subparagraph (I) with respect to 2016, 2017, and 2018, after determining the market basket percentage increase factor for each of 2016, 2017, and 2018, the Secretary shall reduce such increase factor by 1.25 percentage points for each of 2016 and 2017 and by 1.0 percentage point for 2018. Accordingly, for CY 2018, we proposed to reduce the amount of the market basket percentage increase by 1.0 percent and to further reduce it by the productivity adjustment.
We proposed to use the CY 2012-based ESRDB market basket as finalized and described in the CY 2015 ESRD PPS final rule (79 FR 66129 through 66136) to compute the CY 2018 ESRDB market basket increase factor and labor-related share based on the best available data. Consistent with historical practice, we estimate the ESRDB market basket update based on the IHS Global Inc. (IGI) forecast using the most recently available data. IGI is a nationally recognized economic and financial forecasting firm that contracts with CMS to forecast the components of the market baskets.
As a result of these provisions, and using the IGI forecast for the first quarter of 2017 of the CY 2012-based ESRDB market basket (with historical data through the 4th quarter of 2016), the proposed CY 2018 ESRD market basket increase was 0.7 percent. This market basket increase was calculated by starting with the proposed CY 2018 ESRDB market basket percentage increase factor of 2.2 percent, reducing it by the mandated legislative adjustment of 1.0 percent (required by section 1881(b)(14)(F)(I)(i) of the Act), and reducing it further by the multifactor productivity (MFP) adjustment (the 10-year moving average of MFP for the period ending CY 2018) of 0.5 percent. As is our general practice, we proposed that if more recent data are subsequently available (for example, a more recent estimate of the market basket or MFP adjustment), we will use such data to determine the CY 2018 market basket update and MFP adjustment in the CY 2018 ESRD PPS final rule.
The IGI 3rd quarter 2017 forecast of the CY 2018 ESRDB market basket update is 1.9 percent. The decrease from the 1st quarter 2017 forecast (2.2 percent) to the 3rd quarter 2017 forecast (1.9 percent) is mostly attributable to a decrease in the projected growth of the series “Producer Price Index: Commodity Data—Biological products excluding diagnostic, for human use.” This series is used as the price proxy to estimate the “erythropoiesis-stimulating agent (ESAs)” cost category. The IGI 3rd quarter 2017 forecast of the MFP adjustment is 0.6 percent. The increase from the 1st quarter 2017 MFP forecast (0.5 percent) to the 3rd quarter 2017 MFP forecast (0.6) is mainly attributable to the incorporation of upward revisions of historical data by the Bureau of Labor Statistics (BLS), as well as slower projected labor input growth and capital input growth. Slower growth in labor and capital inputs result in a faster growth in topline MFP since MFP is measured as the change in outputs divided by the change in inputs.
For the CY 2018 ESRD payment update, we proposed to continue using a labor-related share of 50.673 percent for the ESRD PPS payment, which was finalized in the CY 2015 ESRD PPS final rule (79 FR 66136).
We did not receive any comments on the proposed CY 2018 market basket update, MFP adjustment, or labor-related share.
Section 1881(b)(14)(D)(iv)(II) of the Act provides that the ESRD PPS may include a geographic wage index payment adjustment, such as the index referred to in section 1881(b)(12)(D) of the Act, as the Secretary determines to be appropriate. In the CY 2011 ESRD PPS final rule (75 FR 49117), we finalized the use of the Office of Management and Budget's (OMB's) CBSAs-based geographic area designations to define urban and rural areas and their corresponding wage index values. OMB publishes bulletins regarding CBSA changes, including changes to CBSA numbers and titles. The latest bulletin, as well as subsequent bulletins, is available online at
For CY 2018, we stated that we would continue to use the same methodology as finalized in the CY 2011 ESRD PPS final rule (75 FR 49117) for determining the wage indices for ESRD facilities. Specifically, we are updating the wage indices for CY 2018 to account for updated wage levels in areas in which ESRD facilities are located. We use the most recent pre-floor, pre-reclassified hospital wage data collected annually under the inpatient prospective payment system. The ESRD PPS wage index values are calculated without regard to geographic reclassifications authorized under sections 1886(d)(8) and (d)(10) of the Act and utilize pre-floor hospital data that are unadjusted for occupational mix. The final CY 2018 wage index values for urban areas are listed in Addendum A (Wage Indices for Urban Areas) and the final CY 2018 wage index values for rural areas are listed in Addendum B (Wage Indices for Rural Areas). Addenda A and B are located on the CMS Web site at
In the CY 2011 and CY 2012 ESRD PPS final rules (75 FR 49116 through 49117 and 76 FR 70239 through 70241, respectively), we also discussed and finalized the methodologies we use to calculate wage index values for ESRD facilities that are located in urban and rural areas where there is no hospital data. For urban areas with no hospital data, we compute the average wage index value of all urban areas within the State and use that value as the wage index. For rural areas with no hospital data, we compute the wage index using the average wage index values from all contiguous CBSAs to represent a reasonable proxy for that rural area.
We apply the wage index for Guam (0.9611) to American Samoa and the Northern Mariana Islands as established in the CY 2014 ESRD PPS final rule (78 FR 72172). We apply the statewide urban average based on the average of all urban areas within the state (78 FR 72173) (0.8472) to Hinesville-Fort Stewart, Georgia. We note that if hospital data becomes available for these areas, we will use that data for the appropriate CBSAs instead of the proxy.
A wage index floor value has been used instead of the calculated wage index values below the floor in making payment for renal dialysis services under the ESRD PPS. Currently, all areas with wage index values that fall below the floor are located in Puerto Rico. However, the wage index floor value is applicable for any area that may fall below the floor. A detailed description of the history of the wage index floor under the ESRD PPS can be found in the CY 2018 ESRD PPS proposed rule (82 FR 31198).
In the proposed rule, for CY 2018 and subsequent years, we proposed to maintain the current wage index floor of 0.4000 for CBSAs that have wage index values that fall below the floor. We stated that the cost report analyses that we have conducted over the years are inconclusive and have not convinced us that an increase in the wage index floor is warranted at this time. We explained that we continued to believe maintaining the current wage index
The comments and our responses to the comments on our wage index proposals are set forth below.
Commenters indicated that the primary issue is that Puerto Rico hospitals report comparatively lower wages that are not adjusted for occupational mix and, as CMS indicates in the CY 2017 ESRD PPS proposed rule (81 FR 42817), in Puerto Rico, only registered nurses (RNs) can provide dialysis therapy in the outpatient setting. This staffing variable artificially lowers the reportable index values even though the actual costs of dialysis service wages in Puerto Rico are much higher than the data CMS is relying upon. In addition, several commenters stated that non-labor costs, including utilities and shipping costs and the CY 2015 change in the labor-share based on the rebased and revised ESRDB market basket compound the issue even further. One organization stated that it does not believe maintaining the current wage index for Puerto Rico for CY 2018 is enough to offset the poor economic conditions, high operational costs and epidemiologic burden of ESRD on the island.
With regard to staffing in Puerto Rico facilities, we have learned that ESRD facilities there utilize RNs similarly to ESRD facilities on the mainland, that is, facilities utilize dialysis technicians and aides to provide dialysis services with oversight by an RN. In addition, hourly wages for RNs and dialysis support staff were approximately half of those salaries in mainland ESRD facilities. For these reasons, we do not agree that the hospital-reported data is unreliable, and we believe using that data is more appropriate than applying the wage index value for the Virgin Islands where salaries are considerably higher.
A facility's wage index is applied to the labor-related share of the ESRD PPS base rate. In the CY 2015 ESRD PPS final rule (79 FR 66136), we finalized the labor-related share of 50.673 percent, which is based on the 2012-based ESRDB market basket. Thus, for CY 2018, the labor-related share to which a facility's wage index would be applied is 50.673 percent.
Section 1881(b)(14)(D)(ii) of the Act requires that the ESRD PPS include a payment adjustment for high cost outliers due to unusual variations in the type or amount of medically necessary care, including variability in the amount of ESAs necessary for anemia management. Some examples of the patient conditions that may be reflective of higher facility costs when furnishing dialysis care would be frailty, obesity, and comorbidities such as cancer. The ESRD PPS recognizes high cost patients, and we have codified the outlier policy in our regulations at 42 CFR 413.237. The policy provides the following ESRD outlier items and services are included in the ESRD PPS bundle: (1) ESRD-related drugs and biologicals that were or would have been, prior to January 1, 2011, separately billable under Medicare Part B; (2) ESRD-related laboratory tests that were or would have been, prior to January 1, 2011, separately billable under Medicare Part B; (3) medical/surgical supplies, including syringes, used to administer ESRD-related drugs that were or would have been, prior to January 1, 2011, separately billable under Medicare Part B; and (4) renal dialysis services drugs that were or would have been, prior to January 1, 2011, covered under Medicare Part D, including ESRD related oral-only drugs effective January 1, 2025.
In the CY 2011 ESRD PPS final rule (75 FR 49142), we stated that for purposes of determining whether an ESRD facility would be eligible for an outlier payment, it would be necessary for the facility to identify the actual ESRD outlier services furnished to the patient by line item (that is, date of service) on the monthly claim. Renal dialysis drugs, laboratory tests, and medical/surgical supplies that are recognized as outlier services were originally specified in Attachment 3 of Change Request 7064, Transmittal 2033
Furthermore, we use administrative issuances and guidance to continually update the renal dialysis service items available for outlier payment via our quarterly update CMS Change Requests, when applicable. We use this separate guidance to identify renal dialysis service drugs that were or would have been covered under Medicare Part D for outlier eligibility purposes and in order to provide unit prices for calculating imputed outlier services. In addition, we identify through our monitoring efforts items and services that are either incorrectly being identified as eligible outlier services or any new items and services that may require an update to the list of renal dialysis items and services that qualify as outlier services, which are made through administrative issuances.
Our regulations at 42 CFR 413.237 specify the methodology used to calculate outlier payments. An ESRD facility is eligible for an outlier payment if its actual or imputed MAP amount per treatment for ESRD outlier services exceeds a threshold. The MAP amount represents the average incurred amount per treatment for services that were or would have been considered separately billable services prior to January 1, 2011. The threshold is equal to the ESRD facility's predicted ESRD outlier services MAP amount per treatment (which is case-mix adjusted) plus the FDL amount. In accordance with § 413.237(c) of our regulations, facilities are paid 80 percent of the per treatment amount by which the imputed MAP amount for outlier services (that is, the actual incurred amount) exceeds this threshold. ESRD facilities are eligible to receive outlier payments for treating both adult and pediatric dialysis patients.
In the CY 2011 ESRD PPS final rule, using 2007 data, we established the outlier percentage at 1.0 percent of total payments (75 FR 49142 through 49143). We also established the FDL amounts that are added to the predicted outlier services MAP amounts. The outlier services MAP amounts and FDL amounts are different for adult and pediatric patients due to differences in the utilization of separately billable services among adult and pediatric patients (75 FR 49140). As we explained in the CY 2011 ESRD PPS final rule (75 FR 49138 through 49139), the predicted outlier services MAP amounts for a patient are determined by multiplying the adjusted average outlier services MAP amount by the product of the patient-specific case-mix adjusters applicable using the outlier services payment multipliers developed from the regression analysis to compute the payment adjustments.
For the CY 2018 outlier policy, we used the existing methodology for determining outlier payments by applying outlier services payment multipliers that were developed for the CY 2016 ESRD PPS final rule (80 FR 68993 through 68994, 69002). We used these outlier services payment multipliers to calculate the predicted outlier service MAP amounts and projected outlier payments for CY 2018.
For CY 2018, we proposed that the outlier services MAP amounts and FDL amounts would be derived from claims data from CY 2016. As we stated in the CY 2018 ESRD PPS proposed rule, we believe that any adjustments made to the MAP amounts under the ESRD PPS should be based upon the most recent data year available in order to best predict any future outlier payments. Therefore, we proposed the outlier thresholds for CY 2018 would be based on utilization of renal dialysis items and services furnished under the ESRD PPS in CY 2016. We stated that we recognize that the utilization of ESAs and other outlier services have continued to decline under the ESRD PPS, and that we have lowered the MAP amounts and FDL amounts every year under the ESRD PPS.
In the CY 2017 ESRD PPS final rule (81 FR 77860), we stated that based on the CY 2015 claims data, outlier payments represented approximately 0.93 percent of total payments. In the CY 2018 ESRD PPS proposed rule (82 FR 31199), we discussed that the CY 2016 claims data show outlier payments represented approximately 0.78 percent of total payments. We explained that data indicates that trends in the utilization of the ESAs could be a reason for the decrease. Beginning in 2015 and continuing into 2016, there were large shifts in the composition of the utilization of ESA drugs. Specifically, utilization of Epoetin (EPO) alfa decreased and utilization of the longer-acting ESA drugs, darbepoetin and EPO beta, increased, based on estimates of average ESA utilization per session. As EPO alfa is measured in different units than both darbepoetin and EPO beta, it is difficult to compare the overall utilization of ESAs between 2014 and 2016 by units alone.
As we stated in the CY 2018 ESRD PPS proposed rule, in examining the claims data, we find that compositional shift away from use of EPO alfa to the longer acting darbepoetin and EPO beta was a significant factor in the decrease in total ESA costs in 2016. We first calculated the actual cost for ESAs administered during 2016. We then calculated the projected cost of ESAs that was used for the CY 2016 ESRD PPS final rule, using total utilization from 2014 and drug prices the from 3rd quarter 2015 inflated to 2016 prices. The actual costs of ESAs administered in 2016 were roughly 20 percent lower than the value projected in the CY 2016 ESRD PPS final rule. We then calculated the projected cost of ESAs assuming that the utilization of various ESAs per dialysis session in 2014 and 2016 were similar and also used the prices and total dialysis session count from 2016. The projected costs from these two scenarios were similar and suggest that compositional change in ESA utilization was likely a significant factor in the decrease in the total cost of ESAs between 2014 and 2016. We noted that we continue to believe that the decline is leveling off and that 1.0 percent is an appropriate threshold for outlier payments.
For CY 2018, we did not propose any changes to the methodology used to compute the MAP or FDL amounts. Rather, we proposed to update the outlier services MAP amounts and FDL amounts to reflect the utilization of outlier services reported on 2016 claims. For this final rule, the outlier services MAP amounts and FDL amounts were updated using the latest available 2016 claims data. The impact of this update is shown in Table 1, which compares the outlier services MAP amounts and FDL amounts used for the outlier policy in CY 2017 with the updated estimates for this rule. The estimates for the CY 2018 outlier policy, which are included in Column II of Table 1, were inflation-adjusted to reflect projected 2018 prices for outlier services.
As demonstrated in Table 1, the estimated FDL amount per treatment that determines the CY 2018 outlier threshold amount for adults (Column II; $77.54) is lower than that used for the CY 2017 outlier policy (Column I; $82.92). The lower threshold is accompanied by a decrease in the adjusted average MAP for outlier services from $45.00 to $42.41. For pediatric patients, there is a decrease in the FDL amount from $68.49 to $47.79. There is a slight decrease in the adjusted average MAP for outlier services among pediatric patients, from $38.29 to $37.31.
We estimate that the percentage of patient-months qualifying for outlier payments in CY 2018 will be 7.4 percent for adult patients and 9.0 percent for pediatric patients, based on the 2016 claims data. The pediatric outlier MAP amount continues to be lower for pediatric patients than adults due to the continued lower use of outlier services (primarily reflecting lower use of ESAs and other injectable drugs).
In the CY 2011 ESRD PPS final rule (75 FR 49081), under § 413.220(b)(4), we reduced the per treatment base rate by 1 percent to account for the proportion of the estimated total payments under the ESRD PPS that are outlier payments as described in § 413.237. Based on the 2016 claims, outlier payments represented approximately 0.78 percent of total payments, below the 1 percent target due to small overall declines in the use of outlier services. Recalibration of the thresholds using 2016 data is expected to result in aggregate outlier payments close to the 1 percent target in CY 2018. We believe the update to the outlier MAP and FDL amounts for CY 2018 will increase payments for ESRD beneficiaries requiring higher resource utilization and move us closer to meeting our 1 percent outlier policy. We note that recalibration of the FDL amounts in this final rule will result in no change in payments to ESRD facilities for beneficiaries with renal dialysis items and services that are not eligible for outlier payments, but will increase payments to ESRD facilities for beneficiaries with renal dialysis items and services that are eligible for outlier payments. Therefore, beneficiary coinsurance obligations will also increase for renal dialysis services eligible for outlier payments.
The comments and our responses to the comments on the proposal to update the outlier thresholds using CY 2016 data are set forth below:
In examining the claims data, we continue to find that the compositional shift away from use of EPO alfa to the longer acting darbepoetin and EPO beta was a significant factor in explaining why total ESA costs actually incurred in 2016 were lower than the total ESA costs projected for 2016 using 2014 data. We first calculated the actual cost for ESAs administered during 2014 and 2016. We found shifts in the composition of costs per dialysis session associated with each ESA that were proportional to changes in utilization per session. Specifically, estimates of average ESA cost of EPO alfa per dialysis session decreased from $32.50 in 2014 to $17.19 in 2016, and average cost per session of darbepoetin and EPO beta increased from $2.79 and $0.00 in 2014 to $8.53 and $5.08 in 2016, respectively. Total calculated costs of ESAs in 2014 and 2016 were $1.6 billion and $1.4 billion. We then
In order to understand the reason for this difference, we created a projected 2016 value using an alternative scenario. In this scenario, we calculated the projected cost of ESAs assuming that the utilization of various ESAs per dialysis session in 2016 was equivalent to that in 2014, but instead we used the prices and total dialysis session count from 2016. The projected costs from these two scenarios were similar and suggest that neither the difference in the projected (3rd quarter 2015 prices inflated to 2016) versus actual ESA prices for 2016 nor changes in the number of dialysis sessions between 2014 and 2016 explain the difference between the projected and actual cost of ESAs in 2016. Therefore, the residual factor indicates that compositional changes in ESA utilization were the most likely factor in the decrease in the total cost of ESAs between 2014 and 2016. We continue to believe that the decline is leveling off and that 1.0 percent is an appropriate target for outlier payments.
A patient advocacy organization expressed strong support for CMS having an outlier payment policy as the organization believes it is a helpful policy for ensuring that costlier patients receive the care they need. However, the organization recommended that CMS revisit the calculation and application of the outlier payment policy to ensure that total amount of payments withheld are paid back to facilities for patient care.
An organization representing non-profit facilities and a large dialysis organization urged CMS to reconsider the 1 percent outlier policy first implemented in 2011, stating that while an outlier adjustment is required under the statute, a 0.5 percent outlier target percentage would reduce the offset to the base payment and still provide for payment in the case of extraordinary costs.
A large dialysis organization stated that despite CMS's efforts to equalize payment made into and out of the outlier pool, limited progress toward that goal has been achieved. The commenter recommended that CMS should address this problem by paying out any remaining outlier pool dollars to providers in the subsequent year. A professional association agreed, expressing concern about the ongoing leakage of funds withheld, but not paid out as outlier payments. Although the professional association agreed the rationale provided for the anticipated increase in outlier payments may be accurate, it noted that in calculating these estimates, CMS is adjusting for input costs but not for changes in provider behavior, including a substantial shift to other ESAs that are similarly expensive. The commenter stated that in a fixed bundled payment environment, there is an incentive to continually find ways to reduce costly practices—an unaccounted-for factor that will likely contribute to the continued under-projection of outlier payouts.
The professional association offered two alternate paths to addressing the gap between outlier withholds and outlier payments for CMS' consideration: (1) Revise the withhold on an annual basis so that only the exact necessary amount is withheld to meet payouts (likely, retrospectively); or (2) reinvest the difference between actual outlier costs incurred and the funds withheld to support research and other patient-focused initiatives within CMS' scope, such as: Analyzing data to better understand aspects of dialysis care related to improved patient outcomes; developing a demonstration project or pilot focused on covering the cost of care for vascular access payment in the first 90 days prior to new ESRD patient eligibility; or supporting other initiatives to improve the value of ESRD care provided, in partnership with the kidney community.
In the CY 2011 ESRD PPS final rule (75 FR 49071 through 49083), we discussed the development of the ESRD PPS per treatment base rate that is codified in the Medicare regulations at 42 CFR 413.220 and 42 CFR 413.230. The CY 2011 ESRD PPS final rule also provides a detailed discussion of the methodology used to calculate the ESRD PPS base rate and the computation of factors used to adjust the ESRD PPS base rate for projected outlier payments and budget neutrality in accordance with sections 1881(b)(14)(D)(ii) and 1881(b)(14)(A)(ii) of the Act,
The ESRD PPS base rate for CY 2018 is $232.37. This update reflects several factors, described in more detail as follows:
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The comments and our responses to the comments on our proposals to update the payment rate for CY 2018 are set forth below.
We note that the payment methodology for calculating the ESRD PPS per-treatment amount is unique to ESRD services, and our determination regarding outpatient prescription drugs furnished and reimbursed under the TDAPA policy does not apply to ambulatory surgical center services, hospice services, skilled nursing facility Part A services, or any other services that are reimbursed by Medicare as part of a composite rate. We also note that our treatment of TDAPA drugs as part of the ESRD PPS “composite rate” is consistent with our treatment of EPO and other dialysis-related outpatient prescription drugs as excluded from the ESRD PPS “composite rate” prior to January 1, 2011. In our January 4, 2001 rulemaking interpreting section 1877 of the Act (Phase I), we defined “designated health services” to exclude services that are reimbursed by Medicare as part of a composite rate (66 FR 924). In contrast to drugs that are paid for using a TDAPA, at the time of our Phase I rulemaking, EPO and other dialysis-related outpatient drugs were not included in the methodology used to calculate the per-treatment payment amount; that is, for purposes of the physician self-referral law, they were not paid as part of the ESRD PPS “composite rate” and remained “designated health services.” Therefore, a physician owner of an ESRD facility that did not qualify as a “rural provider” (for purposes of the physician self-referral law) would have been precluded from ordering EPO and other dialysis-related outpatient prescription drugs for his or her Medicare patients and the ESRD facility would have been precluded from submitting claims to Medicare for the drugs ordered by the physician owner. Because of our belief that the Congress did not intend to preclude physician ownership of ESRD facilities when enacting section 1877 of the Act, we established a separate exception to the physician self-referral
An organization representing dialysis patients expressed appreciation that this year's ESRD PPS rulemaking extends a period of relative stability in Federal support for dialysis; however, that organization and a large dialysis organization indicated that the success of the ESRD PPS depends, by design, on cross subsidization from private coverage and that any action that constrains private coverage for ESRD patients will exacerbate policies that have resulted in consistent ESRD PPS underpayments and destabilize the nation's care delivery system for all ESRD patients. Given CMS's role in overseeing the ESRD PPS and the Health Insurance Marketplaces, they urged CMS to work to preserve the long-standing public-private ESRD partnership and work with the kidney care community to address policies that have resulted in chronic underpayments through the ESRD PPS.
A professional association noted MedPAC's previous findings that the margins in Medicare dialysis care are extremely thin or negative and asked CMS to bear in mind, to the extent possible, when determining the overall base rate that many aspects of care that dialysis facilities provide are not covered by the elements used to calculate the base rate. The professional association stated that this means that any new unfunded mandates (for example, requirements to use pre-filled syringes and follow more time-consuming disinfection processes) must be offset elsewhere in the context of the fixed payment environment. While these new mandates could have patient benefits, they also may come at the expense of other activities that also have patient benefits. The professional association urged CMS to move cautiously and transparently in implementing such new policies, both to promote community understanding and buy-in and to avoid the unintended consequence of effectively mandating new actions that might adversely impact care elsewhere. The professional association stated that any new requirements selected must provide the greatest value to patients in the context of a fixed, bundled payment environment.
We received many comments from beneficiaries, physicians, professional organizations, renal organizations, and manufacturers related to issues that were not specifically addressed in the CY 2018 ESRD PPS proposed rule. These comments are discussed below.
Therefore, they requested that CMS revise the instructions in the Medicare Claims Processing Manual to align with the policy finalized in previous rulemaking that eliminates the limitation on medical director fees. They also requested that we clarify that detailed physician logs not be required, consistent with the elimination of the limitation and the requirements (such as providing an invoice) applied to other health care providers and suppliers with regard to establishing medical director fees.
A dialysis organization requested more information related to items included in the ESRD PPS bundle and requested that CMS create separate lists of what they can include on Medicare claims, which items and services are subject to consolidated billing and whether or not they can bill for these items and services, as well as what is not included in the bundle.
There were several comments regarding timing, including comments expressing that implementation on January 1, 2018 took CMS too long and other comments indicating that this is a complex change for ESRD facilities and they will need time after CMS issues guidance to incorporate that guidance into their billing systems and care planning. In addition, commenters urged us to coordinate with Medicare Advantage as well as Part D to ensure
An organization of small and independent dialysis facilities agreed, stating that standardized cost reports can improve payment accuracy in the ESRD PPS and thus the organization seeks to partner with CMS to develop standardized cost reports and reporting guidance for ESRD facilities. The organization indicated that the current reporting structure lacks the detail necessary to assist providers in proper cost allocation, and leads to significant inconsistency in cost reporting.
In addition, a patient advocacy organization noted that CMS previously stated that it would review cost reports to better understand the costs of home dialysis training. The organization inquired about CMS's progress towards this goal.
The commenters stated that they have recommended several steps that CMS should take to address shortcomings with the case-mix adjusters' validity and accuracy. Until those steps are taken, the organizations asserted that CMS should not apply the case-mix adjustments and restore the dollars historically removed from the base rate to reflect the frequency and size of the revised adjusters. They also recommended that CMS have an independent, third-party perform a peer review of the research methodology employed within the ESRD PPS and asked that CMS consider the comments regarding methodology submitted by the public and provide substantive responses on the record to address concerns. Commenters also asked that CMS provide more detailed data to allow for a complete analysis of the ESRD PPS. For example, commenters requested a comprehensive list of variables, descriptions, and analyses that could resolve the variances identified in the dialysis industry's analysis of the ESRD PPS methodology. They also stated that a more comprehensive list of data elements would clarify the CMS contractor's conclusions and allow them to better address the underpayment of the ESRD PPS.
On June 29, 2015, the Trade Preferences Extension Act of 2015 (TPEA) (Pub. L. 114-27) was enacted. In the TPEA, the Congress amended the Social Security Act (the Act) to include coverage and provide for payment for dialysis furnished by an ESRD facility to an individual with acute kidney injury (AKI). Specifically, section 808(a) of the TPEA amended section 1861(s)(2)(F) of the Act to provide coverage for renal dialysis services furnished on or after January 1, 2017, by a renal dialysis facility or a provider of services paid
In the calendar year (CY) 2017 ESRD PPS final rule, we finalized several coverage and payment policies in order to implement subsection (r) of section 1834 of the Act and the amendments to section 1881(s)(2)(F) of the Act, including the payment rate for AKI dialysis (81 FR 77866 through 77872). We interpret section 1834(r)(1) of the Act to mean the amount of payment for AKI dialysis services is the base rate for renal dialysis services determined for such year under the ESRD base rate as set forth in 42 CFR 413.220, updated by the ESRD bundled market basket percentage increase factor minus a productivity adjustment as set forth in 42 CFR 413.196(d)(1), adjusted for wages as set forth in 42 CFR 413.231, and adjusted by any other amounts deemed appropriate by the Secretary under 42 CFR 413.373. We codified this policy in § 413.372.
The proposed rule, entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, and End-Stage Renal Disease Quality Incentive Program” (82 FR 31190 through 31233), hereinafter referred to as the CY 2018 ESRD PPS proposed rule, was published in the
In this final rule, we provide a summary of the proposed provision, a summary of the public comments received and our responses to them, and the policies we are finalizing for CY 2018 payment for renal dialysis services furnished to individuals with AKI.
The payment rate for AKI dialysis is the ESRD PPS base rate determined for a year under section 1881(b)(14) of the Act, which is the finalized ESRD PPS base rate. We note that ESRD facilities have the ability to bill Medicare for non-renal dialysis items and services and receive separate payment in addition to the payment rate for AKI dialysis.
As discussed in the CY 2018 ESRD PPS proposed rule (82 FR 31201), the CY 2018 proposed ESRD PPS base rate was $233.31, which reflected the proposed ESRD bundled market basket and multifactor productivity adjustment. Therefore, we proposed a CY 2018 per treatment payment rate of $233.31 for renal dialysis services furnished by ESRD facilities to individuals with AKI.
Section 1834(r)(1) of the Act further provides that the amount of payment for AKI dialysis services shall be the base rate for renal dialysis services determined for a year under section 1881(b)(14) of the Act, as adjusted by any applicable geographic adjustment factor applied under section 1881(b)(14)(D)(iv)(II) of the Act. We interpret the reference to “any applicable geographic adjustment factor applied under subparagraph (D)(iv)(II) of such section” to mean the geographic adjustment factor that is actually applied to the ESRD PPS base rate for a particular facility. Accordingly, we apply the same wage index that is used under the ESRD PPS, as discussed in the CY 2018 ESRD PPS proposed rule (82 FR 31201). In the CY 2017 ESRD PPS final rule (81 FR 77868), we finalized that the AKI dialysis payment rate will be adjusted for wage index for a particular ESRD facility in the same way that the ESRD PPS base rate is adjusted for wage index for that facility. Specifically, we apply the wage index to the labor-related share of the ESRD PPS base rate that we utilize for AKI dialysis to compute the wage adjusted per-treatment AKI dialysis payment rate. We proposed a CY 2018 AKI dialysis payment rate of $233.31, adjusted by the ESRD facility's wage index.
The comments and our responses to the comments on this AKI payment proposal are set forth below.
A professional association, clinician's group, and a national dialysis provider association commented that CMS did not fully reflect the nuances of the distinctly different needs of AKI patients from ESRD patients in the AKI coverage and payment policy implemented in the CY 2017 ESRD PPS final rule. Specifically, the association noted the time and cost of educating staff about AKI dialysis and extra attention required by AKI patients and
The provider association also stated that as we learn more about the provision of services to these patients, it may become apparent that an
As we discussed in the CY 2017 ESRD PPS final rule (81 FR 77868), we finalized a policy that the AKI dialysis payment rate is the final ESRD PPS base rate adjusted by the wage index that is used under the ESRD PPS. We stated that we are not adjusting the payment amount by any other factors at this time, but may do so in future years. To address the higher costs associated with AKI patients as compared to ESRD patients, we finalized a policy of paying for all AKI dialysis treatments provided to a patient, without applying the monthly treatment limits applicable under the ESRD PPS. We also finalized a policy to pay separately for all items and services that are not part of the ESRD PPS base rate. We have created the ability through our claims processing systems to identify individuals with AKI in order to track the utilization of services and their health outcomes to ensure these patients are receiving the care they require. Once we have substantial data related to the AKI population and its associated utilization, we will determine the appropriate steps toward further developing the AKI payment rate.
Finally, regarding the comment about the applicability of the ESRD Network fee to AKI treatments, we note that we discussed that issue in detail in the CY 2017 ESRD PPS final rule (81 FR 77867 through 77678). We explained that after considering comments and reviewing the applicable statutory provision, we will not apply the ESRD Network fee to the AKI dialysis payment rate.
Another dialysis organization stated that with regard to AKI and billing, it is still not clear which claim modifiers are required for Medicare claims for AKI patients. They requested that CMS provide specific clarification on this issue.
An industry organization urged CMS to include the rural adjustment in the AKI payment to reflect the increased cost necessary to provide high-quality care since rural facilities face all of the same challenges in the providing dialysis treatment to AKI patients as they do to ESRD patients.
For over 30 years, monitoring the quality of care provided to end-stage renal disease (ESRD) patients by dialysis providers or facilities (hereinafter referred to collectively as “facility” or “facilities”) has been an important component of the Medicare ESRD payment system. The ESRD quality incentive program (QIP) is the most recent step in fostering improved patient outcomes by establishing incentives for dialysis facilities to meet or exceed performance standards established by the Centers for Medicare & Medicaid Services (CMS).
Under the ESRD QIP, payments made to a dialysis facility by Medicare under section 1881(b)(14) of the Social Security Act (the Act) for a year are reduced by up to 2 percent if the facility does not meet or exceed the total performance score (TPS) with respect to performance standards established by the Secretary of the Department of Health and Human Services (the Secretary) with respect to certain specified measures.
In the calendar year (CY) 2012 ESRD PPS final rule (76 FR 70228), published in the
In the CY 2013 ESRD PPS final rule (77 FR 67450), published in the
In the CY 2014 ESRD PPS final rule (78 FR 72156), published in the
In the CY 2015 ESRD PPS final rule (79 FR 66120), published in the
In the CY 2016 ESRD PPS final rule (80 FR 68968), published in the
In the CY 2017 ESRD PPS final rule (81 FR 77834), published in the
The ESRD QIP is authorized by section 1881(h) of the Act, which was added by section 153(c) of Medicare Improvements for Patients and Providers Act of 2008 (MIPPA). Section 1881(h) of the Act requires the Secretary to establish an ESRD QIP by (1) selecting measures; (2) establishing the performance standards that apply to the individual measures; (3) specifying a performance period with respect to a year; (4) developing a methodology for assessing the total performance of each facility based on the performance standards with respect to the measures for a performance period; and (5) applying an appropriate payment reduction to facilities that do not meet or exceed the established Total Performance Score (TPS).
The proposed rule, entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, and End-Stage Renal Disease Quality Incentive Program” (82 FR 31190 through 31233), hereinafter referred to as the CY 2018 ESRD PPS proposed rule, was published in the
In this final rule, we provide a summary of each proposed provision, a summary of the public comments received and our responses to them, and the policies we are finalizing for the ESRD QIP, including for PYs 2019 through 2021.
In the CY 2018 ESRD PPS proposed rule (82 FR 31202), we discussed the issue of accounting for social risk factors in the ESRD QIP. We understand that social risk factors such as income, education, race and ethnicity, employment, disability, community resources, and social support (certain factors of which are also sometimes referred to as socioeconomic status factors or socio-demographic status factors), play a major role in health. One of our core objectives is to improve beneficiary outcomes, including reducing health disparities, and we want to ensure that all beneficiaries, including those with social risk factors, receive high quality care. In addition, we seek to ensure that the quality of care furnished by facilities is assessed as fairly as possible under our programs while ensuring that beneficiaries have adequate access to high quality care.
We have reviewed reports prepared by the Office of the Assistant Secretary for Planning and Evaluation (ASPE)
As noted in the fiscal year (FY) 2017 Inpatient Prospective Payment System/Long-Term Care Hospital Prospective Payment System (IPPS/LTCH PPS) final rule (81 FR 56762 through 57345), the National Quality Forum (NQF) undertook a 2-year trial period in which
As we consider the analyses and recommendations from the ASPE report and the NQF trial on risk adjustment for quality measures, we are continuing to work with stakeholders. As we have previously communicated, we are concerned about holding facilities to different standards for the outcomes of their patients with social risk factors because we do not want to mask potential disparities or minimize incentives to improve the outcomes for disadvantaged populations. Keeping this concern in mind, we will continue to seek public comment on whether we should account for social risk factors in the ESRD QIP, and if so, what method or combination of methods would be most appropriate for accounting for social risk factors. Examples of potential methods include: Adjustment of the payment adjustment methodology under the ESRD QIP; adjustment of provider performance scores (for instance, stratifying facilities based on the proportion of their patients who are dual eligible); confidential reporting of stratified measure rates to facilities; public reporting of stratified measure rates; risk adjustment of a particular measure as appropriate based on data and evidence; and redesigning payment incentives (for instance, rewarding improvement for facilities caring for patients with social risk factors or incentivizing facilities to achieve health equity). In the CY 2018 ESRD PPS proposed rule (82 FR 31202 through 31203), we requested comment on whether any of these methods should be considered, and if so, which of these methods or combination of methods would best account for social risk factors in the ESRD QIP.
We note that in section V.I.9 of the FY 2018 IPPS/LTCH PPS final rule (82 FR 38229 through 38231), we finalized an approach for stratifying hospitals into peer groups for purposes of assessing payment adjustments under the Hospital Readmissions Reduction Program, as required under the 21st Century Cures Act of 2016 (Pub. L. 114-255). We refer readers to that section for a detailed discussion of the final policy; while this discussion is specific to the Hospital Readmissions Reduction Program, it reflects the level of analysis we would undertake when evaluating methods and combinations of methods for accounting for social risk factors in CMS' other value-based purchasing programs, such as ESRD QIP. In addition, in the CY 2018 ESRD PPS proposed rule (82 FR 31202), we requested public comment on which social risk factors might be most appropriate for stratifying measure scores and/or potential risk-adjustment of a particular measure. Examples of social risk factors include, but are not limited to, dual eligibility/low-income subsidy, race and ethnicity, and geographic area of residence. We also requested comments on which of these factors, including current data sources where this information would be available, could be used alone or in combination, and whether other data should be collected to better capture the effects of social risk. We will take commenters' input into consideration as we continue to assess the appropriateness and feasibility of accounting for social risk factors in the ESRD QIP. We note that any such changes would be proposed through future notice-and-comment rulemaking.
We look forward to working with stakeholders as we consider the issue of accounting for social risk factors and reducing health disparities in CMS programs. Of note, implementing any of the above methods would be taken into consideration in the context of how this and other CMS programs operate (for example, data submission methods, availability of data, statistical considerations relating to reliability of data calculations, among others), so we also welcomed comment on operational considerations. CMS is committed to ensuring beneficiaries have access to and receive high quality care, and the quality of care furnished by providers and suppliers is assessed fairly in CMS programs.
We requested comments on accounting for social risk factors in the ESRD QIP. The comments and our responses are set forth below.
One commenter pointed out the importance of accounting for risk factors that affect both pediatric patients and those caring for pediatric patients because some of these risk factors, in particular those present among the parents and caregivers of pediatric patients, may affect their ability to properly care for those patients. Commenters urged CMS to consider a more robust set of social risk factors to meet the needs of the pediatric patient population. They added that there must be an accounting not only of race and ethnicity, insurance status, and other socioeconomic factors, but also their school attendance and performance, and peer interactions. Factors to consider for parents and other primary caregivers include their employment status, fatigue, and financial strains among others. One commenter argued that dual-eligible status is the most consistent of all social risk factors in
A few commenters expressed concerns with our desire to look at social risk factor adjustments. One commenter expressed concerns that there is already an issue with small sample sizes in the QIP, which would likely be aggravated by dividing the measure population into smaller subsets. The same commenter stated that small sample sizes disproportionately affect facilities that only furnish ESRD care to patients in their homes or those that care for a small number of pediatric ESRD patients because those facilities tend to be small and are often scored only on a few measures. To collect this data, one commenter argued that it should be straightforward for CMS to use its data to identify dual eligibility/low-income subsidy data, as well as geographic area of residence. Another commenter added that it could be difficult to collect race/ethnicity data but that patient self-reporting may be the most appropriate way to collect such data.
In the ESRD QIP final rule, which published in the
Section 1881(h)(6)(c) of the Act only requires that the PSC indicate the TPS achieved by the facility with respect to a program year. Therefore, to make the PSC a more effective and understandable document for the community, we proposed to shorten the PSC by removing some of the information that is currently included on it. We proposed that beginning in PY 2019, and continuing in future years, the PSC would indicate the facility's TPS, as required under section 1881(h)(6)(C) of the Act, as well as information sufficient to identify the facility (for example, name, address, etc.). Additionally, we proposed to include information showing how the facility's TPS compared to the national average TPS for that specific payment year. We did not propose any other changes to the requirements we previously finalized for the PSC.
We requested comments on this proposal, and were particularly interested in comments on whether the reduced amount of information on the PSC would both benefit facilities and enhance the public's understanding of the TPS.
“Dialysis Facility Compare Patient Engagement Session Debrief,” April 3, 2017, NORC at the University of Chicago.
We will review the recommended reports and determine the feasibility of incorporating some of these suggestions.
Under our current policy, we begin counting the number of months in which a facility is open on the first day of the month after the facility's CMS certification number (CCN) Open Date. In the CY 2017 ESRD PPS final rule (81 FR 77926), we inadvertently made errors in finalizing how we intended this policy to apply to a number of measures in the PY 2020 ESRD QIP.
Table 19 finalized in the CY 2017 ESRD PPS final rule (81 FR 77926) has been duplicated here, as Table 2(a):
In the CY 2018 ESRD PPS proposed rule (82 FR 31203), we proposed the intended application of this policy for PY 2020. We did not propose to make any changes to the methodology we use to count the number of months for which a facility is open for purposes of scoring facilities on clinical and reporting measures, or to the minimum number of cases (qualifying patients, survey-eligible patients, index discharges, or patient-years at risk) that
We requested comments on this proposal.
Many of our quality reporting and value-based purchasing programs share a common process for requesting an exception from program reporting due to an extraordinary circumstance not within a facility's control. The Hospital Inpatient Quality Reporting, Hospital Outpatient Quality Reporting, Inpatient Psychiatric Facility Quality Reporting, Ambulatory Surgical Center Quality Reporting, PPS-Exempt Cancer Hospital Quality Reporting, the Hospital Acquired Condition Reduction Program, and the Hospital Readmissions Reduction Program all share common processes for Extraordinary Circumstances Exception (ECE) requests. In reviewing the policies for these programs, we recognized that there are five areas in which these programs have variance in comparison to the policy within the ESRD QIP regarding ECE requests. These are: (1) Allowing the facilities or hospitals to submit a form signed by the facility's or hospital's chief executive officer (CEO) versus CEO or designated personnel; (2) requiring the form be submitted within 30 days following the date that the extraordinary circumstance occurred, versus within 90 days following the date the extraordinary circumstance occurred; (3) inconsistency regarding specification of a timeline for us to provide our response notifying the facility or hospital of our decision; (4) inconsistency regarding whether we would grant ECEs based on a facility's inability to timely and completely report data due to CMS data system issues; and (5) referring to this policy as “extraordinary extensions/exemptions” versus as “extraordinary circumstances exceptions”. We believe that aligning the way the ECE policy is implemented in our program, with the way it is implemented in the programs listed
In the CY 2015 ESRD PPS final rule (79 FR 66120 through 66265), we finalized that to receive consideration for an exception from the ESRD QIP requirements in effect during the time period that a facility is affected by an extraordinary circumstance, facilities would need to be closed and provide CMS with a CMS Disaster Extension/Exception Request Form within 90 calendar days of the date of the disaster or extraordinary circumstance (79 FR 66190). We finalized that the facility would need to provide the following information on the form:
• Facility CCN.
• Facility name.
• CEO name and contact information.
• Additional contact name and contact information.
• Reason for requesting an exception.
• Dates affected.
• Date facility will start submitting data again, with justification for this date.
• Evidence of the impact of the extraordinary circumstances, including but not limited to photographs, newspaper, and other media articles.
We also finalized that we would consider granting an ECE to facilities absent a request, if we determine that an extraordinary circumstance affected an entire region or locale (79 FR 66190).
We proposed to update these policies by: (1) Allowing the facility to submit a form signed by the facility's CEO or designated personnel; (2) expanding the reasons for which an ECE can be requested to include an unresolved issue with a CMS data system, which affected the ability of the facility to submit data (an unresolved data system issue would be one which did not allow the facility to submit data by the data submission deadline and which was unable to be resolved with a work-around), and (3) specifying that a facility does not need to be closed in order to request and receive consideration for an ECE, as long as the facility can demonstrate that its normal operations have been significantly affected by an extraordinary circumstance outside of its control. We stated that these proposed policies generally align with policies in the Hospital Inpatient Quality Reporting Program (76 FR 51651 through 51652), (78 FR 50836 through 50837) and (81 FR 57181 through 57182), Hospital Outpatient Quality Reporting Program (77 FR 68489 and 81 FR 79795), as well as ECE policies we have finalized for other quality reporting and value-based purchasing programs. We proposed that these policies would apply beginning with the PY 2020 ESRD QIP, as related to extraordinary circumstance events that occur on or after January 1, 2018.
We also noted that there may be circumstances in which it is not feasible for a facility's CEO to sign the ECE request form. In these circumstances, we believe that facilities affected by such circumstances should be able to submit an ECE request regardless of the CEO's availability to sign. This proposed change would allow facilities to designate an appropriate, non-CEO contact for this purpose. We would accept ECE forms which have been signed by designated personnel.
Although we do not anticipate that unresolved issues with CMS data systems will happen on a regular basis, we also stated that we recognized that there may be times when CMS experiences issues with its data systems that inhibits facilities' ability to submit data. We are often able to resolve such issues and allow facilities an extended period of time to report the data. However, in the case that the issue inhibits the complete reporting of data (even under an extended deadline), we stated that we believed it would be inequitable to take the absence of such unreported data into account when computing a facility's TPS for a payment year. Therefore, we proposed to address these situations in one of two ways. In some cases, CMS would issue a blanket exception to facilities that have been affected by an unresolved technical issue. In such cases, facilities would not be required to submit an ECE request to CMS, and CMS would send communications about the blanket exception to the affected facilities using routine communication channels. In other cases, CMS would not issue a blanket exception to facilities. In these cases, facilities would be required to submit an ECE request to CMS using the regular ECE request process, and would need to indicate how they were directly affected by the technical issue.
Furthermore, we stated our belief that it is important for facilities to receive timely feedback regarding the status of ECE requests. We strive to complete our review of each ECE request as quickly as possible. However, we recognize that the number of requests we receive, and the complexity of the information provided impacts the actual timeframe to make ECE determinations. To improve the transparency of our process, we stated that we would strive to complete our review of each request within 90 days of receipt.
We requested comments on these proposals.
The services for which quality is measured under the ESRD QIP are renal dialysis services defined in section 1881(b)(14)(B) of the Act. Prior to January 1, 2017, these services could only be covered and reimbursed under Medicare if they were furnished to individuals with ESRD, but they are now also covered and reimbursed if they are furnished by renal dialysis facilities or providers of services paid under section 1881(b)(14) of the Act to individuals with acute kidney injury (AKI) (see sections 1861(s)(2)(F) and 1834(r) of the Act).
We currently do not require facilities to report AKI patient data for any of our measures in the ESRD QIP, including the National Healthcare Safety Network (NHSN) Bloodstream infection (BSI) Clinical and Reporting Measures.
In the future, we intend to require facilities to report data on AKI patients under the ESRD QIP. We requested comments on whether and how to adapt any of our current measures to include this population, as well as the type of measures that might be appropriate to develop for future inclusion in the program that would address the unique needs of beneficiaries with AKI.
In the CY 2017 ESRD PPS final rule (81 FR 77834 through 77969), we finalized that for PY 2020, the performance standards, achievement thresholds, and benchmarks for the clinical measures would be set at the 50th, 15th and 90th percentile, respectively, of national performance in CY 2016, because this will give us enough time to calculate and assign numerical values to the proposed performance standards for the PY 2020 program prior to the beginning of the performance period (81 FR 77915). We stated in the CY 2018 ESRD PPS proposed rule that we did not have the necessary data to assign numerical values to those performance standards, achievement thresholds, and benchmarks because we did not yet have complete data from CY 2016. Nevertheless, we could estimate these numerical values based on the most recent data available at the time we issued the CY 2018 ESRD PPS proposed rule, and we have since updated those values based on more recently available data. For the vascular access type (VAT), Hypercalcemia, NHSN BSI, In-Center Hemodialysis Consumer Assessment of Healthcare Providers and Systems (ICH CAHPS), Standardized Readmission Ratio (SRR), Standardized Hospitalization Ratio (SHR), Kt/V Dialysis Adequacy, and Standardized Transfusion Ratio (STrR) clinical measures, this data came from the period of January through December 2015. In Table 3, we provided the
Our current policy generally is that if final numerical values for the performance standard, achievement threshold, and/or benchmark are worse than they were for that measure in the previous year of the ESRD QIP, then we will substitute the previous year's performance standard, achievement threshold, and/or benchmark for that measure. We adopted this policy because we believe that the ESRD QIP should not have lower performance standards than in previous years. In the CY 2017 ESRD PPS final rule, we finalized an update to that policy because in certain cases, it may be appropriate to re-baseline the NHSN BSI Clinical Measure, such that expected infection rates are calculated based on a more recent year's data (81 FR 77886). In such cases, numerical values assigned to performance standards may appear to decline, even though they represent higher standards for infection prevention. For PY 2020 and future payment years, we proposed to continue use of this policy for the reasons explained above. Under that policy, except for the NHSN BSI Clinical Measure, we would substitute the PY 2019 performance standard, achievement threshold, and/or benchmark for any measure that has a final numerical value for a performance standard, achievement threshold, and/or benchmark that is worse than it was for that measure in the PY 2019 ESRD QIP. We would also substitute the PY 2019 values for two CAHPS measures: (1) ICH CAHPS: Overall Rating of Nephrologists and (2) ICH CAHPS: Overall Rating of Dialysis Center Staff because the final numerical values for those measures were worse for PY 2020 than they were for PY 2019.
In the CY 2017 ESRD PPS final rule, we finalized our policy for weighting the Clinical Measure Domain for PY 2020. With the addition of the Safety Measure Domain to the ESRD QIP, we finalized that the Clinical Measure Domain would comprise 75 percent of the TPS, the Safety Measure Domain would comprise 15 percent of the TPS and the Reporting Measure Domain would comprise 10 percent of the TPS. Table 5 shows the weights finalized for PY 2020 for the Clinical Measure Domain.
We did not propose any changes to these weights, but we received a few comments.
Section 1881(h)(3)(A)(ii) of the Act requires the Secretary to ensure that the application of the ESRD QIP scoring methodology results in an appropriate distribution of payment reductions across facilities, such that facilities achieving the lowest TPS receive the largest payment reductions. In the CY 2017 ESRD PPS final rule, we finalized our proposal for calculating the minimum TPS for PY 2020 and future payment years (81 FR 77927). Under our current policy, a facility will not receive a payment reduction if it achieves a minimum TPS that is equal to or greater than the total of the points it would have received if: (1) It performs at the performance standard for each clinical measure; and (2) it receives the number of points for each reporting measure that corresponds to the 50th percentile of facility performance on each of the PY 2018 reporting measures (81 FR 77927).
We were unable to calculate a minimum TPS for PY 2020 in the CY 2017 ESRD PPS final rule because we did not yet have the data to calculate the performance standards for each of the clinical measures. We therefore stated that we would publish the minimum TPS for the PY 2020 ESRD QIP in the CY 2018 ESRD PPS final rule (81 FR 77927). We estimated the minimum TPS for PY 2020, along with the updated payment reduction scale, in Table 5 in the proposed rule (renumbered as Table 6 in this final rule). Based on the estimated performance standards which we provided in the CY 2018 ESRD PPS proposed rule (82 FR 31207) and listed above, we estimated that a facility would need to meet or exceed a minimum TPS of 61 for PY 2020. For all the clinical measures, these data came from CY 2015. We proposed that a facility failing to meet the minimum TPS, would receive a payment reduction based on the estimated TPS ranges indicated in Table 6.
The comments and our responses to the comments on our proposal are set forth below.
One of the critical elements of the ESRD QIP's success is ensuring that the data submitted to calculate measure scores and TPSs are accurate. We began a pilot data validation program in CY 2013 for the ESRD QIP, and procured the services of a data validation contractor that was tasked with validating a national sample of facilities' records as reported to CROWNWeb. For validation of CY 2014 data, our priority was to develop a methodology for validating data submitted to Consolidated Renal Operations in a Web-Enabled Network (CROWNWeb) under the pilot data validation program. In the CY 2014 ESRD PPS final rule (78 FR 72223 through 72224), we finalized a requirement to sample approximately 10 records from 300 randomly selected facilities; these facilities had 60 days to comply once they received requests for records. We continued this pilot for the PY 2017, PY 2018 and PY 2019 ESRD QIP, and proposed to continue doing so for the PY 2020 ESRD QIP. Using the data collected thus far, we are exploring options for refining the methodology used to improve the effectiveness and reliability of the data collected. For future payment years, we will consider whether this validation effort should continue in pilot status or as a permanent feature of the ESRD QIP. Under the continued validation study, we will sample the same number of records (approximately 10 per facility) from the same number of facilities, which totaled 300 facilities during CY 2018. If a facility is randomly selected to participate in the pilot validation study but does not provide us with the requisite medical records within 60 calendar days of receiving a request, then we proposed to deduct 10 points from the facility's TPS.
In the CY 2015 ESRD PPS final rule (79 FR 66120 through 66265), we finalized a feasibility study for validating data reported to the CDC's NHSN Dialysis Event Module for the NHSN BSI Clinical Measure (OMB #0938-NEW). Healthcare-acquired infections are relatively rare, and we finalized that the feasibility study would target records with a higher probability of including a dialysis event, because this would enrich the validation sample while reducing the burden on facilities. This methodology resembles the methodology we use in the Hospital Inpatient Quality Reporting Program to validate the central line-associated BSI measure, the catheter-associated urinary tract infection measure, and the surgical site infection measure (77 FR 53539 through 53553).
For the PY 2020 ESRD QIP, we proposed to continue conducting the same NHSN dialysis event validation study, that we finalized in the CY 2017 ESRD PPS final rule for PY 2019 (81 FR 77894). For PY 2020, we would continue to select 35 facilities to participate in an NHSN dialysis event validation study by submitting 10 patient records covering two quarters of data reported in CY 2018. However, for PY 2020, the sampling method used to select the 35 facilities would be adjusted such that a more representative sample of facility data can be analyzed, including data from high performing facilities as well as facilities identified as being at risk of underreporting. A CMS contractor would send these facilities requests for medical records for all patients with “candidate events” during the evaluation period; that is, patients who had any positive blood cultures; received any intravenous antimicrobials; had any pus, redness, or increased swelling at a vascular access site; and/or were admitted to a hospital during the evaluation period. Facilities would have 60 calendar days to respond to the request for medical records based on candidate events either electronically or on paper. If the contractor determines that additional medical records are needed to reach the 10-record threshold from a facility to validate whether the facility accurately reported the dialysis events, then the contractor would send a request for additional, randomly selected patient records from the facility. The facility would have 60 calendar days from the date of the letter to respond to the request. With input from the CDC, the CMS contractor would use a methodology for reviewing and validating records from selected patients, to determine whether the facility reported dialysis events for those patients in accordance with the NHSN Dialysis Event Protocol. If a facility is selected to participate in the validation study but does not provide CMS with the requisite lists of information or medical records within 60 calendar days of receiving a request, then we proposed to deduct 10 points from the facility's TPS. We stated that information from the validation study may be used in future years of the program to inform our consideration of future policies that would incorporate NHSN data accuracy into the scoring process. In future years of the program we may also look to improve the NHSN dialysis event validation study by validating records from a greater number of facilities or by validating a larger sample of records from each facility participating in the study.
The comments and our responses to the comments on our proposals are set forth below.
We previously finalized 16 measures in the CY 2017 ESRD PPS final rule for the PY 2020 ESRD QIP. Our policy is to continue using measures unless we propose to remove or replace them, (77 FR 67477), therefore, we will continue to use all but two of these measures in the PY 2021 ESRD QIP. In the CY 2018 ESRD PPS proposed rule, we proposed to replace the two VAT Clinical Measures with the Hemodialysis Vascular Access: Standardized Fistula Rate Clinical Measure and the Hemodialysis Vascular Access: Long-Term Catheter Rate Clinical Measure beginning with PY 2021. The measures being continued in PY 2021 are summarized in Table 8.
We did not propose any changes to the measures previously finalized and continuing for PY 2021, however we received two comments requesting clarification on measures continuing in PY2021 and a number of comments on ways to improve those measures in the ESRD QIP. Those comments and our responses are set forth below.
Regarding the Comprehensive Dialysis Adequacy measure, commenters expressed concerns that Kt/V is an outdated measure of dialysis adequacy and shared that there are other tests which would indicate optimal dialysis such as the Beta-2 microglobulin or a 24-hour urine test. One commenter stressed that it's important to include a measure of residual kidney function, particularly for peritoneal dialysis patients.
Regarding the ICH CAHPS measure, commenters argued that the measure should be included in the program as a reporting measure rather than as a clinical measure, that the survey should only be conducted once a year because twice-yearly administration leads to patient fatigue, limiting feedback on patient experiences, and that the survey should be split into three separate and independently tested sections rather than requiring the entire survey twice a year. Commenters also stressed the need for a separate survey for home hemodialysis patients.
Regarding the NHSN BSI Clinical and Reporting Measures, commenters pointed out flaws with the measures, including the fact that dialysis facilities cannot report information if they are not receiving infection information from hospitals. Several commenters urged CMS to include only the NHSN Dialysis Event reporting measure and to remove the NHSN BSI clinical measure from the program. Two other concerns were that blood cultures obtained in hospitals are not systematically captured in the Reporting Measure and that there is incomplete antibiotic susceptibility data in NHSN.
Regarding the Standardized Hospitalization Ratio Clinical Measure, one commenter argued that the SHR should not be included in the program until its reliability at the facility size used in the measure has been demonstrated because for small facilities, more than half of a facility's score is due to random noise and is not an accurate signal of quality. Another commenter asked CMS to include an exclusion in the measure for hospitalizations that occur within 29 days of the index discharge because this would avoid a readmission being captured as a hospitalization by the SHR but it would still be captured as a readmission by the SRR.
Regarding the Ultrafiltration Rate (UFR) Reporting measure, several commenters recommended that CMS require January 2018 UFR rates to be reported on or before March 31, 2018 rather than February 28, 2018, to align with the reporting of other clinical values for January 2018. Another commenter recommended that CMS define “treatment week” or “collection period” for the UFR measure in a way that takes into consideration operational details such as lab draws early in the month or the unavailability of a UFR prior to the Kt/V draw for other reasons. Alternatively, the commenter suggested that any three contiguous UFRs should provide an accurate estimate of UFR to accomplish the measure goals and asked CMS to adopt this position and define the collection period as “any three contiguous UFRs during a calendar month.” Several commenters expressed concerns about the measure specifications for the measure, including that a treatment preceding the Kt/V but that falls within the prior calendar month may not meet the reporting requirement. These commenters requested that CMS revise the measure specifications so that the UFR reporting requirement can be independent of the Kt/V measurement because, they argued, there is no rationale for tying the two measures to one another.
Regarding the Anemia Management Measure, one commenter urged CMS to restore a measure establishing a minimal standard for anemia management and another requested a separate anemia management measure for home dialysis patients.
One commenter requested that CMS differentiate within the Pain Measure between chronic and immediate pain, and another commenter requested that a pain assessment be required at every treatment rather than merely twice a year. A few commenters recommended that CMS develop a standardized ESRD-specific tool for depression.
Regarding the Hypercalcemia Clinical measure, one commenter asked CMS to remove the measure from the program entirely because it's challenging for patients who continue to experience difficulties with access to medications and the health outcomes related to surgery for hyperparathyroidism and hypercalcemia.
We consider a quality measure for removal or replacement if: (1) Measure performance among the majority of ESRD facilities is so high and unvarying that meaningful distinctions in improvements or performance can no longer be made (in other words, the measure is topped-out); (2) performance or improvement on a measure does not result in better or the intended patient outcomes; (3) a measure no longer aligns with current clinical guidelines or practice; (4) a more broadly applicable (across settings, populations, or conditions) measure for the topic becomes available; (5) a measure that is more proximal in time to desired patient outcomes for the particular topic becomes available; (6) a measure that is more strongly associated with desired patient outcomes for the particular topic becomes available; or (7) collection or public reporting of a measure leads to negative or unintended consequences (77 FR 67475). In the CY 2015 ESRD PPS final rule, we adopted statistical criteria for determining whether a clinical measure is topped out, and adopted a policy under which we could retain an otherwise topped-out measure if we determined that its continued inclusion in the ESRD QIP measure set would address the unique needs of a specific subset of the ESRD population (79 FR 66174).
After publication of the CY 2017 ESRD PPS final rule (81 FR 77834 through 77969), we evaluated the finalized PY 2020 ESRD QIP measures that would be continued in PY 2021 against these criteria. We determined that none of these measures met criterion (1), (2), (3), (4), (5) or (7). As part of this evaluation for criterion one, we performed a statistical analysis of the PY 2020 measures we plan to continue using for PY 2021 and future payment years to determine whether any measures were “topped out.” The full results of this analysis can be found at
As Table 9 illustrates, the distributions of the PY 2020 clinical measures were assessed to determine if any measures were “topped out.” For a measure to be considered topped out, two conditions had to be met. First, a measure was considered topped out if the 75th percentile, or 25th percentile for measures where lower percentiles indicate better performance, was statistically indistinguishable from the 90th (or 10th) percentile, and second, the truncated coefficient of variation (TCV) was less than or equal to 10 percent, or 0.10. We note that the percentiles were considered statistically indistinguishable if the 75th/25th percentile was within two standard errors of the 90th/10th percentile. Additionally, for each measure the TCV was calculated by first removing the lower and upper 5th percentiles, then dividing the standard deviation by the mean of this truncated distribution (SD
The measures we evaluated were the comprehensive Dialysis Adequacy measure, Hypercalcemia (referred to in the table as “Serum Calcium >10.2”), NHSN Standardized Infection Ratio (SIR), SRR, STrR, and SHR clinical measures, and 6 individual components of the CAHPS clinical measure. The Vascular Access measures were not included in this evaluation because they will not be continuing from PY 2020 to PY 2021. CROWNWeb data from 2015 were used for Hypercalcemia, the combination of 2015 CROWNWeb data and 2015 Medicare claims data were used for Kt/V measure, and the SRR, STrR, and SHR measures were based on both combination of 2014 CROWNWeb data and 2014 Medicare claims data. The NHSN BSI Clinical Measure was calculated using the CY 2015 NHSN data from the CDC, and the six components of the ICH-CAHPS measure were calculated using the CY 2015 ICH-CAHPS data.
Table 9 presents the percentiles, standard error, and TCV for each measure. In this analysis, all facilities with the minimum eligible patient requirement per measure were included. The results indicate none of the PY 2020 clinical measures met both “topped out” conditions. Therefore, we did not propose to remove any of these measures from the ESRD QIP for PY 2021 for being topped out.
Over the past few years, we have received numerous public comments regarding the two VAT measures included in the ESRD QIP's measure set. Specifically, commenters have recommended that CMS adjust the weights of the VAT measures to place more emphasis on reducing catheters to encourage the use of fistulas and grafts (81 FR 77904). Another commenter specifically supported CMS' submission of new VAT Measures to the NQF Renal Standing Committee to address the small number of patients for whom a catheter may be the most appropriate vascular access type when life expectancy is limited (81 FR 77905). We also note that the VAT measures currently used in the ESRD QIP measure set are calculated using claims data. This limits the applicability of the measures to Medicare Fee-For-Service (FFS) patients, while excluding all others.
Although there is no evidence to suggest that the current VAT measures are leading to negative or unintended consequences, we proposed to remove both from the ESRD QIP measure set beginning with the PY 2021 program based on criterion (6) listed earlier because measures that are more strongly associated with desired patient outcomes for the particular topic are now available. We proposed to replace the VAT measures with the Hemodialysis Vascular Access: Standardized Fistula Rate Clinical Measure (NQF #2977) and the Hemodialysis Vascular Access: Long-Term Catheter Rate Clinical Measure (NQF #2978). We believe these
We requested comments on our proposal to remove the current VAT measures from the ESRD QIP measure set beginning with the PY 2021 program year. The comments and our responses are set forth below.
We believe that changes during the past several years to the way ESRD services are reimbursed under Medicare, as well as changes to how ESRD care is measured under the ESRD QIP and through other quality reporting initiatives, may have impacted how anemia is clinically managed. Some of these changes include the identification of safety concerns associated with aggressive erythropoiesis-stimulating agent (ESA) use, the expansion of the ESRD PPS bundled payment methodology to include ESAs, and the continued growth and expansion of the ESRD QIP. There are concerns that these changes could result in the underutilization of ESAs, with lower achieved hemoglobin values that may increase the frequency of red blood cell transfusion in the United States chronic dialysis population.
Excessive rates of blood transfusion may be an indicator for underutilization of clinical treatments to increase endogenous red blood cell production (for example, ESA and iron). Dialysis patients who are eligible for kidney transplant and have received transfusions are at increased risk of becoming sensitized to the donor pool thereby making transplant more difficult to accomplish. Blood transfusions carry a small risk of transmitting blood borne infections and/or the development of a transfusion reaction, and using infusion centers or hospitals to transfuse patients is expensive, inconvenient, and could compromise future vascular access.
Kidney Disease: Improving Global Outcome (KDIGO) Anemia Work Group. KDIGO Clinical Practice Guideline for Anemia in Chronic Kidney Disease. Kidney inter., Suppl. 2012; 2: 279-335.
Obrador and Macdougall. Effect of Red Cell Transfusions on Future Kidney Transplantation. Clin J Am Soc Nephrol 8: 852-860, 2013.
Ibrahim, et al. Blood transfusions in kidney transplant candidates are common and associated with adverse outcomes. Clin Transplant 2011: 25: 653-659.
Monitoring the risk-adjusted transfusion rate at the dialysis facility level, relative to national standards, allows for detection of treatment patterns in dialysis-related anemia management. This is of importance due to recommendations by the Food and Drug Administration regarding more conservative ESA dosing.
The proposed updated specifications to the STrR measure contain a more restricted definition of transfusion events than is used in the current STrR measure. Specifically, the revised definition excludes inpatient transfusion events for claims that include only 038 or 039 revenue codes without an accompanying International Classification of Diseases-9 (ICD-9) or ICD-10 procedure code or value code. As a result of requiring that all inpatient transfusion events include an appropriate ICD-9 or ICD-10 procedure code or value code, the measure will identify transfusion events more specifically and with less bias related to regional coding variation. As a result, it will assess a smaller number of events as well as a smaller range of total events.
We determined that the proposed revision to the STrR (NQF #2979) constituted a substantive change to the measure, and we submitted that revision to the Measures Application Partnership for consideration as part of the pre-rulemaking process. The Measures Application Partnership recommended that this measure be refined and resubmitted due to concerns that measuring transfusions in dialysis facilities may not be feasible.
Although we acknowledge that the Measures Application Partnership recommended that we refine and resubmit the updated version of the STrR measure, we note that the Measures Application Partnership's recommendation is at odds with the earlier conclusion of the NQF to endorse this change. On the issue of whether it is feasible to measure transfusions in dialysis facilities, the NQF concluded that these events can be identified using the same Medicare claims code algorithm that we use to identify transfusion events in other outpatient settings. The STrR measure identifies transfusion events during at-risk periods for patients cared for in a dialysis facility.
With respect to the Measures Application Partnership's concern that the decision to administer a blood transfusion might be outside of the dialysis facility's control, we note that the issue of whether anemia management practices in a dialysis facility can be linked to transfusion risk was specifically considered by the NQF during the endorsement process.
The NQF Renal Standing Committee concluded that this transfusion avoidance measure would incentivize facilities to properly manage anemia, with the result of lowering the patient's transfusion risk. The NQF Renal Standing Committee also found that although the decision to transfuse might ultimately be made by a hospital, the need to do so is dictated not only by clinical circumstances observed by the hospital, but also by the way the patient's anemia was managed by the facility.
Although the Measures Application Partnership was concerned that variability in blood transfusion coding practices could inadvertently affect a dialysis facility's performance on this measure, we note that the definition of transfusion events used in the revised STrR measure is consistent with the definition used in numerous scientific publications, including several peer reviewed publications.
Gilbertson, Monda, Bradbury & Collins. RBC Transfusions Among Hemodialysis Patients (1999-2010): Influence of Hemoglobin Concentrations Below 10 g/dL. Am J Kidney Dis. 2013; Volume 62, Issue 5, 919-928.
Collins et al. Effect of Facility-Level Hemoglobin Concentration on Dialysis Patient Risk of Transfusion. Am J Kidney Dis. 2014; 63(6):997-1006.
Cappell et al. Red blood cell (RBC) transfusion rates among US chronic dialysis patients during changes to Medicare end-stage renal disease (ESRD) reimbursement systems and erythropoiesis stimulating agent (ESA) labels. BMC Nephrology 2014, 15:116.
Ibrahim, et al. Blood transfusions in kidney transplant candidates are common and associated with adverse outcomes. Clin Transplant 2011: 25: 653-659.
Molony, et al. Effects of epoetin alfa titration practices, implemented after changes to product labeling, on hemoglobin levels, transfusion use, and hospitalization rates. Am J Kidney Dis 2016: epub before print (published online March 12, 2016).
We agree with the NQF Standing Committee's assessment that the STrR (NQF #2979) is an appropriate measure of quality for dialysis facilities. We further believe that the measure is appropriate for the ESRD QIP because the measure (1) Demonstrates variation in performance among facilities, (2) is an outcome of care that is modifiable by dialysis providers through effective management of anemia in patients, and (3) is a valid and reliable indicator of quality at the facility level. Proper management of anemia is an important quality of care issue for dialysis patients, and a topic for which the ESRD QIP must include measures (see section 1881(h)(2)(A)(i)).
For these reasons, we proposed the revision to the STrR measure be reflected in the ESRD QIP, and beginning with the PY 2021 program year, we proposed to use the updated version of the STrR (NQF #2979). Full measure specifications and testing data are available at
We requested comments on this proposal. The comments received and our responses are set forth below.
Another commenter pointed out that the IUR for facilities with sample sizes below 46 patients was about 0.4, suggesting that 60 percent of inter-facility difference was due to random noise and not underlying performance. The commenter stated that IURs increase as a function of sample size. Therefore, commenter argued, smaller samples would be associated with lower IURs. Based on the NQF documentation submitted by CMS, the commenter stated that one would expect the vast majority of STrR variation to be due to random variation across the 10-21 patient-years at risk that CMS has proposed for the small facility adjustment for STrR. While the small facility adjustment would raise scores for small facilities, the commenter argued that it would not adequately offset the substantial effect of random variation for small sample sizes. The commenter recommended that CMS set the minimum data requirement for each measure at the sample size at which the IUR reaches 0.70, the value commonly used at NQF. That is, the minimum sample size would be set at the point where at least 70 percent of the observed result would be driven by actual performance. Anything below that, commenter argued, means that too high a proportion of the observed result is simply due to chance.
In response to commenter's suggestion above about requiring an IUR of 0.70, we are not aware of any formal and prescriptive NQF guideline or standard that sets or requires this test result value as a minimum threshold for passing reliability. Additionally, there is no formal required threshold set by NQF, as demonstrated in the endorsement of other quality metrics that have a range of reliability statistics, several of which are below the threshold of 0.7. The STrR and SHR reliability results are comparable to the reliability test results for other NQF-endorsed risk adjusted outcome measures used in public reporting, for example, four NQF endorsed cause-specific hospital mortality measures demonstrated similar levels of reliability (#0229 Heart failure measure, ICC: 0.55; #0468 Pneumonia mortality measure, Intraclass Correlation Coefficient: 0.79; #1893 Chronic Obstructive Pulmonary Disease mortality measure, ICC: 0.51; #2558 Coronary Artery Bypass Grafting mortality measure, ICC: 0.32). The 2013 NQF Task Force on Evaluating Evidence and Testing also acknowledged that although the “Consensus Standards Approval Committee and subcommittee would like to have provided some guidance regarding minimum thresholds, they repeatedly noted the difficulties in determining such thresholds and the need for steering committees to have flexibility to make judgments.” (Page 13; Review and Update of Guidance for Evaluating Evidence and Measure Testing. Technical Report. Approved by CSAC on October 8, 2013:
Aside from considering the appropriateness of limiting assessment as the commenters suggested, we believe setting a sample size threshold to reach 0.7 IUR for each measure is not feasible. As has been shown, large facilities tend to obtain IUR of 0.7 or greater. Setting the range for the SFA based on this approach would result in: (1) Applying the SFA for a larger portion of facilities, depending on the measure; or (2) potentially excluding those facilities, and limiting the value of the measure to the program. Finally, setting consistent minimum data requirements and ranges would be challenging because the frequency of events varies in these measures (for example, hospitalizations are more frequent than transfusion events). Incorporating multiple years of data also has potential consequences for implementation. As a practical matter, it would be difficult to provide performance standards in advance of 4-year performance period. Doing so would also limit the degree to which providers could be assessed on improvement from year to year, since only one quarter of the data would change from payment year to payment year.
Another commenter noted that moving to rates, while an important step forward, would also create issues that CMS would need to carefully address. The commenter believed that choosing a methodology to convert ratios to rates
As discussed in the CY 2018 ESRD PPS proposed rule (82 FR 31212), for PY 2021, we proposed to remove the two VAT measures from the ESRD QIP and to replace them with two Vascular Access measures that were recently endorsed by the NQF. We proposed to score these measures the same way that we score the current VAT measures, and to include them within the Vascular Access Measure Topic.
Beginning with the PY 2015 ESRD QIP, we adopted the Minimizing Catheter Use as Chronic Dialysis Access (NQF #0256) and Maximizing Placement of Arterial Venous (AV) Fistula (NQF #0257) measures, which are paired measures of the rate of catheter and fistula placement for chronic dialysis access, respectively, for the ESRD QIP (77 FR 67479). These measures were developed in accordance with the National Kidney Foundation Kidney Disease Outcomes Quality Initiative Guidelines that state the following: (1) AV fistulas have the lowest rate of thrombosis and require the fewest interventions, (2) cost of AV fistula use and maintenance is the lowest, (3) fistulas have the lowest rates of infection, and (4) fistulas are associated with the highest survival and lowest hospitalization rates. Several epidemiologic studies consistently demonstrate the reduced morbidity and mortality associated with greater use of AV fistulas for vascular access in maintenance hemodialysis.
Based upon data we collected during the CMS Fistula First/Catheter Last Initiative,
Since the Maximizing Placement of AV Fistula Measure (NQF #0257) was first implemented, we have received public comments expressing concerns that in certain cases, such as patients with a low life expectancy, placement of a fistula may not be appropriate. A growing number of studies report that creating AV fistulas in some patients is less likely to be successful in the presence of certain comorbidities. In addition, certain patient groups may have less incremental benefit from an AV fistula relative to an AV graft.
Since the implementation of Minimizing Catheter Use as Chronic Dialysis Access Measure (NQF #0256), we have received comments from stakeholders raising concerns about its inability to account for patients with a limited life expectancy, for whom a fistula, with its extended maturation period, may not represent an improved quality of life.
In 2015, we convened a TEP to review the existing vascular access measures to consider how best to address these concerns. A copy of the summary TEP report is available at
• The fistula measure should be risk-adjusted for factors that are associated with decreased likelihood of AV fistula success, including:
++ Diabetes.
++ Heart diseases.
++ Peripheral vascular disease.
++ Cerebrovascular disease.
++ Chronic obstructive pulmonary disease.
++ Anemia (unrelated to ESRD/Chronic Kidney Disease).
++ Non-Vascular Access-Related Infections.
++ Drug Dependence.
• The measures should include all eligible hemodialysis patients, not just Medicare beneficiaries.
• The measures should include patients in the first 90 days of dialysis because this is a critical time for access planning/placement.
• The measures should include in the numerator only patients with an AV fistula using 2 needles (or an approved single needle device).
• The measures should exclude conditions associated with a limited life expectancy where an AV fistula may not be the appropriate choice for access (for example, hospice, metastatic cancer, end stage liver disease, and coma/brain injury).
We responded to the TEP's recommendations by developing two new VAT measures intended to be jointly reported to assess the placement of vascular access among ESRD dialysis patients. These two vascular access quality measures, when used together, consider AV fistula use as a positive outcome and prolonged use of a tunneled catheter as a negative outcome. With the growing recognition that some patients have exhausted options for an AV fistula or have comorbidities that may limit the success of AV fistula creation, joint reporting of the measures accounts for all three vascular access options. This paired incentive structure that relies on both measures (standardized fistula rate and long-term catheter rate) reflects consensus-based best practice, and supports maintenance of the gains in vascular access success achieved via the Fistula First/Catheter Last Project over the last decade.
We received general comments on our proposal to include two new Vascular Access measures in the ESRD QIP beginning in PY 2021. The comments and our responses are set forth below:
Another commenter noted that for the two vascular access measures, there are patient-level exclusions for patients with a catheter but with limited life expectancy, and asked for clarification regarding the 4 criteria used to determine limited life expectancy and how this information is intended to be documented.
Regarding life expectancy, both the standardized fistula rate and the catheter measures exclude patients with a catheter as their vascular access and who meet one of the following conditions below that are identified through Medicare claims. No additional documentation (that is, attestation) is required from the facility. Specifically, limited life expectancy is defined as follows:
• Patients under hospice care in the current reporting month.
• Patients with metastatic cancer in the past 12 months.
• Patients with end-stage liver disease in the past 12 months.
• Patients with coma or anoxic brain injury in the past 12 months.
The additional exclusion criteria for the proposed vascular access measures are captured using Medicare claims data only. These measures were recommended by the Vascular Access TEP in 2015 with the expectation that considering the exclusions is appropriate. We conducted sensitivity analyses regarding the application of these measures and found that the exclusions are relatively rare and do not substantially bias the measure assessment.
This proposed measure replaces NQF #0257, Maximizing Placement of AV fistula, and it incorporates changes that reflect input from the 2015 Vascular Access TEP:
• Risk Adjustment for the following conditions that affect the success of fistula placement:
++ Diabetes.
++ Heart diseases.
++ Peripheral vascular disease.
++ Cerebrovascular disease.
++ Chronic obstructive pulmonary disease.
++ Anemia (unrelated to ESRD/Chronic Kidney Disease).
++ Non-Vascular Access-Related Infections.
++ Drug Dependence.
• Inclusion of all eligible hemodialysis patients, not just Medicare beneficiaries.
• Inclusion of patients in the first 90 days of dialysis because this is a critical time for access planning/placement.
• Inclusion in the numerator of only patients with an AV fistula using 2 needles (or an approved single needle device).
• Exclusion of conditions associated with a limited life expectancy where an AV fistula may not be the appropriate choice for access (for example, hospice, metastatic cancer, end-stage liver disease, and coma/brain injury).
CROWNWeb, Medicare claims and the CMS Medical Evidence form 2728 (OMB No. 0938-0046) are used as the data sources for establishing the denominator. CROWNWeb is the data source for establishing the numerator. Medicare claims and the CMS Medical Evidence form 2728 are data sources for the risk adjustment factors. Medicare claims and CROWNWeb are used for the exclusion criteria. Using CROWNWeb as the primary data source allows us to expand the Standardized Fistula Rate to include all ESRD dialysis patients, rather than only Medicare FFS patients, providing a more complete quality assessment for dialysis facilities. This was a key consideration by the TEP that recommended the development of this measure.
The outcome of the Standardized Fistula Rate is the use of an AV fistula as the sole means of vascular access as of the last hemodialysis treatment session of the month.
The cohort includes adult ESRD dialysis patients who are determined to be maintenance hemodialysis patients (in-center or home) for the entire reporting month at the same facility.
The Standardized Fistula Rate excludes pediatric patients (<18 years old), patients on peritoneal dialysis, and patient-months where the patient was not on hemodialysis (in-center or home) at the same facility for the entire reporting month. The measure additionally excludes patients with a catheter who have a limited life expectancy.
The Standardized Fistula Rate is a directly standardized percentage, with each facility's percentage of fistula use adjusted by a series of risk factors, including patient demographic and clinical characteristics based on a logistic regression model. The demographic and clinical characteristics were chosen in order to adjust for factors outside the control of a facility that are associated with a decreased likelihood of AV fistula success.
We submitted the measure to NQF, where the Renal Standing Committee recommended it for consensus
We proposed implementing Hemodialysis Vascular Access: Standardized Fistula Rate (NQF #2977) beginning with the PY 2021 program year. Detailed measure specifications and testing data are available at
Commenter also recommended that if patients choose to have neither a fistula nor a graft placed, after adequate education by their physician, then the patients should be excluded from the denominator. Commenter added that while overall, fistulas are slightly superior to grafts, there is virtually no difference in the elderly. The commenter also added that some of the benefits of grafts are that they are as long-lasting as fistulas if primary failures are included, they may be placed shortly before dialysis to avoid unnecessary fistulas that aren't used, they are more successful than fistulas as a second access, they help to avoid central venous catheters, and they may minimize or eliminate the need for a complex risk adjustment in the fistula rate as is proposed.
Many of the exclusion criteria based on comorbidities suggested by commenters are either associated with shortened life expectancy or low likelihood of successful fistula placement. In some situations, the severity of the underlying diagnosis is difficult to ascertain from claims data, although like heart failure, we anticipate this will improve over time with the change to and availability of ICD-10 codes. Therefore, other comorbidities will be evaluated as part of future measure maintenance. Lastly, multiple prior failed vascular access attempts were considered by the TEP as an exclusion criterion to address the exhaustion of vascular sites or failed attempts to create a fistula or graft, however consensus was not reached within the TEP on how best to implement this exclusion. At the present time, historical vascular access data in CROWNWeb are limited, but this exclusion criterion will be evaluated when more historical vascular access data are available.
The two vascular access measures, when used together, consider AV fistula use as a positive outcome and prolonged use of a tunneled catheter as a negative outcome. With the growing recognition that some patients have exhausted options for an arteriovenous fistula, or have comorbidities that may limit the success of AV fistula creation, pairing the measures accounts for all three vascular access options. The standardized fistula measure adjusts for patient factors where fistula placement may be either more difficult or not appropriate and acknowledges that in certain circumstances an AV graft may be the best access option. This paired incentive structure that relies on both measures reflects consensus best practice, and supports maintenance of the gains in vascular access success achieved via the Fistula First/Catheter Last Project over the last decade. Finally, it would be difficult to ascertain what constitutes adequate education by a nephrologist from the patient's perspective as well as how to validate informed patient choice not to have an AV fistula or arteriovenous graft, and this may be particularly a concern for vulnerable patients.
This proposed measure replaces NQF #0256, Minimizing Use of Catheters as Chronic Dialysis Access, and it incorporates the following changes that reflect input from the 2015 Vascular Access TEP:
• Inclusion of all eligible hemodialysis patients, not just Medicare beneficiaries, since the measure is now specified to be calculated from CROWNWeb.
• Patients using a catheter continuously for 3 months or longer, even if combined with an AV fistula (or graft), are now counted in the numerator. The current measure does not count patients in the numerator if they have a catheter combined with an AV fistula or graft.
• Patients with missing VAT are counted in both the denominator and the numerator. That is, “missing” access type is considered a “failure” and therefore counts against the facility.
• Exclusion criteria have been added to the measure for conditions associated with a limited life expectancy where a catheter may be an appropriate choice for access. These are the same exclusions applied to the Standardized Fistula Rate measure (for example, hospice, metastatic cancer, end stage liver disease, and coma/brain injury).
CROWNWeb, Medicare Claims and the CMS Medical Evidence form 2728 are used as the data sources for establishing the denominator. CROWNWeb is the data source for establishing the numerator. Medicare claims and CROWNWeb are used for the exclusion criteria. Medicare claims and the CMS Medical Evidence Form 2728 are used for risk adjustment. Using CROWNWeb as the primary data source allows us to expand the Long-Term Catheter Rate to include all ESRD dialysis patients, rather than only Medicare FFS patients, providing a more complete quality assessment for dialysis facilities. This was a key consideration by the TEP that recommended the development of this measure.
The outcome of the Long-Term Catheter Rate is the use of a catheter continuously for 3 months or longer as of the last hemodialysis treatment session of the month.
The cohort includes adult ESRD dialysis patients who are determined to be maintenance hemodialysis patients (in-center or home) for the entire reporting month at the same facility.
The Long-Term Catheter Rate excludes pediatric patients (<18 years old), patients on peritoneal dialysis, and patient-months not on hemodialysis (in-center or home) for the entire reporting month at the same facility. The measure additionally excludes patients with a catheter who have a limited life expectancy.
We submitted the Long-Term Catheter Rate (NQF #2978) to NQF, where the Renal Standing Committee recommended it for consensus endorsement, and the NQF endorsed the measure in December 2016. The measure was submitted to the Measure Application Partnership in 2016, which supported it for implementation in the ESRD QIP.
We proposed to introduce the Long-Term Catheter Rate (NQF #2978) into the ESRD QIP beginning with the PY 2021 program year. Full measure specifications and testing data are available at
We requested comments on this proposal.
Commenter suggested that while these additional exclusion criteria could open the door to gaming the system, signed patient forms and statistics with inspections of outlier facilities could handle that issue. If a patient chooses to have long-term catheter after adequate education from their Nephrologist and care team, then the commenter believes that the patient should be excluded. Commenter added that most patients with these conditions have a catheter that is clinically appropriate. If the catheter is the best medical access for that patient, then the commenter believes that the facility should not be penalized.
We proposed to establish CY 2019 as the performance period for the PY 2021 ESRD QIP for all but the NHSN Healthcare Personnel Influenza Vaccination reporting measure because it is consistent with the performance periods we have historically used for these measures and accounts for seasonal variations that might affect a facility's measure score.
We proposed that the performance period for the NHSN Healthcare Personnel Influenza Vaccination reporting measure will be from October 1, 2018 through March 31, 2019, because this period spans the length of the 2018-2019 influenza season.
We requested comments on these proposals.
Section 1881(h)(4)(A) of the Act provides that “the Secretary shall establish performance standards with respect to measures selected . . . for a performance period with respect to a year.” Section 1881(h)(4)(B) of the Act further provides that the “performance standards . . . shall include levels of achievement and improvement, as determined appropriate by the Secretary.” We use the performance standards to establish the minimum score a facility must achieve to avoid a Medicare payment reduction.
For the same reasons stated in the CY 2013 ESRD PPS final rule (77 FR 67500 through 76502), we proposed for PY 2021 to set the performance standards, achievement thresholds, and benchmarks for the clinical measures at the 50th, 15th, and 90th percentile, respectively, of national performance in CY 2017, because this will give us enough time to calculate and assign numerical values to the proposed performance standards for the PY 2021 program prior to the beginning of the performance period. We continue to believe these standards will provide an incentive for facilities to continuously improve their performance, while not reducing incentives to facilities that score at or above the national performance rate for the clinical measures.
We requested comments on our proposal to continue this policy for PY 2021. The comments and our responses are set forth below.
We do not currently have the necessary data to assign numerical values to the proposed performance standards for the clinical measures, because we do not yet have data from CY 2017 or the first portion of CY 2018. We will publish values for the clinical measures, using data from CY 2017 and the first portion of CY 2018 in the CY 2019 ESRD PPS final rule.
In the CY 2014 ESRD PPS final rule, we finalized performance standards for the Anemia Management and Mineral Metabolism reporting measures (78 FR 72213). In the CY 2016 ESRD PPS final rule, we finalized performance standards for the Screening for Clinical Depression and Follow-Up, Pain Assessment and Follow-Up, and NHSN Healthcare Provider Influenza Vaccination reporting measures (79 FR 66209). In the CY 2017 ESRD PPS final rule, we finalized performance standards for the Ultrafiltration Rate Reporting Measure (81 FR 77916), the Serum Phosphorus Reporting measure (81 FR 77916), and the NHSN Dialysis Event Reporting measure (81 FR 77916).
We proposed to continue use of these performance standards for the Reporting Measures included in the PY 2021 ESRD QIP.
We did not receive any comments on our proposed use of these performance standards for the Reporting Measures included in the PY 2021 ESRD QIP and we are therefore finalizing these standards as proposed.
In the CY 2014 ESRD PPS final rule, we finalized a policy for scoring performance on clinical measures based on achievement (78 FR 72215). Under this methodology, facilities receive points along an achievement range based on their performance during the performance period for each measure, which we define as a scale between the achievement threshold and the benchmark. In determining a facility's achievement score for each clinical
We also proposed to use this same methodology for scoring the two new Vascular Access measures.
Aside from the proposed addition of the two Vascular Access measures, we did not propose any changes to this policy. We proposed to continue use of this policy for the PY 2021 ESRD QIP.
We did not receive any comments on our continued use of this policy for PY 2021. Accordingly, we are finalizing this policy as proposed.
In the CY 2014 ESRD PPS final rule, we finalized a policy for scoring performance on clinical measures based on improvement (78 FR 72215 through 72216). In determining a facility's improvement score for each measure under the PY 2021 ESRD QIP, we proposed to continue using this methodology for all clinical measures. Under this methodology, facilities receive points along an improvement range, defined as a scale running between the improvement threshold and the benchmark. We proposed to define the improvement threshold as the facility's performance on the measure during CY 2018. The facility's improvement score would be calculated by comparing its performance on the measure during CY 2019 (the performance period) to the improvement threshold and benchmark.
We also proposed to use this same methodology for scoring the two new Vascular Access measures.
Aside from the proposed addition of the two new Vascular Access measures, we did not propose any other changes to this policy. We proposed to continue use of this policy for the PY 2021 ESRD QIP.
The comments and our responses to the comments on our proposals are set forth below.
Regarding the clinical measure domain score, which is worth 75 percent of the TPS and only comprises 2-3 measures for most home programs, commenter suggested that one way to mitigate this effect would be to apply the current low volume scoring adjustment to a facility's home dialysis population, should they meet the rest of the criteria. The commenter stated that this adjustment was originally designed to be applied facility-wide to facilities having only 11-25 eligible cases for a given clinical measure, and the commenter was unsure whether this approach would adequately compensate for the disadvantage of being scored on a small number of measures.
Another commenter argued that the measures should reflect the unique nature of each modality and should be developed based on data specific to that modality, recommending that CMS improve Peritoneal Dialysis adequacy scoring within the scoring methodology because PD therapy is inherently different from Hemodialysis and outcomes should be measured accordingly. According to the commenter, many PD patients experience residual renal function, which is not captured by the QIP and this is a particularly significant scoring limitation with respect to the pediatric PD population. Commenter urged CMS to revise the dialysis adequacy targets downward to more accurately capture and reflect the actual experiences of PD patients.
In the CY 2015 ESRD PPS final rule, we finalized a policy for scoring performance on the ICH CAHPS clinical measure based on both achievement and improvement (79 FR 66209 through 66210). We proposed to use this scoring methodology for the PY 2021 ESRD QIP. Under this methodology, facilities will receive an achievement score and an improvement score for each of the three composite measures and three global ratings in the ICH CAHPS survey instrument. A facility's ICH CAHPS score will be based on the higher of the facility's achievement or improvement score for each of the composite measures and global ratings, and the resulting scores on each of the composite measures and global ratings will be averaged together to yield an overall score on the ICH CAHPS clinical measure. For PY 2021, the facility's achievement score would be calculated by comparing where its performance, on each of the three composite measures and three global ratings during CY 2019 falls, relative to the achievement threshold and benchmark for that measure and rating based on CY 2017 data. The facility's improvement score would be calculated by comparing its performance on each of the three composite measures and three global ratings during CY 2019 to its performance rates on these items during CY 2018.
We requested comments on this proposal. We did not receive any comments on this proposal. We are therefore finalizing this policy as proposed.
In the CY 2013 ESRD PPS final rule we established a methodology for deriving the overall scores for measure topics (77 FR 67507). We proposed to use the same methodology described in the CY 2013 ESRD PPS to calculate the VAT Measure Topic Score.
We requested comments on this proposal. We did not receive any comments on this proposal. We are therefore finalizing this policy as proposed.
In the CY 2013 ESRD PPS final rule, we finalized policies for scoring performance on the Anemia Management and Mineral Metabolism reporting measures in the ESRD QIP (77 FR 67506). In the CY 2015 ESRD PPS final rule, we finalized policies for scoring performance on the Clinical Depression Screening and Follow-Up, Pain Assessment and Follow-Up, and NHSN Healthcare Provider Influenza Vaccination reporting measures (79 FR 66210 through 66211). In the CY 2017 ESRD PPS final rule, we finalized policies for scoring performance on the
We proposed to continue use of these policies for the PY 2021 ESRD QIP.
We did not receive any comments on this proposal. We are therefore finalizing these policies as proposed.
In the CY 2017 ESRD PPS final rule, we discussed our policy priorities for quality improvement for patients with ESRD (81 FR 77887). These priorities have not changed since that time. Accordingly, in an effort to remain consistent in the weighting of measures included in the program, we proposed to weight the following measures in the following subdomains of the three individual measure domains (see Table 10):
For PY 2021 we proposed to maintain the weight of the Safety Measure Domain at 15 percent of a facility's TPS without raising it further, in light of validation concerns discussed in the CY 2017 ESRD PPS final rule (81 FR 77887). Specifically, we identified two distinct types of accidental or intentional under-reporting. First, there is a belief that many facilities do not consistently report monthly dialysis event data for the full 12-month performance period. Second, even with respect to the facilities that do report monthly dialysis event data, there is a concern that many of those facilities do not consistently report all of the dialysis events that they should be reporting (81 FR 77879). Although we did not propose to change the total number of measures in the ESRD QIP's measure set for PY 2021, we proposed to replace the existing Vascular Access measures with the proposed Standardized Fistula and Catheter Clinical measures. We believe these measures hold the same importance and value as the measures they are replacing and therefore did not propose any changes to the weights finalized for PY 2020 in the CY 2017 ESRD PPS final rule (81 FR 77887). We stated that we may, in future years of the program, consider increasing the weight of the NHSN BSI Clinical Measure and/or the NHSN BSI Measure Topic once we see that facilities are completely and accurately reporting to NHSN and once we have analyzed the data from the recently updated NHSN Data Validation Study.
We continue to believe that while the reporting measures are valuable, the clinical measures assess facility performance on actual patient care processes and outcomes, and therefore, justify a higher combined weight (78 FR 72217). In the CY 2017 ESRD PPS final rule, we finalized that for PY 2020, the weight of the Safety Measure Domain would be 15 percent of a facility's TPS, the weight of the Clinical Measure Domain would be 75 percent of a facility's TPS and the weight of the Reporting Measure Domain would be 10 percent of a facility's TPS. We did not propose any changes to the weights assigned to these domains and proposed to apply the same weights to the three scoring domains for the PY 2021 program year.
In the CY 2017 ESRD PPS final rule, we also finalized that, to be eligible to receive a TPS, a facility must be eligible to be scored on at least one measure in the Clinical Measure Domain and at least one measure in the Reporting Measure Domain. We did not propose
We requested comments on these proposals.
As shown in Table 11, under this re-weighting approach for the Vascular Access Measures, approximately 36 percent of facilities would receive a higher VAT Topic Score and TPS, but 42 percent would receive lower scores. Additionally, under this weighting policy recommended by commenters, 5.8 percent would receive a lower payment reduction, but 7.4 percent would receive a higher payment reduction. While the recommendation to re-weight the VAT Measure topic fits with the overall goal of the ESRD QIP to increase performance on the catheter measure, we believe that some facilities would be adversely impacted were we to adopt this weighting structure.
In this section, we provide an example to illustrate the scoring methodology for PY 2021. Figures 1 through 4 illustrate how to calculate the Clinical Measure Domain score, the Reporting Measure Domain score, the Safety Measure Domain score, and the TPS. Figure 5 illustrates the full scoring methodology for PY 2021. Note that for this example, Facility A, a hypothetical facility, has performed very well.
Our policy is to score facilities on clinical and reporting measures for which they have a minimum number of qualifying patients during the performance period. With the exception of the Standardized Readmission Ratio, Standardized Hospitalization Ratio, Standardized Transfusion Ratio, NHSN Healthcare Personnel Influenza Vaccination, and ICH CAHPS clinical measures, a facility must treat at least 11 qualifying cases during the performance period in order to be scored on a clinical or reporting measure. A facility must have at least 11 index discharges to be eligible to receive a score on the SRR clinical measure, 10 patient-years at risk to be eligible to receive a score on the STrR clinical measure, and 5 patient-years at risk to be eligible to receive a score on the SHR clinical measure. The NHSN Healthcare Personnel Influenza Vaccination measure does not assess patient-level data and therefore does not have a minimum qualifying patient count. In order to receive a score on the ICH CAHPS clinical measure, a facility must have treated at least 30 survey-eligible patients during the eligibility period and receive 30 completed surveys during the performance period. We proposed to continue use of these minimum data policies for the measures that we proposed to continue including in the PY 2021 ESRD QIP measure set. We also proposed to use these same minimum data policies for the proposed Vascular Access Measures.
Under our current policy, we begin counting the number of months for which a facility is open on the first day of the month after the facility's CMS Certification Number (CCN) Open Date. In the CY 2018 ESRD PPS proposed rule (81 FR 31203), we discussed our proposed clarifications, which we are finalizing in this final rule (see Table 2b), to our CCN open date policy and to the patient minimum requirements for each of the measures finalized for the PY 2020 ESRD QIP. Similarly, for the PY 2021 ESRD QIP, only facilities with a CCN Open Date before July 1, 2019 would be eligible to be scored on the Anemia Management, Serum Phosphorous, Ultrafiltration Rate, Pain Assessment and Follow-Up, Clinical Depression Screening and Follow-Up reporting measures, and only facilities with a CCN Open Date before January 1, 2019 would be eligible to be scored on the NHSN BSI Clinical and Reporting Measures, the ICH CAHPS Clinical Measure, and the NHSN Healthcare Personnel Influenza Vaccination reporting measure. We proposed to continue applying these CCN open date policies to the measures proposed for PY 2021.
Table 13 displays the proposed patient minimum requirements for each of the measures, as well as the proposed CCN Open Dates after which a facility would not be eligible to receive a score on a reporting measure. We note that the 11 qualifying patient minimum used for most of the measures shown in the Table 13 is a long-standing policy in the ERSD QIP.
The comments and our responses to the comments on our proposals are set forth below.
These reliability analyses were performed for all measures, including the ratio measures (which have different thresholds).
Section 1881(h)(3)(A)(ii) of the Act requires the Secretary to ensure that the application of the scoring methodology results in an appropriate distribution of payment reductions across facilities, such that facilities achieving the lowest TPSs receive the largest payment reductions. We proposed that, for the PY 2021 ESRD QIP, a facility will not receive a payment reduction if it achieves a minimum TPS that is equal to or greater than the total of the points it would have received if:
• It performed at the performance standard for each clinical measure.
• It received the number of points for each reporting measure that corresponds to the 50th percentile of facility performance on each of the PY 2019 reporting measures.
We noted in the proposed rule that this proposed policy for PY 2021 is identical to the policy finalized for PY 2020.
We stated in the proposed rule that we were not proposing a policy regarding the inclusion of measures for which we were not able to establish a numerical value for the performance standard through the rulemaking process before the beginning of the performance period for PY 2020. We did not propose such a policy because no measures in the proposed PY 2021 measure set meet this criterion. However, should we choose to adopt a clinical measure in future rulemaking without the baseline data required to calculate a performance standard before the beginning of the performance period, we will propose a criterion accounting for that measure in the minimum TPS for the applicable payment year at that time.
The PY 2019 program is the most recent year for which we will have calculated final measure scores before the beginning of the proposed performance period for PY 2021 (that is, CY 2019). Because we have not yet calculated final measure scores, we are unable to determine the 50th percentile of facility performance on the PY 2019 reporting measures. We will propose that value in the CY 2019 ESRD PPS proposed rule once we have calculated final measure scores for the PY 2019 program, and will finalize those values in the CY 2019 ESRD PPS final rule using the most updated data available at the time of publication.
Section 1881(h)(3)(A)(ii) of the Act requires that facilities achieving the lowest TPSs receive the largest payment reductions. In the CY 2014 ESRD PPS final rule (78 FR 72223 through 72224), we finalized a payment reduction scale for PY 2016 and future payment years: For every 10 points a facility falls below the minimum TPS, the facility would receive an additional 0.5 percent reduction on its ESRD PPS payments for PY 2016 and future payment years, with a maximum reduction of 2.0 percent. We did not propose any changes to this policy for the PY 2021 ESRD QIP.
Because we are not yet able to calculate the performance standards for each of the clinical measures, we are also not able to calculate a proposed
The comments and our responses to the comments on our proposal are set forth below.
Our policies for determining payment reductions have not changed from year to year and are consistent with the methodology described in several of our previous rules (see for example, 80 FR 69046 and 81 FR 77893). We believe the increases in simulated payment reductions are due to the inclusion of the ICH CAHPS and SHR measures in the PY 2020 simulation, whereas they were not included in the PY 2019 simulation because data was not available at that time. It is also due to a decrease in performance for the SRR, STrR, VAT, and Hypercalcemia measures among a subset of facilities. Finally, we note that as the ESRD QIP increases the number of measures included in the TPS, this also increases the chance that a facility will score poorly on one or more measures, which can result in increased payment reductions.
We received several general comments on the ESRD QIP. The comments and our responses are set forth below.
HHS has a number of initiatives designed to improve health and health care quality through the adoption of health information technology (health IT) and nationwide health information exchange. Health IT facilitates the secure, efficient, and effective sharing and use of health-related information when and where it is needed, and is an important tool for settings across the continuum of care, including ESRD facilities. Health IT plays an important role in developing care plans to manage dialysis related care and co-morbid conditions for patients with ESRD, as well as enabling electronic coordination and communication among multidisciplinary teams. Such tools can promote quality improvement, improve efficiencies and reduce unnecessary costs.
HHS continues to make important strides promoting the availability of technology tools to support providers, including those in ESRD settings. For instance, in 2015 the Office of the National Coordinator for Health Information Technology (ONC) released a document entitled “Connecting Health and Care for the Nation: A Shared Nationwide Interoperability Roadmap Version 1.0 (Roadmap) (available at
In addition, ONC has released the 2017 Interoperability Standards Advisory (available at
We encourage stakeholders to utilize health information exchange and certified health IT to effectively and efficiently help providers improve internal care delivery practices, support management of care across the continuum, enable the reporting of electronically specified clinical quality measures, and improve efficiencies and reduce unnecessary costs. As adoption of certified health IT increases and interoperability standards continue to mature, HHS will seek to reinforce standards through relevant policies and programs.
The comments and our responses to the comments on this proposal are set forth below.
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
We are not finalizing changes to the regulatory text for the ESRD PPS or for AKI dialysis payment in CY 2018.
This final rule does not impose any new information collection requirements in the regulation text, as specified above. However, this final rule does make reference to several associated information collections that are not discussed in the regulation text contained in this document. The following is a discussion of these information collections.
To derive wage estimates, we used data from the U.S. Bureau of Labor Statistics' May 2016 National Occupational Employment and Wage Estimates. In the CY 2016 ESRD PPS final rule (80 FR 69069), we stated that it was reasonable to assume that Medical Records and Health Information Technicians, who are responsible for organizing and managing health information data,
In the CY 2016 ESRD PPS final rule (80 FR 69070), we estimated that the time required to submit measure data for Payment Year 2019 using CROWNWeb is 2.5 minutes per data element submitted, which takes into account the small percentage of data
Section IV.B.3.g of this final rule outlines our data validation policies for PY 2020. Specifically, for the CROWNWeb validation, we will continue randomly sampling records from 300 facilities as part of our continuing pilot data validation program. Each sampled facility will be required to produce approximately 10 records, and the sampled facilities will be reimbursed by our validation contractor for the costs associated with copying and mailing the requested records. The burden associated with these validation requirements is the time and effort necessary to submit the requested records to a CMS contractor. We estimate that it will take each facility approximately 2.5 hours to comply with this requirement. If 300 facilities are asked to submit records, we estimate that the total combined annual burden for these facilities will be 750 hours (300 facilities × 2.5 hours). Since we anticipate that Medical Records and Health Information Technicians or similar administrative staff would submit this data, we estimate that the aggregate cost of the CROWNWeb data validation would be approximately $29,895 (750 hours × $39.86/hour), or a total of approximately $93 ($29,895/300 facilities) per facility in the sample. The burden associated with these requirements is captured in an information collection request (OMB control number 0938-1289).
Under the continuing data validation study for validating data reported to the NHSN Dialysis Event Module, we will continue using the methodology finalized in the CY 2017 ESRD PPS final rule, however we are adopting a modification to our sampling methodology, which we described at section IV.B.3.g of this final rule. A CMS contractor will send these facilities requests for medical records for all patients with “candidate events” during the evaluation period. Overall, we estimate that, on average, quarterly lists would include two positive blood cultures per facility, but we recognize these estimates may vary considerably from facility to facility. We estimate that it will take each facility approximately 60 minutes to comply with this requirement (30 minutes from each of the two quarters in the evaluation period). If 35 facilities are asked to submit records, we estimate that the total combined annual burden for these facilities will be 35 hours (35 facilities × 1 hour). Since we anticipate that Medical Records and Health Information Technicians or similar administrative staff will submit this data, we estimate that the aggregate cost of the NHSN data validation will be $1,395.10 (35 hours × $39.86/hour), or a total of $39.86 ($1,395.10/35 facilities) per facility in the sample. The burden associated with these requirements is captured in an information collection request (OMB control number 0938-1340).
To determine the burden associated with the collection of information requirements, we look at each of these elements together: The total number of patients nationally, the number of elements per patient-year required for each measure, the amount of time required for data entry, and the estimated wage plus benefits of the individuals within facilities who are most likely to be entering data into CROWNWeb. Therefore, based on this methodology, in the CY 2017 ESRD PPS final rule, we anticipated the burden associated with the new collection of information requirements was approximately $91 million for the PY 2020 ESRD QIP (81 FR 77957).
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as economically significant); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule is not economically significant within the meaning of section 3(f)(1) of the Executive Order. However, OMB has determined that the actions are significant within the meaning of section 3(f)(4) and 3(f)(3) of the Executive Order. Therefore, OMB has reviewed this final rule, and the Departments have provided the following assessment of their impact. We solicited comments on the regulatory impact analysis provided and no comments were received.
This rule finalizes a number of routine updates and one policy change to the ESRD PPS in CY 2018. The finalized routine updates include the CY 2018 wage index values, the wage
This rule finalizes routine updates to the payment for renal dialysis services furnished by ESRD facilities to individuals with AKI. Failure to publish this final rule would result in ESRD facilities not receiving appropriate payments in CY 2018 for renal dialysis services furnished to patients with AKI in accordance with section 1834(r) of the Act.
This rule finalizes requirements for the ESRD QIP, including the adoption of a measure set for the PY 2021 program, as directed by section 1881(h) of the Act. Failure to finalize requirements for the PY 2021 ESRD QIP would prevent continuation of the ESRD QIP beyond PY 2020. In addition, finalizing requirements for the PY 2021 ESRD QIP provides facilities with more time to review and fully understand new measures before they are scored on them in the ESRD QIP.
We estimate that the final revisions to the ESRD PPS will result in an increase of approximately $60 million in payments to ESRD facilities in CY 2018, which includes the amount associated with updates to the outlier thresholds, outlier policy, and updates to the wage index. We are estimating approximately $20 million that would now be paid to ESRD facilities for dialysis treatments provided to AKI beneficiaries.
We note that the impacts for the ESRD PPS and AKI payments in the proposed rule are substantially different from what we are finalizing. The proposed ESRD PPS impact was $100 million based on the proposed update factor of 0.7. The final update factor was calculated as 0.3 percent, and that change resulted in the lower impact amount included in this final rule.
The proposed impact for AKI payments was $2 million. The increase from the proposed rule to the final rule is based on actual preliminary claims data that became available after publication of the proposed rule, which allowed us to make a more accurate estimation of the utilization of services.
For PY 2021, we estimate that the final revisions to the ESRD QIP will result in a savings of $29 million, which includes a zero incremental burden due to collection of information requirements and $29 million in estimated payment reductions across all facilities.
If regulations impose administrative costs on private entities, such as the time needed to read and interpret this final rule, we estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, we assume that the total number of unique commenters on last year's proposed rule will be the number of reviewers of this final rule. We acknowledge that this assumption may understate or overstate the costs of reviewing this rule. It is possible that not all commenters reviewed last year's rule in detail, and it is also possible that some reviewers chose not to comment on the proposed rule. For these reasons we thought that the number of past commenters would be a fair estimate of the number of reviewers of this rule. We requested comments on the approach in estimating the number of entities which will review the proposed rule and no comments were received.
We also recognize that different types of entities are in many cases affected by mutually exclusive sections of this final rule, and therefore for the purposes of our estimate we assume that each reviewer reads approximately 50 percent of the rule. We requested comments on this assumption, however, no comments were received.
Using the wage information from the BLS (
To understand the impact of the changes affecting payments to different categories of ESRD facilities, it is necessary to compare estimated payments in CY 2017 to estimated payments in CY 2018. To estimate the impact among various types of ESRD facilities, it is imperative that the estimates of payments in CY 2017 and CY 2018 contain similar inputs. Therefore, we simulated payments only for those ESRD facilities for which we are able to calculate both current payments and new payments.
For this final rule, we used CY 2016 data from the Part A and B Common Working Files, as of August 4, 2017, as a basis for Medicare dialysis treatments and payments under the ESRD PPS. We updated the 2016 claims to 2017 and 2018 using various updates. The updates to the ESRD PPS base rate are described in section II.B.2.d of this final rule. Table 14 shows the impact of the estimated CY 2018 ESRD payments compared to estimated payments to ESRD facilities in CY 2017.
Column A of the impact table indicates the number of ESRD facilities for each impact category and column B indicates the number of dialysis treatments (in millions). The overall effect of the final changes to the outlier payment policy described in section II.B.2.c of this rule is shown in column C. For CY 2018, the impact on all ESRD facilities as a result of the changes to the outlier payment policy would be a 0.2 percent increase in estimated payments. Nearly all ESRD facilities are anticipated to experience a positive effect in their estimated CY 2018 payments as a result of the finalized outlier policy changes.
Column D shows the effect of the finalized CY 2018 wage indices and the wage index floor of 0.4000. The categories of types of facilities in the impact table show changes in estimated payments ranging from a −0.6 percent decrease to a 0.5 percent increase due to these finalized updates in the wage indices.
Column E shows the effect of the finalized CY 2018 ESRD PPS payment rate update. The finalized ESRD PPS payment rate update is 0.3 percent,
Column F reflects the overall impact, that is, the effects of the finalized outlier policy changes, the finalized wage index floor, and payment rate update. We expect that overall ESRD facilities would experience a 0.5 percent increase in estimated payments in CY 2018. The categories of types of facilities in the impact table show impacts ranging from 0.0 percent to an increase of 1.1 percent in their CY 2018 estimated payments.
Under the ESRD PPS, Medicare pays ESRD facilities a single bundled payment for renal dialysis services, which may have been separately paid to other providers (for example, laboratories, durable medical equipment suppliers, and pharmacies) by Medicare prior to the implementation of the ESRD PPS. Therefore, in CY 2018, we estimate that the finalized ESRD PPS would have zero impact on these other providers.
We estimate that Medicare spending (total Medicare program payments) for ESRD facilities in CY 2018 would be approximately $9.8 billion. This estimate takes into account a projected increase in fee-for-service Medicare dialysis beneficiary enrollment of 1.6 percent in CY 2018.
Under the ESRD PPS, beneficiaries are responsible for paying 20 percent of the ESRD PPS payment amount. As a result of the projected 0.5 percent overall increase in the finalized CY 2018 ESRD PPS payment amounts, we estimate that there will be an increase in beneficiary co-insurance payments of 0.5 percent in CY 2018, which translates to approximately $10 million a figure which is rounded to the nearest $10 million. The rounded $10 million is based on 20 percent of CY 2018 estimated total payment increase of $60 million. There are roughly 400,000 ESRD beneficiaries, so this increase represents a $25 increase per beneficiary.
In section II.B.1.d of this final rule, we finalized a policy to price eligible outlier drugs and biologicals that were or would have been, prior to January 1, 2011, separately billable under Medicare Part B using any of the methodologies available under section 1847A of the Act. We considered not making any change to the outlier pricing policy and also potentially requiring manufacturers to submit ASP data in order to be eligible for outlier payment or payment under the TDAPA.
We analyzed CY 2017 hospital outpatient claims to identify the number of treatments furnished historically for AKI patients. We identified 32,433 AKI dialysis treatments that were furnished in the first four months of CY 2017. We then inflated the 32,433 treatments to account for the whole year of 2017. We further inflated to 2018 values using estimated population growth for fee-for service non-ESRD beneficiaries. This results in an estimated 98,900 treatments that would now be paid to ESRD facilities for furnishing dialysis to beneficiaries with AKI. Using the CY 2018 final ESRD base rate of $232.37 and an average wage index multiplier, we are estimating approximately $20 million that would now be paid to ESRD facilities for dialysis treatments provided to AKI beneficiaries.
Ordinarily, we would provide a table showing the impact of this provision on various categories of ESRD facilities. However, because we have no way to project how many patients with AKI requiring dialysis will choose to have dialysis treatments at an ESRD facility, we are unable to provide a table at this time.
Under section 1834(r) of the Act, as added by section 808(b) of TPEA, we are finalizing a payment rate for renal dialysis services furnished by ESRD facilities to beneficiaries with AKI. The only two Medicare providers authorized to provide these outpatient renal dialysis services are hospital outpatient departments and ESRD facilities. The decision about where the renal dialysis services are furnished is made by the patient and their physician. Therefore, this provision will have zero impact on other Medicare providers.
We anticipate paying an estimated $20 million to ESRD facilities in CY 2018 as a result of AKI patients receiving renal dialysis services in the ESRD facility.
Currently, beneficiaries have a 20 percent coinsurance obligation when they receive AKI dialysis in the hospital outpatient setting. When these services are furnished in an ESRD facility, the patients would continue to be responsible for a 20 percent coinsurance. Because the AKI dialysis payment rate paid to ESRD facilities is lower than the outpatient prospective payment system's payment amount, we would expect beneficiaries to pay $50 less coinsurance when AKI dialysis is furnished by ESRD facilities.
As we discussed in the CY 2017 ESRD PPS proposed rule (81 FR 42870), we considered adjusting the AKI payment rate by including the ESRD PPS case-mix adjustments, and other adjustments at section 1881(b)(14)(D) of the Act, as well as not paying separately for AKI specific drugs and laboratory tests. We ultimately determined that treatment for AKI is substantially different from treatment for ESRD and the case-mix adjustments applied to ESRD patients may not be applicable to AKI patients and as such, including those policies and adjustment would be inappropriate.
The ESRD QIP provisions are intended to prevent possible reductions in the quality of renal dialysis services provided to beneficiaries. The methodology that we are using to determine a facility's TPS for the PY 2021 ESRD QIP is described in section IV.B.4.g of this final rule. Any reductions in ESRD PPS payments as a result of a facility's performance under the PY 2021 ESRD QIP would apply to ESRD PPS payments made to the facility in CY 2021.
For the PY 2021 ESRD QIP, we estimate that, of the 6,453 dialysis facilities (including those not receiving a TPS) enrolled in Medicare, approximately 40 percent or 2,551 of the facilities would receive a payment reduction in PY 2021. The total payment reduction for all of the 2,551 facilities expected to receive a reduction is approximately $29 million ($29,017,218). Facilities that do not receive a TPS are not eligible for a payment reduction.
Table 15 shows the overall estimated distribution of payment reductions resulting from the PY 2021 ESRD QIP.
To estimate whether or not a facility would receive a payment reduction in PY 2021, we scored each facility on achievement and improvement on several measures we have previously finalized and for which there were available data from CROWNWeb and Medicare claims. Measures used for the simulation are shown in Table 16.
For all measures except STrR and SHR, clinical measure topic areas with less than 11 cases for a facility were not included in that facility's TPS. For SHR and STrR, facilities were required to have at least 5 and 10 patient-years at risk, respectively, in order to be included in the facility's TPS. Each facility's TPS was compared to an estimated minimum TPS and an estimated payment reduction table that were consistent with the final policies outlined in section IV.B.4.g of this final rule. Facility reporting measure scores were estimated using available data from CY 2014 and 2015. Facilities were required to have a score on at least one clinical and one reporting measure to receive a TPS.
To estimate the total payment reductions in PY 2021 for each facility resulting from this proposed rule, we multiplied the total Medicare payments to the facility during the 1-year period between January 2015 and December 2015 by the facility's estimated payment reduction percentage expected under the ESRD QIP, yielding a total payment reduction amount for each facility: Total ESRD payment in January 2015 through December 2015 times the estimated payment reduction percentage.
Table 17 shows the estimated impact of the finalized ESRD QIP payment reductions to all facilities for PY 2021. The table details the distribution of facilities by facility size (both among facilities considered to be small entities and by number of treatments per facility), geography (both urban/rural and by region), and by facility type (hospital based/freestanding facilities). Given that the time periods used for these calculations differ from those we are using for the PY 2021 ESRD QIP, the actual impact of the PY 2021 ESRD QIP may vary significantly from the values provided here.
The ESRD QIP is applicable to dialysis facilities. We are aware that several of our measures finalized for PY 2021 may impact other Medicare providers. For example, with the introduction of the Standardized Readmission Ratio Clinical measure in PY 2017 and the Standardized Hospitalization Ratio Clinical Measure in PY 2020, we anticipate that hospitals may experience financial savings as dialysis facilities work to reduce the number of unplanned readmissions and hospitalizations. We are actively exploring various methods to assess the impact these measures have on hospitals and other types of providers and facilities.
For PY 2021, we estimate that ESRD QIP will contribute approximately $29 million ($29,017,218) in Medicare savings. For comparison, Table 18 shows the payment reductions achieved by the ESRD QIP program for PYs 2016 through 2021 totals nearly $115 million ($114,736,974).
The ESRD QIP is applicable to dialysis facilities. Since the program's inception, there is evidence of improved performance on ESRD QIP measures. As we stated in the CY 2017 ESRD PPS final rule, one objective measure we can examine to demonstrate the improved quality of care over time is the improvement of performance standards (81 FR 77873). As the ESRD QIP has refined its measure set and as facilities have gained experience with the measures included in the program, performance standards have generally continued to rise. We view this as evidence that facility performance (and therefore the quality of care provided to Medicare beneficiaries) is objectively improving. To date we have been unable to examine the impact of the ESRD QIP on Medicare beneficiaries including the financial impact of the program or the impact on the health outcomes of beneficiaries. However, in future years we are interested in examining these impacts through the analysis of available data from our existing measures.
In an effort to reduce administrative and financial burden on dialysis facilities, we considered the burden associated with each of the measures included in the ESRD QIP to determine whether any of the measures could feasibly be removed from the program at this time. The Ultrafiltration Rate Reporting measure, finalized for inclusion in the program beginning with PY 2020, adds a significant burden to facilities because of the number of data elements required to be entered for each patient treated by the facility. We carefully considered whether this measure could be removed from the program in an effort to reduce burden for facilities, but as we noted in the CY 2017 ESRD PPS final rule, this measure is extremely valuable from a clinical perspective. Studies
Flythe JE, Curhan GC, Brunelli SM. Disentangling the Ultrafiltration Rate-Mortality Association: The Respective Roles of Session Length and Weight Gain. Clin J Am Soc Nephrol. 2013 Jul;8(7):1151-61.
Movilli, Ezio, et al. “Association between high ultrafiltration rates and mortality in uraemic patients on regular haemodialysis. A 5-year prospective observational multicenter study.” Nephrology Dialysis Transplantation 22.12(2007): 3547-3552.
As required by OMB Circular A-4 (available at
In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act (September 19, 1980, Pub. L. 96-354) (RFA) requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Approximately 12 percent of ESRD dialysis facilities are considered small entities according to the Small Business Administration's (SBA) size standards, which classifies small businesses as those dialysis facilities having total revenues of less than $38.5 million in any 1 year. Individuals and States are not included in the definitions of a small entity. For more information on SBA's size standards, see the Small Business Administration's Web site at
We do not believe ESRD facilities are operated by small government entities such as counties or towns with populations of 50,000 or less, and therefore, they are not enumerated or included in this estimated RFA analysis. Individuals and States are not included in the definition of a small entity.
For purposes of the RFA, we estimate that approximately 12 percent of ESRD facilities are small entities as that term is used in the RFA (which includes small businesses, nonprofit organizations, and small governmental jurisdictions). This amount is based on the number of ESRD facilities shown in the ownership category in Table 14. Using the definitions in this ownership category, we consider the 487 facilities that are independent and the 341 facilities that are shown as hospital-based to be small entities. The ESRD facilities that are owned and operated by large dialysis organizations (LDOs) and regional chains will have total revenues of more than $38.5 million in any year when the total revenues for all locations are combined for each business (individual LDO or regional chain), and are not, therefore, included as small entities.
For the ESRD PPS updates finalized in this rule, a hospital-based ESRD facility (as defined by type of ownership, not by type of dialysis facility) is estimated to receive a 0.8 percent increase in payments for CY 2018. An independent facility (as defined by ownership type) is also estimated to receive a 0.5 percent increase in payments for CY 2018.
For AKI dialysis, we are unable to estimate whether patients will go to ESRD facilities, however, we have estimated there is a potential for $20 million in payment for AKI dialysis treatments that could potentially be furnished in ESRD facilities.
We estimate that of the 2,551 ESRD facilities expected to receive a payment reduction in the PY 2021 ESRD QIP, 325 are ESRD small entity facilities. We present these findings in Table 15 (“Estimated Distribution of PY 2021 ESRD QIP Payment Reductions”) and Table 17 (“Impact of Proposed QIP Payment Reductions to ESRD Facilities for PY 2021”) above. We estimate that the payment reductions will average approximately $11,375 per facility across the 2,551 facilities receiving a payment reduction, and $13,885 for each small entity facility. Using our estimates of facility performance, we also estimated the impact of payment reductions on ESRD small entity facilities by comparing the total estimated payment reductions for 922 small entity facilities with the aggregate ESRD payments to all small entity facilities. We estimate that there are a total of 922 small entity facilities, and that the aggregate ESRD PPS payments to these facilities would decrease 0.45 percent in PY 2021.
The Secretary has determined that this final rule will not have a significant economic impact on a substantial number of small entities. The economic impact assessment is based on estimated Medicare payments (revenues) and HHS's practice in interpreting the RFA is to consider effects economically “significant” only if greater than 5 percent of providers reach a threshold of 3 to 5 percent or more of total revenue or total costs.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. Any such regulatory impact analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. We do not believe this final rule will have a significant impact on operations of a substantial number of small rural hospitals because most dialysis facilities are freestanding. While there are 132 rural hospital-based dialysis facilities, we do not know how many of them are based at hospitals with fewer than 100 beds. However, overall, the 132 rural hospital-based dialysis facilities will experience an estimated 0.4 percent increase in payments. As a result, this final rule is not estimated to have a significant impact on small rural hospitals.
Therefore, the Secretary has determined that this final rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2017, that is approximately $148 million. This final rule does not include any mandates that would impose spending costs on State, local, or Tribal governments in the aggregate, or by the private sector, of $148 million. Moreover, HHS interprets UMRA as applying only to unfunded mandates. We do not interpret Medicare payment rules as being unfunded mandates, but simply as conditions for the receipt of payments from the Federal government for providing services that meet federal standards. This interpretation applies whether the facilities or providers are private, State, local, or tribal.
Executive Order 13132 on Federalism (August 4, 1999) establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this final rule under the threshold criteria of Executive Order 13132, Federalism, and have determined that it will not have substantial direct effects on the rights, roles, and responsibilities of States, local or Tribal governments.
Executive Order 13771, entitled Reducing Regulation and Controlling Regulatory Costs (82 FR 9339), was issued on January 30, 2017. This final rule is not expected to be subject to the requirements of Executive Order 13771 because it is expected to result in no more than de minimis costs.
This final rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
The Addenda for the annual ESRD PPS proposed and final rulemakings will no longer appear in the
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| Collection | Federal Register | |
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