Page Range | 14419-14599 | |
FR Document |
Page and Subject | |
---|---|
82 FR 14524 - Sunshine Act Meeting | |
82 FR 14419 - Open Licensing Requirement for Competitive Grant Programs | |
82 FR 14464 - Medicare Program; Advancing Care Coordination Through Episode Payment Models (EPMs); Cardiac Rehabilitation Incentive Payment Model; and Changes to the Comprehensive Care for Joint Replacement Model; Delay of Effective Date | |
82 FR 14477 - Reef Fish Fishery of the Gulf of Mexico; 2017 Recreational Accountability Measures and Closure for Gulf of Mexico Greater Amberjack | |
82 FR 14506 - Sunshine Act Notice | |
82 FR 14557 - Sunshine Act Meeting | |
82 FR 14512 - Sunshine Act Meetings | |
82 FR 14439 - Occupational Exposure to Beryllium; Further Delay of Effective Date | |
82 FR 14507 - Agency Information Collection Activities; Comment Request; Study of an Information Strategy To Increase Enrollment in Postsecondary Education | |
82 FR 14525 - New Postal Products | |
82 FR 14516 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
82 FR 14556 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Minor Rule Violation Plan | |
82 FR 14594 - Quarterly Rail Cost Adjustment Factor | |
82 FR 14463 - Partial Approval and Partial Disapproval of Attainment Plan for the Idaho Portion of the Logan, Utah/Idaho PM2.5 | |
82 FR 14478 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Trip Limit Increase for the Common Pool Fishery | |
82 FR 14524 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Job Corps Health Questionnaire | |
82 FR 14523 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Health Standards for Diesel Particulate Matter Exposure in Underground Coal Mines | |
82 FR 14439 - Safety Zone; Cooper River Bridge Run, Cooper River and Town Creek Reaches, Charleston, SC | |
82 FR 14508 - Combined Notice of Filings #1 | |
82 FR 14494 - Special Local Regulation; Corsica River, Queen Anne's County, MD | |
82 FR 14477 - Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles | |
82 FR 14514 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
82 FR 14522 - New Agency Information Collection Activity Under OMB Review: Travel Request and Expense Report Form for TSA Contractors | |
82 FR 14579 - Submission for OMB Review; Comment Request | |
82 FR 14504 - Mid-Atlantic Fishery Management Council (MAFMC); Meeting | |
82 FR 14479 - Fisheries of the Exclusive Economic Zone Off Alaska; Northern Rockfish in the Bering Sea and Aleutian Islands Management Area | |
82 FR 14517 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
82 FR 14521 - Revision of Agency Information Collection Activity Under OMB Review: Transportation Worker Identification Credential (TWIC®) Program | |
82 FR 14428 - Small Business Investment Companies: Passive Business Expansion and Technical Clarifications | |
82 FR 14502 - Certain Artist Canvas From the People's Republic of China: Continuation of the Antidumping Duty Order | |
82 FR 14503 - Honey From the People's Republic of China: Notice of Partial Rescission of Antidumping Duty Administrative Review; 2015-2016 | |
82 FR 14501 - Certain Pasta From Italy: Notice of Preliminary Results of Antidumping Duty Changed Circumstances Review | |
82 FR 14512 - Granting of Requests for Early Termination of the Waiting Period Under the Premerger Notification Rules | |
82 FR 14506 - Notice of Intent To Prepare a Supplemental Environmental Impact Statement for Land-Water Interface and Service Pier Extension at Naval Base Kitsap Bangor, Washington; Correction | |
82 FR 14476 - Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators | |
82 FR 14597 - Agency Information Collection Activities; Approval of a New Information Collection Request: Commercial Driver's License (CDL) Skills Testing Delays | |
82 FR 14595 - Hours of Service of Drivers: American Concrete Pumping Association (ACPA); Application for Exemption | |
82 FR 14438 - National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program; National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program | |
82 FR 14429 - Office Relocation | |
82 FR 14507 - Environmental Management Advisory Board Meeting | |
82 FR 14433 - Extension of the Prohibition Against Certain Flights in the Tripoli (HLLL) Flight Information Region (FIR) | |
82 FR 14595 - Release of Waybill Data | |
82 FR 14505 - Public Meeting on Consumer Messaging in Connection With Online Transactions Involving Copyrighted Works | |
82 FR 14476 - System Safety Program | |
82 FR 14580 - Allianz Funds Multi-Strategy Trust and Allianz Global Investors U.S. LLC | |
82 FR 14560 - Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Notice of Filing of Proposed Amended Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and BOX Options Exchange LLC | |
82 FR 14526 - Self-Regulatory Organizations; Bats BYX Exchange Inc.; Bats BZX Exchange, Inc.; Bats EDGA Exchange, Inc.; Bats EDGX Exchange, Inc.; BOX Options Exchange LLC; C2 Options Exchange, Incorporated; Chicago Board Options Exchange, Incorporated; Chicago Stock Exchange, Inc.; International Securities Exchange, LLC; Investors Exchange LLC; ISE Gemini, LLC; ISE Mercury, LLC; Miami International Securities Exchange LLC; MIAX PEARL, LLC; The NASDAQ Stock Market LLC; NASDAQ BX, Inc.; NASDAQ PHLX, Inc.; New York Stock Exchange LLC; NYSE Arca, Inc.; NYSE MKT LLC; NYSE National, Inc.; Order Approving Proposed Rule Changes To Adopt Consolidated Audit Trail Compliance Rules | |
82 FR 14563 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving Proposed Rule Change To Adopt the FINRA Rule 6800 Series (Consolidated Audit Trail Compliance Rule) | |
82 FR 14548 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To Amend NYSE Arca Equities Rule 8.700 and To List and Trade Shares of the Managed Emerging Markets Trust Under Proposed Amended NYSE Arca Equities Rule 8.700 | |
82 FR 14581 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Describe the Intraday Mark-to-Market Charge | |
82 FR 14552 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Options Fee Schedule | |
82 FR 14558 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend MIAX PEARL Rules 100, 404, 515, 529, 601 and the Title Pages of Chapter VIII and Chapter XI | |
82 FR 14586 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Schedule of Fees | |
82 FR 14547 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Rename the Exchange | |
82 FR 14589 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend BOX Rule 7170 (Nullification and Adjustment of Options Transactions) To Add IM-7170-4 | |
82 FR 14555 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC (“BOX”) Options Facility | |
82 FR 14504 - Permits; Foreign Fishing | |
82 FR 14520 - Notice of Diabetes Mellitus Interagency Coordinating Committee Meeting | |
82 FR 14599 - Multiemployer Pension Plan Application To Reduce Benefits | |
82 FR 14499 - Hazardous Materials: Volatility of Unrefined Petroleum Products and Class 3 Materials | |
82 FR 14520 - National Institute of Mental Health; Notice of Closed Meeting | |
82 FR 14520 - Eunice Kennedy Shrive National Institute of Child Health and Human Development; Notice of Committee Establishment | |
82 FR 14427 - Energy Efficiency Standards for the Design and Construction of New Federal Low-Rise Residential Buildings' Baseline Standards Update | |
82 FR 14481 - Tart Cherries Grown in the States of Michigan, et al.; Free and Restricted Percentages for the 2016-17 Crop Year for Tart Cherries | |
82 FR 14426 - Energy Conservation Program: Test Procedure for Walk-in Coolers and Walk-in Freezers | |
82 FR 14485 - Irish Potatoes Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon; Decreased Assessment Rate | |
82 FR 14425 - Energy Conservation Program: Test Procedures for Central Air Conditioners and Heat Pumps | |
82 FR 14420 - National Organic Program: USDA Organic Regulations | |
82 FR 14426 - Energy Conservation Program: Test Procedures for Compressors | |
82 FR 14427 - Energy Conservation Program: Energy Conservation Standards for Ceiling Fans | |
82 FR 14509 - Information Collection Being Reviewed by the Federal Communications Commission | |
82 FR 14510 - Information Collection Being Reviewed by the Federal Communications Commission | |
82 FR 14511 - Information Collection Being Reviewed by the Federal Communications Commission | |
82 FR 14466 - Connect America Fund, ETC Annual Reports and Certifications | |
82 FR 14490 - Program To Hire Special Assistant United States Attorneys in Targeted Federal Judicial Districts Utilizing Diversion Control Fee Account Funds | |
82 FR 14442 - Approval and Promulgation of Implementation Plans; Texas; El Paso Carbon Monoxide Limited Maintenance Plan | |
82 FR 14499 - Approval and Promulgation of Implementation Plans; Texas; El Paso Carbon Monoxide Limited Maintenance Plan | |
82 FR 14499 - Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Inspection and Maintenance Program Error Correction | |
82 FR 14461 - Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Inspection and Maintenance Program Error Correction | |
82 FR 14518 - Agency Information Collection Activities; Proposed Collection; Comment Request; Annual Reporting for Custom Device Exemption | |
82 FR 14458 - Air Plan Approval; District of Columbia; Update to Materials Incorporated by Reference | |
82 FR 14429 - Airworthiness Directives; The Boeing Company Airplanes | |
82 FR 14488 - Airworthiness Directives; PILATUS AIRCRAFT LTD. Airplanes | |
82 FR 14446 - Approval and Promulgation of Implementation Plans; California; California Mobile Source Regulations | |
82 FR 14498 - Approval and Promulgation of Implementation Plans; California; California Mobile Source Regulations | |
82 FR 14496 - Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District | |
82 FR 14437 - Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments; Extension of Compliance Date |
Agricultural Marketing Service
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Patent and Trademark Office
Navy Department
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
Drug Enforcement Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
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.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of the Secretary, Department of Education.
Interim final rule; further delay of effective date; request for comments.
In accordance with a directive from the memorandum entitled “Regulatory Freeze Pending Review,” published in the
As of March 17, 2017, the effective date of the final regulations published January 19, 2017 (82 FR 7376) delayed until March 21, 2017 on January 30, 2017 (82 FR 8669), are further delayed until May 22, 2017. We must receive your comments on or before April 20, 2017.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
•
•
Sharon Leu, Department of Education, 400 Maryland Avenue SW., Room 6W252, Washington, DC 20202. Telephone: (202) 453-5646 or by email:
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.
The Department published the final regulations in the
During and after the comment period, you may inspect all public comments about this interim final rule by accessing
You may also access documents of the Department published in the
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Agricultural Marketing Service, USDA.
Notification of 2017 sunset review.
This document addresses the 2017 sunset review submitted to the Secretary of Agriculture (Secretary) through the Agricultural Marketing Service's (AMS) National Organic Program (NOP) by the National Organic Standards Board (NOSB) following the NOSB's April 2015 and October 2015 meetings. The 2017 sunset review pertains to the NOSB's sunset review of 198 substances on the U.S. Department of Agriculture's (USDA) National List of Allowed and Prohibited Substances (National List). Consistent with the NOSB's sunset review, this publication provides notice on the renewal of 187 substances on the National List, and completes the 2017 National List sunset review for these renewed substances.
This document is effective March 15, 2017.
Requests for a copy of this document should be sent to Robert Pooler, Standards Division, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2642-S., Ag Stop 0268, Washington, DC 20250-0268. Telephone: (202) 720-3252.
The National Organic Program (NOP) is authorized by the Organic Foods Protection Act (OFPA) of 1990, as amended (7 U.S.C. 6501-6522). The USDA Agricultural Marketing Service (AMS) administers the NOP. Final regulations implementing the NOP, also referred to as the USDA organic regulations (7 CFR 205.1-205.690), were published December 21, 2000 (65 FR 80548), and became effective on October 21, 2002. Through these regulations, the AMS oversees national standards for the production, handling, and labeling of organically produced agricultural products. Since becoming effective, the USDA organic regulations have been frequently amended, mostly for changes to the National List in 7 CFR 205.601-205.606.
The National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The OFPA and the USDA organic regulations, as indicated in § 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural substance and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.
As stipulated by OFPA, recommendations to amend the National List are developed by the NOSB, operating in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2
AMS published a revision of the sunset review process in the
At its April 2015 and October 2015 public meetings, the NOSB considered 198 National List substances which have a 2017 Sunset date. AMS has reviewed and accepted the NOSB 2017 sunset review and recommendations. Table 1 lists the 187 synthetic and nonsynthetic substances on the National List that are renewed. These substances continue to be included on the National List with a new sunset date of March 15, 2022. The NOSB also recommended removing eleven substances considered during the 2017 sunset review process from the National List; these recommendations will be addressed in a separate rulemaking.
7 U.S.C. 6501-6522.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; further delay of effective date.
This document further temporarily postpones the effective date of a recently published final rule establishing test procedures for certain varieties of central air conditioners and heat pumps.
As of March 21, 2017, the effective date of the rule amending 10 CFR parts 429 and 430 published in the
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: (202) 287-6307. Email:
On February 2, 2017, the United States Department of Energy (“DOE”) temporarily postponed the effective date of its final rule amending the test procedures for central air conditioners and heat pumps published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; further delay of effective date.
This document further temporarily postpones the effective date of a recently published final rule establishing test procedures for certain walk-in cooler and freezer components.
As of March 21, 2017, the effective date of the rule amending 10 CFR parts 429 and 431 published in the
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: (202) 586-8145. Email:
On January 31, 2017, the United States Department of Energy (“DOE”) temporarily postponed the effective date of its final rule amending the test procedure for certain walk-in cooler and walk-in freezer (collectively, “walk-in” or “WICF”) components published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; further delay of effective date.
This document further temporarily postpones the effective date of a recently published final rule establishing test procedures for certain varieties of compressors.
As of March 21, 2017, the effective date of the rule amending 10 CFR parts 429 and 431 published in the
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
Ms. Mary Greene, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: (202) 586-1817. Email:
On February 1, 2017, the United States Department of Energy (“DOE”) temporarily postponed the effective date of its final rule amending the test procedures for compressors published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; further delay of effective date.
This document further delays the effective date of a recently published final rule amending the energy conservation standards for ceiling fans.
As of March 21, 2017, the effective date of the rule amending 10 CFR part 430 published in the
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 586-6590. Email:
Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: (202) 586-7796. Email:
On January 31, 2017, the United States Department of Energy (“DOE”) temporarily postponed the effective date of its final rule amending the energy conservation standards for ceiling fans published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; further delay of effective date.
This document further temporarily postpones the effective date of a recently published final rule amending the baseline Federal building standards.
As of March 21, 2017, the effective date of the rule amending 10 CFR part 435 published in the
Nicolas Baker, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Federal Energy Management Program, Mailstop EE-5F, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-8215, email:
Kavita Vaidyanathan, U.S. Department of Energy, Office of the General Counsel, Forrestal Building, GC-33, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-0669, email:
On February 6, 2017, the United States Department of Energy (“DOE”) temporarily postponed the effective date of its final rule amending the baseline Federal building standards published in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the
U.S. Small Business Administration.
Final rule; delay of effective date.
On December 28, 2016, the Small Business Administration (SBA) published a final rule to expand permitted investments in passive businesses and provide further clarification with regard to investments in such businesses for the Small Business Investment Company (SBIC) Program, with an effective date of January 27, 2017. On January 26, 2017, SBA published a delay of effective date until March 21, 2017 and re-opened the rule for additional public comment in response to the memorandum dated January 20, 2017 from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review.” SBA requires additional time to consider this final rule and determine whether any further changes are required; therefore, the effective date for this final rule is delayed until May 20, 2017. Any changes to the final rule based on this redetermination will be published in the
As of March 21, 2017, the effective date of the SBA final rule published December 28, 2016 (81 FR 95419), and delayed January 26, 2017 (82 FR 8499), is further delayed until May 20, 2017.
Theresa Jamerson, Office of Investment and Innovation, (202) 205-7563 or
The U.S. Small Business Administration (SBA) Final Rule: Small Business Investment Companies: Passive Business Expansion and Technical Clarifications, 81 FR 95419 (December 28, 2016), had an effective date of January 27, 2017. The January effective date was delayed to March 21, 2017, and the comment period was reopened until February 19, 2017. 82 FR 8499 (Jan. 26, 2017). This new delay of effective date will provide 60 additional days for SBA to further analyze questions of fact, law, and policy related to this rulemaking, in accordance with OMB Memorandum #M-17-16, Implementation of Regulatory Freeze (Jan. 24, 2017). SBA will use the supplemental time to assess the additional comments it received through February 19, 2017, and will further consider the rule's impact on the SBIC program and program participants. SBA will also use the supplemental time to make necessary determinations regarding the effects of the final rule on the examining and liquidation functions of the SBA's Office of Investment and Innovation.
SBA is considering revising the regulations for the Small Business Investment Company (SBIC) program to expand permitted investments in passive businesses and provide further clarification with regard to investments in such businesses. SBICs are generally prohibited from investing in passive businesses under the Small Business Investment Act of 1958, as amended (Act). SBIC program regulations provide for two exceptions that allow an SBIC to structure an investment utilizing a passive small business as a pass-through. The first exception provides conditions under which an SBIC may structure an investment through up to two levels of passive entities to make an investment in a non-passive business that is a subsidiary of the passive business directly financed by the SBIC. The second exception, prior to this final rule, enabled a partnership SBIC, with SBA's prior approval, to provide financing to a small business through a passive, wholly-owned C corporation (commonly known as a blocker corporation), but only if a direct financing would cause the SBIC's investors to incur Unrelated Business Taxable Income (UBTI). This final rule clarifies several aspects of the first
Federal Aviation Administration (FAA), DOT.
Final rule.
On November 1, 2016, the FAA Office of Dispute Resolution for Acquisition (ODRA), which is now part of the FAA Office of Adjudication, relocated to a new address different from the one listed in its Procedural Regulations. This rule updates the address for ODRA filings by hand delivery, courier or other form of in-person delivery and the address for ODRA filings by U.S. Mail. The telephone and facsimile numbers are unchanged.
This rule is effective March 21, 2017.
Marie A. Collins, Administrative Judge and Dispute Resolution Officer, FAA Office of Dispute Resolution for Acquisition, AGC-70, 600 Independence Avenue SW., Room 2W100, Washington, DC 20591, telephone number (202) 267-3290, facsimile (202) 267-3720.
The new address for ODRA filings by hand delivery, courier or other form of in-person delivery is: 600 Independence Avenue SW., Room 2W100, Washington, DC 20591. The new address for ODRA filings by U.S. Mail is: 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100].
Administrative practice and procedure, Authority delegations (Government agencies), Government contracts.
For the reasons discussed in the preamble, 14 CFR part 17 is amended as follows:
5 U.S.C. 570-581, 49 U.S.C. 106(f)(2), 40110, 40111, 40112, 46102, 46014, 46105, 46109, and 46110.
(b) Protests shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows:
(1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery;
(2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or
(3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile.
(b) Contract Disputes shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows:
(1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery;
(2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or
(3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile.
(b) Pre-disputes shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows:
(1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery;
(2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or
(3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2017-03-04, which applied to all The Boeing Company Model 737-500 series airplanes. AD 2017-03-04 required inspections to detect cracks in the fuselage skin panels, permanent repairs of time-limited repairs, skin panel replacement, and related investigative and corrective actions if necessary. This AD reduces the applicability of AD 2017-03-04. This AD was prompted by a determination that airplanes were inadvertently included in the applicability of AD 2017-03-04. We are
This AD is effective April 5, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 28, 2017 (82 FR 11140, February 21, 2017).
We must receive comments on this AD by May 5, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet
You may examine the AD docket on the Internet at
Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email:
On January 31, 2017, we issued AD 2017-03-04, Amendment 39-18795 (82 FR 11140, February 21, 2017) (“AD 2017-03-04”), for all The Boeing Company Model 737-500 series airplanes. AD 2017-03-04 required inspections to detect cracks in the fuselage skin panels, permanent repairs of time-limited repairs, skin panel replacement, and related investigative and corrective actions if necessary. AD 2017-03-04 resulted from an evaluation by the design approval holder (DAH) that indicates the fuselage skin is subject to widespread fatigue damage (WFD), and reports of cracks at the chem-milled steps in the fuselage skin. We issued AD 2017-03-04 to detect and correct cracking on the aft lower lobe fuselage skins, which could result in rapid decompression of the airplane.
Since we issued AD 2017-03-04, we determined that airplanes were inadvertently included in the applicability of AD 2017-03-04. AD 2017-03-04 superseded AD 2012-16-07, Amendment 39-17154 (77 FR 48423, August 14, 2012) (“AD 2012-16-07”), which applied to certain The Boeing Company Model 737-500 series airplanes. The identified unsafe condition only applies to the airplanes identified in AD 2012-16-07 and, therefore, the applicability of AD 2017-03-04 should not have included additional airplanes.
The affected airplanes are identified in Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015 (which is referred to as the appropriate source of service information for accomplishing the actions required by AD 2017-03-04). In order to correct the applicability, we have referred to Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015, in paragraph (c)(1) of this AD. We are issuing this AD to address the unsafe condition on these products.
We reviewed Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015. The service information describes procedures for inspections to detect cracks in the fuselage skin panels, permanent repairs of time-limited repairs, skin panel replacement, and related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this AD and the Service Information.” This AD also reduces the applicability of AD 2017-03-04. For information on the procedures and compliance times, see this service information at
The phrase “related investigative actions” is used in this AD. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
The phrase “corrective actions” is used in this AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015, specifies to contact the manufacturer for instructions on how to repair certain conditions and also to obtain certain work instructions, but this AD requires repairing those conditions and also to obtain those work instructions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We determined that airplanes were inadvertently included in the applicability of AD 2017-03-04, which applies to all Model 737-500 series airplanes. However, only airplanes identified in Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015, are affected by the identified unsafe condition. The actions required by this AD are not required to be done on airplanes that are not identified in Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015. Therefore, we are superseding AD 2017-03-04 to correct the applicability. We find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 33 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these repairs:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective April 5, 2017.
This AD replaces AD 2017-03-04, Amendment 39-18795 (82 FR 11140, February 21, 2017) (“AD 2017-03-04”).
(1) This AD applies to The Boeing Company Model 737-500 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015 (“SASB 737-53-1315 R1”).
(2) Installation of Supplemental Type Certificate (STC) ST01219SE (
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder (DAH) that indicates the fuselage skin is subject to widespread fatigue damage (WFD), and reports of cracks at the chem-milled steps in the fuselage skin. We are issuing this AD to detect and correct cracking on the aft lower lobe fuselage skins, which could result in rapid decompression of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2017-03-04, with no changes. At the applicable times specified in table 1 of paragraph 1.E., “Compliance,” of SASB 737-53-1315 R1, except as required by paragraphs (h)(1) and (h)(2) of this AD: Do the applicable inspections to detect cracks in the fuselage skin panels; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 737-53-1315 R1, except as required by paragraphs (h)(3) and (h)(4) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspections thereafter at the applicable intervals specified in SASB 737-53-1315 R1. Accomplishment of a repair in accordance with “Part 3: Repair” of the Accomplishment Instructions of SASB 737-53-1315 R1, except as required by paragraph (h)(3) of this AD, is terminating action for the repetitive inspections required by this paragraph at the repaired locations only.
This paragraph restates the service information exceptions specified in paragraph (h) of AD 2017-03-04, with no changes.
(1) Where SASB 737-53-1315 R1, specifies compliance times “after the Revision 1 date of this service bulletin,” this AD requires compliance within the specified compliance times “after March 28, 2017 (the effective date of AD 2017-03-04).”
(2) The Condition column of table 1 of Paragraph 1.E., “Compliance,” of SASB 737-53-1315 R1, refers to airplanes in certain configurations “as of the issue date of Revision 1 of this service bulletin.” However, this AD applies to airplanes in the specified configurations “as of March 28, 2017 (the effective date of AD 2017-03-04).”
(3) Where SASB 737-53-1315 R1, specifies contacting Boeing for repair instructions or work instructions, before further flight, repair or perform the work instructions using a method approved in accordance with the procedures specified in paragraph (m) of this AD, except as required by paragraph (h)(4) of this AD.
(4) For airplanes on which an operator has a record that a skin panel was replaced with a production skin panel before 53,000 total flight cycles: At the applicable time for the next inspection, as specified in table 1 of paragraph 1.E., “Compliance,” of SASB 737-53-1315 R1, except as provided by paragraphs (h)(1) and (h)(2) of this AD: Perform inspections and applicable corrective actions using a method approved in accordance with the procedures specified in paragraph (m) of this AD.
(5) The Condition column of table 2 of Paragraph 1.E., “Compliance,” of SASB 737-53-1315 R1 refers to airplanes in certain configurations as of the “issue date of Revision 1 of this service bulletin.” However, this AD applies to airplanes in the specified configurations regardless of when the time-limited repair is installed.
This paragraph restates the requirements of paragraph (i) of AD 2017-03-04, with no changes. For airplanes with a time-limited repair installed as specified in Boeing Special Attention Service Bulletin 737-53-1315, dated July 29, 2011; or SASB 737-53-1315 R1: At the applicable times specified in table 2 of paragraph 1.E., “Compliance,” of SASB 737-53-1315 R1, except as provided by paragraphs (h)(1) and (h)(5) of this AD, do the actions specified in paragraphs (i)(1) and (i)(2) of this AD.
(1) Do the applicable inspections to detect missing or loose fasteners and any disbonding or cracking of bonded doublers; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 737-53-1315 R1, except as required by paragraph (h)(3) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspections thereafter at the applicable intervals specified in SASB 737-53-1315 R1.
(2) Make the time-limited repair permanent and do all applicable related investigative and corrective actions in accordance with the Accomplishment Instructions of SASB 737-53-1315 R1, except as required by paragraph (h)(3) of this AD. Do all applicable related investigative and corrective actions before further flight. Accomplishing the permanent repair required by this paragraph terminates the inspections required by paragraph (i)(1) of this AD for the permanently repaired area only.
This paragraph restates the provisions specified in paragraph (j) of AD 2017-03-04, with no changes. Table 3 of paragraph 1.E., “Compliance,” of SASB 737-53-1315 R1, specifies post-modification airworthiness limitation inspections in compliance with 14 CFR 25.571(a)(3) at the modified locations, which support compliance with 14 CFR 121.1109(c)(2) or 129.109(b)(2). As airworthiness limitations, these inspections are required by maintenance and operational rules. It is therefore unnecessary to mandate them in this AD. Deviations from these inspections require FAA approval, but do not require an alternative method of compliance.
This paragraph restates the requirements of paragraph (k) of AD 2017-03-04, with no changes. At the later of the times specified in paragraphs (k)(1) and (k)(2) of this AD: Replace the applicable skin panels, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of SASB 737-53-1315 R1. Do all applicable related investigative and corrective actions before further flight. Doing the skin panel replacement required by this paragraph terminates the inspection requirements of paragraph (g) of this AD for that skin panel only, provided the skin panel replacement was done with a production skin panel at or after 53,000 total flight cycles.
(1) Before 60,000 total flight cycles, but not before 53,000 total flight cycles.
(2) Within 6,000 flight cycles after March 28, 2017 (the effective date of AD 2017-03-04), but not before 53,000 total flight cycles.
This paragraph restates the credit specified in paragraph (l) of AD 2017-03-04, with no changes. This paragraph provides credit for the zone 1 actions required by paragraph (g) of this AD, as described in SASB 737-53-1315 R1, if the zone 1, 2, and 3 actions, as described in Boeing Special Attention
(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (n) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2012-16-07 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.
For more information about this AD, contact Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on March 28, 2017 (82 FR 11140, February 21, 2017).
(i) Boeing Special Attention Service Bulletin 737-53-1315, Revision 1, dated June 30, 2015.
(ii) Reserved.
(4) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action extends the prohibition of flight operations in the Tripoli (HLLL) Flight Information Region (FIR) by all U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating a U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except operators of such aircraft that are foreign air carriers. The extension of the expiration date is necessary due to continued hazards to persons and aircraft engaged in such flight operations. This Special Federal Aviation Regulation (SFAR) will now remain in effect until March 20, 2019.
This final rule is effective on March 16, 2017.
Michael Filippell, Air Transportation Division, AFS-220, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone 202-267-8166; email
This action extends the prohibition of flight operations in the Tripoli (HLLL) FIR by all U.S. air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when such persons are operating a U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when such operators are foreign air carriers. The FAA finds this action necessary due to continued hazards to persons and aircraft engaged in such flight operations. The prohibition, which is scheduled to remain in effect until March 20, 2017, will now remain in effect until March 20, 2019.
The FAA is responsible for the safety of flight in the United States (U.S.) and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA's authority to issue rules on aviation safety is found in title 49, U.S. Code. Subtitle I, sections 106(f) and (g) describe the authority of the FAA Administrator. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise his authority consistently with the obligations of the U.S. Government under international agreements.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.
This regulation is within the scope of FAA's authority under the statutes cited previously, because it continues to prohibit the persons subject to paragraph (a) of 14 CFR 91.1603, (SFAR No. 112), from conducting flight operations in the Tripoli (HLLL) FIR due to the continued hazards to the safety of such persons' flight operations,
Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in effective date for good cause found and published with the rule. In this instance, the FAA finds an immediate need to address the continued hazard to U.S. civil aviation due to threats from political instability and associated militant/terrorist activity that exists in the Tripoli (HLL) FIR. This hazard is further described in the Background section of this rule.
Because the circumstances described herein warrant a continuation of the flight restrictions imposed by SFAR No. 112, 14 CFR 91.1603, the FAA finds that notice and public comment under 5 U.S.C. 553(b)(3)(B), and a delay in the effective date described in 5 U.S.C. 553(d), are impracticable and contrary to the public interest. The FAA also finds that this action is fully consistent with the obligations under 49 U.S.C. 40105 to ensure that the FAA exercises its duties consistently with the obligations of the United States under international agreements.
The significant threat, identified when the FAA published its most recent extension of the expiration date of SFAR No. 112, 14 CFR 91.1603,
As a result of safety and national security concerns regarding flight operations in the Tripoli (HLLL) FIR, the FAA issued SFAR No. 112, 14 CFR 91.1603, in March 2011,
When SFAR No. 112, 14 CFR 91.1603, was issued, an armed conflict was ongoing in Libya and presented a hazard to U.S. civil aviation. The FAA was concerned that runways at Libya's international airports, including the main international airports serving Benghazi (HLLB) and Tripoli (HLLT), might be damaged or degraded. There was also concern that air navigation services in the Tripoli (HLLL) FIR might be unavailable or degraded. In addition, the proliferation of air defense weapons, including Man-Portable Air-Defense Systems (MANPADS), and the presence of military operations, including Libyan aerial bombardments and unplanned military flights entering and departing the Tripoli (HLLL) FIR, posed a hazard to U.S. operators, U.S.-registered civil aircraft, and FAA-certificated airmen that might operate in the Tripoli (HLLL) FIR. Additionally, the United Nations Security Council adopted Resolution 1973 on March 18, 2011, which mandated a ban on all flights in the airspace of Libya, with certain exceptions.
By March 2014, although former Libyan leader Muammar Gadhafi's regime had been overthrown and the UN-mandated ban on flights in Libyan airspace had been lifted, the FAA continued to have significant security concerns for Libya and for the safety of U.S. civil aviation operations in that country. On March 20, 2014, the FAA extended the expiration date of SFAR No. 112, 14 CFR 91.1603, to March 20, 2015.
By March 2015, the FAA continued to have significant concerns regarding the safety of U.S. civil aviation operations in the Tripoli (HLLL) FIR at all altitudes due to the hazardous situation created by the ongoing fighting involving various militant groups and Libyan military forces in various areas of Libya, including some near Tripoli and Benghazi. Islamist militant groups held and controlled significant portions of Western Libya, including Tripoli International Airport (HLLT). Militant groups, such as Libyan Dawn, possessed a variety of anti-aircraft weapons, which gave them the capability to target aircraft upon landing and departure and at higher altitudes. Civil aviation infrastructure continued to be at risk from indirect fire from mortars and rockets targeting Libyan airports during the ongoing fighting. Civil aviation in the Tripoli (HLLL) FIR was also at risk from aerial combat operations and other military activity conducted by Libyan forces. Further, the security situation in the Tripoli (HLLL) FIR continued to be unpredictable and unstable. For these reasons, the FAA extended the expiration date of SFAR No. 112, 14 CFR 91.1603, from March 20, 2015, to March 20, 2017.
The FAA continues to assess the situation in the Tripoli (HLLL) FIR as being hazardous for U.S. civil aviation. The newly-established interim government does not control vast amounts of Libyan territory, security conditions remain unstable throughout the country, and fighting could flare with little or no warning as various elements vie for political influence and territorial control. Anti-aircraft-capable weapons remain a continuing threat, as demonstrated by the July 2016 shoot down of a military helicopter near Benghazi.
Therefore, since there is a significant continuing risk to the safety of U.S. civil aviation in the Tripoli (HLLL) FIR, the FAA extends the expiration date of SFAR No. 112, 14 CFR 91.1603, from March 20, 2017, to March 20, 2019, to maintain the prohibition on flight operations in the Tripoli (HLLL) FIR by all U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating a U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when such operators are foreign air carriers.
The FAA will continue to actively monitor the situation and, based on evaluations, determine the extent to
Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 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), as codified in 5 U.S.C. 603
In conducting these analyses, FAA has determined this final rule is a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866, as it raises novel policy issues contemplated under that Executive Order. The rule is also “significant” as defined in DOT's Regulatory Policies and Procedures. The final rule will not have a significant economic impact on a substantial number of small entities, will not create unnecessary obstacles to international trade, and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.
Department of Transportation (DOT) Order 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 a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the costs and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows.
This rule extends, by an additional two years, SFAR No. 112, 14 CFR 91.1603. Due to the conditions in Libya at the time that SFAR No. 112, 14 CFR 91.1603, was issued, the FAA believed the rule would impose only minimal cost because few, if any, operators subject to the rule were operating in the Tripoli (HLLL) FIR. The FAA has again determined that the costs of continuing to prohibit U.S. civil flights in the Tripoli (HLLL) FIR are minimal. The FAA finds that the costs to the few operators who might wish to operate in the Tripoli FIR are exceeded by the benefits of avoiding the loss of life, injuries, and property damage that could be caused by the significant hazards to U.S. civil aviation detailed in the Background section of this rule.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (“RFA”) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
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 estimates the costs of extending this rule will continue to be minimal, as discussed previously. 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) 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 this Act, 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 effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation from hazards outside the U.S. Therefore, the rule is in compliance with the Trade Agreements Act.
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 final 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 (Pub. L. 104-13) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final 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 this regulation.
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 (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f of this order and involves no extraordinary circumstances.
The FAA has reviewed the implementation of the SFAR and determined it is categorically excluded from further environmental review according to FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.6f. The FAA has examined possible extraordinary circumstances and determined that no such circumstances exist. After careful and thorough consideration of the action, the FAA finds that this Federal action does not require preparation of an Environmental Assessment or Environmental Impact Statement in accordance with the requirements of NEPA, Council on Environmental Quality (CEQ) regulations, and FAA Order 1050.1F.
The FAA analyzed this final 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 final 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.
Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
An electronic copy of rulemaking documents may be obtained from the Internet by—
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) 267-9677. Please identify the docket or amendment number of this rulemaking in your request.
Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced above.
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the
Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Freight, Libya.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
(a)
(1) All U.S. air carriers and U.S. commercial operators;
(2) All persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating a U.S.-registered aircraft for a foreign air carrier; and
(3) All operators of U.S.-registered civil aircraft, except operators of such aircraft that are foreign air carriers.
(b)
(c)
(1) Flight operations are conducted under a contract, grant, or cooperative agreement with a department, agency, or instrumentality of the U.S. government (or under a subcontract between the prime contractor of the department, agency, or instrumentality, and the person described in paragraph (a) of this section), with the approval of the FAA,
(2) [Reserved]
(d)
(e)
Office of the Secretary (OST), Department of Transportation (DOT).
Final rule.
The Department of Transportation is amending its regulations by extending the compliance date of its final rule on reporting of data for mishandled baggage and wheelchairs in aircraft cargo compartments from January 1, 2018 to January 1, 2019. Under that final rule, the mishandled-baggage data that air carriers are required to report changed, from the number of Mishandled Baggage Reports and the number of domestic passenger enplanements to the number of mishandled bags and the number of enplaned bags. The rule also requires separate statistics for mishandled wheelchairs and scooters used by passengers with disabilities and transported in aircraft cargo compartments. This extension is in response to a request by Airlines for America (A4A) and Delta.
This final rule is effective March 21, 2017.
Blane A. Workie, Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, 202-366-9342, 202-366-7152 (fax),
A copy of all materials related to the original rulemaking proceeding (2105-AE41) may be viewed online at
On November 2, 2016, the Department of Transportation published a final rule in the
On January 20, 2017, the White House Chief of Staff issued a memorandum entitled, “Regulatory Freeze Pending Review” (“Memo”). The Memo directed heads of executive departments and agencies to take certain steps to ensure that the President's appointees and designees have the opportunity to review new and pending regulations. It instructed agencies to temporarily postpone the effective dates of regulations that had been published in the
On January 27, 2017, the Department received a request from Airlines for America (A4A) to extend the compliance date of the final rule on reporting data for mishandled baggage and wheelchairs. In that request, the A4A cites the Memo as a reason to extend the compliance date. On February 10, 2017, Delta Air Lines also submitted a request to the Department expressing support for extending the compliance date which also referenced the Memo. On March 2, 2017, A4A sent a follow-up to its original request specifying that if the rulemaking remains that they are requesting that the implementation period of the final rule on mishandled baggage and wheelchairs be delayed one year until January 2019 in the spirit of the Memo. A4A states that industry is facing challenges with parts of this regulation and needs more time to implement it.
After carefully considering the requests, we have decided to grant an extension of the compliance date for the final rule on reporting of mishandled baggage and wheelchairs until January 1, 2019. As such, we also intend to extend the compliance date for the baggage handling statistics provision (14 CFR 234.6) in the final rule titled “Enhancing Airline Passenger Protections III,” which was published contemporaneously with the final rule on reporting of data for mishandled baggage and wheelchairs, to January 1, 2019.
Air carriers, Mishandled baggage, Ontime statistics, Reporting, Uniform system of accounts.
Accordingly, the Department of Transportation amends 14 CFR part 234 as follows:
49 U.S.C. 329, 41101, and 41701.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Final regulations; delay of effective dates.
This document announces the further extension of the effective date of the following regulations until May 20, 2017: National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance program and Bridge Condition for the National Highway Performance Program, RIN 2125-AF53; and National Performance Management measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program, RIN 2125-AF54.
As of March 21, 2017, the effective date of the final rules published on January 18, 2017, at 82 FR 5886 and January 18, 2017, at 82 FR 5970, respectively, delayed until March 21, 2017 on February 13, 2017 at 82 FR 10441, is further delayed to May 20, 2017.
The incorporation by reference of certain publications listed in the final rule published on January 18, 2017, at 82 FR 5886 is approved by the Director of the Federal Register as of May 20, 2017.
Christopher Richardson, Assistant Chief Counsel for Legislation, Regulations, and General Law, Office of Chief Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-0761. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal holidays.
A copy of the Notice of Proposed Rulemakings (NPRMs), all comments received, the Final Rules, and all background material may be viewed online at
On January 20, 2017, the Assistant to the President and Chief of Staff issued a memorandum entitled, “Regulatory Freeze Pending Review.” This memorandum directed heads of executive departments and agencies to take certain steps to ensure that the President's appointees and designees have the opportunity to review new and pending regulations. It instructed agencies to temporarily postpone the effective dates of regulations that had been published in the
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), FHWA generally offers interested parties the opportunity to comment on proposed regulations and publishes rules not less than 30 days before their effective dates. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking or delay effective dates when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B) and (d)(3)). There is good cause to waive both of these requirements here as the President's appointees and designees need to delay the effective dates of these regulations to have adequate time to review new or pending regulations, and neither the notice and comment process nor delayed effective date could be implemented in time to allow for this review.
Bridges, Highway safety, Highways and roads, Incorporation by reference, Reporting and recordkeeping requirements.
Occupational Safety and Health Administration, Department of Labor.
Final rule; further delay of effective date.
On January 9, 2017, the Occupational Safety and Health Administration (OSHA) published a rule entitled “Occupational Exposure to Beryllium” with an effective date of March 10, 2017 (“Beryllium Final Rule”). OSHA subsequently delayed the effective date of the Beryllium Final Rule to March 21, 2017 (February 1, 2017) and proposed to further delay the effective date to May 20, 2017 (March 2, 2017). This action finalizes that proposal. The additional time will allow OSHA the opportunity for further review of the new Beryllium Final Rule, including review of concerns that commenters raised, and is consistent with the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review.”
As of March 21, 2017, the effective date of the final rule amending 29 CFR parts 1910, 1915, and 1926 that published in the
In accordance with 28 U.S.C. 2112(a), the Agency designates Ann Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor of Labor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, to receive petitions for review of this action.
Frank Meilinger, Director, Office of Communications, Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1999; email
OSHA promulgated the Beryllium Final Rule on January 9, 2017 with an effective date of March 10, 2017 (82 FR 2470). On February 1, 2017, OSHA delayed the effective date of the rule to March 21, 2017 (82 FR 8901). OSHA promulgated the extension consistent with the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (82 FR 8346; January 24, 2017) (“Memorandum”), which contemplated temporarily postponing for 60 days the effective dates of all regulations that had been published in the
In addition, the Memorandum directed agencies to consider further delaying the effective date for regulations beyond that 60-day period. After further review, OSHA preliminarily determined that it was appropriate to further delay the effective date of the Beryllium Final Rule, for the purpose of further reviewing questions of fact, law, and policy raised therein. Therefore, consistent with the Memorandum, OSHA proposed to further delay the effective date of the Beryllium Final Rule to May 20, 2017 (82 FR 12318; March 2, 2017). Finalization of the proposed delay of the effective date would not affect the compliance dates of the Beryllium Final Rule.
OSHA received twenty-five unique comments on its proposal to extend the effective date by 60 days to May 20, 2017. Several commenters supported the proposal. (
After carefully reviewing these comments, OSHA believes commenters have raised substantive concerns, including about the Beryllium Final Rule's treatment of the construction and shipyard industries, as suggested by Congressman Byrne. Thus, OSHA has decided to adopt the proposal and delay the effective date by an additional 60 days to May 20, 2017 to further evaluate the Beryllium Final Rule in light of those substantive concerns. The Agency has determined that 60 days will provide adequate time to review the rule and consider the issues raised without hindering protections of workers affected by the rule because the delay of the effective date does not alter the Beryllium Final Rule's compliance dates.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone on the waters of the Cooper River and Town Creek Reaches in Charleston, South Carolina
This rule is effective from 7:30 a.m. to 10:30 a.m. on April 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 Lieutenant Commander John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, 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 insufficient time remains to publish an NPRM and to receive public comments, as the Cooper River Bridge Run event will occur before the rulemaking process would be completed. Because of the dangers posed by the proximity of the proposed run track to the navigable waters of the Cooper River and Town Creek Reaches impacted by this event, the safety zone is necessary to provide for the safety of event participants, spectators, and vessels transiting the event area. For those reasons, it would be impracticable and contrary to the public interest to publish an NPRM.
For the reason discussed above, 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 legal basis for this rule is the Coast Guard's authority to establish regulated safety zones and other limited access areas is 33 U.S.C. 1231. The purpose of the rule is to ensure the safety of the runners, the general public, vessels and the navigable waters during the Cooper River Bridge Run.
This rule establishes a safety zone on the waters of the Cooper River and Town Creek Reaches in Charleston, South Carolina during the Cooper River Bridge Run. The race is scheduled to take place from 7:30 a.m.10:30 a.m. on April 1, 2017. Approximately 40,000 runners are anticipated to participate in the race. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget. This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for a total of three hours; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on “small entities” comprised of small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section 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
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, call1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area surrounding the Cooper River Bridge on the waters of the Cooper River and Town Creek Reaches for a 3 hour period. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; and Department of Homeland Security Delegation No. 0170.
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Direct final rule.
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is taking direct final action to approve the required second carbon monoxide (CO) maintenance plan as a revision to the Texas State Implementation Plan (SIP). The El Paso, Texas CO maintenance area (El Paso Area) has been demonstrating consistent air quality monitoring at or below 85% of the CO National Ambient Air Quality Standard (NAAQS or standard). Because of this, the State of Texas, through its designee, submitted the required second maintenance plan for the El Paso Area as a Limited Maintenance Plan (LMP).
This rule is effective on May 22, 2017 without further notice, unless the EPA receives relevant adverse comment by April 20, 2017. If the EPA receives such comment, the EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket No. EPA-R06-OAR-2016-0550, at
Jeffrey Riley, 214-665-8542,
Throughout this document “we,” “us,” and “our” means the EPA.
Under the 1990 CAA Amendments, a portion of the City of El Paso, Texas was designated and classified as a moderate nonattainment area for CO because it did not meet the NAAQS for this criteria pollutant 56 FR 56694 (November 1, 1991). The former El Paso CO nonattainment area is restricted to a narrow strip along the Rio Grande, adjacent to Ciudad Juarez, Mexico. El Paso's former classification as a moderate nonattainment area under sections 107(d)(4)(A) and 186(a) of the CAA imposed a schedule for attainment of the CO NAAQS by December 31, 1995.
EPA approved the El Paso Area's CAA section 179 attainment demonstration that showed attainment but for emissions from Mexico, the motor vehicle emissions budget, and the contingency plan 68 FR 39457 (July 2, 2003).
EPA approved the redesignation of the El Paso CO nonattainment area to attainment for the CO NAAQS, the associated CAA section 175A(a) maintenance plan, and the included motor vehicle emissions budgets at 73 FR 45162 (August 4, 2008). The maintenance plan ensures continued attainment of the CO standard until 2020.
On September 21, 2016, the Texas Commission on Environmental Quality (TCEQ) submitted a revision to the El Paso SIP, providing the second 10-year update to the CO maintenance plan for the area, as required eight years after redesignation by section 175A(b) of the Act and also submitted a request for approval of the maintenance plan as a LMP. The purpose of the LMP is to ensure continued maintenance of CO NAAQS in the El Paso Area for the duration of the second 10-year maintenance period of 2018-2028 by demonstrating that future emissions of this criteria pollutant are expected to remain at or below emission levels necessary for continued attainment of the current CO NAAQS.
Since there are few specific content requirements defined in section 175A of the Act for subsequent (or second) maintenance plan revisions, EPA has exercised its discretion in determining the recommended content of such plans.
Consistent with the above guidance, EPA will consider the maintenance demonstration satisfied if the monitoring data show the 8-hour CO design value is at or below 7.65 parts per million (ppm), or 85% of the 8-hour
The EPA has reviewed the State's SIP submittal for the El Paso Area. Per our 1995 guidance above, a LMP consists of several core provisions: An attainment inventory, a demonstration of maintenance of the applicable NAAQS, operation of a monitoring network, a provision for contingency measures, and a discussion of the approach necessary to meet conformity requirements. The following is a summary of the criteria for a LMP and the EPA's evaluation of how each provision has been met by the SIP submittal.
Under the LMP option, a cap on total emissions is not needed during the first or second 10-year maintenance period, and there is no requirement to project emissions over the maintenance period because an area's monitoring data satisfy the air quality criteria of the LMP by beginning the maintenance period at or below 85% of the CO NAAQS. However, the maintenance plan should contain an attainment year emission inventory to identify a level of CO emissions in the area that is sufficient to attain the CO NAAQS. Emission inventories contain estimates of how much CO is produced by all categories in the maintenance area on an annual basis: Point sources, area sources, on-road mobile sources, and non-road mobile sources. The September 21, 2016 SIP submittal contains a summary of the CO emissions inventory for the El Paso Area for the base year 2014. The methods used to determine the El Paso CO emission inventory are consistent with the EPA's most recent guidance on developing emission inventories, and the inventory incorporates the latest information and planning assumptions available at the time of its development.
This LMP demonstrates continued attainment of the CO standard for El Paso County in 2014 through monitoring data. The 2014 emissions inventory shows that emissions decreased during the initial 10-year maintenance period even with growth in vehicle miles traveled, economic activity, and population.
The State has chosen to demonstrate maintenance of the NAAQS by continued monitoring of the air quality in the El Paso Area. To qualify for the LMP option, the design value for each monitor should be at or below 85% of the 8-hour CO NAAQS. The value corresponding to this 85% threshold is 7.65 ppm for the 8-hour CO NAAQS. The last monitored violation of the CO NAAQS in the El Paso Area occurred in 1993 and monitored CO levels have been steadily in decline ever since. For this submission, the State provided data showing monitored CO values from 2006-2015, reflecting a 2015 8-hour CO design value of 2.8 ppm. Thus, the design value for the 8-hour standard is less than 31% of the CO NAAQS. The EPA believes that if an area begins the maintenance period at or below the 85% threshold, it is unreasonable to expect that so much growth will occur during the 10-year maintenance period to cause a violation of the NAAQS.
The CO control program for El Paso Area is comprised of both Federal and local measures. The current maintenance plan 73 FR 45162 (August 4, 2008) for the area includes several control strategies that will remain in place for the duration of the second 10-year maintenance period of 2018-2028. The Federal strategies are continued implementation of the Tier 2 motor vehicle emission standards along with the requirement for reduced sulfur in gasoline, which became effective on February 10, 2000. 65 FR 6697 (February 10, 2000). Additionally, EPA's newly approved Tier 3 Motor Vehicle Emission and Fuel Standards at 79 FR 23414 (April 28, 2014) will reduce CO emissions from new, light-duty motor vehicles, light-duty trucks, and medium-duty passenger vehicles beginning model year 2017 and will be fully phased in by model year 2025. The Tier 3 fuel standards will lower the sulfur content of gasoline and make emission control systems more effective for both existing and new vehicles. As newer vehicles gradually replace older ones in the fleet, these control programs will result in lowered CO emissions in the El Paso County Area and elsewhere.
Local control strategies remaining in place for the duration of the second 10-year LMP include a vehicle emissions Inspection and Maintenance (I&M) Program, an Oxygenated Fuels Program, and the PSD Program. 73 FR 45162 (August 4, 2008). The I&M program has been in effect in the El Paso Area since January 1, 1987, and initially consisted of two-speed idle (TSI) testing for all vehicles. On January 1, 2007, an enhanced vehicle I&M program began On-Board Diagnostics testing for all model year 1996 and newer vehicles and continued to use TSI testing for all model year 1995 and older vehicles. All vehicle emissions inspection stations in the El Paso I&M program area are required to offer both tests. The program addresses CO emissions as well as ozone precursor emissions. The original program as described above will remain in place for the duration of the second 10-year maintenance period (2018-2028).
The El Paso Oxygenated Fuel Program aims to reduce vehicle emissions by providing for the use of oxygenated fuels. Various forms of this program have been in place during the winter months (October 1 through March 31) since October 1, 1992. The minimum oxygenate content of winter fuels in El Paso County is 2.7% by weight, and this requirement will remain in effect for the
Although not a direct local control measure, the State's PSD Program is a preconstruction permitting program that has been approved as part of the Texas SIP and applies to El Paso County. This program has been in effect for CO since the El Paso Area was redesignated to attainment in 2008. Under this program, new stationary sources of CO are evaluated and are required to use the Best Available Control Technology (BACT) to control emissions. This program will continue as a control strategy during the second maintenance period of 2018-2028. Therefore, we find that the State demonstrates continued maintenance of the standard.
The Plan includes a commitment to maintain operation of the existing EPA-approved air quality monitoring network in accordance with 40 CFR part 58. The TCEQ will continue to monitor CO through the end of the second 10-year maintenance period to ensure the CO level remains below 85% of the NAAQS. This data will be reported to EPA annually.
To comply with national ambient air monitoring requirements, and to better understand El Paso's air quality problems, the State has operated a CO monitoring network in the El Paso Area since the 1970's. In 2000, the El Paso monitoring network consisted of seven sites, including the Ascarate Park site at the Texas/Mexico border, which recorded the highest concentrations of CO that year. In recognition of significantly declining CO concentrations in the El Paso Area since 2000, Texas has gradually reduced and consolidated the El Paso CO monitoring network to three sites in 2015 with approval from the EPA. To verify the attainment status of the area over the maintenance period, the LMP should contain provisions for continued operation of an appropriate, EPA-approved monitoring network in accordance with 40 CFR part 58. The State has an approved monitoring network that includes CO monitoring in the El Paso Area that was most recently approved by the EPA on October 27, 2016. In the El Paso CO LMP, the State commits to maintaining a CO monitoring network to verify continued attainment of the NAAQS.
Contingency measures are specific control strategies that will be activated if they are triggered by a predefined event. Section 175A(d) of the Act requires that a maintenance plan include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of the area to attainment. To meet this requirement, the State has identified appropriate contingency measures along with a schedule for the development and implementation of such measures. In the September 21, 2016 submittal, the State specifies the contingency trigger as a violation of the CO standard based upon air quality monitoring data from the El Paso monitoring network. In the event that a monitored violation of the CO standard occurs in any portion of the maintenance area, the State will first analyze the data to determine if the violation was caused by actions outside TCEQ's jurisdiction (
The State specifically identifies the following contingency measures to re-attain the standard:
• Vehicle idling restrictions.
• Improved vehicle I/M.
The LMP indicates that the State may evaluate other potential strategies to address any future violations in the most appropriate and effective manner possible. Based on the above, we find that the contingency measures provided in the State's El Paso CO LMP are sufficient and meet the requirements of section 175A(d) of the CAA.
Transportation conformity is required by section 176(c) of the CAA. The EPA's conformity rule requires that transportation plans, programs, and projects that are funded under 23 U.S.C. or the Federal Transit Act conform to SIPs. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS.
The transportation conformity rule (40 CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area.
While the EPA's LMP Option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Under the LMP Option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the CO NAAQS would result.
While areas with maintenance plans approved under the LMP Option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the State must document and ensure that:
a. Transportation plans and projects provide for timely implementation of SIP transportation control measures in accordance with 40 CFR 93.113;
b. Transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108;
c. The MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105;
d. Conformity of transportation plans is determined no less frequently than every four years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;
e. The latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;
f. Projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and
g. Project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
The EPA confers regularly with the El Paso Area MPO and Transportation
Based on the evaluation outlined above, the LMP satisfies the requirements of the Act for the second 10-year update to the El Paso CO maintenance area.
The EPA is approving the CO LMP for the El Paso Area submitted by the TCEQ on September 21, 2016 as a revision to the Texas SIP because the State adequately demonstrates that the El Paso Area will maintain the CO NAAQS and meet all the criteria of a LMP through the second 10-year maintenance period. The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
Samuel Coleman was designated the Acting Regional Administrator on March 13, 2017, through the order of succession outlined in Regional Order R6-1110.1, a copy of which is included in the docket for this action.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the California State Implementation Plan (SIP) consisting of state regulations establishing standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines. The EPA is approving the SIP revision because the regulations meet the applicable requirements of the Clean Air Act. Approval of the regulations as part of the California SIP makes them federally enforceable.
This rule is effective on May 22, 2017 without further notice, unless the EPA receives adverse comments by April 20, 2017. If we receive such comments, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2017-0043 at
John Ungvarsky, EPA Region IX, (415) 972-3963,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Under the Clean Air Act (CAA or “Act”), the EPA establishes national ambient air quality standards (NAAQS) to protect public health and welfare, and has established such ambient standards for a number of pervasive air pollutants including ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, lead and particulate matter. Under section 110(a)(1) of the CAA, states must submit plans that provide for the implementation, maintenance, and enforcement of the NAAQS within each state. Such plans are referred to as SIPs and revisions to those plans are referred to as SIP revisions. Section 110(a)(2) of the CAA sets forth the content requirements for SIPs. Among the various requirements, SIPs must include enforceable emission limitations and other control measures, means, or techniques as may be necessary or appropriate to meet the applicable requirements of the CAA.
As a general matter, the CAA assigns mobile source regulation to the EPA through title II of the Act and assigns stationary source regulation and SIP development responsibilities to the states through title I of the Act. In so doing, the CAA preempts various types of state regulation of mobile sources as set forth in section 209(a) (preemption of state emissions standards for new motor vehicles and engines), section 209(e) (preemption of state emissions standards for new and in-use off-road vehicles and engines),
Over the years, the California Air Resources Board (CARB) has submitted many requests for waiver or authorization of its standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines, and the EPA has granted many such requests. For example, the EPA has granted waivers for CARB's Low Emission Vehicle (LEV III) criteria pollutant standards for light- and medium-duty vehicles, and has authorized emissions standards for off-road vehicle categories.
Also over the years, CARB has submitted, and the EPA has approved, many local or regional California air district rules regulating stationary source emissions as part of the California SIP.
California relies on these local, regional, and state stationary and mobile source regulations to meet various CAA requirements and includes the corresponding emissions reductions in the various regional air quality plans developed to attain and maintain the NAAQS. The EPA generally allows California to take credit for the corresponding emissions reductions relied upon in the various regional air quality plans because, among other reasons, the regulations are approved as part of the SIP and are thereby federally enforceable as required under CAA section 110(a)(2)(A).
However, California also relies on emissions reductions from the regulations for which the EPA has previously granted waivers or authorizations, and historically, the EPA has approved regional air quality plans that take credit for emissions reductions from such regulations, notwithstanding the fact that California has not submitted these particular regulations as part of the California SIP.
The EPA's longstanding practice of approving California plans that rely on emissions reductions from such “waiver measures,” notwithstanding the lack of approval as part of the SIP, was challenged in several petitions filed in the Ninth Circuit Court of Appeals. In a 2015 decision, the Ninth Circuit held in favor of the petitioners on this issue and concluded that CAA section 110(a)(2)(A) requires that all state and local control measures on which SIPs rely to attain the NAAQS be included in the SIP and thereby subject to enforcement by the EPA and members of the general public.
In response to the decision in
On December 7, 2016, CARB submitted a SIP revision that included a set of state mobile source regulations for which waivers or authorizations have been granted by the EPA under section 209 of the CAA since August 2015. The SIP revision consists of the regulations themselves and documentation of the public process conducted by CARB in approving the regulations as part of the California SIP. Table 1 below presents the contents of the SIP revision by mobile source category and provides, for each such category, a listing of the relevant sections of the California Code of Regulations (CCR) that establish standards and other requirements for control of emissions from new or in-use vehicles or engines; the corresponding date of CARB's hearing date or Executive Officer action through which the regulations or amendments were adopted; and the notice of decision in which the EPA granted a waiver or authorization for the given set of regulations.
The regulations submitted by CARB and listed in table 1 incorporate by reference documents that establish test procedures and labeling specifications, among other things, and CARB submitted the documents as part of the overall SIP revision. Table 2 lists the incorporated documents included in the SIP submittal.
We note that CARB has expressly excluded from the December 7, 2016, SIP submittal certain amended provisions of California code that were not included in the related authorization request from CARB to the EPA and thus not included in the EPA's authorization. These provisions pertain to an optional alternative NMHC plus NO
As noted previously, the CAA generally assigns to the EPA the responsibility of establishing standards for the control of emissions from mobile sources. However, the State of California was a pioneer in establishing standards for the control of emissions from new motor vehicles, and, in part due to the state's pioneering efforts, Congress established in 1967 a process under which California, alone among the states, would be granted a waiver from preemption (if certain criteria are met) and thereby enforce its own standards and other requirements for the control of emissions from new motor vehicles. In the 1990 CAA Amendments, Congress extended a similar process that had been established under section 209 for new motor vehicles to new and in-use off-road vehicles and engines.
The first waiver granted was for California's On-Road Emissions Standards for Model Year (MY) 1968.
Historically, as noted above, CARB regulations subject to the section 209 waiver or authorization process were not submitted to the EPA as a revision to the California SIP. However, in the wake of the Ninth Circuit's decision in
Historically, California has experienced some of the most severe and most persistent air pollution problems in the country. Under the CAA, based on ambient data collected at numerous sites throughout the state, the EPA has designated areas within California as nonattainment areas for the ozone NAAQS and the particulate matter (PM) NAAQS, which includes both coarse and fine particulate (
Mobile source emissions constitute a significant portion of overall emissions of carbon monoxide, volatile organic compounds (VOC), oxides of nitrogen (NO
Table 3 below generally describes the amended regulations listed in table 1 above and summarizes some of the key emissions control requirements contained in the rules.
The EPA has evaluated the submitted regulations discussed above against the applicable procedural and substantive requirements of the CAA for SIPs and SIP revisions and has concluded that they meet all of the applicable requirements. Generally, SIPs must include enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary to meet the requirements of the Act [
Under CAA section 110(l), SIP revisions must be adopted by the state, and the state must provide for reasonable public notice and hearing prior to adoption. In 40 CFR 51.102(d), we specify that reasonable public notice in this context refers to at least 30 days.
All of the submitted regulations have gone through extensive public comment processes including CARB's workshop and hearing processes prior to state adoption of each rule. Also, the EPA's waiver and authorization processes provide an opportunity for the public to request public hearings to present information relevant to the EPA's consideration of CARB's request for waiver or authorization under section 209 of the CAA and to submit written comment.
In addition, on June 19, 2015, CARB published a notice of public hearing to be held on July 23, 2015, to consider adoption and submittal of certain adopted regulations, including those submitted to the EPA on August 15,
CARB has been granted both general and specific authority under the California Health & Safety Code (H&SC) to adopt and implement these regulations. California H&SC sections 39600 (“Acts required”) and 39601 (“Adoption of regulation; Conformance to federal law”) confer on CARB the general authority and obligation to adopt regulations and measures necessary to execute CARB's powers and duties imposed by state law. California H&SC sections 43013(a) and 43018 provide broad authority to achieve the maximum feasible and cost-effective emission reductions from all mobile source categories. Regarding in-use motor vehicles, California H&SC sections 43600 and 43701(b), respectively, grant CARB authority to adopt emission standards and emission control equipment requirements.
As a general matter, as noted above, the CAA assigns mobile source regulation to the EPA through title II of the Act and assigns stationary source regulation and SIP development responsibilities to the states through title I of the Act. In so doing, the CAA preempts various types of state regulation of mobile sources as set forth in section 209(a) (preemption of state emissions standards for new motor vehicles and engines), section 209(e) (preemption of state emissions standards for new and in-use nonroad vehicles and engines) and section 211(c)(4)(A) [preemption of state fuel requirements for motor vehicles,
The mobile source regulations that are the subject of today's direct final rule were submitted by CARB under CAA section 209 with a request for waiver or authorization and for which the EPA has granted such waiver or authorization. Thus, the regulations approved today are not preempted under the CAA. For additional information regarding California's motor vehicle emission standards, please see the EPA's “California Waivers and Authorizations” Web page at URL address:
In addition, the EPA is unaware of any non-CAA legal obstacle to CARB's enforcement of the regulations and thus we conclude that the state has provided the necessary assurances that the state has adequate authority under state law to carry out the SIP revision (and is not prohibited by any provision of federal or state law from carrying out such SIP) and thereby meets the requirements of CAA section 110(a)(2)(E) with respect to legal authority.
We have evaluated the enforceability of the amended mobile source regulations with respect to applicability and exemptions; standard of conduct and compliance dates; sunset provisions; discretionary provisions; and test methods, recordkeeping and reporting,
First, with respect to applicability, we find that the amended regulations would be sufficiently clear as to which persons and which vehicles or engines are affected by the regulations.
Second, we find that the amended regulations would be sufficiently specific so that the persons affected by the regulations would be fairly on notice as to what the requirements and related compliance dates are. For instance, see the fleet average emission level standards for large and medium forklift fleets and non-forklift fleets in 13 CCR section 2775.1(a). Third, none of the submitted regulations contain sunset provisions that automatically repeal the emissions limits by a given date or upon the occurrence of a particular event, such as the change in the designation of an area from nonattainment to attainment.
Fourth, a number of the amended regulations contain provisions that allow for discretion on the part of CARB's Executive Officer. Such “director's discretion” provisions can undermine enforceability of a SIP regulation, and thus prevent full approval by the EPA. However, in the instances of “director's discretion” in the submitted regulations, the discretion that can be exercised by the CARB Executive Officer is reasonably limited under the terms of the regulations. For instance, the HD OBD requirements in 13 CCR section 1971.1 allow a manufacturer to request that the Executive Officer approve to use an alternate definition for engine start (
Lastly, the amended regulations identify appropriate test methods and includes adequate recordkeeping and reporting requirements sufficient to ensure compliance with the applicable requirements. The technical support document provides more detail concerning the contents of the amended regulations.
All of the state's reasonable further progress (RFP), attainment, and maintenance plans rely to some extent on the emission reductions from CARB's mobile source program, including the emissions standards and other requirements for which the EPA has issued waivers or authorizations. For some plans, the reliance is substantial
In its SIP revision submittal dated August 14, 2015, CARB refers to the annual approval by the California Legislature of funding and staff resources for carrying out CAA-related responsibilities and notes that a large portion of CARB's budget has gone toward meeting CAA mandates.
Based on the above discussion, we believe these regulations are consistent with the relevant CAA requirements and with relevant EPA policies and guidance.
Under section 110(k)(3) of the CAA, and for the reasons given above, we are approving a SIP revision submitted by CARB on December 7, 2016, that includes certain sections of title 13 of the California Code of Regulations that establish standards and other requirements relating to the control of emissions from new and in-use on-road and off-road vehicles and engines. We are approving these regulations as part of the California SIP because we believe they fulfill all relevant CAA requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
In this rule, the EPA is finalizing rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of certain sections of title 13 of the California Code of Regulations that establish standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines, as described in section II of this preamble. Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
and
The additions and revisions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule; notice of administrative change.
The Environmental Protection Agency (EPA) is updating the materials that are incorporated by reference (IBR) into the District of Columbia state implementation plan (SIP). The regulations affected by this update have been previously submitted by the District of Columbia Department of Energy and Environment (DoEE) and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA) and the EPA Regional Office.
This action is effective March 21, 2017.
SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and NARA. For information on the availability of this material at NARA, call 202-741-6030, or go to:
Sharon McCauley, (215) 814-3376 or by email at
The SIP is a living document which the state revises as necessary to address its unique air pollution problems. Therefore, EPA, from time to time, must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference federally approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997
Since the publication of the last IBR update, EPA has approved the following regulatory changes to the following District of Columbia regulations:
1. Chapter 2 (General and Non-attainment Area Permits), sections 208 and 210.
2. Chapter 7 (Volatile Organic Compounds), sections 714, 755 through 758 inclusive, and 763 through 778 inclusive.
3. DC Official Code, Title I, Chapter 11A, (Government Ethics and Accountability), sections 1-1161.01(Definitions), 1-1161.23 (Conflicts of Interest), 1-1161.24 (Public Reporting), and 1-1161.25 (Confidential Disclosure of Financial Interest).
1. Chapter 1 (General), sections 100 and 199.
2. Chapter 2 (General and Non-attainment Area Permits), sections 200, 204, and 299.
3. Chapter 7, (Volatile Organic Compounds), sections 700, 710, 715 through 737 inclusive, 743 through 749, 751 through 754 inclusive, and 799.
4. Chapter 10, title change to Air Quality—Non EGU Limits on Nitrogen Oxides Emissions, as well as title changes and revisions to sections 1001 through 1004.
1. Chapter 2 (General and Non-attainment Area Permits), section 206
2. Chapter 7, (Volatile Organic Compounds), sections 707, 708, 738 through 742 inclusive, and 750.
3. Chapter 10 (Air Quality—Non EGU Limits on Nitrogen Oxides Emissions), sections 1005 through 1014 inclusive, and 1099.
In this action, EPA is doing the following:
Announcing the update to the IBR material as of July 1, 2016 and revising the text within 40 CFR 52.470(b).
1. Correcting a typographical error in the title for chapter 7, section 702.
2. Removing the five existing entries for chapter 7, section 799 with an EPA approval date prior to April 29, 2013.
Revising the Applicable Geographic Area from “Statewide” to “District of Columbia” for the following titled areas currently found within 52.470(e): Regional Haze Plan; Section 110(a)(2) Infrastructure Requirements for the 2008 Lead NAAQS; the Clean Air Act (CAA) section 128 requirements in relation to State Boards; section 110(a)(2) Infrastructure Requirements for the 2010 Nitrogen Dioxide (NO
EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This rule simply codifies provisions which are already in effect as a matter of law in federal and approved state programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the Code of Federal Register benefits the public by removing outdated citations and incorrect table entries.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of previously EPA approved regulations promulgated by the District of Columbia and federally effective prior to July 1, 2016. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the District of Columbia SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for the District of Columbia.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The amendments read as follows:
(b)
(2) EPA Region III certifies that the materials provided by EPA at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated state rules/regulations which have been approved as part of the state implementation plan as of the dates referenced in paragraph (b)(1). No additional revisions were made to paragraph (d) between December 1, 2010 and July 1, 2016.
(3) Copies of the materials incorporated by reference into the state implementation plan may be inspected at the Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. To obtain the material, please call the Regional Office at (215) 814-3376. You may also inspect the material with an EPA approval date prior to July 1, 2016 for the District of Columbia at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, go to:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is taking direct final action to correct a previously approved diesel inspection and maintenance (I/M) program provision in Albuquerque/Bernalillo County's State Implementation Plan (SIP). This action is based on our determination that at the time EPA approved the diesel I/M Program the State did not have the legal authority to expand its program to require the testing of 1998 and newer diesel motor vehicles greater than 1,000 and less than 10,001 pounds.
This rule is effective on May 22, 2017 without further notice, unless the EPA receives relevant adverse comment by April 20, 2017. If the EPA receives such comment, the EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket No. EPA-R06-OAR-2011-0695, at
Mr. John Walser, 214-665-7128,
Throughout this document “we,” “us,” and “our” means the EPA.
Congress enacted the National Ambient Air Quality Standards (NAAQS) and SIP requirements in the 1970 CAA Amendments. CAA section 110(a)(1) requires that states adopt and submit to EPA for approval SIPs that implement the NAAQS. CAA section 110(a)(2) contains a detailed list of requirements that all SIPs must include to be approvable by EPA. Of particular relevance to this action is subparagraph (E)(i) of CAA section 110(a)(2) which provides that SIPs must provide “necessary assurances that the state . . . will have adequate . . . authority under State (and as appropriate, local) law to carry out such [an] implementation plan.” As applicable to inspection and maintenance programs, this provision means that EPA may approve the submitted I/M provisions as part of the SIP only if EPA is satisfied that the state will have adequate legal authority under state law to implement the program.
EPA has authority to revise its previous actions taken on SIP submittals. Two mechanisms are available to EPA: The error correction mechanism provided under CAA section 110(k)(6), and EPA's general administrative authority to reconsider its own actions under CAA sections 110 and 301(a), in light of case law. CAA section 110(k)(6) provides as follows:
Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.
Therefore, the Administrator has the authority to “determine[ ]” when a SIP approval was “in error,” and may then revise the SIP approval “as appropriate,” in the same manner as the approval, and without requiring any further submission from the state.
On August 1, 2012, EPA proposed to approve revisions to the SIP for Air Quality submitted by the City of Albuquerque/Bernalillo County (the County) area on July 28, 2011 pursuant to the Clean Air Act. (77 FR 45530). These revisions included provisions that expanded the County's I/M program to include 1998 and newer diesel motor vehicles greater than 1,000 and less than 10,001 pounds. The County submitted a SIP Completeness Checklist pursuant to 40 CFR 51, Appendix V in which it certified that it had the necessary legal authority to include compression ignition powered (diesel) engine testing in its I/M program. We received no comments on this proposal and finalized our approval on October 31, 2012. (77 FR 65821).
Federal law does not require, nor did it require at the time the SIP revision was submitted, a diesel I/M program. However, under the CAA an agency is free to submit for approval as part of the SIP regulations that are more stringent than federal requirements should it choose to. On August 19, 2016, we received a letter from the Albuquerque Bernalillo County Air Quality Control Board indicating that the County did not have the necessary legal authority to require testing of diesel engines at the time the SIP was submitted to EPA. The County requested that EPA perform an error correction under CAA section 110(k)(6).
As explained above, EPA has the authority to correct approvals of SIPs should we find that the approval was made in error. Since the County did not have the necessary authority to require testing of diesel engines at the time the SIP revision was submitted, our approval of this diesel I/M provision was made in error. As such, we are taking final action to remove this provision from the County's SIP.
EPA is removing the following provisions related to testing diesel vehicles from the County's SIP: NMAC 20.11.100.5(B), 20.11.100.17(E)(2), and the reference to compression ignition engines in 20.11.100.7(LL)(1), as adopted by the Air Board on May 11, 2011.
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the New Mexico regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through
This final action is not a “significant regulatory action” and was therefore not submitted to the Office of Management and Budget for review.
This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely approves or disapproves a SIP submission as not meeting the CAA.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely approves or disapproves a SIP submission as not meeting the CAA.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely approves or disapproves a SIP submission as not meeting the CAA requirements.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 22, 2017. Filing a
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Samuel Coleman was designated the Acting Regional Administrator on March 13, 2017, through the order of succession outlined in Regional Order R6-1110.1, a copy of which is included in the docket for this action.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule; further delay of effective date.
In accordance with the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” and the
As of March 21, 2017, the effective date of the rule amending 40 CFR part 52 published in the
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0067. All documents in the docket are listed on the
Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address:
On January 26, 2017, the EPA published a document in the
The EPA received two comments generally opposing delaying the effective date of the final rule, arguing that it was “absurd . . . under any circumstances” (
The EPA is further delaying the effective date for Partial Approval and Partial Disapproval of Attainment Plan for the Idaho Portion of the Logan, Utah/Idaho PM
Centers for Medicare & Medicaid Services (CMS), HHS.
Interim final rule with comment period; delay of effective date.
This interim final rule with comment period (IFC) further delays the effective date of the final rule entitled “Advancing Care Coordination Through Episode Payment Models (EPMs); Cardiac Rehabilitation Incentive Payment Model; and Changes to the Comprehensive Care for Joint Replacement Model” published in the January 3, 2017
In commenting, please refer to file code CMS-5519-IFC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed).
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD— Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Sean Harris (410) 786-0812.
For questions related to the EPMs:
Comments received timely will be also available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
In the January 3, 2017
The January 3, 2017 final rule (82 FR 180) included an effective date of February 18, 2017 for all provisions except those contained in the following amendatory instructions, which were to become effective on July 1, 2017: Number 3 amending 42 CFR 510.2; number 4 adding 42 CFR 510.110; number 6 amending 42 CFR 510.120; number 14 amending 42 CFR 510.405; number 15 amending 42 CFR 510.410; number 16 revising 42 CFR 510.500; number 17 revising 42 CFR 510.505; number 18 adding 42 CFR 510.506; and number 19 amending 42 CFR 510.515.
In the February 17, 2017
To the extent that section 553 of the Administrative Procedure Act (APA) applies to this action to further delay the rule's effective date for the purpose of ensuring adequate time for subsequent notice and comment rulemaking if that is warranted, this IFC is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Furthermore, 5 U.S.C. 553(b)(B) permits a waiver of prior notice and comment if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest. Similarly, section 1871 of the Act, which normally requires prior notice and a 60-day public comment period for rules that establish or change a substantive legal standard, permits waiver of prior notice and comment when there is good cause for an exception under 5 U.S.C. 553(b)(B). In addition, the requirement under section 553(d) of the APA for a 30-day delay in the effective date of a rule can be waived for good cause. The January 20, 2017 “Regulatory Freeze Pending Review” executive memorandum stated that the rules under review should be delayed 60 days from the date of the memorandum. In addition, that memorandum provided that agencies should consider issuing a notice of proposed rulemaking and solicit public comment if they believed that a delay beyond 60 days from the date of the memorandum was necessary. Given that the provisions of the final rule that provide for a start date for the EPMs and CR Incentive Payment model of July 1, 2017 will take effect on March 21, 2017, there is insufficient time to undertake full notice and comment rulemaking ahead of the March 21, 2017 effective date. We have determined that issuing this IFC as a proposed rule, such that it would not become effective until after public comments are submitted, considered and responded to in a final rule, would be contrary to the public interest, since the models would begin July 1, 2017 as originally set forth in the January 3, 2017 final rule, which could lead to a good deal of confusion for the public. In setting forth revised effective and applicability dates, we seek to ensure that all parties could participate in any rulemaking resulting from further review as requested in the January 20, 2017 presidential memorandum. Therefore, we are publishing this IFC to delay the effective date of the rule to May 20, 2017 and to move the applicability date for the EPM provisions from July 1, 2017 to October 1, 2017. We are also delaying the effective date of the CJR regulation amendments that were to take effect July 1, 2017 to October 1, 2017, to maintain our policy of aligning these changes with EPMs and to avoid confusion. Because we are immediately adjusting the effective and applicability dates of the EPMs by 3 months but believe a 6-month delay in the applicability (model start) date to be warranted, in this IFC we are soliciting public comment on the appropriateness of a further delay in the applicability (model start) date and will take those comments into consideration. For these same reasons, we find good cause to waive the 30-day delay in effective date provided for in 5 U.S.C. 553(d). Based on these findings, this rule is effective immediately upon publication in the
As discussed previously, timing considerations support an immediate delay to the effective and applicability dates and necessitate that the delay operate on a quarterly basis. Moreover, our ongoing review of the policy, consistent with the January 20, 2017 presidential memorandum, and our identification of the possibility of additional notice and comment rulemaking to make any warranted modifications to the policy, further necessitate immediate delay. As discussed in the January 3, 2017 final rule (82 FR 184), under the 5-year models governed by the rule, participants will have a significant opportunity to redesign care. Delaying the effective and applicability (model start) dates will prevent participant confusion and corresponding disruption to these efforts, ensure that the agency has adequate time to undertake notice and comment rulemaking to modify the policy if modifications are warranted, and ensure that in the case of policy modifications, participants have a clear understanding of the governing rules and are not required to take needless compliance steps due to the rule taking effect for a short duration before any potential modifications are effectuated.
Because of the large number of public comments we normally receive on
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) takes another step towards implementing the Connect America Phase II auction in which service providers will compete to receive support of up to $1.98 billion to offer voice and broadband service in unserved high-cost areas.
Effective April 20, 2017.
Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.
This is a summary of the Commission's Report and Order and Order on Reconsideration in WC Docket Nos. 10-90, 14-58; FCC 17-12, adopted on February 23, 2017 and released on March 2, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW.,
1. With this Report and Order and Order on Reconsideration (Order), the Commission takes another step towards implementing the Connect America Phase II (Phase II) auction in which service providers will compete to receive support of up to $1.98 billion to offer voice and broadband service in unserved high-cost areas. The decisions the Commission makes in this Order aim to maximize the value the American people will receive for the universal service dollars the Commission spends, balancing higher-quality services with cost efficiencies.
2. First, the Commission resolves issues raised in the
3. Second, the Commission also considers several petitions for reconsideration of decisions made in the
4.
5. The Commission first clarifies that weights are positive values that will be added to a particular bid-price-to-reserve price ratio to arrive at a score. Mathematically,
6. Specifically, the Commission will weigh bids so that Minimum performance tier bids will have a 65 weight; Baseline performance tier bids will have a 45 weight; Above Baseline performance tier bids will have a 15 weight; and Gigabit performance tier bids will have zero weight. Moreover, high latency bids will have a 25 weight and low latency bids will have zero weight added to their respective performance tier weight.
7. The following charts summarize the Commission's adopted approach:
8. A number of commenters proposed different ways to apply weights. Some parties also suggested using positive weights, while others suggested negative weights, and some suggested a mix of both. By adding increasing weight as speed and usage allowances decrease and latency increases, the Commission concludes that its approach is a straight-forward representation of the fact that the Commission values higher speeds and usage allowances and lower latency, and should be easier for bidders to understand and simpler for us to implement. Moreover, a number of parties suggested that the Commission uses percentage weights but suggested various ways to apply the percentage. The Commission concludes that their overall approach of adding the weight to the bid-to-reserve price ratio appropriately applies the weights uniformly across all areas, thereby increasing competition and giving providers in all eligible areas opportunities to win. The Commission also declines to adopt the approach it suggested in the
9. The Commission's weighting scheme for the performance tiers is designed to balance its finite budget with the reality that, in some areas, speeds of 10/1 Mbps may be the limit of what is achievable in the near term but will still offer significant benefits to currently unserved areas, including the potential that service providers may choose to increase speeds to meet consumer demand once they have made the initial investment of deploying to certain areas. At the same time, the weights the Commission implements also attempt to leverage its finite budget to achieve speeds that are scalable to meet the evolving needs of consumers over the 10-year term and the broader community in areas where it is cost-effective to do so.
10. The record regarding the weights that the Commission should adopt for the different performance tiers varies, with parties arguing for weights as low as 5 and as high as 100 between tiers, and relying on several different methodologies for establishing the weights. To sift through these proposals and establish a reasonable range of weights to choose from, the Commission relies on the following propositions.
11.
12.
13.
14.
15. With those principles in mind, the Commission reviews the weight of the record. Most parties proposing within these parameters suggest increment values somewhere between 5 and 60. Parties arguing for smaller weight increments between speed tiers with a focus on the lower speed tiers suggest that the Commission's focus should be on maximizing the number of locations that have access to services that are reasonably comparable to those offered in urban areas, and that giving a heavy preference to higher speed and usage allowance tiers would be an inefficient use of the finite budget, favoring high speeds and usage allowances at the expense of leaving many without service. They argue that heavily weighting bids or assigning any weight to bids committing to a Gigabit performance tier would violate the Commission's statutory duty to support reasonably comparable services, and they claim that consumers are more
16. By contrast, other parties argue that higher speeds and usage allowances should have heavier weights so these bids are more likely to prevail. Some of these parties suggest that the speeds in the Minimum and Baseline performance tiers would not be sufficient to constitute reasonably comparable services. They argue that the Commission should focus on supporting “future proof” networks given that speeds that are reasonably comparable today may not be reasonably comparable throughout the 10-year support term. They also suggest that certain technologies that may be more cost-effective today are likely to be more expensive in the long term because such networks will need to be upgraded to meet consumers' needs, and that it would be more efficient to support speeds that can be leveraged by entire communities. They claim that if higher tier bids are not given sufficient weight, bidders able to offer such services will be less likely to participate, and bidders in lower tiers could win without having to place cost-effective bids. Some of these commenters argue that higher speeds should be given a near absolute preference, while others argue for more moderate increments between the tiers.
17. Taking into account these principles and the record, the Commission finds that increments of 15-30 between performance tiers appropriately balance the concerns of these potential bidders, and their representatives, by adopting increments that are within a reasonable range of the increments proposed by both sets of commenters. Based on the Commission's predictive judgment, the Commission concludes that this approach is likely to promote competition both within and across areas by giving all service providers the opportunity to place competitive bids, regardless of the technology they intend to use to meet their obligations. The Commission weights appropriately recognize the value to rural consumers of higher speeds and higher usage allowances, but bids placed in the higher tiers will not necessarily win because of the generally greater costs of deploying a higher capacity network at higher speeds. Bids placed for lower speeds and usage allowances will still have the opportunity to compete for support, but will have to be particularly cost-effective to compete with higher tier bids.
18. The Commission is not convinced by suggestions that it should adopt weights that are based on metrics derived from consumer preference data. Commenters proposed several competing data sources and methodologies in an attempt to substantiate their proposed weights as “objective,” but the Commission declines to adopt any of these proposals. The Commission concludes that establishing weights based on specific data is likely to be a drawn out and complicated process that may further delay the Phase II auction and may not produce an improved outcome in the auction. Moreover, a consumer's decision to subscribe to a particular service may be based on numerous variables and does not necessarily suggest that one level of service should be valued by a particular percentage over another level of service in areas where consumers currently have no options for service. The Commission is not persuaded that its decision to adopt weights that are not derived from specific data is “arbitrary.” Instead, the Commission adopts weights between each tier that recognize the value of increased speeds and usage allowances and select weights that fall within the range of weights proposed by parties in the record that do not seek to give any one tier an absolute preference.
19. The Commission is not persuaded that some of the other proposals parties made in the record regarding how to approach weighting the different tiers would be consistent with its objectives and statutory duties. First, the Commission disagrees with the suggestion that it should only weight bids in higher tiers if sufficient funding is available to fund all bids at the Baseline performance tier. While this approach might permit us to serve more consumers, the Commission would lose out on the opportunity to balance its other objective of funding service that will achieve reasonable comparability for the long term. Section 254 of the Act makes clear that universal service requires an evolving level of service.
20. Second, the Commission is not convinced that it should fund extremely high-cost locations only after the Commission has funded all bids for high-cost locations. When it decided to include the extremely high-cost census blocks in the Phase II auction, the Commission explicitly recognized that in some areas a service provider might be able to make a business case to serve extremely high-cost areas efficiently even though the Connect America Cost Model has determined an area to be extremely high-cost. The Commission has explained that, because extremely high-cost areas are interspersed among high-cost areas, including extremely high-cost census blocks in the Phase II auction enables parties to build integrated networks that span both types of areas as appropriate. The approach gives bidders the flexibility to decide how to most efficiently upgrade or extend their networks. It would contradict this rationale to refuse to fund bids in extremely high-cost areas until high-cost area bids have been awarded because such an approach would assume that bids in high-cost areas would be more cost-effective.
21. The Commission also concludes that its decision to adopt a weight of 25 for high latency bids appropriately balances its objective of using its finite budget in a cost-effective manner, but also supporting services that will meet consumers' needs. The Commission decided in the
22. Commenters propose a wide range of weights in the record for the latency tiers, from weights as high as 100 to weights as low as 10, with commenters proposing weights lower than 100 suggesting a weight within the range of 10 to 75. Because they propose latency tier weights relative to their proposed performance tier weights, the Commission similarly considers weights for the latency tiers relative to the weights it adopted for the performance tiers above. The Commission is not persuaded by commenters that argue that low latency services should be heavily weighted or by comments suggesting that low latency services should always win over high latency services. Thus, the Commission concludes a weight of 100 or 75 would be too high. While many commenters raise concerns about high latency services, the Commission already took such concerns into account when deciding to adopt objective performance requirements so that high latency providers can participate. The Commission is not persuaded that high latency providers should have to partner with terrestrial providers in order to participate competitively in the Phase II
23. Commenters suggesting weights below 75 argue for a range of weights between 10 and 45 relative to their own various performance tier proposals. Similarly, based on the weights the Commission has adopted for the performance tiers above, it concludes that a weight of 25 would reasonably maximize competition. A weight of 25 is appropriate because a bidder placing a low latency bid in the Gigabit performance tier will not necessarily win, which will add pressure on such bidders to make more cost-effective bids. A Minimum performance high latency bidder will have cumulative weight of 90 (65 for the Minimum performance tier; 25 for the high latency bid), which will provide a reasonable opportunity for high latency bidders to make competitive bids in the lower performance tiers.
24. Relative to the performance tiers the Commission has adopted, it also concludes that a weight of 25 is more appropriate than a narrower weight like 10 or 15, given the arguments in the record about the benefits of low latency services, especially in areas where the Phase II auction recipient is the only voice provider. The Commission concludes that like the weighting approach it has adopted for the performance tiers, adopting a moderate weight will take a significant step towards ensuring consumers throughout the country have access to reasonably comparable services pursuant to the Commission's statutory duty, while also balancing the realities of its finite budget and the high costs of providing voice and broadband to these unserved areas. The Commission rejects arguments that it should adopt a narrower weight for latency than it has adopted for speed tiers to account for claims that consumers value higher speeds over lower latency. First, the performance tier weighting the Commission has adopted already accounts for the value of higher speeds given that, as speeds increase, the weights will decrease. Second, while high latency providers suggest that consumers' satisfaction with high latency services has improved so that it is comparable to some cable services, some consumers have chosen high latency services over low latency services, and that terrestrial providers emphasize speed and price over latency in their marketing materials, these claims do not address the concerns raised by commenters about the inherent limitations of high latency services—particularly for interactive, real-time applications and voice services given that high latency providers may be the only voice providers in the area. The Commission is not persuaded that it should use consumer data to establish the bidding weight between low and high latency bids. As t explained above, such an approach has the potential to be highly subjective, and the process would likely be complex and time-consuming. Moreover, the fact that parties subscribe to more low latency services in urban areas could be due to a number of factors and does not necessarily suggest that a high latency service would not meet the needs of consumers living in otherwise unserved high-cost areas.
25. Finally, the Commission is not persuaded that it should adopt other types of weights that have been proposed in the record. Generally, the Commission finds that the more weights it adopts to effectuate various perceived policy preferences, the more the Commission moves away from the objective of maximizing the reach of its budget by awarding bids based on cost-effectiveness. Moreover, additional weights add more complexity to the auction design and, in turn, this increased complexity could drive down interest and participation in the Phase II auction. In addition, the Commission explains above why the weights it has adopted serves the public interest because they help us balance other important objectives, like ensuring that consumers have access to reasonably comparable services. Parties proposing that the Commission adopts other types of weights to advance other objectives have not demonstrated similarly compelling public interest benefits.
26. For example, the Commission declines to adopt weights that would improve a bid's ranking if it covers small areas. The Commission notes that in some cases, service providers may be able to take advantage of economies of scale by bidding on larger areas, and in those instances bids for larger areas may be more cost-effective. But the Commission also declines to adopt weights that would give a preference to bids that included 75 percent or more funded locations within a state. The Commission notes that there could be instances when it is more cost-effective for a number of carriers to offer service within a state. Similarly, the Commission declines to adopt weights to give a preference to small bidders. The Commission's focus is on maximizing the effectiveness of its funds to serve consumers nationwide. While the Commission encourages small bidders to participate in the Phase II auction and have adopted eligibility requirements to facilitate their participation, it is not persuaded that giving a preference to smaller bidders will necessarily achieve its objectives when it is possible that a larger bidder may be able to make a more cost-effective bid in a higher performance or lower latency tier. Rather than artificially give a preference to smaller or larger bids or to small bidders, the Commission prefers to rely on the cost-effectiveness scores of bids to determine how its budget can best be maximized to serve the most consumers with service that is reasonably comparable to service offered in urban areas.
27. If unqualified bidders are able to participate in the auction and divert support from qualified bidders able to offer service meeting the Commission's requirements then consumers would ultimately be harmed. In the
28. While the Commission already requires that potential bidders make certain showings in their short-form applications, the Commission is not persuaded by claims that this information will offer sufficient
29. Finally, the Commission rejects suggestions that the Commission intended to adopt the same eligibility process it adopted for the rural broadband experiments or that the Commission would need to reconsider the eligibility requirements it has already adopted in the
30. Although the Commission declines to adopt state-based preferences or ceiling in the Connect America Phase II auction, it is persuaded that it should reserve funding in the Remote Areas Fund for any state that did not receive support equal to the funding declined in the statewide election process, subject to the conditions described below. The Commission continues to recognize the importance of connecting consumers in areas that would have been reached had the Phase II offer been accepted and to provide sufficient universal service funds to do so. Accordingly, the Commission intends to observe the outcome of the Phase II auction, and will adopt a process for the Remote Areas Fund to ensure that states receive an equitable distribution of funds. In order to ensure service is extended expeditiously to areas not supported in the Phase II auction, the Commission also reaffirms that the Commission will seek to commence the Remote Areas Fund auction no later than one year after the commencement of the Phase II auction.
31. Specifically, once the Commission has had the opportunity to observe the results of the Phase II auction it will prioritize bids in the Remote Areas Fund auction that are placed in such declined states until it has awarded enough support to make up the difference between the total Phase II declined support and the total support that was awarded in the state by the Phase II auction, to the extent possible based on bids placed, remaining eligible areas, and budget available. To ensure that support is targeted to commercially reasonable bids, the Commission anticipates that only bids that are at or below the reserve price would be eligible for this preference. Any implementation details will be adopted when the Commission finalizes the procedures for the Remote Areas Fund auction after observing the outcome of the Phase II auction.
32. The Commission acknowledges that this approach may mean that some areas in declined states have to wait longer to get service than if support was awarded through the Phase II auction. Nevertheless, on balance the Commission concludes this approach serves the public interest because it reasonably enables us to achieve its objectives by first using the Phase II auction to maximize its budget by prioritizing cost-effective bids and then targeting support to areas that remain unserved in the Remote Areas Fund. Indeed, the areas where support has been declined are, according to the Commission's cost model, lower cost than the extremely high-cost areas that are eligible nationwide. While it is possible that some areas that would have received support if the Commission implemented preferences in the Phase II auction may be left unserved after the Phase II auction, it is also possible that bidders will be attracted to serve these lower-cost areas and will be awarded support through the Phase II auction to the extent that they place cost-effective bids when compared to the reserve price and bids nationwide.
33. For these reasons, the Commission concludes that this approach is preferable to adopting weights for the Phase II auction for states where Phase II auction support was declined, or adopting other measures like support thresholds, ceilings, or rankings in the Phase II auction. Instead, the possibility that state preferences in the Phase II auction could divert funding from more cost-effective and higher service quality bids in the Phase II auction, and the added complexity they would introduce to the Phase II auction, outweigh the potential benefits. The Commission concludes that any inequitable distribution issues would be better addressed after the Phase II auction, after bidders have had the opportunity to place cost-effective competitive bids in all states.
34. The Commission disagrees with commenters that argue that the Commission should not implement any preferences for states where Phase II model-based support was declined. Instead, the Commission has acknowledged that an incumbent price cap carrier's decision to decline Phase II model-based support does not diminish the Commission's universal service obligation to connect consumers in areas that would have been reached had the offer been accepted and to provide sufficient universal service funds to do so. To the extent unserved areas remain in declined states after cost-effective bids have been awarded in the Phase II auction and bidders are willing to serve those areas with support equal to or less than the relevant reserve price, the Commission concludes that it is reasonable to spend at least as much support through the Phase II and Remote Areas Fund auctions that the Commission was willing to spend through the Phase II offer of support to address a similar number of unserved consumers in these states. And as the Commission explained above, it is using this approach as a backstop, once it has had the opportunity to select bids based on cost-effectiveness and service quality through the Phase II auction.
35. The Commission is not persuaded that it should adopt weights or any other kind of preferences for states where the state has either provided state broadband funding or has committed to co-invest funds for winning Phase II auction bids, or where the state is a net
36. The Commission is not convinced that it should set up a separate mechanism to allocate support directly to declined states—either in lieu of those states participating in the Phase II auction or for those states that do not receive a certain level of support in the Phase II auction—or work in partnership with the states to choose winning projects based on specified criteria. Not only would this cause further delay in getting support to those areas because the Commission would need to establish rules for a new mechanism, it would also contradict its decision to allocate unclaimed Phase II support using market-based mechanisms—the Phase II auction and the Remote Areas Fund auction. For all the reasons explained above, the Commission continues to conclude that requiring bidders to compete for support rather than using more subjective measures to select awardees will lead to a more efficient use of its finite budget.
37. While the Commission acknowledges that it conditionally waived the Phase II auction program rules to make available
38. While the Commission remains committed to promoting deployment on Tribal lands, it declines to adopt a Tribal-specific preference for Tribal entities or entities choosing to serve Tribal lands in the Phase II auction. For the reasons described above, the Commission concludes that it serves the public interest to award Phase II support to the most cost-effective bids, subject to the performance and latency weights it adopts above. The Commission's decision to score a bid's cost-effectiveness relative to the reserve price will ensure that service providers that place cost-effective bids that commit to serve Tribal lands will be competitive. Furthermore, the Connect America Cost Model used to set reserve prices already takes into consideration many factors causing varying deployment costs. With this approach, the auction is able to use a market-based mechanism to award support for the purposes of connecting all consumers, including those on Tribal lands. The Commission's action today does not preclude us from adopting preferences for Tribal entities or entities serving Tribal lands in the Remote Areas Fund auction if Tribal lands remain unserved after the Phase II auction and after the Commission has had the opportunity to observe the outcome of the Phase II auction.
39. It is unclear at this time what the effect of a Tribal bidding credit would be given the Commission's decision to adopt weights for service and latency tiers. The Commission concludes that it serves the public interest to maximize its budget by first determining whether the Commission's recent policy decisions will result in cost-effective competitive bids on Tribal lands in the Phase II auction. If not, the Commission will be able to observe bidders' behavior in the Phase II auction to determine how to best implement a targeted preference that will encourage deployment on Tribal lands that remain unserved.
40. The Commission is not persuaded that Tribal governments should instead select the service providers that will be serving Tribal lands or that Tribally-owned or -controlled carriers should have the right of first refusal. The Commission's paramount goal must be to maximize the value of the universal service dollars it is spending on behalf of consumers—including those on Tribal lands—and creating artificial barriers to competing for support or deploying service on Tribal lands will only serve to delay the build out of high-quality services that rural Americans on Tribal lands want and need. Such an approach would be contrary to the Commission's decision to conduct a competitive bidding process in these areas to select service providers that will efficiently use support to offer reasonably comparable services. Moreover, eligible Tribally-owned or -controlled carriers will have the opportunity to participate in the Phase II auction and potentially win support if they place competitive bids.
41. The Commission concludes that it would not serve the public interest to adopt alternative interim service milestones for non-terrestrial service providers or service providers that already have deployed the infrastructure they intend to use to fulfill their Phase II obligations. The Commission expects that determining whether a recipient has sufficiently built out its network and thus would be subject to the alternative milestones would be a subjective and possibly time-consuming fact-specific inquiry. Also, tracking and verifying different milestones for a subset of Phase II auction recipients that
42. The Commission concludes that these considerations outweigh the public interest benefits of the potential that in some circumstances recipients will offer the required services faster if they have to meet more aggressive milestones. Indeed, carriers that have deployed infrastructure already have an incentive to meet their obligations quickly. First, carriers will want to supplement universal service support with customer revenue. Second, Phase II auction recipients are required to maintain an open and renewed letter of credit only until they have certified they have met their 100 percent service milestone and that certification has been verified. As a result, Phase II auction recipients may choose to accelerate the rate at which they offer the required services so that they can close out their letter of credit sooner.
43. In this Order on Reconsideration the Commission considers several petitions for reconsideration of decisions made in the
44.
45. As the Commission explained in the
46. The Commission reconsiders the Commission's decision with regard to re-auctioning areas served by high latency bidders where there is low subscribership. Instead, all authorized Phase II auction recipients will have a full 10-year term of support if they comply with the terms and conditions of Phase II support. While the Commission had adopted the subscriber standard to give high latency providers something objective and quantifiable that they could track to determine if the areas they serve would be placed in the Phase III auction, after further reflection, the Commission is persuaded that this approach does not necessarily reflect the quality of that service or the value to consumers.
47. First, the Commission agrees that it may be difficult for high latency service providers to obtain enough subscribers to meet the 35 percent threshold given that by the end of the third year of support, Phase II auction recipients will only be required to offer service to 40 percent of the required number of locations and may not have focused on adoption efforts while working on deploying their networks. And even if the Commission were to push this option to later in the support term, it would be difficult to determine an appropriate timeframe at this point without knowing the timing for any subsequent auctions. Second, consumers may decide not to subscribe to a service for any number of reasons, and the Commission is persuaded by comments that suggest that many of the factors that are related to low adoption are likely to be present in more rural high-cost areas of the country.
48. While commenters suggest that they have had success in encouraging broadband adoption in high-cost areas, they do not address the Commission's timing concerns. Moreover, such a general statement about their success does not provide us with adequate assurance that high latency providers would have the same experience in the areas they are awarded support absent service quality issues. In fact, if the Commission uses a low adoption rate as the measure to determine if service is meeting consumers' needs, it would seem to follow that the Commission should also re-auction areas served by low latency service providers that have low subscribership. For these reasons, the Commission concludes that subscribership is not an appropriate measure for determining whether a high latency service is meeting the needs of consumers.
49. The Commission is also sympathetic to claims that even if it were to come up with an alternative objective and quantifiable standard, by simply retaining the option to shorten a high latency service provider's support term it will create uncertainty for such bidders. The Commission would be asking high latency providers to commit significant resources to deploy at a minimum 40 percent of their network while reserving the option to take away their support and potentially fund a competitor in that same area. Such conditions may mean that high latency providers will not participate in the auction or will inflate their bids to compensate for the risk, which would undermine the Commission's decision
50. On balance, the Commission is persuaded that these harms outweigh the public interest benefits of having the opportunity to include areas served by high latency bidders in a subsequent auction prior to the end of the 10-year term. As the Commission discussed above, it acknowledges that some parties have significant concerns about whether high latency services will meet the needs of consumers. Nevertheless, the Commission concludes that the performance standards it has adopted for high latency bidders will offer sufficient protection to consumers living in areas served by a high latency bidder. Moreover, as the Commission explains above, recognizing these concerns it has adopted weights that give a preference to low latency bids to achieve a reasonable balance between using its budget cost-effectively to maximize the deployment of service to unserved consumers with service quality. The Commission concludes that the potential that it would undermine competition by retaining the option to re-auction certain service areas could throw off this balance and potentially thwart its ability to leverage the Phase II auction to further the Commission's statutory objective of supporting reasonably comparable services nationwide within its finite budget.
51. In order to encourage robust bidding, the Commission grants Verizon's request for reconsideration of the Commission's prior decision to require bidders in the Above-Baseline and Gigabit performance tiers to offer an unlimited monthly usage allowance. Instead, the Commission will require bidders in these tiers to offer a monthly usage allowance of at least 2 terabytes (TB) per month.
52. As Verizon explains, a requirement of unlimited data could discourage bidding on those tiers, because a potential bidder would have to factor in additional investments and operating expenses to accommodate a small number of customers whose very high usage would be responsible for a disproportionate share of demand. Rather than require unlimited usage, Verizon argues that the Commission could set a very high allowance, which would provide a greater usage allowance than the baseline tier but still permit providers to address true outliers that increase the cost of providing rural broadband service. The Commission is persuaded by Verizon's argument that requiring bidders to offer unlimited usage would raise the cost of providing higher performance services in rural areas and could discourage bidding in these tiers.
53. Therefore, instead of requiring bidders in the Above-Baseline and Gigabit performance tiers to offer unlimited data allowances, the Commission will require bidders in these tiers to offer a monthly usage allowance of at least 2 terabytes (TB) per month. The Commission finds that a 2 TB usage allowance is sufficiently high to ensure that rural America is not left behind, and will enable more bidders to offer higher performance services in rural areas. Although Verizon originally suggested that recent urban rate survey data shows that many urban providers have usage limits for services of 100 Mbps or more that range from 250 GB to 1,000 GB (1 TB) per month, it more recently suggested a usage allowance of 1 TB per month. Verizon cited usage limits from last years' urban rate survey data, and the Commission finds it reasonable to adopt a higher usage limit for a 10-year term of support. A data allowance of 250 GB was the lower end of the range for comparable services from this year's urban rate survey data. The Commission therefore disagrees with WISPA's suggestion that a usage tier of only 250 GB for the Above-Baseline tier is sufficient for a 10-year support term. Nor does the Commission agree with WISPA's argument there should not be any usage limits for the Gigabit tier. WISPA did not raise any substantive arguments to counter Verizon's arguments about the additional costs of requiring unlimited usage in high-cost areas. The Commission is therefore persuaded that an unlimited usage cap could impose additional costs on bidders that may discourage them from offering services that exceed its Baseline performance requirements in rural areas. As always, Phase II winners will be free to offer an array of service plans, including those with unlimited usage.
54. This document does not contain new information collection requirements subject to the PRA. 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, see 44 U.S.C. 3506(c)(4).
55. As required by the Regulatory Flexibility Act of 1980 (RFA) as amended, an Initial Regulatory Flexibility Analyses (IRFA) was incorporated in the
56. With this Report and Order and Order on Reconsideration (Order), the Commission takes another step towards implementing the Connect America Phase II (Phase II) auction in which service providers will compete to receive support of up to $1.98 billion to offer voice and broadband service in unserved high-cost areas. The decisions the Commission makes in this Order aim to maximize the value the American people will receive for the universal service dollars it spends, balancing higher-quality services with cost efficiencies.
57. First, the Commission resolves issues raised in the
58. Second, the Commission also considers several petitions for reconsideration of decisions made in the
59. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA
60.
61. The Report and Order and Order on Reconsideration do not impose any specific reporting, recordkeeping, or compliance requirements for entities, including small entities. Instead, the Report and Order adopts or declines to adopt measures that will affect all bidders participating in the Phase II auction. For example, the Report and Order adopts weights for the Phase II auction technology-neutral service and latency tiers, and indicates that the Commission will seek comment on requiring potential bidders to establish their eligibility for such weights. The Report and Order declines to take further action to give a preference to certain states, Tribal bidders, or other types of bids in the Phase II auction. However, the Report and Order does adopt a preference for certain states in the Remote Areas Fund auction where the Phase II offer of model-based support was declined, subject to conditions. The Report and Order also declines to subject entities that have already deployed a network capable of meeting their Phase II obligations to different interim build-out milestones than the interim build-out milestones that were adopted in the
62. The Order on Reconsideration declines to reconsider the Commission's decision to score bids relative to the reserve price by instead ranking bids on a dollar-per-location basis. In the Order on Reconsideration the Commission also decides that all Phase II auction recipients will have a 10-year support term, thereby reconsidering the Commission's decision to retain the option to shorten the support term of certain high latency bidders that are unable to meet a set subscribership threshold.
63. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. The Commission has considered all of these factors subsequent to receiving substantive comments from the public and potentially affected entities. The Commission has considered the economic impact on small entities, as identified in comments filed in response to the
64. Generally, the decisions that the Commission makes in this Order will apply in equal force to all Phase II auction bidders, including small bidders. Thus, the decisions made in this Order generally do not impose unique burdens or benefits on small bidders. For example, the Commission's decision to adopt weights for the performance and latency tiers that will not grant an absolute preference to any kind of service is unlikely to uniquely impact small bidders, but it is likely to help maximize participation by making it possible for all entities, including small entities, to be competitive if they place a cost-effective bid. Additionally, like all bidders in the Phase II auction, to the extent smaller bidders choose to bid in less populated areas, they may benefit from the Commission's decision to retain a bid ranking method that will score bids relative to the applicable reserve price rather than a dollar per location basis.
65. In the Order, the Commission does decline to adopt proposals for other weights or preferences in the Phase II auction, including a preference specifically for small entities. The Commission concludes that such an approach would not further its objective of maximizing the effectiveness of its funds to serve consumers nationwide. Nevertheless, recognizing the important role that small entities can play in bringing voice and broadband services to unserved consumers, the Commission has already adopted specific eligibility requirements for the Phase II auction in an effort to facilitate the participation of small entities.
66. The Commission also indicates in the Order that it is persuaded that in some circumstances it may serve the public interest to require potential bidders to submit evidence that demonstrates that they can meet the service requirements associated with the tiers in which they will bid in their short-form applications. The Commission will seek comment on this issue and will consider the unique challenges faced by small entities in submitting any required information.
67. Accordingly,
68.
69.
70.
Federal Railroad Administration (FRA), Department of Transportation.
Final rule; stay of regulations.
On August 12, 2016, FRA published a final rule requiring commuter and intercity passenger railroads to develop and implement a system safety program (SSP) to improve the safety of their operations. On February 10, 2017, FRA stayed the SSP final rule's requirements until March 21, 2017. This document extends that stay until May 22, 2017.
Effective March 20, 2017, 49 CFR part 270 is stayed until May 22, 2017.
Matthew Navarrete, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel; telephone: 202-493-0138; email:
On August 12, 2016, FRA published a final rule requiring commuter and intercity passenger railroads to develop and implement an SSP to improve the safety of their operations. See 81 FR 53850. On February 10, 2017, FRA stayed the SSP final rule's requirements until March 21, 2017 consistent with the new Administration's guidance issued January 20, 2017, intended to provide the Administration an adequate opportunity to review new and pending regulations. 82 FR 10443, Feb. 13, 2017. To provide time for that review, FRA needs to extend the stay until May 22, 2017.
FRA's implementation of this action without opportunity for public comment is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3), in that seeking public comment is impracticable, unnecessary and contrary to the public interest. The delay in the effective date until May 22, 2017, is necessary to provide the opportunity for further review and consideration of this new regulation, consistent with the new Administration's January 20, 2017 guidance. Given the imminence of the effective date of the “System Safety Program” final rule, seeking prior public comment on this temporary delay would be impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations.
49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule; further delay of effective date.
In accordance with the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” this action temporarily delays, until May 22, 2017, the effective date of the final rule titled “Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators,” initially effective on February 6, 2017.
As of March 21, 2017, the effective date of the final rule published on December 8, 2016 (81 FR 88732), delayed until March 21, 2017 at 82 FR 8903 on February 1, 2017, is further delayed until May 22, 2017.
Mr. Richard Clemente, Driver and Carrier Operations (MC-PSD) Division, FMCSA, 1200 New Jersey Ave. SE., Washington, DC 20590-0001, by telephone at 202-366-4325, or by email at
FMCSA bases this action on the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (the January 20, 2017, memorandum). That memorandum directed the heads of Executive Departments and Agencies to temporarily postpone for 60 days from the date of the memorandum the effective dates of certain regulations that had been published in the
The Agency's implementation of this action without opportunity for public comment is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3), in that seeking public comment is impracticable, unnecessary and contrary to the public interest. The delay in the effective date until May 22, 2017, is necessary to provide the opportunity for further review and consideration of this new regulation, consistent with the January 20, 2017, memorandum. Given the imminence of the effective date of the “Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators” final rule, seeking prior public comment on this temporary delay would be impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations.
National Highway Traffic Safety Administration (NHTSA), DOT.
Final rule; delay of effective date.
In accordance with the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” this action temporarily delays until May 22, 2017, the effective date of the final rule titled “Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles,” initially scheduled to become effective on February 13, 2017.
As of March 21, 2017, the effective date of the final rule published on December 14, 2016 (81 FR 90416), delayed on February 6, 2017 (82 FR 9368), is further delayed until May 22, 2017. The compliance date is September 1, 2018, with full phase in by September 1, 2019.
For legal issues, contact Tom Healy, Office of Chief Counsel, at (202) 366-2992. For non-legal issues, contact Mike Pyne, Office of Rulemaking, at (202) 366-4171.
NHTSA bases this action on the Presidential directive expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (the January 20, 2107 memorandum). That memorandum directed the heads of Executive Departments and Agencies to temporarily postpone for 60 days from the date of the memorandum the effective dates of certain regulations that had been published in the
The Agency's implementation of this action without opportunity for public comment is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3), in that seeking public comment is impracticable, unnecessary and contrary to the public interest. The delay in the effective date until May 22, 2017, is necessary to provide the opportunity for further review and consideration of this new regulation, consistent with the January 20, 2017 memorandum. Given the imminence of the effective date of the “Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles” final rule, seeking prior public comment on this temporary delay would be impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations.
49 U.S.C. 322, 30111, 30115, 30117, and 30116; delegation of authority at 49 CFR 1.95.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; recreational quota reduction and closure.
NMFS implements accountability measures (AMs) for the greater amberjack recreational sector in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) for the 2017 fishing year through this temporary rule. NMFS has determined that the 2016 recreational annual catch limit (ACL) for Gulf greater amberjack was exceeded; therefore, NMFS reduces the greater amberjack recreational ACL and annual catch target (ACT) in 2017. NMFS has also determined that the reduced recreational ACT for Gulf greater amberjack will be reached by March 24, 2017. Therefore, the greater amberjack recreational season in the Gulf EEZ will close on March 24, 2017. This closure is necessary to protect the Gulf greater amberjack resource.
This rule is effective from 12:01 a.m., local time, March 24, 2017, until 12:01 a.m., local time, on January 1, 2018.
Kelli O'Donnell, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
NMFS manages the Gulf reef fish fishery, which includes greater amberjack, under the Fishery Management Plan for the Reef Fish Resources of the Gulf (FMP). The Gulf of Mexico Fishery Management Council (Council) prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All greater amberjack weights discussed in this temporary rule are in round weight.
The 2017 recreational ACL for Gulf greater amberjack specified in 50 CFR 622.41(a)(2)(iii) is 1,255,600 lb (569,531 kg) and the recreational ACT specified in 50 CFR 622.39(a)(2)(ii) is 1,092,372 lb (495,492 kg). However, NMFS has determined that in 2016, the recreational harvest of greater amberjack exceeded the 2016 recreational ACL by 756,631 lb (343,202 kg). Under 50 CFR 622.41(a)(2)(ii), NMFS is required to reduce the recreational ACT and the recreational ACL for greater amberjack in the year following an overage of the recreational ACL, by the amount of any recreational overage in the prior fishing year. Therefore, NMFS reduces the recreational ACL for greater amberjack in 2017 to 498,969 lb (226,329 kg) and the recreational ACT to 335,741 lb (152,290 kg).
Under 50 CFR 622.41(a)(2)(i), NMFS is required to close the recreational sector for greater amberjack when the recreational ACT is reached, or is
During the recreational closure, the bag and possession limits for greater amberjack in or from the Gulf EEZ are zero. The prohibition on possession in the Gulf on board a vessel for which a valid Federal charter vessel/headboat permit for Gulf reef fish has been issued applies regardless of whether greater amberjack were harvested in state or Federal waters.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf greater amberjack and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.41(a)(2)(i) and (ii) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the recreational sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the closure provisions was subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect greater amberjack. Prior notice and opportunity for public comment would require time and would potentially allow the recreational sector to exceed the recreational ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment.
This action increases the possession and trip limit for Gulf of Maine cod and haddock for Northeast multispecies common pool vessels for the remainder of the 2016 fishing year. The most recent catch data indicate that the common pool is not expected to fully harvest its annual quota for these stocks at the current trip limits. Increasing the possession and trip limits is intended to provide the common pool fishery with additional fishing opportunities through the end of the fishing year.
The possession and trip limit increase is effective March 16, 2017, through April 30, 2017.
Spencer Talmage, Fishery Management Specialist, 978-281-9232.
The regulations at § 648.86(o) authorize the Regional Administrator to adjust the possession and trip limits for common pool vessels in order to help prevent the overharvest or underharvest of the common pool quotas.
Based on information reported through February 18, 2017, the common pool fishery has caught approximately 42 and 25 percent of its annual quotas for Gulf of Maine (GOM) cod and GOM haddock, respectively. At the current rate of fishing, the common pool fishery is not projected to fully harvest its annual quota for either stock by the end of the 2016 fishing year. A moderate increase in the possession and trip limits for both stocks will provide additional opportunities with little risk of exceeding the common pool sub-ACL of either stock.
To allow the common pool fishery to catch more of its quota for this GOM cod and haddock, effective March 16, 2017, the possession and trip limit of GOM cod and GOM haddock are increased, as summarized in Table 1 below. Common pool groundfish vessels that have declared their trip through the vessel monitoring system (VMS) or interactive voice response system, and crossed the VMS demarcation line prior to March 16, 2017, may land at the new possession and trip limits for that trip.
Weekly quota monitoring reports for the common pool fishery can be found on our Web site at:
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.
The regulations at § 648.86(o) authorize the Regional Administrator to adjust the Northeast multispecies possession and trip limits for common pool vessels in order to help prevent the overharvest or underharvest of the pertinent common pool quotas. The catch data used as the basis for this action only recently became available. The available analysis indicates that the possession and trip limit increase for both GOM cod and GOM haddock will help to ensure that the fishery may achieve the optimum yield (OY) for these stocks. As a result, the time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, would prevent NMFS from implementing the necessary possession and trip limit adjustment in a timely manner, which could prevent the fishery from achieving the OY, and cause negative economic impacts to the common pool fishery.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of closure.
NMFS is opening directed fishing for northern rockfish in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2016 total allowable catch (TAC) of northern rockfish in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), March 16, 2017, through 2400 hrs, A.l.t., December 31, 2017. Comments must be received at the following address no later than 4:30 p.m., A.l.t., April 5, 2017.
You may submit comments on this document, identified by
•
•
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
Pursuant to the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017), NMFS closed the directed fishery for northern rockfish under § 679.20(d)(1)(iii).
As of March 14, 2017, NMFS has determined that approximately 4,000 metric tons of northern rockfish initial TAC remains unharvested in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2017 TAC of northern rockfish in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for northern rockfish in the BSAI. This will enhance the socioeconomic well-being of harvesters in this area. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of northern rockfish in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of northern rockfish in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent,
The acting AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for northern rockfish in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until April 5, 2017.
This action is required by §§ 679.20 and 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Cherry Industry Administrative Board (Board) to establish free and restricted percentages for the 2016-17 crop year under the marketing order for tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin (order). The Board locally administers the marketing order and is comprised of producers and handlers of tart cherries operating within the production area, and a public member. This action would establish the proportion of tart cherries from the 2016 crop which may be handled in commercial outlets at 71 percent free and 29 percent restricted. These percentages should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns.
Comments must be received by April 20, 2017.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposal is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, free and restricted percentages may be established for tart cherries handled during the crop year. This proposed rule would establish free and restricted percentages for tart cherries for the 2016-17 crop year, beginning July 1, 2016, through June 30, 2017.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule invites comments on the establishment of free and restricted percentages for the 2016-17 crop year. This proposal would establish the proportion of tart cherries from the 2016 crop which may be handled in commercial outlets at 71 percent free and 29 percent restricted. This proposal should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The proposed carry-out and the final percentages were recommended by the Board at a meeting on September 8, 2016.
Section 930.51(a) of the order provides authority to regulate volume by designating free and restricted percentages for any tart cherries acquired by handlers in a given crop year. Section 930.50 prescribes procedures for computing an optimum supply based on sales history and for calculating these free and restricted percentages. Free percentage volume may be shipped to any market, while restricted percentage volume must be held by handlers in a primary or secondary reserve, or be diverted or used for exempt purposes as prescribed in §§ 930.159 and 930.162 of the regulations. Exempt purposes include, in part, the development of new products, sales into new markets, the development of export markets, and charitable contributions. Sections 930.55 through 930.57 prescribe procedures for inventory reserve. For cherries held in reserve, handlers would be responsible for storage and would retain title of the tart cherries.
Under § 930.52, only those districts with an annual average production over the prior three years of at least six million pounds are subject to regulation, and any district producing a crop which is less than 50 percent of its annual average of the previous five years is exempt. The regulated districts for the 2016-2017 crop year would be: District 1—Northern Michigan; District 2—Central Michigan; District 3—Southern Michigan; District 4—New York; District 7—Utah; District 8—Washington; and District 9—Wisconsin. Districts 5 and 6 (Oregon and Pennsylvania, respectively) would not be regulated for the 2016-17 season.
Demand for tart cherries and tart cherry products tends to be relatively stable from year to year. Conversely, annual tart cherry production can vary greatly. In addition, tart cherries are processed and can be stored and carried over from crop year to crop year, further impacting supply. As a result, supply and demand for tart cherries are rarely in balance.
Because demand for tart cherries is inelastic, total sales volume is not very responsive to changes in price. However, prices are very sensitive to changes in supply. As such, an oversupply of cherries would have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control provisions in the order to balance supply and demand to stabilize industry returns.
Pursuant to § 930.50 of the order, the Board meets on or about July 1 to review sales data, inventory data, current crop forecasts and market conditions for the upcoming season and, if necessary, to recommend preliminary free and restricted percentages if anticipated supply would exceed demand. After harvest is complete, but no later than September 15, the Board meets again to update its calculations using actual production data, consider any necessary adjustments to the preliminary percentages, and determine if final free and restricted percentages should be recommended to the Secretary.
The Board uses sales history, inventory, and production data to determine whether there is a surplus, and if so, how much volume should be restricted to maintain optimum supply. The optimum supply represents the desirable volume of tart cherries that should be available for sale in the coming crop year. Optimum supply is defined as the average free sales of the prior three years plus desirable carry-out inventory. Desirable carry-out is the amount of fruit needed by the industry to be carried into the succeeding crop year to meet market demand until the new crop is available. Desirable carry-out is set by the Board after considering market circumstances and needs. Section 930.151(b) specifies that desirable carry-out can range from 0 to a maximum of 100 million pounds.
In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (
After the Board determines optimum supply, desirable carry-out, and market growth factor, it must examine the current year's available volume to determine whether there is an oversupply situation. Available volume includes carry-in inventory (any inventory available at the beginning of the season) along with that season's production. If production is greater than the optimum supply minus carry-in, the difference is considered surplus. This surplus tonnage is divided by the sum of production in the regulated districts to reach a restricted percentage. This percentage must be held in reserve or used for approved diversion activities, such as exports.
The Board met on June 23, 2016, and computed an optimum supply of 287 million pounds for the 2016-17 crop year using the average of free sales for the three previous seasons and a desirable carry-out of 57 million pounds. The Board determined three months of sales would be a good estimate for what was needed at the end of the season, as there is a three-month gap between the calculation of carry-out at the end of one season and the availability of fruit from the next season. The recommended carry-out of 57 million pounds is approximately a quarter of average annual sales.
The Board then subtracted the estimated carry-in of 81.3 million pounds from the optimum supply to calculate the production needed from the 2016-17 crop to meet optimum supply. This number, 205.7 million pounds, was subtracted from the Board's estimated 2016-17 production of 351.3 million pounds to calculate a surplus of 145.6 million pounds of tart cherries. The Board also complied with the market growth factor requirement by adding 23 million pounds (average sales for prior three years of 230 million times 10 percent) to the free supply. The surplus minus the market growth factor was then divided by the expected production in the regulated districts (348 million pounds) to reach a preliminary restricted percentage of 35 percent for the 2016-17 crop year.
The Board then discussed whether this calculation would provide sufficient supply to grow sales while being able to supply orders that are already scheduled, including filling remaining orders from a USDA purchase made the previous season. The Board, after considering anticipated supply needs for the 2016-17 season, decided to make an economic adjustment of 22 million pounds to increase the available supply of tart cherries. This economic adjustment further reduced the preliminary surplus to 100.6 million pounds. After these adjustments, the preliminary restricted percentage was recalculated as 29 percent (100.6 million pounds divided by 348 million pounds).
The Board met again on September 8, 2016, to consider final volume regulation percentages for the 2016-17 season. The final percentages are based on the Board's reported production figures and the supply and demand information available in September. The total production for the 2016-17 season was 341 million pounds, 10 million pounds below the Board's June estimate. In addition, growers diverted 26 million pounds in the orchard, leaving 315 million pounds available to market, 310 million pounds of which are in the restricted districts. Using the actual production numbers, and accounting for the recommended desirable carry-out and economic adjustment, as well as the market growth factor, the restricted percentage was recalculated.
The Board subtracted the carry-in figure used in June of 81.3 million pounds from the optimum supply of 287 million pounds to determine 205.7 million pounds of 2016-17 production would be necessary to reach optimum supply. The Board subtracted the 205.7 million pounds from the actual production of 341.3 million pounds, resulting in a surplus of 135.6 million pounds of tart cherries. The surplus was then reduced by subtracting the economic adjustment of 22 million pounds and the market growth factor of 23 million pounds, resulting in an adjusted surplus of 90.6 million pounds. The Board then divided this final surplus by the available production of 310 million pounds in the regulated
The primary purpose of setting restricted percentages is an attempt to bring supply and demand into balance. If the primary market is oversupplied with cherries, grower prices decline substantially. Restricted percentages have benefited grower returns and helped stabilize the market as compared to those seasons prior to the implementation of the order. The Board believes the available information indicates that a restricted percentage should be established for the 2016-17 crop year to avoid oversupplying the market with tart cherries. Consequently, based on its discussion of this issue and the result of the above calculations, the Board recommended final percentages of 71 percent free and 29 percent restricted by a vote of 16 in favor, 2 opposed, and 2 abstentions.
Though production came in below the Board's June estimate, the initial restriction percentage remained the same due to the substantial in-orchard diversion. During the discussion of the proposed restriction, several members supported the proposed percentages as there was no change from the preliminary 29 percent restriction recommended in June. They believed deviating from the percentages announced in June would be disruptive to the industry, as processors have already made agreements with growers.
Another member noted when there was a crop failure in 2012, there was not enough reserve to maintain sales and warned against being unprepared in the future. The member also noted that in the last four years, even with volume regulation and an increase in imported products, overall domestic sales have increased since 2013, including modest growth in both juice and piefill.
Some members opposed to the proposed restriction expressed concern regarding competition from imported tart cherry juice concentrate. In particular, they were concerned that the additional volume from imports is not accounted for in the Optimum Supply Formula, thus not capturing overall supply and demand.
Others were of the opinion that the Board's recent actions to expand the use of diversion credits in new markets or through grower diversion were allowing the industry to remain competitive without making additional adjustments to supply. Another member countered that not all handlers are helped by new market diversion credits and cannot sell all of their product under a restriction.
When asked how much of the market currently being served by imports could be supplied by the domestic handlers, some members stated they could utilize the full adjusted calculated surplus of 90.6 million pounds. Others noted that trying to compete for those markets by matching the price of imported concentrate would drop grower returns to an unsustainable level.
One member summarized that, although there is a carrying cost for storing restricted fruit, and the industry appears to be at a trade disadvantage, the Board should account for those factors all the while focusing on continuing to grow sales. Though there was much discussion regarding the market impact of imports, there was no motion made by any Board member to make a further economic adjustment to the calculation based on imported product.
After reviewing the available data, and considering the concerns expressed, the Board determined that a 29 percent restriction with a carry-out volume of 57 million pounds would meet sales needs and establish some reserves without oversupplying the market. Thus, the Board recommended establishing final percentages of 71 percent free and 29 percent restricted. The Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS) and Board data, the average annual grower price for tart cherries during the 2015-16 season was approximately $0.347 per pound. With total utilization at 251.1 million pounds, the total 2015-16 crop value is estimated at $87 million. Dividing the crop value by the estimated number of producers (600) yields an estimated average annual receipt per producer of $145,000. This is well below the SBA threshold for small producers. In 2015, The Food Institute estimated a free on board (f.o.b.) price of $0.96 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Multiplying the f.o.b price by total utilization of 251.1 million pounds results in an estimated handler-level tart cherry value of $241 million. Dividing this figure by the number of handlers (40) yields an estimated average annual handler receipts of $6 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.
The tart cherry industry in the United States is characterized by wide, annual
Demand for tart cherries is inelastic, meaning changes in price have a minimal effect on total sales volume. However, prices are very sensitive to changes in supply, and grower prices vary widely in response to the large swings in annual supply, with prices ranging from a low of 7.3 cents per pound in 1987 to a high of 59.4 cents per pound in 2012.
Because of this relationship between supply and price, oversupplying the market with tart cherries would have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control authority in the order to align supply with demand and stabilize industry returns. This authority allows the industry to set free and restricted percentages as a way to bring supply and demand into balance. Free percentage cherries can be marketed by handlers to any outlet, while restricted percentage volume must be held by handlers in reserve, diverted or used for exempted purposes.
This proposal would control the supply of tart cherries by establishing percentages of 71 percent free and 29 percent restricted for the 2016-17 crop year. These percentages should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The proposal would regulate tart cherries handled in Michigan, New York, Utah, Washington, and Wisconsin. The authority for this action is provided for in §§ 930.50, 930.51(a) and 930.52 of the order. The Board recommended this action at a meeting on September 8, 2016.
This proposal would result in some fruit being diverted from the primary domestic markets. However, as mentioned earlier, the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (
In addition, there are secondary uses available for restricted fruit, including the development of new products, sales into new markets, the development of export markets, and being placed in reserve. While these alternatives may provide different levels of return than the sales to primary markets, they play an important role for the industry. The areas of new products, new markets, and the development of export markets utilize restricted fruit to develop and expand the markets for tart cherries. In 2015-16, these activities accounted for over 27 million pounds in sales, 12 million of which were exports.
Placing tart cherries into reserves is also a key part of balancing supply and demand. Although handlers bear the handling and storage costs for fruit in reserve, reserves stored in large crop years are used to supplement supplies in short crop years. The reserves allow the industry to mitigate the impact of oversupply in large crop years, while allowing the industry to maintain supply to markets in years when production falls below demand. Further, storage and handling costs are more than offset by the increase in price when moving from a large crop to a short crop year.
In addition, the Board recommended an increased carry-out of 57 million pounds and made a demand adjustment of 22 million pounds in order to make the regulation less restrictive. Even with the recommended restriction, over 300 million pounds of fruit would be available to the domestic market. Consequently, it is not anticipated that this proposal would unduly burden growers or handlers.
While this proposal could result in some additional costs to the industry, these costs are more than outweighed by the benefits. The purpose of setting restricted percentages is to attempt to bring supply and demand into balance. If the primary market (domestic) is oversupplied with cherries, grower prices decline substantially. Without volume control, the primary market would likely be oversupplied, resulting in lower grower prices.
The three districts in Michigan, along with the districts in New York, Utah, Washington, and Wisconsin, are the restricted areas for this crop year with a combined total production of 310 million pounds. A 29 percent restriction means 220 million pounds would be available to be shipped to primary markets from these five states. The 220 million pounds from the restricted districts, 5 million pounds from the unrestricted districts (Oregon and Pennsylvania), and the 81 million pound carry-in inventory would make a total of 306 million pounds available as free tonnage for the primary markets. This is similar to the 305 million pounds of free tonnage made available last year. This would be enough to cover the 251 million pounds of total utilization in 2015-2016, while providing substantial carry-out. Further, the Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.
Prior to the implementation of the order, grower prices often did not cover the cost of production. The most recent costs of production determined by representatives of Michigan State University are an estimated $0.33 per pound. To assess the impact that volume control has on the prices growers receive for their product, an econometric model has been developed. Based on the model, the use of volume control would have a positive impact on grower returns for this crop year. With volume control, grower prices are estimated to be approximately $0.06 per pound higher than without restrictions. In addition, absent volume control, the industry could start to build large amounts of unwanted inventories. These inventories would have a depressing effect on grower prices.
Retail demand is assumed to be highly inelastic, which indicates that changes in price do not result in significant changes in the quantity demanded. Consumer prices largely do not reflect fluctuations in cherry supplies. Therefore, this proposal should have little or no effect on consumer prices and should not result in a reduction in retail sales.
The free and restricted percentages established by this proposal would provide the market with optimum supply and apply uniformly to all regulated handlers in the industry, regardless of size. As the restriction represents a percentage of a handler's volume, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities.
The stabilizing effects of this proposal would benefit all handlers by helping them maintain and expand markets, despite seasonal supply fluctuations. Likewise, price stability positively impacts all growers and handlers by allowing them to better anticipate the revenues their tart cherries would generate. Growers and handlers, regardless of size, would benefit from the stabilizing effects of this restriction. In addition, the increased carry-out should provide processors enough supply to meet market needs going into the next season.
The Board considered alternatives in its preliminary restriction discussions that affected this recommended action.
Regarding the carry-out value, the Board considered a range of alternatives. One member suggested the Board begin with 57 million pounds, approximately a quarter of average annual sales. Other members suggested alternatives as high as 70 million pounds. However, some members were concerned about leaving too much fruit on the market at the end of the season and depressing prices going into the next year. The Board determined three months of sales would be a good estimate for what was needed at the end of the season, as there is a three-month gap between the calculation of carry-out at the end of one season and the availability of fruit from the next season. Thus, the other alternatives were rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This proposal would not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.
In addition, the Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the June 23, 2016, and September 8, 2016, meetings were public meetings and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this proposal on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate because this proposed rule would need to be in place as soon as possible since handlers are already shipping tart cherries from the 2016-17 crop. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Reporting and recordkeeping requirements, Tart cherries.
For the reasons set forth in the preamble, 7 CFR part 930 is proposed to be amended as follows:
7 U.S.C. 601-674.
For the 2016 crop year, the desirable carry-out inventory, for the purposes of determining an optimum supply volume, will be 57 million pounds.
The percentages for tart cherries handled by handlers during the crop year beginning on July 1, 2016, which shall be free and restricted, respectively, are designated as follows: Free percentage, 71 percent and restricted percentage, 29 percent.
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Idaho-Eastern Oregon Potato Committee (Committee) to decrease the assessment rate established for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes handled. The Committee locally administers the marketing order which regulates the handling of potatoes grown in certain designated counties in Idaho, and Malheur County, Oregon. Assessments upon potato handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins August 1 and ends July 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by April 20, 2017.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet:
Barry Broadbent, Senior Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposed rule is issued under Marketing Agreement No. 98 and Order No. 945, both as amended (7 CFR part 945), regulating the handling of Irish potatoes grown in certain designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Idaho-Eastern Oregon potato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable potatoes beginning August 1, 2017, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would decrease the assessment rate established for the Committee for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes.
The Idaho-Eastern Oregon potato marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to cover the expenses of administering the program. The members of the Committee are producers and handlers of Idaho-Eastern Oregon potatoes. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2014-2015 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on November 9, 2016, to consider the Committee's projected 2017-2018 financial requirements, the size of the Committee's operating reserve, and the order's continuing assessment rate. The Committee unanimously recommended an assessment rate of $0.002 per hundredweight of potatoes for the 2017-2018 fiscal period. The assessment rate of $0.002 is $0.0005 lower than the rate currently in effect. The assessment rate decrease is necessary to reduce the funds held in reserve to less than approximately one fiscal period's budgeted expenses, the maximum level allowed by the order.
The Committee adopted a budget of $119,075 for the 2016-2017 fiscal period. It expects to recommend a similar level of budgeted expenditures for the 2017-2018 fiscal period at its next scheduled meeting in June 2017. The Committee expects its budget for major expenditures for the 2017-2018 fiscal period to be close to the budgeted amounts for the 2016-2017 fiscal period. These expenditures include $68,638 for administrative expenses, $35,437 for travel/office expenses, and $15,000 for marketing order contingency.
The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Idaho-Eastern Oregon potatoes. Potato shipments for 2017-2018 are estimated at 32 million hundredweight which should provide $64,000 in assessment income at the proposed assessment rate. Income derived from handler assessments, along with other income, interest earned, and funds from the Committee's authorized reserve, would be adequate to cover budgeted expenses. Funds in the reserve (projected to be $158,275 on July 31, 2017) would be reduced to comply with the maximum permitted by the order of approximately one fiscal period's expenses.
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2017-2018 budget, and those for subsequent fiscal periods, would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 450 producers of potatoes in the production area and approximately 32 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000.
During the 2015-2016 fiscal period, the most recent full year of statistics available, 33,606,000 hundredweight of Idaho-Eastern Oregon potatoes were inspected under the order and sold into the fresh market. Based on information provided by the National Agricultural Statistics Service, the average producer price for the 2015 Idaho potato crop (the most recent full marketing year recorded) was $7.00 per hundredweight. Multiplying $7.00 by the shipment quantity of 33,606,000 hundredweight yields an annual crop revenue estimate of $235,242,000. The average annual fresh potato revenue for each of the 450 producers is therefore calculated to be $522,760 ($235,242,000 divided by 450), which is less than the Small Business Administration threshold of $750,000. Consequently, on average, a majority of the Idaho-Eastern Oregon potato producers may be classified as small entities.
In addition, based on information reported by USDA's Market News Service, the average free-on-board (f.o.b.) shipping point price for the 2015 Idaho potato crop was $7.47 per hundredweight. Multiplying $7.47 by the shipment quantity of 33,606,000 hundredweight yields an annual crop revenue estimate of $251,036,820. The average annual fresh potato revenue for each of the 32 handlers is therefore calculated to be $7,844,900 ($251,036,820 divided by 32), which is slightly more than the Small Business Administration threshold of $7,500,000. Given the likelihood that there may be several large handlers, some of the Idaho-Eastern Oregon potato handlers may be classified as small entities.
This proposed rule would decrease the assessment rate established for the Committee and collected from handlers for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes. The Committee unanimously recommended an assessment rate of $0.002 per hundredweight of potatoes for the 2017-2018 fiscal period. The assessment rate of $0.002 per hundredweight is $0.0005 lower than the rate for the 2016-2017 fiscal period. The quantity of assessable potatoes for the 2017-2018 fiscal period is estimated at 32 million hundredweight. Thus, the $0.002 rate should provide $64,000 in assessment income. Income derived from handler assessments, along with other income, interest earned, and funds from the Committee's authorized reserve, would be adequate to cover budgeted expenses.
The Committee adopted a budget of $119,075 for the 2016-2017 fiscal period and expects to recommend a similar amount in budgeted expenditures for the 2017-2018 fiscal period at its next scheduled meeting in June 2017. The major budgeted expenditures for the 2016-2017 year include $68,638 for administrative expenses, $35,437 for travel/office expenses, and $15,000 for marketing order contingency. Budgeted expenses for these items in 2015-2016 were $64,901, $37,340, and $15,000, respectively.
The lower assessment rate is necessary to reduce the reserve balance to less than approximately one fiscal period's budgeted expenses. The reserve balance on July 31, 2017, is projected to be $158,275. Assessment income for the 2017-2018 fiscal period is estimated at $64,000, while expenses are estimated to be $119,075. The Committee anticipates compensating for the reduced assessment revenue with $5,100 from miscellaneous income, $100 from interest income, and $49,875 from its reserve fund. The reserve fund is projected to be under the maximum authorized level at the end of the 2017-2018 fiscal period.
The Committee discussed alternatives to this proposed change, including suspending assessments for one year, recommending other assessment rate levels, and leaving the current rate in place. Prior to arriving at this assessment rate recommendation, the Committee considered information from the Board's Executive Committee on the cost savings resulting from recent administrative changes in the Committee office and the level of anticipated Committee expenses moving forward. The Committee debated between suspending assessments for one year and recommending the assessment rate be lowered to $0.002 per hundredweight of potatoes. Based on the market and shipping quantities, the Committee recommended the rate of $0.002 per hundredweight. The Committee believes this assessment rate, in combination with other income, interest earned, and funds utilized from the Committee's financial reserve, would provide sufficient funds to meet its expenses.
A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2017 crop could range between $6.00 and $9.00 per hundredweight of potatoes. Therefore, the estimated assessment revenue for the 2017-2018 fiscal period as a percentage of total producer revenue could range between 0.022 and 0.033 percent.
This action would decrease the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate would reduce the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Idaho-Eastern Oregon potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the November 9, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 (Generic Vegetable and Specialty Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Idaho-Eastern Oregon potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: (1) The 2017-2018 fiscal period begins on August 1, 2017, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable potatoes handled during such fiscal period; (2) the proposed rule would decrease the assessment rate for assessable potatoes beginning with the 2017-2018 fiscal period; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 945 is proposed to be amended as follows:
7 U.S.C. 601-674.
On and after August 1, 2017, an assessment rate of $0.002 per hundredweight is established for Idaho-Eastern Oregon potatoes.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for PILATUS AIRCRAFT LTD. Model PC-12/47E airplanes. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as an error within the flight management system caused by installing Primus APEX software Build 10 or 10.9, which could cause deviation from the correctly calculated barometric vertical navigation nominal glide path. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by May 5, 2017.
You may send comments by any of the following methods:
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For service information identified in this proposed AD, contact PILATUS AIRCRAFT LTD., Customer Support PC-12, CH-6371 Stans, Switzerland; phone: +41 41 619 33 33; fax: +41 41 619 73 11; email:
You may examine the AD docket on the Internet at
Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; fax: (816) 329-4090; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No. 2017-0024, dated February 13, 2017 (referred to after this as “the MCAI”), to
An occurrence was reported of a split between the vertical guidance data and the flight director steering commands during a Vertical Glide Path (VGP) approach. Subsequent investigation identified an error within the Flight Management System (FMS) that was introduced into Primus APEX software (S/W) Build 10 and S/W Build 10.9.
This condition, if not corrected, could lead to loss of control of the aeroplane.
To address this potential unsafe condition, Pilatus issued Temporary Revision (TR) No. 38 to the PC-12/47E Pilot's Operating Handbook, (POH) Report No: 02277 (hereafter referred to as “POH TR 38” in this AD), limiting VGP Approach mode sourced on baro Vertical Navigation (VNAV) to visual meteorological conditions (VMC) only, and providing procedures applicable in case of VGP deviation occurring during baro VNAV approaches.
For the reason described above, this AD requires amendment of the applicable Aircraft Flight Manual (AFM).
PILATUS AIRCRAFT LTD. has issued Temporary Revision No. 38 to PC-12/47E Pilot's Operating Handbook, Report No: 02277, Section 2—Limitations, dated February 8, 2017. The service information describes procedures for limiting the use of the autopilot and flight director to day visual meteorological conditions (VMC) during barometric vertical navigation (baro VNAV) during a vertical glide path approach (VGP). This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD will affect 350 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $29,750, or $85 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by May 5, 2017.
None.
This AD applies to PILATUS AIRCRAFT LTD. Model PC-12/47E airplanes, all serial numbers, that:
(1) have Primus APEX Software Build 10 with Honeywell part number (P/N) EB60000487-0110 or Primus APEX Software Build 10.9 with Honeywell P/N EB60000487-0112 installed; and
(2) are certificated in any category.
Air Transport Association of America (ATA) Code 34: Navigation.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as an error within the flight management system caused by installing Primus APEX software Build 10 or 10.9, which could cause deviation from the correctly calculated barometric vertical navigation nominal guide path. We are issuing this AD to prevent the pilot from following incorrect data from the flight management system, which could result in loss of control.
Unless already done, within 30 days after the effective date of this AD, insert Temporary Revision No. 38 to PC-12/47E Pilot's Operating Handbook, Report No: 02277, Section 2—Limitations, dated February 8, 2017, into PILATUS Airplane Flight Manual 02277, Section 2—Limitations.
Note 1 to paragraph (f) of this AD: For airplanes affected by this AD, the Pilot's
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI European Aviation Safety Agency (EASA) AD No. 2017-0024, dated February 13, 2017, for related information. You may examine the MCAI on the Internet at
Drug Enforcement Administration, Department of Justice.
Notice of proposed rulemaking.
The Drug Enforcement Administration (DEA) is proposing a rule that would expand and enhance the enforcement component of the Diversion Control Program (DCP) as previously outlined in the December 30, 1996,
Electronic comments must be submitted, and written comments must be postmarked, on or before April 20, 2017. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “Docket No. DEA-445N” on all correspondence, including any attachments.
The Drug Enforcement Administration encourages that all comments be submitted through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the Web page or to attach a file for lengthier comments. Please go to
Michael J. Lewis, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
This proposed rule would expand on the already-recognized investigative activities funded by the DCFA and allow for the hiring of attorneys in support of these activities. The attorneys, hired by DEA and paid with funds from the DCFA, will be detailed to the Department of Justice (DOJ) as Special Assistant United States Attorneys (SAUSAs), and will assist in the investigation and prosecution of those diversion crimes outlined in the 1996 Rule, and related civil actions. DCFA-funded SAUSAs in the program would be exclusively engaged in duties which provide investigative and prosecutorial support to federal criminal and related civil diversion investigations conducted by the DEA and its partnering law enforcement agencies. The investigations, and the companion support provided by the attorneys detailed as SAUSAs in this program, will adhere to the guidelines for the use of DCFA funding found in Title 21, United States Code, 821, 822, and 886a; the 1996 Rule, 76 FR 39318, July 6, 2011; and 77 FR 15234, March 15, 2012.
In addition, the proposed rule would authorize the SAUSAs hired by DEA and detailed to DOJ to prosecute crimes that are derivative or ancillary criminal violations to the diversion crimes outlined in the 1996 Rule. Examples of these ancillary or derivative crimes would include money laundering or other financial crimes involving the proceeds of diversion activity; firearms and crimes of violence related to or caused by diversion activity; use of a communication facility to commit diversion crimes; and the forfeiture of assets which facilitate or are derived from diversion activity.
In addition to protecting the public, the proposed rule will enhance the protections provided to the DEA registrant community by the DCP by ensuring that those engaged in criminal and related civil violations affecting the DEA registrant population are apprehended, and, equally as important, prosecuted. The proposed rule will ensure that illegal activities that
The proposed rule is a continuation of the concepts outlined in “Controlled Substances and List 1 Chemical Registration and Reregistration Fees,” 77 FR 15234 (Mar. 15, 2012), hereinafter referred to as the 2012 Rule. The 2012 Rule provides that “it is essential to utilize a diverse skilled workforce and constantly review and modify all aspects of the DCP to help successfully execute the drug trafficking disruption goals of the National Drug Control Strategy and effectively prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring a sufficient supply of these substances for legitimate medical purposes.” It is in furtherance of that constant review—and modification when necessary—that this rule is proposed.
This proposed rule does not request an increase in Registration and Reregistration Fees.
Please note that all comments received in response to this docket are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement Administration for public inspection online at
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment.
Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to
Through the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended (CSA), Congress has established a closed system of distribution making it unlawful to handle any controlled substance or listed chemical except in a manner authorized by the CSA. In order to maintain this closed system of distribution, the CSA imposes registration requirements on some handlers of controlled substances and list I chemicals.
As part of the DCP, and pursuant to 21 U.S.C. 821 and 886a, and the 1996 Rule, DEA has created Tactical Diversion Squad (TDS) units staffed by DEA Special Agents, Diversion Investigators, Task Force Officers (TFOs)
Of particular note, state and local law enforcement agencies have invested 283 of their officers to work as TFOs with the TDS Squads across the United States. These TFOs represent the growing understanding in the law enforcement community of the threat posed by the diversion of pharmaceutical drugs into our society. The TFOs represent a tremendous return on investment for the DCFA as the salaries for these officers are borne by their respective departments, with the DCFA reimbursing the departments for overtime expenses and providing the TFOs with vehicle expenses, travel expenses, and investigative expenses. These groups have been extremely effective in attacking the prescription drug diversion and abuse problem when allied with our critical prosecution partners within the various United States Attorney's Offices. As the TDS program continues to grow, it is critical that more resources, such as SAUSAs, are available to prosecute these cases when necessary.
The United States is currently in the midst of an epidemic of opioid abuse and overdose death. Drug overdose has overtaken deaths from firearms and automobile accidents as the leading cause of accidental or unintentional injury death in the United States.
Additionally, in a 2012 study by the Substance Abuse and Mental Health Services Administration (SAMHSA) of emergency room visits for drug related overdose in young adults aged 18 to 25, more than 11% were admitted for misuse/abuse of benzodiazepines; more than were admitted for use of heroin (9.9%), cocaine (8.8%), or methamphetamine (5.6%).
As indicated above, to answer this drug abuse epidemic, DEA has dedicated increasing resources to the DCP through the expansion of the TDS program, which has resulted in dramatic program growth over the past decade. In 2006, DEA had five TDS groups in operation with only 70 Special Agents dedicated to diversion investigations and funded by the DCFA. By 2016, the number of TDS groups had grown to 79, with 340 Special Agents dedicated to diversion investigations.
The prosecution of those responsible for, and engaged in, criminal and related civil diversion activity is integral to public safety. As the number of personnel dedicated to diversion investigations has increased, the arrests and potential defendants identified for prosecution have also increased. Should prosecutions not keep pace with these increased activities, the reduction of the diversion of controlled substances cannot be accomplished. To help ensure that the increased investment of DCFA resources into the investigation of diversion activity outlined in the 1996 Rule are fully realized with prosecution efforts, the DEA, in cooperation with the Executive Office for United States Attorneys (EOUSA)
DEA proposes that the attorneys hired as a part of this program will be directly employed by DEA, and funded through the DCFA. Once hired, they would be detailed to DOJ and receive authorization to serve as SAUSAs from EOUSA, the United States Attorney, and the U.S. District Court in the district of hire to serve in the capacity of a SAUSA. In this role, the SAUSAs would be permitted to represent the United States in criminal and civil proceedings before the courts and apply for various legal orders. All of the anticipated activities will relate to, and result from, those investigations conducted pursuant to the 1996 Rule.
While the use of DEA attorneys detailed as SAUSAs and funded through the DCFA is a new concept, the use of attorneys detailed as SAUSAs to complement the capabilities of the United States Attorneys' Offices is not. Applicable Department of Justice policy states the following regarding SAUSAs employed by other agencies:
Attorneys employed in other departments or agencies of the federal government may be appointed as Special Assistants to United States Attorneys, without compensation other than that paid by their own agency, to assist in the trial or presentation of cases when their services and assistance are needed. Such appointments, and appointments of Assistant United States Attorneys from one United States Attorney's office to another, may be made by the United States Attorney requiring their services.
In many areas, SAUSAs have been designated from state and local prosecutors' offices to allow a greater volume of specific types of cases (firearms cases primarily) to be presented in federal court than would otherwise be possible with the resources allocated to the United States Attorneys' Office. Likewise, funds from the Federal High Intensity Drug Trafficking Area (HIDTA) grant program have been utilized to hire attorneys to serve as SAUSAs that specifically provide prosecutorial and legal services to
The goal of this proposed effort is to ensure the effective and efficient use of DCFA resources dedicated to the TDS program by providing resources to help ensure that criminal and related civil cases with sufficient evidence are prosecuted in a timely manner. All DCFA-funded SAUSAs in the program would be utilized exclusively to support DCFA-funded investigations conducted by the DEA and its partnering law enforcement agencies. The types of investigations in which the SAUSAs will assist, and the crimes they will prosecute will stem from the types of investigations identified in the 1996 Rule, which states: “The targets and types of investigations conducted by the DCP pursuant to 21 U.S.C. 821 are identified below.
(1) Registrants and their agents or employees suspected of diverting controlled substances from legitimate channels;
(2) Persons who engage in the smuggling, theft, robbery and/or trafficking of pharmaceutical controlled substances, including, where appropriate, identifying and immobilizing their sources of supply, whether domestic or foreign, through enforcement of the controls relating to the manufacture, distribution, import, export, and dispensing of controlled substances;
(3) Persons, both registered and nonregistered, who conduct controlled substances activities for which they do not have the required DOA or state authorization;
(4) Persons who obtain pharmaceutical controlled substances from registrants through fraud, deceit, or circumvention of the controls on manufacturing, distribution, or dispensing,
(5) The trafficking by non-registrants in controlled substances which are fraudulently promoted as legitimate therapies (such as “herbal remedies” sold “under the counter” which actually contain a controlled substance);
(6) Persons who use their DEA registrations to assist in the diversion or misuse of controlled substances for other than medical purposes, such as health care fraud, self-abuse, trading controlled substances for non-medical purposes, etc.” 61 FR 68629.
During the course of the investigations described in paragraphs 1 through 6 of the 1996 Rule, additional criminal activity may be uncovered. To the extent this additional criminal activity is committed by an individual or group of individuals whose primary criminal activity is described in paragraphs 1 through 6 of the 1996 Rule, and the additional criminal activity is derivative of, or ancillary to, the illegal activity described in those paragraphs, the investigations have included this additional criminal activity, and these crimes will be prosecuted by the SAUSAs described in this proposed rule. Examples of this type of additional criminal activity would include weapons offenses or crimes of violence in support of diversion offenses; money laundering, structuring or other financial violation to support diversion offenses, or utilizing monies derived from diversion offenses; the use of a telecommunication device in support of diversion offenses; and the forfeiture of assets derived from, or facilitating, diversion offenses.
The DEA proposes to initially hire 20 attorneys utilizing funding from the DCFA to implement the program. The initial 20 attorneys would be selected to serve in a minimum of 12 and maximum of 20 federal judicial districts at an estimated annual cost of $3.8 million.
This proposed rule was developed in accordance with the principles of Executive Orders 12866 and 13563. As described previously, the estimated annual cost of $3.8 million is less than 1% of the annual DCFA budget and sufficient funding exists in the DCFA budget to allow for this program due to the reprioritization of other budgetary items within the DCP. This program will result in a net zero economic effect and no impact on registration fees. Therefore, the DEA does not anticipate that this rulemaking will have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.
This proposed rule is not a “significant regulatory action” under Executive Order 12866 Section 3(f).
This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.
This proposed rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed
The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), has reviewed this proposed rule and by approving it certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. There are nearly 1.7 million DEA registrations, of which, a large majority either are held by small entities or are those employed by small entities. As discussed above, the DEA estimates the estimated annual cost of $3.8 million is offset by reprioritization of other DCFA expenditures, resulting in a net zero economic effect and no impact on registration fees for any registrants. Therefore, the DEA estimates that the rule will not, if promulgated, have a significant effect on a substantial number of these small entities.
This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish special local regulations for certain waters of the Corsica River. This action is necessary to provide for the safety of life on the navigable waters located in Queen Anne's County, MD during a rowing event on April 22, 2017. If necessary, due to inclement weather, the event will be rescheduled to April 23, 2017. This proposed rulemaking would prohibit persons and vessels from entering the regulated area unless authorized by the Captain of the Port Maryland-National Capital Region or the Coast Guard Patrol Commander. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before April 20, 2017.
You may submit comments identified by docket number USCG-2017-0168 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Mr. Ronald Houck, U.S. Coast Guard Sector Maryland-National Capital Region; telephone 410-576-2674, email
On February 16, 2017, The Gunston School of Centreville, MD notified the Coast Guard that it will be conducting a rowing regatta from 8 a.m. until 2 p.m. on April 22, 2017, and if necessary, due to inclement weather, from 8 a.m. until 2 p.m. on April 23, 2017. The high school rowing event consists of approximately 30 participants competing on a designated 1500-meter distance course in the Corsica River that starts at Rocky Point and finishes at Jacobs Nose near Centreville, MD. Hazards from the rowing competition include participants operating within and adjacent to the designated navigation channel and interfering with vessels intending to operate within that channel, as well as rowing within approaches to local public and private marinas and boat facilities. The COTP Maryland-National Capital Region has determined that potential hazards associated with the rowing event would be a safety concern for anyone intending to participate in this event or for vessels that operate within specified waters of the Corsica River in Queen Anne's County, MD.
The purpose of this rulemaking is to protect event participants, spectators and transiting vessels on specified waters of the Corsica River before, during, and after the scheduled event.
The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1233, which authorize the Coast Guard to establish and define special local regulations.
The COTP Maryland-National Capital Region proposes to establish special local regulations from 7:30 a.m. until 2:30 p.m. on April 22, 2017, and if necessary, due to inclement weather, from 7:30 a.m. until 2:30 p.m. on April 23, 2017. The regulated area would include all navigable waters of the Corsica River, from shoreline to shoreline, within an area bounded on the east by a line drawn from latitude 39°04′32″ N., longitude 076°05′20″ W., thence south to latitude 39°04′07″ N., longitude 076°05′20″ W., and bounded on the west by a line drawn from latitude 39°04′59″ N., longitude 076°06′30″ W., thence south to latitude 39°04′44″ N., longitude 076°06′30″ W., located near Centreville, MD. The duration of the regulated area is intended to ensure the safety of event participants and vessels within the specified navigable waters before, during, and after the scheduled 8 a.m. until 2 p.m. rowing competition. Except for The Gunston Invitational participants, no vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP Maryland-National Capital Region or the Coast Guard Patrol Commander. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly,
This regulatory action determination is based on the size and duration of the regulated area, which would impact a small designated area of the Corsica River for 7 hours. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule would allow vessel operators to request permission to enter the regulated area for the purpose of safely transiting the regulated area if deemed safe to do so by the Coast Guard Patrol Commander.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that may negatively impact the safety of waterway users and shore side activities within the event area. This category of marine event water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(2)
(3)
(4)
(c)
(2) Except for participants and vessels already at berth, all persons and vessels within the regulated area at the time it is implemented shall depart the regulated area.
(3) Persons and vessels desiring to transit, moor, or anchor within the regulated area must obtain authorization from Captain of the Port Maryland-National Capital Region or Coast Guard Patrol Commander. Prior to the enforcement period, vessel operators may request permission to transit, moor, or anchor within the regulated area from Captain of the Port Maryland-National Capital Region at telephone number 410-576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). During the enforcement period, persons or vessel operators may request permission to transit, moor, or anchor within the regulated area from the Coast Guard Patrol Commander on Marine Band Radio, VHF-FM channel 16 (156.8 MHz).
(4) The Coast Guard may be assisted with marine event patrol and enforcement of the regulated area by other Federal, State, and local agencies. The Coast Guard Patrol Commander and official patrol vessels enforcing this regulated area can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz) and channel 22A (157.1 MHz).
(5) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event date and times.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of oxides of nitrogen (NO
Any comments must arrive by April 20, 2017.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2017-0034 at
Nicole Law, EPA Region IX, (415) 947 4126,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On September 27, 2016, the EPA determined that the submittal for SJVUAPCD Rule 4307 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
We approved an earlier version of Rule 4307 into the SIP on February 12, 2015 (80 FR 7803). The SJVUAPCD adopted revisions to the SIP-approved version on April 21, 2016 and CARB submitted them to us on August 22, 2016.
NO
SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each major source of NO
Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
5. “Alternative Control Techniques Document- NO
6. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters,” (CARB, July 18, 1991).
We believe this rule is consistent with CAA requirements and relevant guidance regarding enforceability, RACT, and SIP revisions. The rule is expanding the exemption for tree-nut pasteurizers to include those fueled on LPG. However, the increased emissions from these sources will be negligible. The TSD has more information on our evaluation.
The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule.
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because we
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SJVUAPCD rule described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the California State Implementation Plan (SIP) consisting of California Air Resources Board regulations establishing standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines. The EPA is proposing to approve these regulations because the regulations meet the applicable requirements of the Clean Air Act. Approval of the regulations as part of the California SIP would make them federally enforceable.
Any comments on this proposal must arrive by April 20, 2017.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2017-0043 at
John Ungvarsky, EPA Region IX, (415) 972-3963,
Throughout this document, “we,” “us” and “our” refer to the EPA. This proposal addresses California Air Resources Board regulations establishing standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve the required second carbon monoxide (CO) maintenance plan as a revision to the Texas State Implementation Plan (SIP). The El Paso, Texas CO maintenance area (El Paso Area) has been demonstrating consistent air quality monitoring at or below 85% of the CO National Ambient Air Quality Standard (NAAQS or standard). Because of this, the State of Texas, through its designee, submitted the required second maintenance plan for the El Paso Area as a Limited Maintenance Plan (LMP).
Written comments should be received on or before April 20, 2017.
Submit your comments, identified by EPA-R06-OAR-2016-0550, at
Jeffrey Riley, 214-665-8542,
In the final rules section of this
For additional information, see the direct final rule which is located in the rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is proposing to approve an error correction to a previously approved diesel inspection and maintenance (I/M) program provision in Albuquerque/Bernalillo County's State Implementation Plan (SIP). This action is based on our determination that at the time EPA approved the diesel I/M Program the State did not have the legal authority to expand its program to require the testing of 1998 and newer diesel motor vehicles greater than 1,000 and less than 10,001 pounds.
Written comments should be received on or before April 20, 2017.
Submit your comments, identified by EPA-R06-OAR-2011-0695, at
Mr. John Walser, (214) 665-7128,
In the final rules section of this
For additional information, see the direct final rule which is located in the rules section of this
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Advance notice of proposed rulemaking (ANPRM); Extension of comment period.
PHMSA is extending the comment period for an advance notice of proposed rulemaking that was published in the
Comments must be received on or before May 19, 2017. To the extent possible, PHMSA will consider late-filed comments during the next stage of the rulemaking process.
You may submit comments identified by Docket No. PHMSA-2016-0077 by any of the following methods:
•
•
•
•
Lad Falat, Director, Engineering and Research, (202) 366-4545, Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
On January 18, 2017, PHMSA published an advance notice of proposed rulemaking (ANPRM) titled, “Hazardous Materials: Volatility of Unrefined Petroleum Products and Class 3 Materials,” addressing the volatility of unrefined petroleum products and potentially all Class 3 flammable liquids transported by means other than pipeline.
The ANPRM posed 39 questions on a wide variety of topics ranging from sampling and testing, proper classification, and numerous characteristics of crude oil relevant to its unique hazards. Specifically, PHMSA sought comments on whether there should be national vapor pressure standards for petroleum products and/or other Class 3 hazardous materials and, if so, recommendations for such thresholds. It was the intent of the ANPRM to obtain the views of those affected by the North Dakota Industrial Commission (NDIC) Order, as well as those who are likely to be impacted by the changes proposed in the petition P-1669 (as discussed in detail in the January 18, 2017 ANPRM), including those who are likely to benefit from, be adversely affected by, or potentially be subject to additional regulation.
PHMSA sought comment on the ANPRM to assist in:
1. Determining the best metric or combination of metrics (vapor pressure or other metric) for measuring and controlling fire and explosion risk in crude oil transport;
2. Quantifying the improvement in safety if any, due to risk reduction from implementation of vapor pressure thresholds at varying levels;
3. Identifying offerors' compliance strategies and market impacts with Reid Vapor Pressure (RVP) standards at varying levels of stringency, and estimating their economic costs and environmental impacts;
4. Identifying other regulations and industry practices, such as volatile organic compound emissions standards imposed through the Clean Air Act, or State regulations, or pipeline operator RVP standards, potentially affecting compliance strategies and costs, and safety benefits;
5. Evaluating the extent to which use of DOT Specification 117 tank cars mitigates the risk of transporting crude oil;
6. Comparing compliance costs of mitigation strategies with risk reduction from adoption of the petition; and
7. Balancing the benefits and costs in setting the level of the chosen metric.
PHMSA received an initial request from the American Petroleum Institute (API) to extend the comment period for the ANPRM by 30 days. API indicated in their request that industry needs extra time to obtain information on experiences with classification, testing, sampling, and packaging of unrefined petroleum products. Because of the number of questions posted, the technical nature of the questions, and the potentially broad implications to operations throughout the supply chain, API believes the opportunity for a thorough review before responding to PHMSA is crucial for any future rulemaking. Subsequent to the API request, PHMSA has received additional requests from other entities to extend the comment period. For instance, the North Dakota Petroleum Council also requests an extension; however, they have requested a 60-day extension.
PHMSA provided an initial 60-day comment period to the ANPRM. However, due to our desire to collect meaningful input from a number of potentially affected stakeholders and to the demand by various entities, we agree with the requests to extend the comment period to allow further time for public input. Given the number and variety of requests, PHMSA is extending the comment period by 60 days.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 13, 2016, the Department of Commerce (the Department) initiated a changed circumstances review of the antidumping duty order on certain pasta from Italy in order to determine whether Francesco Tamma S.p.A (Tamma) is the successor-in-interest to Tamma Industrie Alimentary S.r.l. (TIAC), the company affiliated with Delverde, S.r.l. (Delverde), which was excluded from the order on pasta from Italy. We preliminarily determine that Tamma is not the successor-in-interest to TIAC. We invite interested parties to comment on these preliminary results.
Effective March 21, 2017.
Joy Zhang, Office III, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1168.
On July 14, 1996, the Department published in the
In 2014, the Department conducted a changed circumstances review (CCR) of Delverde Industrie Alimentari S.p.A. (Delverde S.p.A.) and found that Delverde S.p.A. was not the successor-in-interest to Delverde based on aspects of the bankruptcy of Delverde, changes in management, changes in supplier relationships, and changes in production facilities.
On July 29, 2016, American Italian Pasta Company, Dakota Growers Pasta Company, and New World Pasta Company (Petitioners) filed a request for the Department to initiate a CCR of Tamma to determine whether Tamma is the successor-in-interest to TIAC, the company excluded from the
On September 13, 2016, the Department requested information from Tamma, which, after an extension, was submitted on October 12, 2016 (hereinafter referred to as the Initial Response). On November 14, 2016, the Department requested additional information from Tamma, which was provided on December 9, 2016 (hereinafter referred to as Supplemental Response).
Imports covered by this order are shipments of certain non-egg dry pasta in packages of five pounds four ounces or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastasis, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions. The merchandise subject to this order is currently classifiable under items 1901.90.90.95 and 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and Customs purposes, the written description of the merchandise subject to the Order is dispositive.
For a full description of the scope,
In accordance with section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), we are conducting this CCR based upon the information contained in the submissions of Tamma.
Based on record evidence, we preliminarily determine that Tamma is not the successor-in-interest to TIAC, the company in the Delverde/TIAC entity, which was excluded from the
Consequently, we preliminarily determine that Tamma should not be given the same antidumping duty treatment as the Delverde/TIAC entity. This determination will apply to all entries of the subject merchandise entered or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this changed circumstances review.
Pursuant to 19 CFR 351.309(c), interested parties may submit cases briefs not later than 10 days after the date of publication of this notice via ACCESS. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs. Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by ACCESS, no later than 5:00 p.m. Eastern Time within 10 days after the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in case briefs.
Consistent with 19 CFR 351.216(e), we will issue the final results of this changed circumstances review no later than 270 days after the date on which this review was initiated, or within 45 days after the publication of the preliminary results if all parties in this review agree to our preliminary results.
We are issuing and publishing this determination and notice in accordance with sections 751(b) and 777(i)(1) of the Act and 19 CFR 351.216 and 351.221.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (“Department”) and the International Trade Commission (“ITC”) in their five year (“sunset”) reviews that revocation of the antidumping duty (“AD”) order on certain artist canvas from the People's Republic of China (“PRC”) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing a notice of continuation of the AD order on certain artist canvas from the PRC.
Effective March 21, 2017.
Paul Stolz; AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-4474.
On June 1, 2006, the Department published the AD order on certain artist canvas from the PRC.
The products covered by this order are artist canvases regardless of dimension and/or size, whether assembled or unassembled, that have been primed/coated, whether or not made from cotton, whether or not archival, whether bleached or unbleached, and whether or not containing an ink receptive top coat. Priming/coating includes the application of a solution, designed to promote the adherence of artist materials, such as paint or ink, to the fabric. Artist canvases (
Artist canvases subject to this order are currently classifiable under subheadings 5901.90.20.00, 5901.90.40.00, 5903.90.2500, 5903.90.2000, 5903.90.1000, 5907.00.8090, 5907.00.8010, and 5907.00.6000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Specifically excluded from the scope of this order are tracing cloths, “paint by number” or “or “paint-it-yourself” artist canvases with a copyrighted preprinted outline, pattern, or design, whether or not included in a painting set or kit.
Additionally, we have determined that canvas woven and primed in India, but cut, stretched and framed in the PRC and exported from the PRC, are not subject to the order covering artist canvas from the PRC.
As a result of these determinations by the Department and the ITC that revocation of the AD order on certain artist canvas from the PRC would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the AD order on certain artist canvas from the PRC. U.S. Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the order will be the date of publication in the
This five-year (sunset) review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce
The Department of Commerce (the Department) is partially rescinding the administrative review of the antidumping duty order on honey from the People's Republic of China (PRC) with respect to Shayang Xianghe Food Co., Ltd. (Shayang Xianghe) for December 1, 2015, through November 30, 2016.
Carrie Bethea or Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1491 or (202) 482-2593, respectively.
On February 13, 2017, based on a timely request for review on behalf of the American Honey Producers Association and Sioux Honey Association (collectively, petitioners),
The review covers two companies: Shanghai Sunbeauty Trading Co., Ltd. and Shayang Xianghe. On February 28, 2017, petitioners timely withdrew their request for an administrative review of Shayang Xianghe.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review in whole or in part, if the party that requested the review withdraws its request within 90 days of the date of publication of the notice of initiation of the requested review. In this case, petitioners timely withdrew their request of Shayang Xianghe by the 90-day deadline, and there are no other outstanding requests for an administrative review of the antidumping duty order with respect to this company. As a result, pursuant to 19 CFR 351.213(d)(1), we are rescinding the administrative review of honey from the PRC for the period December 1, 2015, through November 30, 2016, in part, with respect to Shayang Xianghe.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the company for
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Highly Migratory Species (HMS) and Law Enforcement Committees of the Mid-Atlantic Fishery Management Council (Council) will hold a joint meeting.
The meeting will be held on Thursday, April 6, 2017, beginning at 9 a.m. For agenda details, see
The meeting will be held via webinar with a telephone-only connection option. Details will be posted at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is to address permitting and catch reporting requirements/compliance in HMS-permitted fisheries.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of application for permit; request for comments.
NMFS publishes for public review and comment information regarding a permit application for transshipment of Atlantic herring by Canadian vessels, submitted under provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This action is necessary for NMFS to make a determination that the permit application can be approved.
Written comments must be received by April 4, 2017.
Written comments on this action, identified by RIN 0648-XF288, should be sent to Kent Laborde in the NMFS Office for International Affairs and Seafood Inspection at 1315 East-West Highway, Silver Spring, MD 20910 or by email at
Kent Laborde at (301) 427-8364 or by email at
Section 204(d) of the Magnuson-Stevens Act (16 U.S.C. 1824(d)) authorizes the Secretary of Commerce (Secretary) to issue a transshipment permit authorizing a vessel other than a vessel of the United States to engage in fishing consisting solely of transporting fish or fish products at sea from a point within the United States Exclusive Economic Zone (EEZ) or, with the concurrence of a state, within the boundaries of that state, to a point outside the United States. In addition, Public Law 104-297, section 105(e), directs the Secretary to issue section 204(d) permits to up to 14 Canadian transport vessels that are not equipped for fish harvesting or processing, for the transshipment of Atlantic herring harvested by United States fishermen and to be used solely in sardine processing. Transshipment must occur from within the boundaries of the State of Maine or within the portion of the EEZ east of the line 69 degrees 30 minutes west and within 12 nautical miles from Maine's seaward boundary.
Section 204(d)(3)(D) of the Magnuson-Stevens Act provides that an application may not be approved until the Secretary determines that “no owner or operator of a vessel of the United States which has adequate capacity to perform the transportation for which the application is submitted has indicated . . . an interest in performing the transportation at fair and reasonable rates.” NMFS is publishing this notice as part of its effort to make such a determination with respect to the application described below.
NMFS received an application requesting authorization for four Canadian transport vessels to receive
United States Patent and Trademark Office, Department of Commerce; National Telecommunications and Information Administration, Department of Commerce.
Notice of public meeting.
The Department of Commerce's Internet Policy Task Force (Task Force) will host a public meeting at the United States Patent and Trademark Office (USPTO) facility in Alexandria, Virginia, on April 18, 2017, to discuss how best to communicate to consumers regarding license terms and restrictions in connection with online transactions involving copyrighted works. This follows up on one of the recommendations that the Task Force presented in its January 2016
The public meeting will be held on April 18, 2017, from 1:00 p.m. to 5:00 p.m., Eastern Standard Time. Registration will begin at 12:30 p.m.
The public meeting will be held at the United States Patent and Trademark Office, Global Intellectual Property Academy (GIPA), Madison Building (East), Second Floor, 600 Dulany Street, Alexandria, VA 22314. All major entrances to the building are accessible to people with disabilities.
For further information regarding the meeting, contact Nadine Herbert or Linda Quigley, Office of Policy and International Affairs, United States Patent and Trademark Office, Madison Building, 600 Dulany Street, Alexandria, VA 22314; telephone (571) 272-9300; email
The Department of Commerce established the Internet Policy Task Force (Task Force) in 2010 to identify leading public policy and operational issues impacting the U.S. private sector's ability to realize the potential for economic growth and job creation through the Internet. The Task Force has released two reports addressing copyright issues and the Internet, based on extensive stakeholder consultation and public input.
The Task Force's July 2013 report,
In its 2016
However, the Task Force did recommend non-legislative action to address certain concerns expressed by a number of stakeholders about the online marketplace for copyrighted works. These related to consumers' understanding of what they have purchased when they pay for copies of works delivered online.
In the White Paper, the Task Force concluded that when consumers download copies of works (such as eBooks, music, and motion pictures), they do not appear to have a clear understanding of what they can legally do with those copies. This is due in part to the length and opacity of most End User License Agreements (EULAs).
Other factors that may contribute to consumer confusion include the labeling of the “buy” button, and the lack of clear and conspicuous information regarding the ownership status of copies obtained by means of digital transmissions. Commenters noted that it is common for online
The goal of this meeting is to explore issues and facilitate a discussion on how best to ensure that license terms related to copyright are clearly and effectively communicated to potential consumers in the online environment. We will not address whether the first sale doctrine should be applicable to digital transmissions, which the White Paper discussed at length (see
One discussion topic will focus on what copyright-related terms and conditions are important to communicate to consumers in the online environment. Some examples of possible terms include: Ownership (
Another discussion topic will focus on identifying best practices for how to inform consumers about the intellectual property rights associated with the content they are accessing or acquiring, and what activities they are permitted to engage in without implicating those rights. Questions to be addressed may include:
• What term or terms can clearly communicate what consumers are paying for?
• What term or terms should not be used (
• Would a standardized form of notice, placed in or accessed from a conspicuous location on an e-commerce Web site or app be helpful?
• Would standard icons or symbols be helpful in communicating the terms, and what might those look like?
• Are there consumer messaging models from other fields (
On April 18, 2017, the Task Force will hold a public meeting to hear views on these issues, including on the process going forward. We seek participation and comment from interested stakeholders, including in particular online services that offer digital transmissions of works to consumers, as well as creators, right holders, consumers, marketing professionals, user interface designers, public interest groups, and academics.
The agenda for the public meeting will be available no later than the week prior to the meeting, and the meeting will be webcast and transcribed. The agenda and webcast information will be available on the Internet Policy Task Force Web site,
The meeting will be open to members of the public to attend, space permitting, on a first-come, first-served basis. Registration is required and will be available on site on the day of the meeting, space permitting. Persons who have pre-registered (and received confirmation) will have seating held until 15 minutes before the program begins. Pre-registration for the meeting is available at:
The meeting will be physically accessible to people with disabilities. Individuals requiring accommodation, such as sign language interpretation, real-time captioning of the webcast or other ancillary aids, should communicate their needs to Nadine Herbert, Office of Policy and International Affairs, United States Patent and Trademark Office, Madison Building, 600 Dulany Street, Alexandria, VA 22314; telephone (571) 272-9300, at least seven (7) business days prior to the meeting. Attendees should arrive at least one-half hour prior to the start of the meeting, and must present valid government-issued photo identification upon arrival. Members of the public will have an opportunity to make comments at the meeting.
Department of the Navy, DoD.
Notice; correction.
The Department of the Navy (Navy) published in the
Ms. Kimberly Kler, LWI/SPE Supplemental EIS Project Manager, 360-396-0927.
In the
Defense Nuclear Facilities Safety Board.
Notice of closed meeting.
Pursuant to the provisions of the Government in the Sunshine Act (5 U.S.C. 552b), and the Defense Nuclear Facilities Safety Board's (Board) regulations implementing the Government in the Sunshine Act, notice is hereby given of the Board's closed meeting described below.
10:00 a.m.-11:00 a.m., March 23, 2017.
Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Washington, DC 20004.
Katherine Herrera, Deputy General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004-2901, (800) 788-4016. This is a toll-free number.
The meeting will be closed to the public. No participation from the public will be considered during the meeting.
Closed. During the closed meeting, the Board Members will discuss issues dealing with potential Recommendations to the Secretary of Energy. The Board is invoking the exemption to close a meeting described in 5 U.S.C. 552b(c)(3) and 10 CFR 1704.4(c). The Board has determined that it is necessary to close the meeting since conducting an open meeting is likely to disclose matters that are specifically exempted from disclosure by statute. In this case, the deliberations will pertain to potential Board Recommendations which, under 42 U.S.C. 2286d(b) and (h)(3), may not be made publicly available until after they have been received by the Secretary of Energy or the President, respectively.
The meeting will proceed in accordance with the closed meeting agenda which is posted on the Board's public Web site at
Institute of Education Sciences (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a new information collection.
Interested persons are invited to submit comments on or before May 22, 2017.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Melanie Ali, 202-245-8345.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Advisory Board (EMAB). The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Tuesday, April 4, 2017, 9 a.m.-5 p.m.
Department of Energy Information Center, Building 1916-T1, 1
Jennifer McCloskey, Federal
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following PURPA 210(m)(3) 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 Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 22, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Commission staff will use the information to assign licenses, determine regional spectrum requirements and to develop technical standards. The information will also be used to determine whether prospective licensees operate in compliance with the Commission's rules. Without such information, the Commission could not accommodate regional requirements or provide for the efficient use of the available frequencies. This information collection includes rules to govern the operation and licensing of the 700 MHz and 4.9 GHz bands rules and regulation to ensure that licensees continue to fulfill their statutory responsibilities in accordance with the Communications Act of 1934, as amended. Such information will continue to be used to verify that applicants are legally and technically qualified to hold licenses, and to determine compliance with Commission rules.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before May 22, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The following are the information collection requirements in connection with the amended provisions of Appendix B of Part 1 of the Commission's rules (47 CFR pt.1, App. B):
• Stipulation VII.C of the amended Collocation Agreement provides that proposals to mount a small antenna on a traffic control structure (
The First Amendment to the Collocation Agreement establishes new exclusions from the Section 106 review process for physically small deployments like DAS and small cells, fulfilling a directive in the Commission's
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 22, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission has established rules for the marketing of radio frequency (RF) devices prior to equipment authorization under guidelines in 47 CFR Section 2.803. The general guidelines in Section 2.803 prohibit the marketing or sale of such equipment prior to a demonstration of compliance with the applicable equipment authorization and technical requirements in the case of a device subject to verification or Declaration of Conformity without special notification. Section 2.803(c)(2) permits limited marketing activities prior to equipment authorization, for devices that could be authorized under the current rules; could be authorized under waivers of such rules that are in effect at the time of marketing; or could be authorized under rules that have been adopted by the Commission but that have not yet become effective. These devices may be not operated unless permitted by section 2.805.
The following general guidelines apply for third party notifications:
(a) A RF device may be advertised and displayed at a trade show or exhibition prior to a demonstration of compliance with the applicable technical standards and compliance with the applicable equipment authorization procedure provided the advertising and display is accompanied by a conspicuous notice
(b) An offer for sale solely to business, commercial, industrial, scientific, or medical users of an RF device in the conceptual, developmental, design or pre-production stage prior to demonstration of compliance with the equipment authorization regulations may be permitted provided that the prospective buyer is advised in writing at the time of the offer for sale that the equipment is subject to FCC rules and that the equipment will comply with the appropriate rules before delivery to the buyer or centers of distribution.
(c) Equipment sold as evaluation kit may be sold to specific users with notice specified in Section 2.803(c)(2)(iv)(B).
The information to be disclosed about marketing of the RF device is intended:
(1) To ensure the compliance of the proposed equipment with Commission rules; and
(2) To assist industry efforts to introduce new products to the marketplace more promptly.
The information disclosure applies to a variety of RF devices that:
(1) Is pending equipment authorization or verification of compliance;
(2) May be manufactured in the future;
(3) May be sold as kits; and
(4) Operates under varying technical standards.
The information disclosed is essential to ensuring that interference to radio communications is controlled.
Federal Election Commission.
Thursday, March 23, 2017 at 10:00 a.m.
999 E Street NW., Washington, DC (Ninth Floor).
This Meeting Will Be Open To the Public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Dayna C. Brown, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Theresa Kingsberry, Program Support Specialist, Federal Trade Commission Premerger Notification Office, Bureau of Competition, Room CC-5301, Washington, DC 20024, (202) 326-3100.
By direction of the Commission.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by May 22, 2017.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William Parham at 410-786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep
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Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by April 20, 2017.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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Since the national launch in 2014, CMS has disseminated C2C through speaking engagements, webinars, and meetings sponsored by CMS regional offices. CMS fills product orders and recently completed a redesign of the C2C Web site. C2C has grown to address emerging needs of consumers, as well as stakeholders or organizations that work with and support consumers, across the full continuum of health insurance and care: Plan selection, enrollment, finding a provider, and engaging in care over time.
RAND spent the past year designing and preparing for this evaluation to assess C2C's impact on consumer health insurance literacy and care utilization. This evaluation will also help CMS understand how C2C is spread within a community and disseminated to consumers, and in turn how best to maximize C2C's impact. The next three years will be dedicated to implementing the evaluation described in this submission. We are proposing four data collection activities: (1) A cross-sectional survey of organizations that have ordered and used the materials with consumers; (2) A cross-sectional survey of consumers, drawn from the Knowledge Networks panel, to measure the association between C2C and consumer knowledge and behavior; (3) semi-structured interviews with staff from a limited set of community organizations as part of a case study; and (4) focus groups of consumers as part of a case study. The case study will be conducted in a community where English is not the preferred language, and where C2C materials in another
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by May 22, 2017.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by May 22, 2017.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
JonnaLynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794.
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The custom device exemption is set forth at section 520(b)(2)(B) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360j(b)(2)(B)). A custom device is in a narrow category of device that, by virtue of the rarity of the patient's medical condition or physician's special need the device is designed to treat, it would be impractical for the device to comply with premarket review regulations and performance standards.
The Food and Drug Administration Safety and Innovation Act (FDASIA) implemented changes to the custom device exemption contained in section 520(b) of the FD&C Act. The new provision amended the existing custom device exemption and introduced new concepts and procedures for custom devices, such as:
• Devices created or modified in order to comply with the order of an individual physician or dentist;
• the potential for multiple units of a device type (limited to no more than five units per year) qualifying for the custom device exemption; and
• annual reporting requirements by the manufacturer to FDA about devices manufactured and distributed under section 520(b) of the FD&C Act.
Under FDASIA, “devices” that qualify for the custom device exemption contained in section 520(b) of the FD&C Act were clarified to include no more than “five units per year of a particular device type” that otherwise meet all the requirements necessary to qualify for the custom device exemption.
In the
FDA estimates the burden of this collection of information as follows:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to the Federal Advisory Committee Act, as amended (5 U.S.C. App.), the Director, National Institutes of Health (NIH), announces the establishment of the Task Force on Research Specific to Pregnant Women and Lactating Women (Task Force) as required by section 2041 of the 21st Century Cures Act, Public Law 114-255.
The Task Force will provide advice and guidance to the Secretary, Department of Health and Human Services (Secretary), regarding Federal activities related to identifying and addressing gaps in knowledge and research regarding safe and effective therapies for pregnant women and lactating women, including the development of such therapies and the collaboration on and coordination of such activities. The Task Force will, not later than 18 months after the establishment, prepare and submit a report to the Secretary, the Committee on Health, Education, Labor and Pensions of the Senate, and the Committee on Energy and Commerce of the House of Representatives.
It is determined that the Task Force is in the public interest in connection with the performance of duties imposed on the NIH by statute, and that these duties can best be performed through the advice and counsel of this group.
Inquiries may be directed to Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy, Office of the Director, National Institutes of Health, 6701 Democracy Boulevard, Suite 1000, Bethesda, Maryland 20892 (Mail code 4875), Telephone (301) 496-2123, or
The Diabetes Mellitus Interagency Coordinating Committee (DMICC) will hold a meeting on April 26-27, 2017. The topic for this meeting will be “Opportunities for Research Supported by the Special Statutory Funding Program for Type 1 Diabetes Research.” The meeting is open to the public. Non-federal individuals planning to attend the workshop should register by email to Charlemae Clarke, The Scientific Consulting Group, Inc. (
The meeting will be held on April 26, 2017 from 8:00 a.m. to 5:45 p.m. and on April 27, 2017 from 8:00 a.m. to 3:00 p.m.
The meeting will be held in the Conference Room (terrace level) at 5635 Fishers Ln., Rockville, MD 20852.
An agenda for the DMICC meeting will be available by contacting Charlemae Clarke, The Scientific Consulting Group, Inc. (
The DMICC, chaired by the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK) comprising members of the Department of Health and Human Services and other federal agencies that support diabetes-related activities, facilitates cooperation, communication, and collaboration on diabetes among government entities. DMICC meetings, held several times a year, provide an opportunity for Committee members to learn about and discuss current and future diabetes programs in DMICC member organizations and to identify opportunities for collaboration. The April 26-27, 2017 DMICC meeting will focus on “Opportunities for Research Supported by the Special Statutory Funding Program for Type 1 Diabetes Research.”
Any interested person may file written comments with the Committee by forwarding their statement to the contact person listed on this notice. The statement should include the name, address, telephone number and, when applicable, the business or professional affiliation of the interested person. Because of time constraints for the meeting, there will not be time on the agenda for oral comments from members of the public.
Members of the public who would like to receive email notification about future DMICC meetings should register for the listserv available on the DMICC Web site,
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 1652-0047, 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 April 20, 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.
At the enrollment center, applicants verify their biographic information and provide identity documentation, biometric information, and proof of immigration status (if required). This information allows TSA to complete a security threat assessment. During enrollment, TSA collects from applicants a $125.25 fee for standard enrollment. (Effective October 1, 2016, TSA reduced the standard enrollment fee by $2.75 in alignment to the FBI's fee update for fingerprint-based criminal history records checks.) If TSA determines that the applicant is eligible to receive a TWIC®, TSA issues and sends an activated TWIC® card to the address provided by the applicant or notifies the applicant that their TWIC® is ready for pick up and activation at an enrollment center. Once activated, this credential will be used for facility and vessel access control requirements to include card authentication, card validation, and identity verification. In the event of a lost, damaged or stolen credential, the cardholder may request a replacement card from an enrollment center for a $60.00 fee. The one-time temporary Extended Expiration Date (EED) TWIC® renewal option and collection requirement is discontinued. TSA also conducts a survey to capture applicant and cardholder overall satisfaction with the enrollment and activation process. This optional customer satisfaction survey is provided at the end of enrollment and at the end of the activation processes.
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. TSA published a
Send your comments by April 20, 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.
Office of the Secretary, Department of Labor.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Health Standards for Diesel Particulate Matter Exposure in Underground Coal Mines,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before April 20, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Health Standards for Diesel Particulate Matter Exposure in Underground Coal Mines information collection requirements codified in regulations 30 CFR 72.510(a) and (b) and 72.520(a) and (b). More specifically regulations section 72.510(b) requires an underground coal mine operator to keep a record for one year of having provided required training. Section 72.520(a) and (b) requires an underground coal mine operator to maintain an inventory of diesel powered equipment units together with a list of information about any unit's emission control or filtration system. The list must be updated within seven (7) calendar days of any change. Federal Mine Safety & Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2017. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Office of the Secretary, Department of Labor.
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) revision titled, “Job Corps Health Questionnaire,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before April 20, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA for revisions to the Job Corps Health Questionnaire (Form ETA-653) information collection. Information on the health status of a Job Corps applicant is obtained and entered on the Form during an interview with an admissions counselor as part of the admissions process. This information collection has been classified as a revision, because the ETA seeks to revise Form ETA-653 by clarifying the instructions and several questions. Workforce Innovation and Opportunity Act section 145 authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
56432 Aircraft Accident Report—Loss of Control at Takeoff, Air Methods Corporation, Airbus Helicopters AS350 B3e, N390LG, Frisco, Colorado, July 3, 2015.
56342 Highway Accident Report—Motorcoach Collision With Crash Attenuator in Gore Area, US Highway 101, San Jose, California, January 19, 2016.
This meeting was previously announced in the
The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact Rochelle McCallister at (202) 314-6305 or by email at
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Schedule updates, including weather-related cancellations, are also available at
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the 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
On January 17, 2017,
On September 30, 2014, Bats BYX, Bats BZX, Bats EDGA, Bats EDGX, BOX, C2, CBOE, CHX, Financial Industry Regulatory Authority, Inc. (“FINRA”), ISE, IEX, ISE Gemini, ISE Mercury, MIAX, MIAX PEARL, BX, PHLX, NASDAQ, NYSE, NYSE MKT, NYSE Arca, and NYSE National (collectively, the “Participants”) filed with the Commission, pursuant to Section 11A of the Exchange Act
The Plan is designed to create, implement and maintain a consolidated audit trail (“CAT”) that would capture customer and order event information for orders in NMS Securities and OTC Equity Securities, across all markets, from the time of order inception through routing, cancellation, modification, or execution in a single consolidated data source. Each Participant is required to enforce compliance by its Industry Members, as applicable, with the provisions of the Plan, by adopting a Compliance Rule applicable to their Industry Members.
The proposed CAT Compliance Rules include twelve rules covering the following areas: (1) Definitions; (2) clock synchronization; (3) Industry Member Data reporting; (4) Customer information reporting; (5) Industry Member information reporting; (6) time stamps; (7) clock synchronization rule violations; (8) connectivity and data transmission; (9) development and testing; (10) recordkeeping; (11) timely, accurate and complete data; and (12) compliance dates.
The proposed CAT Compliance Rules set forth the definitions for the terms used in each Exchange's proposed CAT Compliance Rule.
Rule 613 of Regulation NMS requires that certain data elements be reported to the CAT to enable regulators to identify Customers associated with orders. The Exchanges note that Rule 613(c)(7)(i)(A) requires an Industry Member to report the “Customer-ID” for each Customer for the original receipt or origination of an order,
The Exchanges state that under the Customer Information Approach, the CAT NMS Plan requires each Industry Member to assign a unique Firm Designated ID to each Customer, and that for the Firm Designated ID, Industry Members are permitted to use an account number or any other identifier defined by the firm, provided each identifier is unique across the firm for each business date (
The Exchanges note that in accordance with the Customer Information Approach, Industry Members are required to report only the Firm Designated ID for each new order submitted to the Central Repository, rather than the “Customer-ID” with individual order events. Within the Central Repository, each Customer will be uniquely identified by identifiers or a combination of identifiers such as ITIN/SSN, date of birth, and as applicable, LEI and LTID. The Plan Processor will be required to use these unique identifiers to map orders to specific Customers across all Industry Members and Participants. To ensure information identifying a Customer is up to date, Industry Members will be required to submit to the Central Repository daily and periodic updates for reactivated accounts, newly established accounts, and revised Firm Designated IDs or associated reportable Customer information.
In connection with the Customer Information Approach, Industry Members will be required to report “Customer Account Information” to the Central Repository. “Customer Account Information” is defined in Rule 613(j)(4) to “include, but not be limited to, account number, account type, customer type, date account opened, and large trader identifier (if applicable).”
Specifically, the proposed CAT Compliance Rules define “Account Effective Date” to mean, with regard to those circumstances in which an Industry Member has established a trading relationship with an institution but has not established an account with that institution: (1) When the trading relationship was established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, either (a) the date the relationship identifier was established within the Industry Member; (b) the date when trading began (
The proposed CAT Compliance Rules state that an “Account Effective Date” means, where an Industry Member changes back office providers or clearing firms prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the date an account was established at the relevant Industry Member, either directly or via transfer.
The proposed CAT Compliance Rules state that an “Account Effective Date” means, where an Industry Member acquires another Industry Member prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the date an account was established at the relevant Industry Member, either directly or via transfer.
The proposed CAT Compliance Rules state that “Account Effective Date” means, where there are multiple dates associated with an account established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the earliest available date.
The proposed CAT Compliance Rules state that an “Account Effective Date” means, with regard to Industry Member proprietary accounts established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members: (1) The date established for the account in the Industry Member or in a system of the
In addition, with regard to the provisions defining “Account Effective Date” as: (1) Where an Industry Member changes back office providers or clearing firms prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the date an account was established at the relevant Industry Member, either directly or via transfer;
Under the Customer Information Approach, Industry Members are required to report Customer Identifying Information and Customer Account Information for only those accounts that are active. Accordingly, the proposed CAT Compliance Rules define “Active Accounts” as an account that has had activity in Eligible Securities within the last six months.
Rule 613(c)(7)(vi)(A) of Regulation NMS requires each Industry Member to record and report to the Central Repository “the account number for any subaccounts to which the execution is allocated (in whole or in part).”
To assist in implementing the Allocation Report Approach, the proposed CAT Compliance Rules define an “Allocation Report.” Specifically, an “Allocation Report” means a report made to the Central Repository by an Industry Member that identifies the Firm Designated ID for any account(s), including subaccount(s), to which executed shares are allocated and provides the security that has been allocated, the identifier of the firm reporting the allocation, the price per share of shares allocated, the side of shares allocated, the number of shares allocated to each account, and the time of the allocation; provided, for the avoidance of doubt, any such Allocation Report shall not be required to be linked to particular orders or executions.
To create the required audit trail, Industry Members are required to record the date and time of various Reportable Events to the Central Repository. Industry Members will use “Business Clocks” to record such dates and times. Accordingly, the proposed CAT Compliance Rules define the term “Business Clock” as a clock used to record the date and time of any Reportable Event required to be reported under each Exchange's proposed CAT Compliance Rule.
The proposed CAT Compliance Rules define the term “CAT” to mean the consolidated audit trail contemplated by Rule 613.
The proposed CAT Compliance Rules define the term “CAT NMS Plan” to mean the National Market System Plan Governing the Consolidated Audit Trail, as amended from time to time.
The Exchanges state that under the CAT NMS Plan, a “daisy chain approach” would be used to link and reconstruct the complete lifecycle of each Reportable Event in CAT. According to this approach, Industry Members would assign their own identifiers to each order event. Within the Central Repository, the Plan Processor would replace the identifier provided by the Industry Member for each Reportable Event with a single identifier, called the CAT Order-ID, for all order events pertaining to the same order. This CAT Order-ID would be used to link the Reportable Events related to the same order.
To implement a daisy chain approach, the Exchanges propose to define in the proposed CAT Compliance Rules the term “CAT-Order-ID” to mean a unique order identifier or series of unique order identifiers that allows the Central Repository to efficiently and accurately link all Reportable Events for an order, and all orders that result from the aggregation or disaggregation of such order.
The CAT NMS Plan permits an Industry Member to use a third party, such as a vendor, to report the required data to the Central Repository on behalf of the Industry Member.
The proposed CAT Compliance Rules define the term “Central Repository” to mean the repository responsible for the receipt, consolidation, and retention of all information reported to the CAT pursuant to Rule 613 of Regulation NMS and the CAT NMS Plan.
The proposed CAT Compliance Rules state that each Industry Member shall be required to meet a separate compliance threshold which will be an Industry Member-specific rate that may be used as the basis for further review or investigation into the Industry Member's performance with regard to the CAT.
Industry Members are required to submit to the Central Repository certain information related to their Customers, including Customer Identifying Information and Customer Account Information, as well as data related to their Customer's Reportable Events. Accordingly, the proposed CAT Compliance Rules define the term
As discussed above, under the Customer Information Approach, Industry Members are required to report Customer Account Information to the Central Repository as part of the customer definition process. Accordingly, the Exchanges propose to define the term “Customer Account Information” to clarify what customer information would need to be reported to the Central Repository.
The proposed CAT Compliance Rules define the term “Customer Account Information” to include, in part, account number, account type, customer type, date account opened, and large trader identifier (if applicable).
As discussed above, under the Customer Information Approach, Industry Members are required to report Customer Identifying Information to the Central Repository as part of the customer definition process. Accordingly, the Exchanges propose to define the term “Customer Account Information” in the proposed CAT Compliance Rules to include, but not be limited to: name, address, date of birth, ITIN/SSN, individual's role in the account (
The CAT NMS Plan uses the term “Data Submitter” to refer to any person that reports data to the Central Repository.
The reporting requirements of the proposed CAT Compliance Rules only apply to Reportable Events in Eligible Securities. Currently, an Eligible Security includes NMS Securities and OTC Equity Securities. Accordingly, the proposed CAT Compliance Rules define the term “Eligible Security” to include: (1) All NMS Securities; and (2) all OTC Equity Securities.
The CAT NMS Plan requires the Plan Processor to: (1) Measure and report errors every business day; (2) provide Industry Members daily statistics and error reports as they become available, including a description of such errors; (3) provide monthly reports to Industry Members that detail an Industry Member's performance and comparison statistics; (4) define educational and support programs for Industry Members to minimize Error Rates; and (5) identify, daily, all Industry Members exceeding the maximum allowable Error Rate. To timely correct data-submitted errors to the Central Repository, the CAT NMS Plan requires that the Central Repository receive and process error corrections at all times. Further, the CAT NMS Plan requires that Industry Members be able to submit error corrections to the Central Repository through a web-interface or via bulk uploads or file submissions, and that the Plan Processor, subject to the Operating Committee's approval, support the bulk replacement of records and the reprocessing of such records. The Participants, furthermore, require that the Plan Processor identify Industry Member data submission errors based on the Plan Processor's validation processes.
To implement the requirements of the CAT NMS Plan related to the Error Rate, the Exchanges propose to define the term “Error Rate” in the proposed CAT Compliance Rules. “Error Rate” is defined to mean the percentage of Reportable Events collected by the Central Repository in which the data reported does not fully and accurately reflect the order event that occurred in the market.
Under the CAT NMS Plan, the Operating Committee would set the maximum Error Rate that the Central Repository would tolerate from an Industry Member reporting data to the Central Repository.
As discussed above, under the Customer Information Approach, the CAT NMS Plan requires each Industry Member to utilize a unique Firm Designated ID. Industry Members will be permitted to use as the Firm Designated ID an account number or any other identifier defined by the firm, provided each identifier is unique across the firm for each business date. Industry Members will be required to report only the Firm Designated ID for each new order submitted to the Central Repository, rather than the “Customer-ID” with individual order events. Accordingly, the Exchanges propose to define the term “Firm Designated ID” in the proposed CAT Compliance Rules to mean a unique identifier for each trading account designated by Industry Members for purposes of providing data to the Central Repository, where each such identifier is unique among all identifiers from any given Industry Member for each business date.
The proposed CAT Compliance Rules define the term “Industry Member” to mean “a member of a national securities exchange or a member of a national securities association.”
The proposed CAT Compliance Rules state that the term “Industry Member Data” has the meaning set forth in each Exchange's proposed CAT Compliance Rule.
The proposed CAT Compliance Rules define the term “Initial Plan Processor” to mean the first Plan Processor selected by the Operating Committee in accordance with Rule 613, Section 6.1 of the CAT NMS Plan and the National Market System Plan Governing the Process for Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail.
The Exchanges represent that the reporting requirements of the CAT NMS Plan and the proposed CAT Compliance Rules apply to Eligible Securities, which includes NMS Securities, which, in turn, includes Listed Options. Certain requirements of the proposed CAT Compliance Rules apply specifically to Listed Options. Accordingly, “Listed Option” or “Option” have the meaning set forth in Rule 600(b)(35) of Regulation NMS.
The CAT NMS Plan sets forth clock synchronization and timestamp requirements for Industry Members which reflect exemptions for Manual Order Events granted by the Commission.
In order to clarify what a Manual Order Event is for clock synchronization and time stamp purposes, the Exchanges propose to define the term “Manual Order Event” in the proposed CAT Compliance Rules.
The proposed CAT Compliance Rules require Industry Members to record and report to the Central Repository Material Terms of the Order with certain Reportable Events (
NMS Securities are one of the types of Eligible Securities for the CAT. Therefore, the Exchanges propose to define the term “NMS Security” to mean any security or class of securities for which transaction reports are collected, processed, and made available pursuant to an effective transaction reporting plan, or an effective national market system plan for reporting transactions in Listed Options.
Under the CAT NMS Plan, the Operating Committee may establish different Trading Days for NMS Stocks, as defined in Rule 600(b)(47) of Regulation NMS,
The proposed CAT Compliance Rules define the term “Operating Committee” to mean the governing body of the CAT NMS, LLC designated as such and described in Article IV of the CAT NMS Plan.
Rule 613(c)(7) provides that the CAT NMS Plan must require each Industry Member to record and electronically report to the Central Repository details for each order and each reportable event, including the routing and modification or cancellation of an order.
The Participants, however, requested and received exemptive relief from Rule 613 of Regulation NMS so that the CAT NMS Plan may permit Options Market Maker quotes to be reported to the Central Repository by the relevant options exchange in lieu of requiring that such reporting be done by both the options exchange and the Options Market Maker, as is required by Rule 613.
To implement the requirements related to Option Market Maker quotes, the Exchanges propose to define the term “Options Market Maker” to mean a broker-dealer registered with an exchange for the purpose of making markets in options contracts traded on the exchange.
The proposed CAT Compliance Rules require each Industry Member to record and electronically report to the Central Repository certain details for each order. Accordingly, the Exchanges propose to define the term “Order” with respect to Eligible Securities, to include: (1) Any order received by an Industry Member from any person; (2) any order originated by an Industry Member; or (3) any bid or offer.
OTC Equity Securities are one of the types of Eligible Securities for the CAT. Therefore, the Exchanges propose to define the term “OTC Equity Security” to mean any equity security, other than an NMS Security, subject to prompt last sale reporting rules of a registered national securities association and
The proposed CAT Compliance Rules define the term “Participant”
The proposed CAT Compliance Rules define the term “Person” to mean any individual, partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative or association and any heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so permits.
The proposed CAT Compliance Rules define the term “Plan Processor” to mean the Initial Plan Processor or any other Person selected by the Operating Committee pursuant to Rule 613 and Sections 4.3(b)(i) and 6.1 of the CAT NMS Plan, and with regard to the Initial Plan Processor, the National Market System Plan Governing the Process for Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail, to perform the CAT processing functions required by Rule 613 of Regulation NMS and set forth in the CAT NMS Plan.
The proposed CAT Compliance Rules state that the term “Received Industry Member Data” has the meaning set forth in each Industry Member's proposed CAT Compliance Rule.
The proposed CAT Compliance Rules state that the term “Recorded Industry Member Data” has the meaning set forth in each Industry Member's proposed CAT Compliance Rule.
The proposed CAT Compliance Rules require each Industry Member to record and electronically report to the Central Repository certain details for each Reportable Event. The Exchanges propose to define the term “Reportable Event” to include, but not be limited to, the original receipt or origination, modification, cancellation, routing, execution (in whole or in part) and allocation of an order, and receipt of a routed order.
The Exchanges propose to define the term “SRO” to mean any self-regulatory organization within the meaning of Section 3(a)(26) of the Exchange Act.
The Participants requested and received exemptive relief from Rule 613 of Regulation NMS so that the CAT NMS Plan may permit the “Existing Identifier Approach,” which would allow an Industry Member to report an existing SRO-Assigned Market Participant Identifier in lieu of requiring
For the Central Repository to link the SRO-Assigned Market Participant Identifier to the CAT-Reporter-ID, each SRO will submit to the Central Repository, on a daily basis, all SRO-Assigned Market Participant Identifiers used by its Industry Members, as well as information to identify each such Industry Member, including CRD number and LEI, if the SRO has collected such LEI of the Industry Member. Additionally, each Industry Member is required to submit to the Central Repository the CRD number of the Industry Member as well as the LEI of the Industry Member (if the Industry Member has an LEI). The Plan Processor will use this information to assign a CAT-Reporter-ID to each Industry Member for internal use within the Central Repository.
To implement the Existing Identifier Approach, the Exchanges propose to define the term “SRO-Assigned Market Participant Identifier” to mean an identifier assigned to an Industry Member by an SRO or an identifier used by a Participant.
The Exchanges represent that the requirements of the proposed CAT Compliance Rules differ to some extent for Small Industry Members versus Industry Members other than Small Industry Members. For example, the compliance dates for reporting data to the CAT are different for Small Industry Members versus other Industry Members. Accordingly, to clarify the requirements that apply to which Industry Members, the Exchanges propose to define the term “Small Industry Member” to mean an Industry Member that qualifies as a small broker-dealer as defined in Exchange Act Rule 0-10(c).
The proposed CAT Compliance Rules establish the deadlines for reporting certain data to the Central Repository using the term “Trading Day.” Accordingly, the Exchanges propose that the term “Trading Day” shall have the meaning as is determined by the Operating Committee.
Rule 613(d)(1) of Regulation NMS requires Industry Members to synchronize their Business Clocks to the time maintained by NIST, consistent with industry standards.
The proposed CAT Compliance Rules set forth the manner in which Industry Members must synchronize their Business Clocks. The Rules require each Industry Member to synchronize its Business Clocks, other than such Business Clocks used solely for Manual Order Events or used solely for the time of allocation on Allocation Reports, at a minimum to within a fifty (50) millisecond tolerance of the time maintained by the NIST atomic clock, and maintain such synchronization. The Exchanges represent that this is the same requirement as set forth in Section 6.8(a)(ii)(A) of the CAT NMS Plan.
The proposed CAT Compliance Rules require each Industry Member to synchronize (1) its Business Clocks used solely for Manual Order Events and (2) its Business Clocks used solely for the time of allocation on Allocation Reports at a minimum to within a one second
The proposed CAT Compliance Rules require Industry Members to synchronize their Business Clocks every business day before market open to ensure that timestamps for Reportable Events are accurate.
The proposed CAT Compliance Rules set forth documentation requirements with regard to clock synchronization. Specifically, the proposed Rules require Industry Members to document and maintain their synchronization procedures for their Business Clocks. The proposed Rules require Industry Members to keep a log of the times when they synchronize their Business Clocks and the results of the synchronization process. This log is required to include notice of any time a Business Clock drifts more than the applicable tolerance specified in the Rules. Such logs must include results for a period of not less than five years ending on the then current date, or for the entire period for which the Industry Member has been required to comply with this Rule if less than five years. The Exchanges state that these documentation requirements are the same as those set forth in the “Sequencing Orders and Clock Synchronization” section of Appendix C of the CAT NMS Plan.
The proposed CAT Compliance Rules set forth certification requirements with regard to clock synchronization. Specifically, the Rules require each Industry Member to certify to a Participant that its Business Clocks satisfy the synchronization requirements set forth in the proposed CAT Compliance Rules periodically in accordance with the certification schedule established by the Operating Committee pursuant to the CAT NMS Plan. The Exchanges state that this requirement is the same requirement as set forth in Section 6.8(a)(ii)(B), (iii) and (iv) of the CAT NMS Plan. The Exchanges state that they intend to announce to their Industry Members the certification schedule established by the Operating Committee.
The proposed CAT Compliance Rules establish reporting requirements with regard to clock synchronization. These proposed Rules require Industry Members to report to the Plan Processor and FINRA violations of the clock synchronization requirements of the proposed Rules pursuant to the thresholds set by the Operating Committee pursuant to the CAT NMS Plan. The Exchanges represent that this requirement is the same requirement as set forth in Section 6.8(a)(ii)(C), (iii) and (iv) of the CAT NMS Plan. The Exchanges intend to announce to their Industry Members the relevant thresholds established by the Operating Committee.
Rule 613(c) of Regulation NMS requires the CAT NMS Plan to set forth certain provisions requiring Industry Members to record and report data to the CAT.
The proposed CAT Compliance Rules describe the recording and reporting of Industry Member Data to the Central Repository. The proposed Rules cover Recorded Industry Member Data, Received Industry Member Data and Options Market Maker data. The proposed CAT Compliance Rules set forth the recording and reporting requirements required in Section 6.4(d)(i)-(iii) of the CAT NMS Plan.
The proposed CAT Compliance Rules require, subject to provisions regarding Options Market Makers, each Industry Member to record and electronically report to the Central Repository the following details for each order and each Reportable Event, as applicable (“Recorded Industry Member Data”) in the manner prescribed by the Operating Committee pursuant to the CAT NMS Plan:
• For original receipt or origination of an order: (1) Firm Designated ID(s) for each Customer; (2) CAT-Order-ID; (3) SRO-Assigned Market Participant Identifier of the Industry Member receiving or originating the order; (4) date of order receipt or origination; (5) time of order receipt or origination (using timestamps pursuant to the proposed Rules
• for the routing of an order: (1) CAT-Order-ID; (2) date on which the order is routed; (3) time at which the order is routed (using timestamps pursuant to the proposed Rules
• for the receipt of an order that has been routed, the following information: (1) CAT-Order-ID; (2) date on which the order is received; (3) time at which the order is received (using timestamps
• if the order is modified or cancelled: (1) CAT-Order-ID; (2) date the modification or cancellation is received or originated; (3) time at which the modification or cancellation is received or originated (using timestamps pursuant to the proposed Rules
• if the order is executed, in whole or in part: (1) CAT-Order-ID; (2) date of execution; (3) time of execution (using timestamps pursuant to the proposed Rules
• other information or additional events as may be prescribed pursuant to the CAT NMS Plan.
The proposed CAT Compliance Rules require, subject to provisions regarding Options Market Makers, each Industry Member to record and report to the Central Repository the following, as applicable (“Received Industry Member Data”) and collectively with the information referred to in the proposed Rules governing Industry Member Data in the manner prescribed by the Operating Committee pursuant to the CAT NMS Plan:
• If the order is executed, in whole or in part: (1) An Allocation Report; (2) SRO-Assigned Market Participant Identifier of the clearing broker or prime broker, if applicable; and (3) CAT-Order-ID of any contra-side order(s);
• if the trade is cancelled, a cancelled trade indicator; and
• for original receipt or origination of an order, the Firm Designated ID for the relevant Customer, and in accordance with the proposed CAT Compliance Rules, Customer Account Information and Customer Identifying Information for the relevant Customer.
The proposed CAT Compliance Rules state that each Industry Member that is an Options Market Maker is not required to report to the Central Repository the Industry Member Data regarding the routing, modification or cancellation of its quotes in Listed Options. Each Industry Member that is an Options Market Maker, however, is required to report to the Exchange the time at which its quote in a Listed Option is sent to the Exchange (and, if applicable, any subsequent quote modification time and/or cancellation time when such modification or cancellation is originated by the Options Market Maker). The proposed CAT Compliance Rules implement the Options Market Maker Quote Exemption, as discussed above.
The proposed CAT Compliance Rules describe the requirements related to the timing of recording and reporting of Industry Member Data.
The proposed CAT Compliance Rules require each Industry Member to record Recorded Industry Member Data contemporaneously with the applicable Reportable Event. The proposed Rules require each Industry Member to report: (1) Recorded Industry Member Data to the Central Repository by 8:00 a.m. Eastern Time on the Trading Day following the day the Industry Member records such Recorded Industry Member Data; and (2) Received Industry Member Data to the Central Repository by 8:00 a.m. Eastern Time on the Trading Day following the day the Industry Member receives such Received Industry Member Data. The Rules state that Industry Members may, but are not required to, voluntarily report Industry Member Data prior to the applicable 8:00 a.m. Eastern Time deadline.
The proposed CAT Compliance Rules describe the securities to which the recording and reporting requirements of the proposed Rules apply. The proposed Rules set forth the description of applicable securities as set forth in Section 6.4(c)(i) and (ii) of the CAT NMS Plan, respectively.
The proposed CAT Compliance Rules describe the security symbology that Industry Members are required to use when reporting Industry Member Data to the Central Repository. The proposed Rules require, for each exchange-listed Eligible Security, each Industry Member to report Industry Member Data to the Central Repository using the symbology format of the exchange listing the security.
For each Eligible Security that is not exchange-listed, however, the Exchanges represent that there is no listing exchange to provide the symbology format. Moreover, to date,
To ensure that the CAT contains accurate data, the CAT NMS Plan requires Industry Members to correct erroneous data submitted to the Central Repository. Therefore, the proposed CAT Compliance Rules require that for each Industry Member for which errors in Industry Member Data submitted to the Central Repository have been identified by the Plan Processor or otherwise, such Industry Member submit corrected Industry Member Data to the Central Repository by 8:00 a.m. Eastern Time on T+3. The Exchanges represent that this requirement implements the error correction requirement set forth in Section 6 of Appendix D of the CAT NMS Plan.
Section 6.4(d)(iv) of the CAT NMS Plan requires Industry Members to submit to the Central Repository certain information related to their Customers in accordance with the Customer Information Approach discussed above. The Exchanges propose CAT Compliance Rules regarding Customer information reporting to implement this provision of the CAT NMS Plan with regard to their Industry Members.
The proposed CAT Compliance Rules require each Industry Member to submit to the Central Repository the Firm Designated ID, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account prior to such Industry Member's commencement of reporting to the Central Repository and in accordance with the deadlines set forth in the CAT Compliance Rules.
The proposed CAT Compliance Rules require each Industry Member to submit to the Central Repository any updates, additions or other changes to the Firm Designated ID, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account on a daily basis.
The proposed CAT Compliance Rules also require each Industry Member, on a periodic basis as designated by the Plan Processor and approved by the Operating Committee, to submit to the Central Repository a complete set of Firm Designated IDs, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account. This periodic refresh is intended to ensure that the Central Repository has the most current information identifying a Customer. The Exchanges represented that they intend to announce to their Industry Members when such a periodic refresh is required by the Plan Processor and the Operating Committee.
Finally, the proposed CAT Compliance Rules address the correction of erroneous Customer data reported to the Central Repository to ensure an accurate audit trail. The Rules require, for each Industry Member for which errors in Firm Designated ID, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account submitted to the Central Repository have been identified by the Plan Processor or otherwise, such Member to submit corrected data to the Central Repository by 5:00 p.m. Eastern Time on T+3. The Exchanges state that this requirement implements the error correction requirement set forth in Appendix C of the CAT NMS Plan.
Section 6.4(d)(vi) of the CAT NMS Plan requires Industry Members to submit to the Central Repository information sufficient to identify such Industry Member, including CRD number and LEI, if such LEI has been obtained, in accordance with the Existing Identifier Approach discussed above. The proposed CAT Compliance Rules require each Industry Member to submit to the Central Repository information sufficient to identify such Industry Member, including CRD number and LEI, if such LEI has been obtained, prior to such Industry Member's commencement of reporting to the Central Repository and in accordance with the deadlines set forth in the proposed Rules, and keep such information up to date as necessary.
Rule 613(d)(3) of Regulation NMS sets forth requirements for time stamps used by CAT Reporters in recording and reporting data to the CAT.
The proposed CAT Compliance Rules set forth the time stamp increments to be used by Industry Members in their CAT reporting. The Rules require each Industry Member to record and report Industry Member Data to the Central Repository with time stamps in milliseconds. To the extent that any Industry Member's order handling or execution systems utilize time stamps in increments finer than milliseconds, the proposed Rules require such Industry Member to record and report Industry Member Data to the Central Repository with time stamps in such finer
The proposed CAT Compliance Rules set forth the permissible time stamp increments for Manual Order Events and Allocation Reports. Specifically, the proposed Rules permit each Industry Member to record and report Manual Order Events to the Central Repository in increments up to and including one second, provided that each Industry Member is required to record and report the Electronic Capture Time in milliseconds. In addition, the proposed CAT Compliance Rules permit each Industry Member to record and report the time of Allocation Reports in increments up to and including one second.
The proposed CAT Compliance Rules describe potential violations of the clock synchronization time period requirements.
The proposed CAT Compliance Rules address connectivity and data transmission requirements related to the CAT.
The proposed CAT Compliance Rules describe the format(s) for reporting Industry Member Data to the Central Repository. Specifically, the proposed Rules require each Industry Member to transmit data as required under the CAT NMS Plan to the Central Repository utilizing such format(s) as may be provided by the Plan Processor and approved by the Operating Committee. The Exchanges state that this provision implements the formatting requirements as set forth in Section 6.4(a) of the CAT NMS Plan.
The proposed CAT Compliance Rules address connectivity requirements related to the CAT. The proposed Rules require each Industry Member to connect to the Central Repository using a secure method(s), including, but not limited to, private line(s) and virtual private network connection(s). The Exchanges state that this provision implements the connectivity requirements set forth in Section 4 of Appendix D to the CAT NMS Plan.
The proposed CAT Compliance Rules permit Industry Members to enter into an agreement with CAT Reporting Agents to fulfill their data reporting obligations related to the CAT.
The Exchanges propose CAT Compliance Rules to address requirements for Industry Members related to CAT development and testing.
The proposed Rules set forth the testing requirements and deadlines for Industry Members to develop and commence reporting to the Central Repository. The Exchanges state that these requirements are set forth in Appendix C to the CAT NMS Plan.
The CAT Compliance Rules set forth the deadlines related to connectivity and acceptance testing. Industry Members (other than Small Industry Members) are required to begin connectivity and acceptance testing with the Central Repository no later than August 15, 2018, and Small Industry Members are required to begin connectivity and acceptance testing with the Central Repository no later than August 15, 2019.
The CAT Compliance Rules also set forth the deadlines related to reporting Customer and Industry Member information.
The proposed CAT Compliance Rules set forth the deadlines related to the submission of order data. Under the proposed Rules, Industry Members (other than Small Industry Members) are permitted, but not required, to submit order data for testing purposes
The proposed CAT Compliance Rules state that Industry Members are permitted, but not required to, submit Quote Sent Times on Options Market Maker quotes to Exchanges, beginning no later than October 15, 2018 for testing purposes.
The proposed CAT Compliance Rules implement the requirement under the CAT NMS Plan that Industry Members participate in required industry testing with the Central Repository. Specifically, the proposed Rules require that each Industry Member participate in testing related to the Central Repository, including any industry-wide disaster recovery testing, pursuant to the schedule established pursuant to the CAT NMS Plan. The Exchanges state that they intend to announce to its Industry Members the schedule established pursuant to the CAT NMS Plan.
The proposed CAT Compliance Rules set forth the recordkeeping obligations related to the CAT for Industry Members.
The Exchanges note that Rule 613 of Regulation NMS and the CAT NMS Plan emphasize the importance of the timeliness, accuracy, completeness and integrity of the data submitted to the CAT.
In addition, without limiting the general requirement as set forth in the proposed Rules, the proposed CAT Compliance Rules require Industry Members to accurately provide the LEIs in their records as required by the proposed Rules and state that Industry Members may not knowingly submit inaccurate LEIs to the Central Repository. The Exchanges note, however, that this requirement does not impose any additional due diligence obligations on Industry Members with regard to LEIs for CAT purposes. Accordingly, the Exchanges state that this provision does not impose any due diligence obligations beyond those that may exist today with respect to information associated with LEIs. Although Industry Members will not be required to perform additional due diligence with regard to the LEIs for CAT purposes, Industry Members will be required to accurately provide the LEIs in their records and may not knowingly submit inaccurate LEIs to the CAT. The Exchanges believe that these proposed Rules are consistent with the Approval Order for the CAT NMS Plan regarding an Industry Member's obligations regarding LEIs.
The proposed CAT Compliance Rules state that, if an Industry Member reports data to the Central Repository with errors such that its error percentage exceeds the maximum Error Rate established by the Operating Committee pursuant to the CAT NMS Plan, then such Industry Member would not be in compliance with the Rules. As discussed above, the initial maximum Error Rate is 5%, although the Error Rate is expected to be reduced over time. The Exchanges state that they intend to announce to their Industry Members changes to the Error Rate established pursuant to the CAT NMS Plan.
The proposed CAT Compliance Rules also address compliance thresholds related to reporting data to the CAT. These proposed Rules state that each Industry Member is required to meet a separate compliance threshold which will be an Industry Member-specific rate that may be used as the basis for further review or investigation into the Industry Member's performance with regard to the CAT (the “Compliance Thresholds”). The Exchanges note that Compliance Thresholds will compare an Industry Member's error rate to the aggregate Error Rate over a period of time to be defined by the Operating Committee. Compliance Thresholds will be set by the Operating Committee, and will be calculated at intervals to be set by the Operating Committee.
The proposed CAT Compliance Rules set forth the compliance dates for the various provisions of the proposed Rules.
The proposed CAT Compliance Rules establish the compliance dates for the clock synchronization requirements. The proposed CAT Compliance Rules state that each Industry Member shall comply with the Rules with regard to Business Clocks that capture time in milliseconds commencing on or before March 15, 2017. The proposed Rules also state that each Industry Member shall comply with the Rules with regard to Business Clocks that do not capture time in milliseconds commencing on or before February 19, 2018. The compliance date set forth in the proposed CAT Compliance Rules reflects the exemptive relief granted by the Commission with regard to the clock synchronization requirements related to Business Clocks that do not capture time in milliseconds.
The proposed CAT Compliance Rules establish the compliance dates for the data recording and reporting requirements for Industry Members. The proposed Rules require each Industry Member (other than Small Industry Members) to record and report the Industry Member Data to the Central Repository by November 15, 2018. The proposed Rules require that each Industry Member that is a Small Industry Member to record and report the Industry Member Data to the Central Repository by November 15, 2019. The Exchanges state that such compliance dates are consistent with the compliance dates set forth in Rule 613(a)(3)(v) and (vi),
As noted above, the Commission received three comment letters on the proposed rule change and a response letter from the Participants.
The Participants noted in their Response Letter that Section 6.7(a)(ii) of the CAT NMS Plan requires that Industry Members must synchronize their Business Clocks and certify that they have satisfied applicable Business Clock synchronization requirements by March 15, 2017.
The Participants also noted that the Operating Committee of the CAT NMS Plan recently approved guidance that clarifies that, for purposes of the initial March 15, 2017 Business Clock synchronization and certification deadlines, “Business Clocks” include those clocks that currently capture time in milliseconds and that are used to record time related to “Reportable Events,” as defined under the Plan, including, without limitation, the original receipt or origination, modification, cancellation, routing, execution (in whole or in part) and allocation of an order, and receipt of a routed order, in Eligible Securities (
With respect to time stamps on manual orders and electronic capture of manual orders the Participants acknowledged in their response letter that additional information will be provided in Technical Specifications prepared by the Plan Processor and approved by the Operating Committee.
One commenter discussed several concerns related to the clock synchronization requirements of the proposed CAT Compliance Rules.
In response, the Participants stated that they believe that it is appropriate for Industry Members to maintain a log of all clock synchronization events in order to demonstrate the Industry Members' compliance with the Proposed Compliance Rule and the CAT NMS Plan and to retain such log for five-years.
With respect to the clock synchronization procedures in the proposed CAT Compliance Rules, one commenter also stated that proposed Rules “[do] not contain any definition of clock synchronization certification procedures and schedules, reporting procedures for violation notification or any specifics regarding documentation requirements.”
In response, the Participants stated that they agree it would be helpful to provide Industry Members with additional guidance regarding Industry Members' compliance with the clock synchronization and certification requirements set forth in the CAT NMS Plan and the Proposed Compliance Rules.
Two commenters also discussed the application of the Firm Designated ID requirement in the CAT NMS Plan. Both commenters noted that the Proposed Compliance Rules require each Industry Member to provide a Firm Designated ID “for each Customer,” whereas a “Firm Designated ID,” in relevant part, is defined as a “unique identifier for each trading account. Both commenters requested that the Participants amend the language of the Proposed Compliance Rules to reflect the Exemption Order.
In response, the Participants stated that they recognize that the definition of Firm Designated ID and the reporting requirements set forth in Section 6.3 of the CAT NMS Plan, as well as the parallel provisions in the proposed Participant Compliance Rules are somewhat unclear.
One commenter suggested that the Participants consider firms that are exempt from reporting to OATS as “Small Industry Members,” stating that “this should be so easy and so obviously warranted (given the huge incremental cost of first-time order reporting for those firms that choose to remain independent and comply) that we cannot imagine any objection.”
In response, the Participants stated they believe that the definition of Small Industry Member for purposes of the CAT NMS Plan and Participant Compliance Rules is appropriate and need not be amended.
After carefully considering the proposed CAT Compliance Rules, the comments submitted, and the Participants' response to the comments, the Commission finds that the proposals are consistent with the requirements of the Act and the rules and regulations thereunder applicable to national securities exchanges.
Rule 613(g) of Regulation NMS provides that each national securities exchange and national securities association shall file with the Commission pursuant to section 19(b)(2) of the Act and Rule 19b-4 on or before 60 days from approval of the CAT NMS Plan a proposed rule change to require its members to comply with the requirements of this section and the national market system plan approved by the Commission. In addition, Rule 608(c) of Regulation NMS provides that “[e]ach self-regulatory organization shall comply with the terms of any effective national market system plan of which it is a sponsor or participant. Each self-regulatory organization also shall, absent reasonable justification or excuse, enforce compliance with any such plan by its members and persons associated with its members.”
The Commission finds that proposed CAT Compliance Rules addressing definitions
The Commission notes that two commenters discussed the need for further clarification on the application of the term “Firm Designated ID.” The Participants responded that the Customer Information Approach is intended to require that each broker-dealer assign a unique Firm Designated ID at the account level, rather than the customer level. Accordingly, a Firm Designated ID must be assigned at the account level, so multiple Customers may be associated with the same Firm Designated ID. The Commission believes that the definition of the term Firm Designated ID and its applicability to accounts is consistent with the Customer Information Approach and the CAT NMS Plan.
The Commission finds that the proposed CAT Compliance Rules addressing clock synchronization
As noted above, two commenters raised concerns about the clock synchronization requirements in proposed Rule 6820, including whether the synchronization requirements of the rule apply to Business Clocks that capture Manual Order Events; the definition of “time of allocation,” the necessity of the clock synchronization log; and the details concerning the clock synchronization certification. The Participants responded by clarifying the applicability of the clock synchronization requirements to Allocation Reports, and by stating that the Participants intend to work with the Plan Processor to define various terms, including “time of allocation,” and to provide Technical Specifications approved by the Operating Committee—relating to time stamps on manual orders and electronic capture of manual orders, as well as the “time of allocation”—before Industry Members will be required to report to the Central Repository on November 15, 2018 (or November 15, 2019 for Small Industry Members) or comply with the February 19, 2018 Business Clock synchronization requirement.
The Commission finds that the provisions of the proposed CAT Compliance Rules regarding Industry Member data reporting
The Commission finds that the provisions of the proposed CAT Compliance Rules regarding the data reported to the CAT in order to identify Customers
The Commission finds that the provisions of the proposed CAT Compliance Rules which set out the requirements for Industry Members regarding the data that they must report to identify such Industry Member, including the timeframe for reporting such identifying information,
The Commission finds that the provisions of the proposed CAT Compliance Rules regarding the time stamp increments to be used by Industry Members in their CAT Reporting
The Commission finds that the proposed CAT Compliance Rules addressing clock synchronization rule violations
The Commission finds that the provisions of the proposed CAT Compliance Rules addressing connectivity and data transmission
The proposed CAT Compliance Rules permit Industry Members to use CAT Reporting Agents to fulfill their data reporting obligations related to the CAT. The Commission notes that these provisions of the proposed CAT Compliance Rules are substantively similar to FINRA Rule 7450(c), which permits OATS Reporting Members to enter into agreements with Reporting Agents to fulfill the OATS obligations of the OATS Reporting Member, specifies responsibilities and procedures for maintaining such agreements between the OATS Reporting Member and the Reporting Members, and clarifies that an OATS Reporting Member remains primarily responsible for compliance with the OATS reporting rules.
The Commission finds that the proposed CAT Compliance Rules addressing development and testing
The Commission finds that the proposed CAT Compliance Rules addressing recordkeeping
The Commission finds that the proposed CAT Compliance Rules addressing timely, accurate and complete data
The proposed CAT Compliance Rules require Industry Members to accurately provide the LEIs in their records as required by each Exchange's proposed CAT Compliance Rule and states that Industry Members may not knowingly submit inaccurate LEIs to the Central Repository. The proposed CAT Compliance Rules note, however, that this requirement does not impose any additional due diligence obligations on Industry Members with regard to LEIs for CAT purposes. The proposed CAT Compliance Rules also require Industry Members to be in compliance with the Error Rate as set forth in the CAT NMS Plan and the Compliance Thresholds as discussed in the CAT NMS Plan and determined by the Operating Committee. The proposed CAT Compliance Rules implement the CAT NMS Plan's provisions.
The Commission finds that the compliance dates in the proposed CAT Compliance Rules
The proposed CAT Compliance Rules state that each Industry Member that captures time in milliseconds shall comply with the provisions of each Exchange's proposed Rule regarding Business Clock synchronization on or before March 15, 2017. Also, the proposed CAT Compliance Rules state that each Industry Member that does not capture time in milliseconds shall comply with the provisions of each Exchange's proposed Rule regarding Business Clock sychronization on or before February 19, 2018. The Commission notes that the compliance date for Industry Members regarding Business Clocks that do not capture time in milliseconds reflects the exemptive relief requested by the Participants and granted by the Commission with regard to the clock synchronization requirements related to Business Clocks that do not capture time in milliseconds.
The proposed CAT Compliance Rules also require each Industry Member (other than Small Industry Members) to record and report the Industry Member Data to the Central Repository by November 15, 2018, and each Industry Member that is a Small Industry Member to record and report the Industry Member Data to the Central Repository by November 15, 2019.
The proposed CAT Compliance Rules implement the CAT NMS Plan's provisions regarding the reporting of Industry Member data to the Central Repository.
The Commission notes that one commenter also requested that the Exchanges classify all firms currently exempt from reporting to OATS to be classified as a “Small Industry Member” as defined by the CAT NMS Plan.
The Commission notes that a commenter suggested that a cost/benefit analysis be performed to review the impact of CAT on firms currently exempt from reporting to OATS. The Participants responded the Commission had already undertaken into account the impact of CAT on firms currently exempt from OATS. The Commission likewise notes that it took into account the impact of the Plan on firms currently exempt from reporting to OATS when it approved the CAT NMS Plan.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Constitution, Second Amended and Restated LLC Agreement, Rule Book, and Fee Schedule to rename itself Nasdaq GEMX, LLC.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to rename the Exchange to reflect its new placement within the Nasdaq, Inc. corporate structure in connection with the March 9, 2016 acquisition by Nasdaq of the capital stock of U.S. Exchange Holdings, and the thereby indirectly acquiring all of the interests of the International Securities Exchange, LLC, ISE Gemini, LLC and ISE Mercury, LLC.
Specifically, all references in the Constitution, Second Amended and Restated LLC Agreement, Rule Book and Fee Schedule to “ISE Gemini, LLC” shall be amended to “Nasdaq GEMX, LLC.”
The Exchange proposes to amend its name on April 3, 2017.
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 does not believe that the proposed rule change will impact the intense competition that exists in the options market. The name change will reflect the current ownership structure and unify the options markets operated by Nasdaq, Inc.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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.
On July 1, 2016, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NYSE Arca Equities Rule 8.700(c)(1) currently defines “Managed Trust Securities” to mean a security that is registered under the Securities Act of 1933, as amended, (i) is issued by a trust that (1) is a commodity pool as defined in the Commodity Exchange Act (“CEA”) and regulations thereunder, and that is managed by a commodity pool operator registered with the Commodity Futures Trading Commission (“CFTC”) and (2) holds long and/or short positions in exchange-traded futures contracts and/or certain currency forward contracts selected by the trust's advisor consistent with the trust's investment objectives, which will only include exchange-traded futures contracts involving commodities, currencies, stock indices, fixed income indices, interest rates and sovereign, private and mortgage or asset backed debt instruments, and/or forward contracts on specified currencies, each as disclosed in the trust's prospectus as such may be amended from time to time; and (ii) is issued and redeemed continuously in specified aggregate amounts at the next applicable net asset value (“NAV”).
The Exchange proposes to amend the definition of “Managed Trust Securities” to permit trusts that issue Managed Trust Securities to hold exchange-traded futures contracts on commodity indices and currency indices, as well as swaps on stock indices, fixed income indices, commodity indices, commodities, currencies, currency indices, and interest rates.
Moreover, the Exchange proposes to amend NYSE Arca Equities Rule 8.700(e)(2)(A) to provide that the IIV for Managed Trust Securities will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session (rather than during the time when Managed Trust Securities trade on the Exchange).
The Exchange proposes to list and trade Shares of the Trust under NYSE Arca Equities Rule 8.700, as proposed to be amended. The Trust is a Delaware statutory trust that will issue Shares representing fractional undivided beneficial interests in the Trust.
The Bank of New York Mellon, a New York banking corporation, is the trustee of the Trust. The Bank of New York Mellon also is the administrator of the Trust, the custodian of the Trust, the processing agent of the Trust, and the settlement agent of the Trust. The Trust has engaged Foreside Fund Services, LLC to act as a distributor on its behalf.
According to the Exchange, the Trust will pursue long-term total returns by seeking to provide both (1) a long-only exposure to one or more emerging markets stock indices (“index exposure”)
According to the Exchange, the Trust will seek to maintain constant exposure to one or more emerging markets stock indices by holding long positions in emerging markets index futures contracts. Initially, the Trust will hold long MSCI Emerging Markets Index futures contracts to achieve its index exposure.
According to the Exchange, the alpha portfolio primarily will be composed of futures contracts on emerging market stock indices and foreign currency forward contracts.
• When futures contracts or forward contracts are not available or market conditions do not permit investing in futures contracts or forward contracts (for example, a particular futures contract or forward contract may not exist or may trade only on an exchange that has not yet been approved by the Trust); and
• When there are position limits, price limits or accountability limits on futures contracts
According to the Exchange, swaps would only be used by the Trust as a substitute for futures contracts or forward contracts in the limited circumstances described above when the Adviser has determined that it is necessary to use swaps in order for the Trust to remain consistent with the Trust's investment objective. Further, the Adviser expects that the Trust's use of swaps, if any, will be of a de minimis nature. Moreover, to the extent that the Trust invests in swaps, it would first make use of exchange-traded swaps. If an investment in exchange-traded swaps is unavailable, then the Trust would invest in cleared swaps that clear through derivatives clearing organizations that satisfy the Trust's criteria. If an investment in cleared swaps is unavailable, then the Trust would invest in uncleared swaps in the OTC market. No more than 20% of the Trust's portfolio, measured by aggregate gross notional value, may be invested, on both an initial and ongoing basis, in OTC derivatives, including swaps.
The Trust's portfolio may contain cash, which may be used, as needed, to secure the Trust's trading obligations with respect to its trading positions. Moreover, in order to collateralize futures contracts and forward contracts, the Trust may invest in cash equivalents.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission also finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
According to the Exchange, quotation and last sale information for the Shares will be available via the Consolidated Tape Association (“CTA”) high-speed line, and the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Also, information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. In addition, the IIV will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session (as defined in NYSE Arca Equities Rule 7.34).
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange will obtain a representation from the Trust that the NAV and the NAV per Share will be calculated daily and that the NAV, the NAV per Share, and the composition of the Disclosed Portfolio will be made available to all market participants at the same time. Further, trading in the Shares will be subject to NYSE Arca Equities Rules 7.12 and 8.700(e)(2)(D), which set forth circumstances under which trading in the Shares may be halted. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable.
The Exchange represents that it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made the following representations:
(1) The Trust will be subject to the criteria in NYSE Arca Equities Rule 8.700 for initial and continued listing of the Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) Trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, and these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(4) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and certain futures contracts with other markets or other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares and certain futures contracts from such markets or entities. In addition, the Exchange may obtain information regarding trading in the Shares and certain futures contracts from markets or other entities that are members of ISG or with which the Exchange has in place a CSSA. FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain cash equivalents held by the Trust reported to FINRA's Trade Reporting and Compliance Engine.
(5) No more than 10% of the investments in futures contracts and listed swaps (calculated using the aggregate gross notional value of such futures and swaps) shall consist of futures contracts and listed swaps whose principal market is not a member of ISG or is a market with which the Exchange does not have a CSSA.
(6) No more than 20% of the Trust's portfolio, measured by aggregate gross notional value, may be invested, on both an initial and an ongoing basis, in OTC derivatives.
(7) Prior to the commencement of trading, the Exchange will inform its ETP Holders (as defined in NYSE Arca Equities Rule 1.1(n)) in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (i) The procedures for purchases and redemptions of Shares in Baskets (and that Shares are not individually redeemable); (ii) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (iii) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (iv) how information regarding the IIV and the Disclosed Portfolio is disseminated; (v) the risks involved in trading the Shares during the opening and late trading sessions when an updated IIV will not be calculated or publicly disseminated; and (iv) trading information.
(8) For the initial and continued listing of the Shares, the Trust must be in compliance with Rule 10A-3 under the Act.
(9) A minimum of 100,000 Shares will be outstanding at the start of trading on the Exchange.
The Exchange represents that all statements and representations made in the filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures constitute continued listing requirements for listing the Shares on the Exchange. In addition, the Trust has represented to the Exchange that it will advise the Exchange of any failure by the Trust to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor
With respect to the proposed amendments to NYSE Arca Equities Rule 8.700, the Commission notes that the proposal to permit the holding of additional types of futures contracts and swaps is consistent with the permissible holdings for other types of exchange-traded products.
This approval order is based on all of the Exchange's representations, including those set forth above and in Amendment No. 3.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with Section 6(b)(5) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 3 to 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 3, prior to the thirtieth day after the date of publication of Amendment No. 3 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”). The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to amend the Fee Schedule. Specifically, the Exchange proposes to modify the criteria for achieving various credits, including by broadening qualifying order flow and trading activity, to make the credits more achievable to a variety of market participants.
Currently, the Exchange provides a number of incentives for OTP Holders and OTP Firms (collectively, “OTPs”) designed to encourage OTPs to direct additional order flow to the Exchange to achieve more favorable pricing and higher credits. Among these incentives are enhanced posted liquidity credits based on achieving certain percentages of NYSE Arca Equity daily activity, also known as “cross-asset pricing.” In addition, certain of the qualifications for achieving these incentives are more tailored to specific activity (
First, the Exchange proposes to modify the alternative qualification to Tier 7 of the Customer and Professional Customer Monthly Posting Credit Tiers and Qualifications for Executions in Penny Pilot Issues (“Tier 7”). Currently, OTPs are eligible to achieve a per contract credit of $0.50 associated with Tier 7 provided the OTP has (i) at least 1.00% of Total Industry Customer equity and ETF option average daily volume (“TCADV”) from Customer and Professional Customer Posted Orders in all Issues; or (ii) at least 0.80% of TCADV from Customer and Professional Customer Posted Orders in all Issues
Second, the Exchange proposes to revise one of the alternative additional credits available under the Customer and Professional Customer Incentive Program. Currently, an OTP that has at least 1.00% of TCADV from Customer and Professional Customer posted orders in both Penny and non-Penny Pilot issues (the “threshold qualification”), of which at least 0.25% of TCADV is from Customer and Professional Customer posted orders in non-Penny Pilot issues (the “non-Penny qualification”), will receive an additional $0.05 posting credit on Customer and Professional Customer volume. The Exchange proposes to make the incentive more achievable by lowering the threshold qualification to at least 0.80% of TCADV, and likewise reducing the non-Penny qualification to at least 0.20% of TCADV. To account for the reduced thresholds, the Exchange proposes to reduce the additional per contract credit from $0.05 to $0.03.
Third, the Exchange proposes to revise Tier C and to add new Tier D to the Customer and Professional Customer Posting Credit Tiers in non-Penny Pilot Issues. Currently, to achieve the per contract credit that is available under Tier C, an OTP must have at least 1.50% of TCADV from Customer and Professional Customer Posted Orders in all Issues (the “Tier C threshold qualification”), of which at least 0.30% of TCADV is from Customer and Professional Customer Posted Orders in non-Penny Pilot Issues (the “non-Penny threshold qualification”). The Exchange proposes to reduce the qualifications for this Tier such that the Tier C threshold qualification would be at least 0.80% of TCADV, and the non-Penny threshold qualification would be reduced to at least 0.10% of TCADV. The Exchange also proposes to increase the credit available under Tier C from $0.90 to $0.95, applicable per contract on Customer and Professional Customer Posted Orders in non-Penny Pilot issues. The Exchange also proposes to add an additional tier, Tier D. As proposed, to achieve proposed Tier D, OTPs must have at least 0.80% of TCADV from Customer and Professional Customer Posted Orders in all issues, with an executed ADV of at least 0.30% of U.S. Equity Market Share Posted and Executed on NYSE Arca Equity Market.
Fourth, the Exchange proposes to modify the Super Tier in the Market Maker Monthly Posting Credit Tiers and Qualifications for Execution in Penny Pilot Issues and SPY. Currently, to qualify for the Super Tier, an OTP must have (i) at least 0.55% of TCADV from Market Maker Posted Orders in All Issues, or (ii) at least 1.60% of TCADV from all orders in Penny Pilot Issues, all account types, with at least 0.80% of TCADV from Posted Orders in Penny Pilot Issues (the “alternate threshold”). The Exchange proposes to expand the qualifying orders to be included in the alternate threshold to include all issues —both Penny Pilot and non-Penny Pilot issues. The credits associated with the Super Tier would remain unchanged. The Exchange likewise proposes to modify the Market Maker Incentive for non-Penny Pilot Issues, which mirrors the current qualifications for the Super Tier, to likewise apply to posted orders in all issues.
Finally, the Exchange proposes to modify the Take Fee Discount for Professional Customer, Market Maker, Firm, and Broker Dealer Liquidity Removing Orders (the “Take Fee Discount”). Currently, to qualify for the Take Discount, an OTP must have (i) at least 1.00% of TCADV from Customer and Professional Customer Posted Orders in all Issues; or (ii) at least 2.00% of TCADV from Professional Customer, Market Maker, Firm, and Broker Dealer Liquidity Removing Orders in all Issues. The Take Fee Discount currently applies to both non-Penny and Penny Pilot Issues. The Exchange proposes to eliminate the $0.05 per contract discount applicable to non-Penny Pilot issues. The Exchange also proposes to add a new Take Fee Discount, applicable to Penny Pilot Issues, which is available to OTPs that have at least 0.80% of TCADV from Customer and Professional Customer Posted Orders in all issues, with an executed ADV of at least 0.30% of U.S. Equity Market Share Posted and Executed on NYSE Arca Equity Market.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the adjustments to qualifications for enhanced posting liquidity credits, including expanding the qualifying order flow and trading activity, are reasonable, equitable and not unfairly discriminatory as they are designed to attract increased Customer (and Professional Customer) business on the Exchange and are achievable in various
Specifically, the proposed addition of Tier D and the new Take Fee Discount are designed to incentivize market participants to increase the orders sent directly to the Exchange and therefore provide liquidity that supports the quality of price discovery and promotes market transparency. The Exchange believes the proposed change is equitable because it would be available to all similarly situated market participants on an equal basis. Further, the Exchange believes that the proposed Discount is reasonable, equitable, and not unfairly discriminatory because the incentives would be available to all non-Customers on an equal and non-discriminatory basis. The modified incentives are also non-discriminatory because they allow qualification through activity combined with activity of affiliates or Appointed OFP, including activity on the NYSE Arca Equity Market. The Exchange believes the modifications are equitable and not unfairly discriminatory because the changes encourage more participants to qualify for the various incentives, including encouraging more participants to have affiliated or appointed order flow directed to the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such 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 under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule on the BOX Market LLC (“BOX”) options facility. While changes to the fee schedule pursuant to this proposal will be effective upon filing, the changes will become operative on March 8, 2017. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the 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 proposes to amend the Fee Schedule for trading on BOX. Specifically, the Exchange proposes to revise certain qualification thresholds in Sections I.B.1 of the BOX Fee Schedule, Primary Improvement Order and I.B.2 of the BOX Fee Schedule, the BOX Volume Rebate (“BVR”).
Under the tiered fee schedule for Primary Improvement Orders, the Exchange assesses a per contract execution fee to all Primary Improvement Order executions where the corresponding PIP or COPIP Order is from the account of a Public Customer. Percentage thresholds are calculated on a monthly basis by totaling the Initiating Participant's Primary Improvement Order volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes. The Exchange proposes to delete current Tier 4 in its entirety and renumber the tiers accordingly. The Exchange also proposes to adjust the percentage threshold in proposed Tier 4. Specifically, the Exchange proposes to change proposed Tier 4 from “0.800% and Above” to “0.500% and Above.” The Exchange notes that it is not proposing any changes to the fees within the Primary Improvement Order fee structure and the quantity submitted will continue to be calculated on a monthly basis by totaling the Initiating Participant's Primary Improvement Order volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes.
Next, the Exchange proposes to adjust certain percentage thresholds within the BVR. Under the BVR, the Exchange offers a tiered per contract rebate for all Public Customer PIP Orders and COPIP Orders of 100 and under contracts that do not trade solely with their contra order. Percentage thresholds are calculated on a monthly basis by totaling the Participant's PIP and COPIP volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes. The Exchange proposes to adjust the percentage thresholds in Tiers 3 and 4. Specifically, the Exchange proposes to change Tier 3 from “0.340% to 0.799%” to “0.340% to 0.499%” and Tier 4 from “0.800% and Above” to “0.500% and Above.” The Exchange notes that is it not proposing any changes to the fees within the BVR. The quantity submitted will continue to be calculated on a monthly basis by totaling the Participant's PIP and COPIP volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5)of the Act,
BOX believes it is reasonable, equitable and not unfairly discriminatory to adjust the monthly Percentage Thresholds of National Customer Volume in Multiply-Listed Options Classes. The volume thresholds with their tiered fees and rebates are meant to incentivize Participants to direct order flow to the Exchange to obtain the benefit of the lower fee or higher rebate, which in turn benefits all market participants by increasing liquidity on the Exchange.
The Exchange believes the proposed amendments to the Primary Improvement Order percentage thresholds are reasonable, equitable and not unfairly discriminatory. The proposed changes to the thresholds are equitable and not unfairly discriminatory as they are available to all BOX Participants that initiate Auction Transactions, and Participants may choose whether or not to take
The Exchange also believes the proposed amendments to the BVR in Section I.B.2 of the BOX Fee Schedule are reasonable, equitable and not unfairly discriminatory. The BVR was adopted to attract Public Customer order flow to the Exchange by offering these Participants incentives to submit their Public Customer PIP and COPIP Orders to the Exchange and the Exchange believes it is appropriate to now amend the BVR. The Exchange believes it is equitable and not unfairly discriminatory to amend the BVR, as all Participants have the ability to qualify for a rebate, and rebates are provided equally to qualifying Participants. Other exchanges employ similar incentive programs;
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 is simply proposing to amend certain percentage thresholds for Auction Transaction fees and rebates in the BOX Fee Schedule. The Exchange believes that the volume based rebates and fees increase intermarket and intramarket competition by incenting Participants to direct their order flow to the exchange, which benefits all participants by providing more trading opportunities and improves competition on the Exchange.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(d)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to include in its MRVP the procedures and violations currently included in Exchange Rule 1614 (“Imposition of Fines for Minor Rule Violations”), which has been incorporated by reference from the International Securities Exchange's rule book.
The Exchange proposes that, as set forth in Exchange Rule 1614(d), violations of the following rules would be appropriate for disposition under the MRVP: Rule 412 (Position Limits); Rule 1403 (Focus Reports); Rule 1404 (Requests for Trade Data); Rule 723 (Price Improvement Mechanism for Crossing Transactions); Rule 717 (Order Entry); Rule 803 (Quotation Parameters); Rule 805 (Execution of Orders in Appointed Options); Rule 419 (Mandatory Systems Testing); Rule 1100 (Exercise of Options Contracts); Rule 415 (Reports Related to Position Limits); and Rule 804(e) (Continuous Quotes).
Upon the Commission's declaration of effectiveness of the MRVP, the Exchange will provide to the Commission a quarterly report for any actions taken on minor rule violations under the MRVP. The quarterly report will include: The Exchange's internal file number for the case, the name of the individual and/or organization, the nature of the violation, the specific rule provision violated, the sanction imposed, the number of times the rule violation occurred, and the date of the disposition.
The Exchange also proposes that, going forward, to the extent that there are any changes to the rules applicable to the Exchange's MRVP, the Exchange requests that the Commission deem such changes to be modifications to the Exchange's MRVP.
Interested persons are invited to submit written data, views, and arguments concerning the Exchange's proposed MRVP, including whether the proposed MRVP 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed MRVP that are filed with the Commission, and all written communications relating to the proposed MRVP between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the proposed MRVP also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. 4-707 and should be submitted on or before April 11, 2017.
Pursuant to Section 19(d)(1) of the Act and Rule 19d-1(c)(2) thereunder,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a closed meeting on Thursday, March 23, 2017 at 11 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or
Commissioner Stein, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the closed meeting will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to make minor corrective changes to Exchange Rules 100, 404.02(d), 515(f), 529(b)(2)(ii), 601(b), 601(b)(2), 601(b)(4), 601(b)(5), 601(c)(1), 601(c)(1)(ii), 601(c)(2), 601(c)(3), and the title pages to Chapter VIII and Chapter XI.
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 proposes to make minor corrective changes to Exchange Rule 100, Definitions; Rule 404, Series of Option Contracts Open for Trading; Rule 515, Execution of Orders; Rule 529, Order Routing to Other Exchanges; Rule 601, Obligations of Market Maker Authorized Traders; and the title pages of Chapter VIII and Chapter XI. First, the Exchange proposes to amend Exchange Rule 100, Definitions, to correct a typographical error in the last word of the first sentence in the definition of Priority Customer. Currently, the definition reads, “[t]he term `Priority Customer' means a person or entity that (i) is not a broker or dealer in securities, and (ii) does not place more than 390 orders in listed options per day on average during a calendar month for its own beneficial accounts(s).” The word accounts should not be plural in this instance and instead should read, “account(s)”. Therefore, the Exchange proposes to amend this rule to replace the word “accounts” with “account.”
Second, the Exchange proposes to amend Exchange Rule 404, Series of Option Contracts Open for Trading, Interpretations and Policies .02, Short Term Option Series Program, to correct a typographical error in paragraph (d). The fourth sentence in the paragraph begins, “Market makers,” whereas “makers” should be capitalized. Therefore, the Exchange proposes to amend the rule to replace the term “Market makers,” with “Market Makers.”
Third, the Exchange proposes to amend Exchange Rule 515(f) to make a minor grammatical correction by removing a superfluous word from the last sentence which reads, “[u]nexecuted contracts remaining from an ISO order will be immediately canceled. ISO is an acronym for Intermarket Sweep Order. Having the word “order” follow ISO is unnecessary and redundant. Therefore, the Exchange proposes to amend the rule to remove the word “order” from the sentence.
Fourth, the Exchange proposes to amend Exchange Rule 529(b)(2)(ii) to make a minor grammatical correction by removing a superfluous word from the first sentence which reads, “[t]he System will route ISO orders representing Eligible Orders to away markets disseminating prices better than the Exchange's disseminated market.” ISO is an acronym for Intermarket Sweep Order. Having the word “order” follow ISO is unnecessary and redundant. Therefore, the Exchange proposes to amend the rule to remove the word “order” from the sentence. Additionally, the Exchange proposes to add an “s” to the end of “ISO” to indicate that the reference is not for a singular order.
Fifth, the Exchange proposes to amend Exchange Rule 601(b), 601(b)(2), 601(b)(4), 601(b)(5), 601(c)(1), 601(c)(1)(ii), 601(c)(2), and 601(c)(3), to make minor grammatical corrections. The Exchange proposes to replace the indefinite article “a” in the phrase “a MMAT” with the indefinite article “an” to improve the readability and precision of the rule.
Sixth, the Exchange proposes to amend the title page of Chapter VIII, Records, Reports and Audits, to correct a minor typographical error. The fourth sentence contains the number 2 whereas it should read “MIAX PEARL” instead. Currently, the fourth sentence reads, “[s]olely by way of example, and not in limitation or exhaustion: the defined term “Exchange” in the Chapter VIII Rules shall be read to refer to MIAX PEARL; the defined term “Rule” in the Chapter VIII Rules shall be read to refer to the 2 Rule; [. . .].” Therefore, the Exchange proposes to amend the Rule to replace the number 2 with the words “MIAX PEARL.”
Finally, the Exchange proposes to amend the title page of Chapter XI, Hearings, Review and Arbitration, to correct a minor typographical error. The fourth sentence contains the letters “MI” whereas it should read “MIAX PEARL” instead. Currently, the fourth sentence reads, “[s]olely by way of example, and not in limitation or in exhaustion: the defined term `Exchange' in Chapter XI Rules shall be read to refer to MI;” The Exchange proposes to amend the Rule to insert the word “the” preceding the word “Chapter,” and to replace “MI” with “MIAX PEARL.” The proposed revised fourth sentence would then read, “[s]olely by way of example, and not in limitation or in exhaustion: the defined term `Exchange' in the Chapter XI Rules shall be read to refer to MIAX PEARL;”.
MIAX PEARL believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes the proposed changes promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system because they seek to correct typographical and grammatical errors to improve the readability of the rules. The Exchange notes that the proposed changes to Exchange Rule 100, 404.02(d), 515(f), 529(b)(2)(ii), 601(b), 601(b)(2), 601(b)(4), 601(b)(5), 601(c)(1), 601(c)(1)(ii), 601(c)(2), 601(c)(3), and the title pages of Chapter VIII and XI, do not alter the application of each rule. As such, the proposed amendments would foster cooperation and coordination with persons engaged in facilitating transaction in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system. In particular, the Exchange believes that the proposed rule changes will provide greater clarity to Members and the public regarding the Exchange's Rules, and it is in the public interest for rules to be accurate and concise so as to eliminate the potential for 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 changes are not designed to address any competitive issues but rather are designed to add additional clarity and to remedy minor non-substantive issues in the text of various rules identified in this proposal.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition as the Rules apply equally to all Exchange Members.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 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 shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 17(d) of the Securities Exchange Act of 1934 (“Act”),
Section 19(g)(1) of the Act,
Section 17(d)(1) of the Act
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d-1 and Rule 17d-2 under the Act.
To address regulatory duplication in these and other areas, the Commission adopted Rule 17d-2 under the Act.
The proposed 17d-2 Plan is intended to reduce regulatory duplication for firms that are common members of both BOX and FINRA.
The text of the Plan delineates the proposed regulatory responsibilities with respect to the Parties. Included in the proposed Plan is an exhibit (the “BOX Options Exchange LLC Rules Certification for 17d-2 Agreement with FINRA,” referred to herein as the “Certification”) that lists every BOX rule for which FINRA would bear responsibility under the Plan for overseeing and enforcing with respect to BOX members that are also members of FINRA and the associated persons therewith (“Dual Members”).
Specifically, under the 17d-2 Plan, FINRA would assume examination and enforcement responsibility relating to compliance by Dual Members with the rules of BOX that are substantially similar to the applicable rules of FINRA
Under the Plan, BOX would retain full responsibility for surveillance, examination, investigation, and enforcement with respect to trading activities or practices involving BOX's own marketplace, including, without limitation, registration pursuant to its applicable rules of associated persons (
The text of the proposed 17d-2 Plan is as follows:
This Agreement, by and between the Financial Industry Regulatory Authority, Inc. (“FINRA”) and BOX Options Exchange LLC (“BOX”), is made this 2nd day of March, 2017 (the “Agreement”), pursuant to Section 17(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 17d-2 thereunder, which permits agreements between self-regulatory organizations to allocate regulatory responsibility to eliminate regulatory duplication. FINRA and BOX may be referred to individually as a “party” and together as the “parties.”
1. Definitions. Unless otherwise defined in this Agreement or the context otherwise requires, the terms used in this Agreement shall have the same meaning as they have under the Exchange Act and the rules and regulations thereunder. As used in this Agreement, the following terms shall have the following meanings:
(a) “
(b) “
(c) “
(d) “
(e) “
(f) “
2. Regulatory and Enforcement Responsibilities. FINRA shall assume Regulatory Responsibilities and Enforcement Responsibilities for Dual Members. Attached as
(a) surveillance, examination, investigation and enforcement with respect to trading activities or practices involving BOX's own marketplace;
(b) registration pursuant to its applicable rules of associated persons (i.e., registration rules that are not Common Rules);
(c) discharge of its duties and obligations as a Designated Examining Authority pursuant to Rule 17d-1 under the Exchange Act; and
(d) any BOX Rules that are not Common Rules as provided in paragraph 6.
3. Dual Members. Prior to the Effective Date, BOX shall furnish FINRA with a current list of Dual Members, which shall be updated no less frequently than once each quarter.
4. No Charge. There shall be no charge to BOX by FINRA for performing the Regulatory Responsibilities and Enforcement Responsibilities under this Agreement except as hereinafter provided. FINRA shall provide BOX with ninety (90) days advance written notice in the event FINRA decides to impose any charges to BOX for performing the Regulatory Responsibilities under this Agreement. If FINRA determines to impose a charge, BOX shall have the right at the time of the imposition of such charge to terminate this Agreement; provided, however, that FINRA's Regulatory Responsibilities under this Agreement shall continue until the Commission approves the termination of this Agreement.
5. Applicability of Certain Laws, Rules, Regulations or Orders. Notwithstanding any provision hereof, this Agreement shall be subject to any statute, or any rule or order of the SEC. To the extent such statute, rule or order is inconsistent with one or more provisions of this Agreement, the statute, rule or order shall supersede the provision(s) hereof to the extent necessary to be properly effectuated and the provision(s) hereof in that respect shall be null and void.
6. Notification of Violations. In the event that FINRA becomes aware of apparent violations of any BOX Rules, which are not listed as Common Rules, discovered pursuant to the performance of the Regulatory Responsibilities assumed hereunder, FINRA shall notify BOX of those apparent violations for such response as BOX deems appropriate. In the event that BOX becomes aware of apparent violations of any Common Rules, discovered pursuant to the performance of the Retained Responsibilities, BOX shall notify FINRA of those apparent violations and such matters shall be handled by FINRA as provided in this Agreement. Apparent violations of Common Rules shall be processed by, and enforcement proceedings in respect thereto shall be conducted by FINRA as provided hereinbefore; provided, however, that in the event a Dual Member is the subject of an investigation relating to a transaction on BOX, BOX may in its discretion assume concurrent jurisdiction and responsibility. Each party agrees to make available promptly all files, records and witnesses necessary to assist the other in its investigation or proceedings.
7. Continued Assistance.
(a) FINRA shall make available to BOX all information obtained by FINRA in the performance by it of the Regulatory Responsibilities hereunder with respect to the Dual Members subject to this Agreement. In particular, and not in limitation of the foregoing, FINRA shall furnish BOX any information it obtains about Dual Members which reflects adversely on their financial condition. BOX shall make available to FINRA any information coming to its attention that reflects adversely on the financial condition of Dual Members or indicates possible violations of applicable laws, rules or regulations by such firms.
(b) The parties agree that documents or information shared shall be held in confidence, and used only for the purposes of carrying out their respective regulatory obligations. Neither party shall assert regulatory or other privileges as against the other with respect to documents or information that is required to be shared pursuant to this Agreement.
(c) The sharing of documents or information between the parties pursuant to this Agreement shall not be deemed a waiver as against third parties of regulatory or other privileges relating to the discovery of documents or information.
8. Statutory Disqualifications. When FINRA becomes aware of a statutory disqualification as defined in the Exchange Act with respect to a Dual Member, FINRA shall determine pursuant to Sections 15A(g) and/or Section 6(c) of the Exchange Act the acceptability or continued applicability of the person to whom such disqualification applies and keep BOX advised of its actions in this regard for such subsequent proceedings as BOX may initiate.
9. Customer Complaints. BOX shall forward to FINRA copies of all customer complaints involving Dual Members received by BOX relating to FINRA's Regulatory Responsibilities under this Agreement. It shall be FINRA's responsibility to review and take appropriate action in respect to such complaints.
10. Advertising. FINRA shall assume Regulatory Responsibility, to the extent applicable, to review the advertising of Dual Members subject to the Agreement, provided that such material is filed with FINRA in accordance with FINRA's filing procedures and is accompanied with any applicable filing fees set forth in FINRA Rules.
11. No Restrictions on Regulatory Action. Nothing contained in this Agreement shall restrict or in any way encumber the right of either party to conduct its own independent or concurrent investigation, examination or enforcement proceeding of or against Dual Members, as either party, in its sole discretion, shall deem appropriate or necessary.
12. Termination. This Agreement may be terminated by BOX or FINRA at any time upon the approval of the Commission after one (1) year's written notice to the other party (or such shorter time as agreed by the parties), except as provided in paragraph 4.
13. Arbitration. In the event of a dispute between the parties as to the operation of this Agreement, BOX and FINRA hereby agree that any such dispute shall be settled by arbitration in Washington, DC in accordance with the rules of the American Arbitration Association then in effect, or such other procedures as the parties may mutually agree upon. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Each party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other party. In the event of a dispute between the parties, the parties shall continue to perform their respective obligations under this Agreement in good faith during the resolution of such dispute unless and until this Agreement is terminated in accordance with its provisions. Nothing in this Section 13 shall interfere with a party's right to terminate this Agreement as set forth herein.
14. Separate Agreement. This Agreement is wholly separate from the following agreement: (1) The multiparty Agreement made pursuant to Rule 17d-2 of the Exchange Act among BATS Exchange, Inc., BOX Options Exchange, LLC, Chicago Board Options Exchange, Incorporated, C2 Options Exchange, Incorporated, the International Securities Exchange, LLC, FINRA, Miami International Securities Exchange, LLC, NYSE MKT LLC, the NYSE Arca, Inc., The NASDAQ Stock Market LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, ISE Gemini, LLC, EDGX Exchange, Inc., ISE Mercury, LLC and MIAX PEARL, LLC involving the allocation of regulatory responsibilities with respect to common members for compliance with common rules relating to the conduct by broker-dealers of accounts for listed options or index warrants entered as approved by the SEC on February 2, 2017, and as may be amended from time to time; and (2) the multiparty Agreement made pursuant to Rule 17d-2 of the Exchange Act among NYSE MKT LLC, BATS Exchange, Inc., EDGX Exchange, Inc., BOX Options Exchange LLC, NASDAQ OMX BX, Inc., C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, International Securities Exchange LLC, ISE Gemini, LLC, ISE Mercury, LLC, FINRA, NYSE Arca, Inc., The NASDAQ Stock Market LLC, NASDAQ OMX PHLX, Inc., Miami International Securities Exchange, LLC and MIAX PEARL, LLC involving the allocation of regulatory responsibilities with respect to SRO market surveillance of common members activities with regard to certain common rules relating to listed options approved by the SEC on February 2, 2017, and as may be amended from time to time.
15. Notification of Members. BOX and FINRA shall notify Dual Members of this Agreement after the Effective Date by means of a uniform joint notice.
16. Amendment. This Agreement may be amended in writing provided that the changes are approved by both parties. All such amendments must be filed with and approved by the Commission before they become effective.
17. Limitation of Liability. Neither FINRA nor BOX nor any of their respective directors, governors, officers or employees shall be liable to the other party to this Agreement for any liability, loss or damage resulting from or claimed to have resulted from any delays, inaccuracies, errors or omissions with respect to the provision of Regulatory Responsibilities as provided hereby or for the failure to provide any such responsibility, except with respect to such liability, loss or damages as shall have been suffered by one or the other of FINRA or BOX and caused by the willful misconduct of the other party or their respective directors, governors, officers or employees. No warranties, express or implied, are made by FINRA or BOX with respect to any of the responsibilities to be performed by each of them hereunder.
18. Relief from Responsibility. Pursuant to Sections 17(d)(1)(A) and 19(g) of the Exchange Act and Rule 17d-2 thereunder, FINRA and BOX join in requesting the Commission, upon its approval of this Agreement or any part thereof, to relieve BOX of any and all responsibilities with respect to matters allocated to FINRA pursuant to this Agreement; provided, however, that this Agreement shall not be effective until the Effective Date.
19. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and such counterparts together shall constitute one and the same instrument.
BOX Options Exchange LLC (“BOX”) hereby certifies that the requirements contained in the rules listed below are identical to, or substantially similar to, the comparable FINRA (NASD) Rule, Exchange Act provision or SEC rule identified (“Common Rules”).
In order to assist the Commission in determining whether to approve the proposed 17d-2 Plan and to relieve BOX of the responsibilities which would be assigned to FINRA, interested persons are invited to submit written data, views, and arguments concerning the foregoing. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, Station Place, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 31, 2017, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On September 30, 2014, Bats BYX Exchange, Inc.; Bats BZX Exchange, Inc.; Bats EDGA Exchange, Inc.; Bats EDGX Exchange, Inc.; BOX Options Exchange LLC; C2 Options Exchange, Incorporated; Chicago Board Options Exchange, Incorporated; Chicago Stock Exchange, Inc.; FINRA; International Securities Exchange, LLC; Investors' Exchange LLC; ISE Gemini, LLC; ISE Mercury, LLC; Miami International Securities Exchange LLC; MIAX PEARL, LLC; NASDAQ BX, Inc.; NASDAQ PHLX LLC; The NASDAQ Stock Market LLC; National Stock Exchange, Inc.; New York Stock Exchange LLC; NYSE MKT LLC; and NYSE Arca, Inc. (collectively, the “Participants”) filed with the Commission, pursuant to Section 11A of the Exchange Act
The Plan is designed to create, implement and maintain a consolidated audit trail (“CAT”) that would capture customer and order event information for orders in NMS Securities and OTC Equity Securities, across all markets, from the time of order inception through routing, cancellation, modification, or execution in a single consolidated data source. Each Participant is required to enforce compliance by its Industry Members, as applicable, with the provisions of the Plan, by adopting a Compliance Rule applicable to their Industry Members.
The proposed Rule 6800 Series includes twelve rules covering the following areas: (1) Definitions; (2) clock synchronization; (3) Industry Member Data reporting; (4) Customer information reporting; (5) Industry Member information reporting; (6) time stamps; (7) clock synchronization rule violations; (8) connectivity and data transmission; (9) development and testing; (10) recordkeeping; (11) timely, accurate and complete data; and (12) compliance dates.
Proposed Rule 6810 sets forth the definitions for the terms used in the proposed Rule 6800 Series. Each of the defined terms in proposed Rule 6810 is discussed below.
Rule 613 of Regulation NMS requires that certain data elements be reported to the CAT to enable regulators to identify Customers associated with orders. FINRA notes that Rule 613(c)(7)(i)(A) requires an Industry Member to report the “Customer-ID” for each Customer for the original receipt or origination of an order,
FINRA states that under the Customer Information Approach, the CAT NMS Plan requires each Industry Member to assign a unique Firm Designated ID to each Customer, and that for the Firm Designated ID, Industry Members are permitted to use an account number or any other identifier defined by the firm, provided each identifier is unique across the firm for each business date (
FINRA noted that in accordance with the Customer Information Approach, Industry Members are required to report only the Firm Designated ID for each new order submitted to the Central Repository, rather than the “Customer-ID” with individual order events. Within the Central Repository, each Customer will be uniquely identified by identifiers or a combination of identifiers such as ITIN/SSN, date of birth, and as applicable, LEI and LTID. The Plan Processor will be required to use these unique identifiers to map orders to specific Customers across all Industry Members and Participants. To ensure information identifying a Customer is up to date, Industry Members will be required to submit to the Central Repository daily and periodic updates for reactivated accounts, newly established accounts, and revised Firm Designated IDs or associated reportable Customer information.
In connection with the Customer Information Approach, Industry Members will be required to report “Customer Account Information” to the Central Repository. “Customer Account Information” is defined in Rule 613(j)(4) to “include, but not be limited to, account number, account type, customer type, date account opened, and large trader identifier (if applicable).”
Specifically, paragraph (a)(1) defines “Account Effective Date” to mean, with regard to those circumstances in which an Industry Member has established a trading relationship with an institution but has not established an account with that institution: (1) When the trading relationship was established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, either (a) the date the relationship identifier was established within the Industry Member; (b) the date when trading began (
Paragraph (a)(2) of proposed Rule 6810 states that an “Account Effective Date” means, where an Industry Member changes back office providers or clearing firms prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the date an account was established at the relevant Industry Member, either directly or via transfer.
Paragraph (a)(3) of proposed Rule 6810 states that an “Account Effective Date” means, where an Industry Member acquires another Industry Member prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the date an account was established at the relevant Industry Member, either directly or via transfer.
Paragraph (a)(4) of proposed Rule 6810 states that “Account Effective Date” means, where there are multiple dates associated with an account established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, the earliest available date.
Paragraph (a)(5) of proposed Rule 6810 states that an “Account Effective Date” means, with regard to Industry Member proprietary accounts established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members: (1) The date established for the account in the Industry Member or in a system of the Industry Member or (2) the date when proprietary trading began in the account (
Under the Customer Information Approach, Industry Members are required to report Customer Identifying Information and Customer Account Information for only those accounts that are active. Accordingly, paragraph (b) of proposed Rule 6810 defines a “Active Accounts” as an account that has had activity in Eligible Securities within the last six months. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
Rule 613(c)(7)(vi)(A) of Regulation NMS requires each Industry Member to record and report to the Central Repository “the account number for any subaccounts to which the execution is allocated (in whole or in part).”
To assist in implementing the Allocation Report Approach, paragraph (c) of proposed Rule 6810 defines an “Allocation Report.” Specifically, an “Allocation Report” means a report made to the Central Repository by an Industry Member that identifies the Firm Designated ID for any account(s), including subaccount(s), to which executed shares are allocated and provides the security that has been allocated, the identifier of the firm reporting the allocation, the price per share of shares allocated, the side of shares allocated, the number of shares allocated to each account, and the time of the allocation; provided, for the avoidance of doubt, any such Allocation Report shall not be required to be linked to particular orders or executions. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
To create the required audit trail, Industry Members are required to record the date and time of various Reportable Events to the Central Repository. Industry Members will use “Business Clocks” to record such dates and times. Accordingly, paragraph (d) of proposed Rule 6810 defines the term “Business Clock” as a clock used to record the date and time of any Reportable Event required to be reported under this Rule 6800 Series. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan, except FINRA proposes to replace the phrase “under SEC Rule 613” at the end of the definition in Section 1.1 of the Plan with the phrase “under this Rule Series.” FINRA represents that this change is intended to recognize that the Industry Members' obligations with regard to the CAT are set forth in this Rule 6800 Series.
Paragraph (e) of proposed Rule 6810 defines the term “CAT” to mean the consolidated audit trail contemplated by Rule 613. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
Paragraph (f) of proposed Rule 6810 defines the term “CAT NMS Plan” to mean the National Market System Plan Governing the Consolidated Audit Trail, as amended from time to time.
FINRA states that under the CAT NMS Plan, a “daisy chain approach” would be used to link and reconstruct the complete lifecycle of each Reportable Event in CAT. According to this approach, Industry Members would assign their own identifiers to each order event. Within the Central Repository, the Plan Processor would replace the identifier provided by the Industry Member for each Reportable Event with a single identifier, called the CAT Order-ID, for all order events pertaining to the same order. This CAT Order-ID would be used to link the Reportable Events related to the same order.
To implement a daisy chain approach, FINRA proposes to define the term “CAT-Order-ID” to mean a unique order identifier or series of unique order identifiers that allows the Central Repository to efficiently and accurately link all Reportable Events for an order, and all orders that result from the aggregation or disaggregation of such order. FINRA states that this is the same definition as set forth in Rule 613(j)(1), and Section 1.1 of the CAT NMS Plan defines “CAT-Order-ID” by reference to Rule 613(j)(1) of Regulation NMS.
The CAT NMS Plan permits an Industry Member to use a third party, such as a vendor, to report the required data to the Central Repository on behalf of the Industry Member.
Paragraph (i) of proposed Rule 6810 defines the term “Central Repository” to mean the repository responsible for the receipt, consolidation, and retention of all information reported to the CAT pursuant to Rule 613 of Regulation NMS and the CAT NMS Plan. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan, except FINRA uses the phrase “CAT NMS Plan” in place of the phrase “this Agreement.”
Proposed Rule 6810 states that the term “Compliance Threshold” has the meaning set forth in proposed Rule 6893(d), which proposed Rule is described and discussed below. FINRA states that this definition has the same substantive meaning as the definition set forth in Section 1.1 of the CAT NMS Plan.
Industry Members are required to submit to the Central Repository certain information related to their Customers, including Customer Identifying Information and Customer Account Information, as well as data related to their Customer's Reportable Events. Accordingly, paragraph (k) of proposed Rule 6810 proposes to define the term “Customer.” Specifically, the term “Customer” is defined to mean: (1) the account holder(s) of the account at an Industry Member originating the order; and (2) any person from whom the Industry Member is authorized to accept trading instructions for such account, if different from the account holder(s). FINRA states that this is the same definition as set forth in Rule 613(j)(3), except FINRA proposes to replace the references to a registered broker-dealer or broker-dealer with a reference to an Industry Member for consistency of terms used in the proposed Rule 6800 Series.
As discussed above, under the Customer Information Approach, Industry Members are required to report Customer Account Information to the Central Repository as part of the customer definition process. Accordingly, FINRA proposes to define the term “Customer Account Information” to clarify what customer information would need to be reported to the Central Repository.
Paragraph (l) of proposed Rule 6810 defines the term “Customer Account Information” to include, in part, account number, account type, customer type, date account opened, and large trader identifier (if applicable). Proposed Rule 6810(l), however, provides an alternative definition of “Customer Account Information” in two limited circumstances. First, in those circumstances in which an Industry Member has established a trading relationship with an institution but has not established an account with that institution, the Industry Member will: (1) Provide the Account Effective Date in lieu of the “date account opened”; (2) provide the relationship identifier in lieu of the “account number”; and (3) identify the “account type” as a “relationship.” Second, in those circumstances in which the relevant account was established prior to November 15, 2018 for Industry Members other than Small Industry Members, or prior to November 15, 2019 for Small Industry Members, and no “date account opened” is available for the account, the Industry Member will provide the Account Effective Date in the following circumstances: (1) Where an Industry Member changes back office providers or clearing firms and the date account opened is changed to the date the account was opened on the new back office/clearing firm system; (2) where an Industry Member acquires another Industry Member and the date account opened is changed to the date the account was opened on the post-merger back office/clearing firm system; (3) where there are multiple dates associated with an account in an Industry Member's system, and the parameters of each date are determined by the individual Industry Member; and (4) where the relevant account is an Industry Member proprietary account. The proposed definition is the same as the definition of “Customer Account Information” set forth in Section 1.1 of the CAT NMS Plan, provided, however, that specific dates have replaced the descriptions of those dates set forth in Section 1.1 of the Plan.
As discussed above, under the Customer Information Approach, Industry Members are required to report Customer Identifying Information to the Central Repository as part of the customer definition process. Accordingly, FINRA proposes to define the term “Customer Account Information” to include, but not be
The CAT NMS Plan uses the term “Data Submitter” to refer to any person that reports data to the Central Repository.
The reporting requirements of the proposed Rule 6800 Series only apply to Reportable Events in Eligible Securities. Currently, an Eligible Security includes NMS Securities and OTC Equity Securities. Accordingly, paragraph (o) of proposed Rule 6810 defines the term “Eligible Security” to include: (1) All NMS Securities; and (2) all OTC Equity Securities. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
The CAT NMS Plan requires the Plan Processor to: (1) Measure and report errors every business day; (2) provide Industry Members daily statistics and error reports as they become available, including a description of such errors; (3) provide monthly reports to Industry Members that detail an Industry Member's performance and comparison statistics; (4) define educational and support programs for Industry Members to minimize Error Rates; and (5) identify, daily, all Industry Members exceeding the maximum allowable Error Rate. To timely correct data-submitted errors to the Central Repository, the CAT NMS Plan requires that the Central Repository receive and process error corrections at all times. Further, the CAT NMS Plan requires that Industry Members be able to submit error corrections to the Central Repository through a web-interface or via bulk uploads or file submissions, and that the Plan Processor, subject to the Operating Committee's approval, support the bulk replacement of records and the reprocessing of such records. The Participants, furthermore, require that the Plan Processor identify Industry Member data submission errors based on the Plan Processor's validation processes.
To implement the requirements of the CAT NMS Plan related to the Error Rate, FINRA proposes to define the term “Error Rate” to mean the percentage of Reportable Events collected by the Central Repository in which the data reported does not fully and accurately reflect the order event that occurred in the market. FINRA states that this is the same definition as set forth in Rule 613(j)(6), and Section 1.1 of the CAT NMS Plan defines “Error Rate” by reference to Rule 613(j)(6).
Under the CAT NMS Plan, the Operating Committee would set the maximum Error Rate that the Central Repository would tolerate from an Industry Member reporting data to the Central Repository.
As discussed above, under the Customer Information Approach, the CAT NMS Plan requires each Industry Member to utilize a unique Firm Designated ID. Industry Members will be permitted to use as the Firm Designated ID an account number or any other identifier defined by the firm, provided each identifier is unique across the firm for each business date. Industry Members will be required to report only the Firm Designated ID for each new order submitted to the Central Repository, rather than the “Customer-ID” with individual order events. Accordingly, FINRA proposes to define the term “Firm Designated ID” in proposed Rule 6810 to mean a unique identifier for each trading account designated by Industry Members for purposes of providing data to the Central Repository, where each such identifier is unique among all identifiers from any given Industry Member for each business date. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan. Industry Members will be permitted to use an account number or any other identifier defined by the firm, provided each identifier is unique across the firm for each business date (
Proposed Rule 6810 defines the term “Industry Member” to mean “a member of a national securities exchange or a
Proposed Rule 6810 states that the term “Industry Member Data” has the meaning set forth in Rule 6830(a)(2). FINRA states that this definition has the same substantive meaning as the definition set forth in Section 1.1 of the CAT NMS Plan.
Proposed Rule 6810 defines the term “Initial Plan Processor” to mean the first Plan Processor selected by the Operating Committee in accordance with Rule 613, Section 6.1 of the CAT NMS Plan and the National Market System Plan Governing the Process for Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail.
FINRA represented that the reporting requirements of the CAT NMS Plan and proposed Rule 6800 Series apply to Eligible Securities, which includes NMS Securities, which, in turn, includes Listed Options. Certain requirements of proposed Rule 6800 Series apply specifically to Listed Options. Accordingly, “Listed Option” or “Option” has the meaning set forth in Rule 600(b)(35) of Regulation NMS.
The CAT NMS Plan sets forth clock synchronization and timestamp requirements for Industry Members which reflect exemptions for Manual Order Events granted by the Commission.
In order to clarify what a Manual Order Event is for clock synchronization and time stamp purposes, FINRA proposes to define the term “Manual Order Event” in proposed Rule 6810. Specifically, the term “Manual Order Event” means a non-electronic communication of order-related information for which Industry Members must record and report the time of the event. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
Proposed Rule 6830 requires Industry Members to record and report to the Central Repository Material Terms of the Order with certain Reportable Events (
NMS Securities are one of the types of Eligible Securities for the CAT. Therefore, FINRA proposes to define the term “NMS Security” to mean any security or class of securities for which transaction reports are collected, processed, and made available pursuant to an effective transaction reporting plan, or an effective national market system plan for reporting transactions in Listed Options. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
Under the CAT NMS Plan, the Operating Committee may establish different Trading Days for NMS Stocks, as defined in Rule 600(b)(47) of Regulation NMS,
Proposed Rule 6810 defines the term “Operating Committee” to mean the governing body of the CAT NMS, LLC
Rule 613(c)(7) provides that the CAT NMS Plan must require each Industry Member to record and electronically report to the Central Repository details for each order and each reportable event, including the routing and modification or cancellation of an order.
The Participants, however, requested and received exemptive relief from Rule 613 of Regulation NMS so that the CAT NMS Plan may permit Options Market Maker quotes to be reported to the Central Repository by the relevant options exchange in lieu of requiring that such reporting be done by both the options exchange and the Options Market Maker, as is required by Rule 613.
To implement the requirements related to Option Market Maker quotes, FINRA proposes to define the term “Options Market Maker” to mean a broker-dealer registered with an exchange for the purpose of making markets in options contracts traded on the exchange. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
The proposed Rule 6800 Series requires each Industry Member to record and electronically report to the Central Repository certain details for each order. Accordingly, FINRA proposes to define the term “Order” with respect to Eligible Securities, to include: (1) Any order received by an Industry Member from any person; (2) any order originated by an Industry Member; or (3) any bid or offer. FINRA states that this is the same definition as set forth in Rule 613(j)(8), except FINRA proposes to replace the phrase “member of a national securities exchange or national securities association” with the term “Industry Member.”
OTC Equity Securities are one of the types of Eligible Securities for the CAT. Therefore, FINRA proposes to define the term “OTC Equity Security” to mean any equity security, other than an NMS Security, subject to prompt last sale reporting rules of a registered national securities association and reported to one of such association's equity trade reporting facilities. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
Proposed Rule 6810 defines the term “Participant” to mean each Person identified as such in Exhibit A of the CAT NMS Plan, as amended, in such Person's capacity as a Participant in CAT NMS, LLC. FINRA states that this is the same definition in substance as set forth in Section 1.1 of the CAT NMS Plan.
Proposed Rule 6810 defines the term “Person” to mean any individual, partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative or association and any heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so permits. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
Proposed Rule 6810 defines the term “Plan Processor” to mean the Initial Plan Processor or any other Person selected by the Operating Committee pursuant to Rule 613 and Sections 4.3(b)(i) and 6.1 of the CAT NMS Plan, and with regard to the Initial Plan Processor, the National Market System Plan Governing the Process for Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail, to perform the CAT processing functions required by Rule 613 of Regulation NMS and set forth in the CAT NMS Plan.
Proposed Rule 6810 states that the term “Received Industry Member Data” has the meaning set forth in Rule 6830(a)(2). FINRA represents that this definition has the same substantive meaning as the definition set forth in Section 1.1 of the CAT NMS Plan.
Proposed Rule 6810 states that the term “Recorded Industry Member Data” has the meaning set forth in Rule 6830(a)(1). FINRA states that this definition has the same substantive meaning as the definition set forth in in Section 1.1 of the CAT NMS Plan.
The proposed Rule 6800 Series requires each Industry Member to record and electronically report to the Central Repository certain details for each Reportable Event. FINRA proposes to define the term “Reportable Event” to include, but not be limited to, the original receipt or origination, modification, cancellation, routing, execution (in whole or in part) and allocation of an order, and receipt of a routed order. FINRA states that this is the same definition as set forth in Section 1.1 of the CAT NMS Plan.
FINRA proposed to define the term “SRO” to mean any self-regulatory organization within the meaning of Section 3(a)(26) of the Exchange Act.
The Participants requested and received exemptive relief from Rule 613 of Regulation NMS so that the CAT NMS Plan may permit the “Existing Identifier Approach,” which would allow an Industry Member to report an existing SRO-Assigned Market Participant Identifier in lieu of requiring the reporting of a universal CAT-Reporter-ID (that is, a code that uniquely and consistently identifies an Industry Member for purposes of providing data to the Central
For the Central Repository to link the SRO-Assigned Market Participant Identifier to the CAT-Reporter-ID, each SRO will submit to the Central Repository, on a daily basis, all SRO-Assigned Market Participant Identifiers used by its Industry Members, as well as information to identify each such Industry Member, including CRD number and LEI, if the SRO has collected such LEI of the Industry Member. Additionally, each Industry Member is required to submit to the Central Repository the CRD number of the Industry Member as well as the LEI of the Industry Member (if the Industry Member has an LEI). The Plan Processor will use this information to assign a CAT-Reporter-ID to each Industry Member for internal use within the Central Repository.
To implement the Existing Identifier Approach, FINRA proposes to define the term “SRO-Assigned Market Participant Identifier” to mean an identifier assigned to an Industry Member by an SRO or an identifier used by a Participant.
FINRA represents that the requirements of the proposed Rule 6800 Series differ to some extent for Small Industry Members versus Industry Members other than Small Industry Members. For example, the compliance dates for reporting data to the CAT are different for Small Industry Members versus other Industry Members. Accordingly, to clarify the requirements that apply to which Industry Members, FINRA proposes to define the term “Small Industry Member” to mean an Industry Member that qualifies as a small broker-dealer as defined in Exchange Act Rule 0-10(c).
Proposed Rule 6830(b) establishes the deadlines for reporting certain data to the Central Repository using the term “Trading Day.” Accordingly, FINRA proposes that the term “Trading Day” shall have the meaning as is determined by the Operating Committee. For the avoidance of doubt, FINRA represents that the Operating Committee may establish different Trading Days for NMS Stocks, Listed Options, OTC Equity Securities, and any other securities that are included as Eligible Securities from time to time.
Rule 613(d)(1) of Regulation NMS requires Industry Members to synchronize their Business Clocks to the time maintained by NIST, consistent with industry standards.
Paragraph (a) of proposed Rule 6820 sets forth the manner in which Industry Members must synchronize their Business Clocks. Paragraph (a)(1) of proposed Rule 6820 requires each Industry Member to synchronize its Business Clocks, other than such Business Clocks used solely for Manual Order Events or used solely for the time of allocation on Allocation Reports, at a minimum to within a fifty (50) millisecond tolerance of the time maintained by the NIST atomic clock, and maintain such synchronization. FINRA states that this is the same requirement as set forth in Section 6.8(a)(ii)(A) of the CAT NMS Plan.
Paragraph (a)(2) of proposed Rule 6820 requires each Industry Member to synchronize (1) its Business Clocks used solely for Manual Order Events and (2) its Business Clocks used solely for the time of allocation on Allocation Reports at a minimum to within a one second tolerance of the time maintained by the NIST atomic clock, and maintain such synchronization. FINRA states that this is the same requirement as set forth in Section 6.8(a)(iii) and (iv) of the CAT NMS Plan. Paragraph (a)(3) of proposed Rule 6820 clarifies that the tolerance described in paragraphs (a)(1) and (2) of proposed Rule 6820 includes all of the following: (1) The time difference between the NIST atomic clock and the Industry Member's Business Clock; (2) the transmission delay from the source; and (3) the amount of drift of the Industry Member's Business Clock.
Paragraph (a)(4) of proposed Rule 6820 requires Industry Members to synchronize their Business Clocks every business day before market open to ensure that timestamps for Reportable Events are accurate. In addition, to maintain clock synchronization, Business Clocks must be checked against the NIST atomic clock and re-synchronized, as necessary, throughout the day.
Paragraph (b) of proposed Rule 6820 sets forth documentation requirements with regard to clock synchronization. Specifically, paragraph (b) requires Industry Members to document and maintain their synchronization procedures for their Business Clocks. The proposed rule requires Industry Members to keep a log of the times when they synchronize their Business Clocks and the results of the synchronization process. This log is required to include notice of any time a Business Clock drifts more than the applicable tolerance specified in paragraph (a) of the proposed rule. Such logs must include results for a period of not less than five years ending on the then current date, or for the entire period for which the Industry Member has been required to comply with this Rule if less than five years. FINRA states that these documentation requirements are the same as those set forth in the
Paragraph (c) of proposed Rule 6820 sets forth certification requirements with regard to clock synchronization. Specifically, paragraph (c) of proposed Rule 6820 requires each Industry Member to certify to FINRA that its Business Clocks satisfy the synchronization requirements set forth in paragraph (a) of proposed Rule 6820 periodically in accordance with the certification schedule established by the Operating Committee pursuant to the CAT NMS Plan. FINRA states that this requirement is the same requirement as set forth in Section 6.8(a)(ii)(B), (iii) and (iv) of the CAT NMS Plan. FINRA states that it intends to announce to its Industry Members the certification schedule established by the Operating Committee via
Paragraph (d) of proposed Rule 6820 establishes reporting requirements with regard to clock synchronization. Paragraph (d) of proposed Rule 6820 requires Industry Members to report to the Plan Processor and FINRA violations of paragraph (a) of this Rule pursuant to the thresholds set by the Operating Committee pursuant to the CAT NMS Plan. FINRA states that this requirement is the same requirement as set forth in Section 6.8(a)(ii)(C), (iii) and (iv) of the CAT NMS Plan. FINRA intends to announce to its Industry Members the relevant thresholds established by the Operating Committee via
Rule 613(c) of Regulation NMS requires the CAT NMS Plan to set forth certain provisions requiring Industry Members to record and report data to the CAT.
Paragraph (a) of proposed Rule 6830 describes the recording and reporting of Industry Member Data to the Central Repository. Paragraph (a) consists of paragraphs (a)(1)-(a)(3), which cover Recorded Industry Member Data, Received Industry Member Data and Options Market Maker data, respectively. FINRA states that paragraphs (a)(1)-(a)(3) of proposed Rule 6830 set forth the recording and reporting requirements required in Section 6.4(d)(i)-(iii) of the CAT NMS Plan, respectively.
Paragraph (a)(1) requires, subject to paragraph (a)(3) regarding Options Market Makers, each Industry Member to record and electronically report to the Central Repository the following details for each order and each Reportable Event, as applicable (“Recorded Industry Member Data”) in the manner prescribed by the Operating Committee pursuant to the CAT NMS Plan:
• For original receipt or origination of an order: (1) Firm Designated ID(s) for each Customer; (2) CAT-Order-ID; (3) SRO-Assigned Market Participant Identifier of the Industry Member receiving or originating the order; (4) date of order receipt or origination; (5) time of order receipt or origination (using timestamps pursuant to proposed Rule 6860); and (6) Material Terms of the Order;
• for the routing of an order: (1) CAT-Order-ID; (2) date on which the order is routed; (3) time at which the order is routed (using timestamps pursuant to proposed Rule 6860); (4) SRO-Assigned Market Participant Identifier of the Industry Member routing the order; (5) SRO-Assigned Market Participant Identifier of the Industry Member or Participant to which the order is being routed; (6) if routed internally at the Industry Member, the identity and nature of the department or desk to which the order is routed; and (7) Material Terms of the Order;
• for the receipt of an order that has been routed, the following information: (1) CAT-Order-ID; (2) date on which the order is received; (3) time at which the order is received (using timestamps pursuant to proposed Rule 6860); (4) SRO-Assigned Market Participant Identifier of the Industry Member receiving the order; (5) SRO-Assigned Market Participant Identifier of the Industry Member or Participant routing the order; and (6) Material Terms of the Order;
• if the order is modified or cancelled: (1) CAT-Order-ID; (2) date the modification or cancellation is received or originated; (3) time at which the modification or cancellation is received or originated (using timestamps pursuant to proposed Rule 6860); (4) price and remaining size of the order, if modified; (5) other changes in the Material Terms of the Order, if modified; and (6) whether the modification or cancellation instruction was given by the Customer or was initiated by the Industry Member;
• if the order is executed, in whole or in part: (1) CAT-Order-ID; (2) date of execution; (3) time of execution (using timestamps pursuant to proposed Rule 6860; (4) execution capacity (principal, agency or riskless principal); (5) execution price and size; (6) SRO-Assigned Market Participant Identifier of the Industry Member executing the order; (7) whether the execution was reported pursuant to an effective transaction reporting plan or the Plan for Reporting of Consolidated Options Last Sale Reports and Quotation Information; and
• other information or additional events as may be prescribed pursuant to the CAT NMS Plan.
Paragraph (a)(2) of proposed Rule 6830 requires, subject to paragraph (a)(3) regarding Options Market Makers, each Industry Member to record and report to the Central Repository the following, as applicable (“Received Industry Member Data” and collectively with the information referred to in Rule 6830(a)(1) “Industry Member Data”)) in the manner prescribed by the Operating Committee pursuant to the CAT NMS Plan:
• If the order is executed, in whole or in part: (1) An Allocation Report; (2) SRO-Assigned Market Participant Identifier of the clearing broker or prime broker, if applicable; and (3) CAT-Order-ID of any contra-side order(s);
• if the trade is cancelled, a cancelled trade indicator; and
• for original receipt or origination of an order, the Firm Designated ID for the relevant Customer, and in accordance with proposed Rule 6840, Customer Account Information and Customer Identifying Information for the relevant Customer.
Paragraph (a)(3) of proposed Rule 6830 states that each Industry Member that is an Options Market Maker is not required to report to the Central Repository the Industry Member Data regarding the routing, modification or cancellation of its quotes in Listed Options. Each Industry Member that is
Paragraph (b) of proposed Rule 6830 describes the requirements related to the timing of recording and reporting of Industry Member Data. FINRA states that paragraphs (b)(1)-(b)(3) of proposed Rule 6830 set forth the requirements related to the timing of the recording and reporting requirements required in Section 6.4(b)(i)-(ii) of the CAT NMS Plan.
Paragraph (b)(1) of proposed Rule 6830 requires each Industry Member to record Recorded Industry Member Data contemporaneously with the applicable Reportable Event. Paragraph (b)(2) of proposed Rule 6830 requires each Industry Member to report: (1) Recorded Industry Member Data to the Central Repository by 8:00 a.m. Eastern Time on the Trading Day following the day the Industry Member records such Recorded Industry Member Data; and (2) Received Industry Member Data to the Central Repository by 8:00 a.m. Eastern Time on the Trading Day following the day the Industry Member receives such Received Industry Member Data. Paragraph (b)(3) states that Industry Members may, but are not required to, voluntarily report Industry Member Data prior to the applicable 8:00 a.m. Eastern Time deadline.
Paragraph (c) of proposed Rule 6830 describes the securities to which the recording and reporting requirements of proposed Rule 6830 apply. FINRA states that paragraphs (c)(1) and (c)(2) of proposed Rule 6830 set forth the description of applicable securities as set forth in Section 6.4(c)(i) and (ii) of the CAT NMS Plan, respectively. Paragraph (c)(1) of proposed Rule 6830 requires each Industry Member to record and report to the Central Repository the Industry Member Data as set forth in paragraph (a) of proposed Rule 6830 for each NMS Security registered or listed for trading on such exchange or admitted to unlisted trading privileges on such exchange. Paragraph (c)(2) of proposed Rule 6830 requires each Industry Member to record and report to the Central Repository the Industry Member Data as set forth in paragraph (a) of this proposed Rule 6830 for each Eligible Security for which transaction reports are required to be submitted to FINRA.
Paragraph (d) of proposed Rule 6830 describes the security symbology that Industry Members are required to use when reporting Industry Member Data to the Central Repository. Paragraph (d)(1) of proposed Rule 6830 requires, for each exchange-listed Eligible Security, each Industry Member to report Industry Member Data to the Central Repository using the symbology format of the exchange listing the security. FINRA states that this requirement implements the requirement set forth in Section 2 of Appendix D of the CAT NMS Plan to use the listing exchange symbology when reporting data to the Central Repository for exchange-listed Eligible Securities.
For each Eligible Security that is not exchange-listed, however, FNRA represents that there is no listing exchange to provide the symbology format. Moreover, to date, the requisite symbology format has not been determined. Therefore, paragraph (d)(2) of proposed Rule 6830 requires, for each Eligible Security that is not exchange-listed, each Industry Member to report Industry Member Data to the Central Repository using such symbology format as approved by the Operating Committee pursuant to the CAT NMS Plan. FINRA states that it intends to announce to its Industry Members the relevant symbology formats established by the Operating Committee via
To ensure that the CAT contains accurate data, the CAT NMS Plan requires Industry Members to correct erroneous data submitted to the Central Repository. Therefore, FINRA proposes to adopt paragraph (e) of proposed Rule 6830 which requires that for each Industry Member for which errors in Industry Member Data submitted to the Central Repository have been identified by the Plan Processor or otherwise, such Industry Member submit corrected Industry Member Data to the Central Repository by 8:00 a.m. Eastern Time on T+3. FINRA represents that this requirement implements the error correction requirement set forth in Section 6 of Appendix D of the CAT NMS Plan.
Section 6.4(d)(iv) of the CAT NMS Plan requires Industry Members to submit to the Central Repository certain information related to their Customers in accordance with the Customer Information Approach discussed above. FINRA proposes Rule 6840 to implement this provision of the CAT NMS Plan with regard to its Industry Members.
Paragraph (a) of proposed Rule 6840 requires each Industry Member to submit to the Central Repository the Firm Designated ID, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account prior to such Industry Member's commencement of reporting to the Central Repository and in accordance with the deadlines set forth in Rule 6880.
Paragraph (b) of proposed Rule 6840 requires each Industry Member to submit to the Central Repository any updates, additions or other changes to the Firm Designated ID, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account on a daily basis.
Paragraph (c) of proposed Rule 6840 requires each Industry Member, on a periodic basis as designated by the Plan Processor and approved by the Operating Committee, to submit to the Central Repository a complete set of Firm Designated IDs, Customer Account Information and Customer Identifying Information for each of its Customers with an Active Account. This periodic refresh is intended to ensure that the Central Repository has the most current information identifying a Customer. FINRA states that it intends to announce to its Industry Members when such a periodic refresh is required by the Plan Processor and the Operating Committee via
Paragraph (d) of proposed Rule 6840 addresses the correction of erroneous Customer data reported to the Central Repository to ensure an accurate audit trail. Paragraph (d) requires, for each Industry Member for which errors in Firm Designated ID, Customer Account Information and Customer Identifying Information for each of its Customers
Section 6.4(d)(vi) of the CAT NMS Plan requires Industry Members to submit to the Central Repository information sufficient to identify such Industry Member, including CRD number and LEI, if such LEI has been obtained, in accordance with the Existing Identifier Approach discussed above. Proposed Rule 6850 requires each Industry Member to submit to the Central Repository information sufficient to identify such Industry Member, including CRD number and LEI, if such LEI has been obtained, prior to such Industry Member's commencement of reporting to the Central Repository and in accordance with the deadlines set forth in Rule 6880, and keep such information up to date as necessary. FINRA states that this provision of the CAT NMS Plan with regard to its Industry Members information reporting.
Rule 613(d)(3) of Regulation NMS sets forth requirements for time stamps used by CAT Reporters in recording and reporting data to the CAT.
Paragraph (a) of proposed Rule 6860 sets forth the time stamp increments to be used by Industry Members in their CAT reporting. Paragraph (a)(1) of proposed Rule 6860 requires each Industry Member to record and report Industry Member Data to the Central Repository with time stamps in milliseconds, subject to paragraphs (a)(2) and (b) of proposed Rule 6860. To the extent that any Industry Member's order handling or execution systems utilize time stamps in increments finer than milliseconds, paragraph (a)(2) of proposed Rule 6860 requires such Industry Member to record and report Industry Member Data to the Central Repository with time stamps in such finer increment, subject to paragraph (b) of proposed Rule 6860 regarding Manual Order Events and Allocation Reports.
Paragraph (b) of proposed Rule 6860 sets forth the permissible time stamp increments for Manual Order Events and Allocation Reports. Specifically, paragraph (b)(1) of proposed Rule 6860 permits each Industry Member to record and report Manual Order Events to the Central Repository in increments up to and including one second, provided that each Industry Member is required to record and report the Electronic Capture Time in milliseconds. In addition, paragraph (b)(2) of proposed Rule 6860 permits each Industry Member to record and report the time of Allocation Reports in increments up to and including one second.
Proposed Rule 6865 describes potential violations of the time stamp and clock synchronization time period requirements set forth in the proposed Rule 6800 Series. Proposed Rule 6865 states that an Industry Member that engages in a pattern or practice of reporting Reportable Events with time stamps generated by Business Clocks that are not synchronized according the requirements set forth in this Rule Series without reasonable justification or exceptional circumstances may be considered in violation of this Rule. FINRA states that this provision implements the requirements of Section 6.8 of the CAT NMS Plan which requires the Compliance Rule to provide that a pattern or practice of reporting events outside of the required clock synchronization time period without reasonable justification or exceptional circumstances may be considered a violation of Rule 613 of Regulation NMS or the CAT NMS Plan.
Proposed Rule 6870 addresses connectivity and data transmission requirements related to the CAT.
Paragraph (a) of proposed Rule 6870 describes the format(s) for reporting Industry Member Data to the Central Repository. Specifically, paragraph (a) of proposed Rule 6870 requires each Industry Member to transmit data as required under the CAT NMS Plan to the Central Repository utilizing such format(s) as may be provided by the Plan Processor and approved by the Operating Committee. FINRA states that this provision implements the formatting requirements as set forth in Section 6.4(a) of the CAT NMS Plan.
Paragraph (b) of proposed Rule 6870 addresses connectivity requirements related to the CAT. Paragraph (b) of proposed Rule 6870 requires each Industry Member to connect to the Central Repository using a secure method(s), including, but not limited to, private line(s) and virtual private network connection(s). FINRA states that this provision implements the connectivity requirements set forth in Section 4 of Appendix D to the CAT NMS Plan.
Paragraph (c) permits Industry Members to enter into an agreement with CAT Reporting Agents to fulfill their data reporting obligations related to the CAT.
FINRA proposes Rule 6880 to address requirements for Industry Members related to CAT development and testing.
Paragraph (a) of proposed Rule 6880 sets forth the testing requirements and deadlines for Industry Members to develop and commence reporting to the Central Repository. FINRA states that these requirements are set forth in Appendix C to the CAT NMS Plan.
Paragraph (a)(1) sets forth the deadlines related to connectivity and
Paragraph (a)(2) sets forth the deadlines related to reporting Customer and Industry Member information. Paragraph (a)(2)(i) requires Industry Members (other than Small Industry Members) to begin reporting Customer and Industry Member information, as required by Rules 6840(a) and 6850, respectively, to the Central Repository for processing no later than October 15, 2018. Paragraph (a)(2)(ii) requires Small Industry Members to begin reporting Customer and Industry Member information, as required by Rules 6840(a) and 6850, respectively, to the Central Repository for processing no later than October 15, 2019.
Paragraph (a)(3) sets forth the deadlines related to the submission of order data. Under paragraph (a)(3)(i), Industry Members (other than Small Industry Members) are permitted, but not required, to submit order data for testing purposes beginning no later than May 15, 2018. In addition, Industry Members (other than Small Industry Members) are required to participate in the coordinated and structured testing of order submission, which will begin no later than August 15, 2018. Under paragraph (a)(3)(ii), Small Industry Members are permitted, but not required, to submit order data for testing purposes beginning no later than May 15, 2019. In addition, Small Industry Members are required to participate in the coordinated and structured testing of order submission, which will begin no later than August 15, 2019.
Paragraph (a)(4) states that Industry Members are permitted, but not required to, submit Quote Sent Times on Options Market Maker quotes to Exchanges, beginning no later than October 15, 2018, for testing purposes.
Paragraph (b) of proposed Rule 6880 implements the requirement under the CAT NMS Plan that Industry Members participate in required industry testing with the Central Repository. Specifically, proposed Rule 6880 requires that each Industry Member participate in testing related to the Central Repository, including any industry-wide disaster recovery testing, pursuant to the schedule established pursuant to the CAT NMS Plan. FINRA states that it intends to announce to its Industry Members the schedule established pursuant to the CAT NMS Plan via
Proposed Rule 6890 sets forth the recordkeeping obligations related to the CAT for Industry Members. Proposed Rule 6890 requires each Industry Member to maintain and preserve records of the information required to be recorded under the proposed Rule 6800 Series for the period of time and accessibility specified in Exchange Act Rule 17a-4(b).
FINRA notes that Rule 613 of Regulation NMS and the CAT NMS Plan emphasize the importance of the timeliness, accuracy, completeness and integrity of the data submitted to the CAT.
In addition, without limiting the general requirement as set forth in paragraph (a), paragraph (b) of proposed Rule 6893 requires Industry Members to accurately provide the LEIs in their records as required by the proposed Rule 6800 Series and states that Industry Members may not knowingly submit inaccurate LEIs to the Central Repository. FINRA notes that paragraph (b) notes, however, that this requirement does not impose any additional due diligence obligations on Industry Members with regard to LEIs for CAT purposes. Accordingly, FINRA states that this provision does not impose any due diligence obligations beyond those that may exist today with respect to information associated with an LEI. Although Industry Members will not be required to perform additional due diligence with regard to the LEIs for CAT purposes, Industry Members will be required to accurately provide the LEIs in their records and may not knowingly submit inaccurate LEIs to the CAT. FINRA believes that paragraph (b) is consistent with the Approval Order for the CAT NMS Plan regarding an Industry Member's obligations regarding LEIs.
Paragraph (c) states that, if an Industry Member reports data to the Central Repository with errors such that its error percentage exceeds the maximum Error Rate established by the Operating Committee pursuant to the CAT NMS Plan, then such Industry Member would not be in compliance with the Rule 6800 Series. As discussed above, the initial maximum Error Rate is 5%, although the Error Rate is expected to be reduced over time. FINRA states that it intends to announce to its Industry Members changes to the Error Rate established pursuant to the CAT NMS Plan via
Paragraph (d) of proposed Rule 6893 addresses compliance thresholds related to reporting data to the CAT. Proposed Rule 6893 states that each Industry Member is required to meet a separate compliance threshold which will be an Industry Member-specific rate that may be used as the basis for further review or investigation into the Industry Member's performance with regard to the CAT (the “Compliance Thresholds”). FINRA notes that Compliance Thresholds will compare an Industry Member's error rate to the aggregate Error Rate over a period of time to be defined by the Operating Committee. Compliance Thresholds will be set by the Operating Committee, and will be calculated at intervals to be set by the Operating Committee.
Proposed Rule 6895 sets forth the compliance dates for the various provisions of the proposed Rule 6800 Series. Paragraph (a) of proposed Rule 6895 states that, except as set forth in paragraphs (b) and (c) of this Rule or otherwise set forth in this Rule Series, the compliance date for the proposed Rule 6800 Series will be the date of Commission approval of the proposed rule change.
Paragraph (b) of proposed Rule 6895 establishes the compliance dates for the clock synchronization requirements as set forth in proposed Rule 6820. Paragraph (b)(1) states that each Industry Member shall comply with Rule 6820 with regard to Business Clocks that capture time in milliseconds commencing on or before March 15, 2017. Paragraph (b)(2) states that each Industry Member shall comply with Rule 6820 with regard to Business Clocks that do not capture time in milliseconds commencing on or before February 19, 2018. FINRA states that the compliance date set forth in paragraph (b)(1) reflects the exemptive relief requested by the Participants with regard to the clock synchronization requirements related to Business Clocks that do not capture time in milliseconds.
Paragraph (c) of proposed Rule 6895 establishes the compliance dates for the data recording and reporting requirements for Industry Members. Paragraph (c)(1) requires each Industry Member (other than Small Industry Members) to record and report the Industry Member Data to the Central Repository by November 15, 2018. Paragraph (c)(2) requires that each Industry Member that is a Small Industry Member to record and report the Industry Member Data to the Central Repository by November 15, 2019. FINRA states that such compliance dates are consistent with the compliance dates set forth in Rule 613(a)(3)(v) and (vi),
As noted above, the Commission received three comment letters on the proposed rule change and a response letter from the Participants.
The Participants noted in their Response Letter that Section 6.7(a)(ii) of the CAT NMS Plan requires that Industry Members must synchronize their Business Clocks and certify that they have satisfied applicable Business Clock synchronization requirements by March 15, 2017.
The Participants also noted that the Operating Committee of the CAT NMS Plan recently approved guidance that clarifies that, for purposes of the initial March 15, 2017 Business Clock synchronization and certification deadlines, “Business Clocks” include those clocks that currently capture time in milliseconds and that are used to record time related to “Reportable Events,” as defined under the Plan, including, without limitation, the original receipt or origination, modification, cancellation, routing, execution (in whole or in part) and allocation of an order, and receipt of a routed order, in Eligible Securities (
With respect to time stamps on manual orders and electronic capture of manual orders the Participants acknowledged in their response letter that additional information will be provided in Technical Specifications prepared by the Plan Processor and approved by the Operating Committee.
One commenter discussed several concerns related to the clock synchronization requirements of proposed FINRA Rule 6820(b).
In response, the Participants stated that they believe that it is appropriate for Industry Members to maintain a log of all clock synchronization events in order to demonstrate the Industry Members' compliance with the Proposed Compliance Rule and the CAT NMS Plan and to retain such log for five-years.
With respect to the clock synchronization procedures in FINRA's proposed Rule 6800 Series, one commenter also stated that proposed Rule 6820 “does not contain any definition of clock synchronization certification procedures and schedules, reporting procedures for violation notification or any specifics regarding documentation requirements.”
In response, the Participants stated that they agree it would be helpful to provide Industry Members with additional guidance regarding Industry Members' compliance with the clock synchronization and certification requirements set forth in the CAT NMS Plan and the Proposed Compliance Rules.
Two commenters also discussed the application of the Firm Designated ID requirement in the CAT NMS Plan. Both commenters noted that the Proposed Compliance Rules require each Industry Member to provide a Firm Designated ID “for each Customer,” whereas a “Firm Designated ID,” in relevant part, is defined as a “unique identifier for each trading account. Both commenters requested that the Participants amend the language of the Proposed Compliance Rules to reflect the Exemption Order.
In response the Participants stated that they recognize that the definition of Firm Designated ID and the reporting requirements set forth in Section 6.3 of the CAT NMS Plan, as well as the parallel provisions in the proposed Participant Compliance Rules, including FINRA's definition of “Firm Designated ID” in Rule 6810 are somewhat unclear.
One commenter suggested that the Participants consider firms that are exempt from reporting to OATS as “Small Industry Members,” stating that “this should be so easy and so obviously warranted (given the huge incremental cost of first-time order reporting for those firms that choose to remain independent and comply) that we cannot imagine any objection.”
In response, the Participants stated they believe that the definition of Small Industry Member for purposes of the CAT NMS Plan and Participant Compliance Rules is appropriate and need not be amended.
After carefully considering the proposed rule change, the comments submitted, and the Participants' response to the comments,
Rule 613(g) of Regulation NMS provides that each national securities exchange and national securities association shall file with the Commission pursuant to section 19(b)(2) of the Act and Rule 19b-4 on or before 60 days from approval of the CAT NMS Plan a proposed rule change to require its members to comply with the requirements of this section and the national market system plan approved by the Commission. In addition, Rule 608(c) of Regulation NMS provides that “[e]ach self-regulatory organization shall comply with the terms of any effective national market system plan of which it is a sponsor or participant. Each self-regulatory organization also shall, absent reasonable justification or excuse, enforce compliance with any such plan by its members and persons associated with its members.”
The Commission finds that proposed FINRA Rule 6810 is consistent with the Act as it implements the CAT NMS Plan. With the exception of the term “CAT Reporting Agent,” the definitions in proposed Rule 6810 are consistent with the definitions of Article I, Section 1.1 of the CAT NMS Plan. With respect to the inclusion of a definition for “CAT Reporting Agent,” FINRA notes that the CAT NMS Plan permits an Industry Member to use a third party, such as a vendor, to report the required data to the Central Repository on behalf of an Industry Member, and that as defined, a “CAT Reporting Agent” would be one type of Data Submitter, which term is defined in the CAT NMS Plan.
The Commission notes that two commenters discussed the need for further clarification on the application of the term “Firm Designated ID.” The Participants responded that the Customer Information Approach is intended to require that each broker-dealer assign a unique Firm Designated ID at the account level, rather than the customer level.
The Commission finds that proposed Rule 6820 is consistent with the Act as it implements the clock synchronization provisions of the CAT NMS Plan. The Commission notes that proposed Rule 6820 sets out the clock synchronization requirements for FINRA industry members and that these clock synchronization requirements, including the synchronization standards, tolerance levels, documentation, certification and violation reporting are consistent with and implement the clock synchronization requirements of the CAT NMS Plan.
As noted above, two commenters raised concerns about the clock synchronization requirements in proposed Rule 6820, including whether the synchronization requirements of the rule apply to Business Clocks that capture Manual Order Events; the definition of “time of allocation,” the necessity of the clock synchronization log; and the details concerning the clock synchronization certification. The Participants responded by clarifying the applicability of the clock synchronization requirements to
The Commission finds that proposed Rule 6830—which sets forth the data reporting requirements for Industry Members—is consistent with the Act as it implements the data reporting requirements for Industry Members that are required by the CAT NMS Plan. As noted above, proposed Rule 6830 is divided into five sections which address (1) recording and reporting Industry Member Data, (2) timing of the recording and reporting, (3) the applicable securities covered by the recording and reporting requirements, (4) the security symbology to be used in the recording and reporting,
The Commission finds that proposed Rule 6840—which sets forth the requirements regarding the data reported to the CAT in order to identify Customers—is consistent with the Act as it implements the reporting provisions of the CAT NMS Plan relating to the identification of Customers.
The Commission finds that proposed Rule 6850—which sets forth the requirements for Industry Members regarding the data that they must report to identify such Industry Member, including the timeframe for reporting such identifying information—is consistent with the Act as it implements the Industry Member reporting provisions of the CAT NMS Plan.
The Commission finds that proposed Rule 6860—which sets forth the time stamp increments to be used by Industry Members in their CAT Reporting—is consistent with the Act as it implements the time stamp provisions of the CAT NMS Plan. In general, proposed Rule 6860(a)(1) requires Industry Members to record and report Industry Member Data to the Central Repository in milliseconds, but paragraph (a)(2) provides that, to the extent any Industry Member's order handling or execution systems utilize time stamps in increments finer than milliseconds, such Industry Member is to record and report Industry Member Data to the Central Repository with time stamps in such finer increment. Proposed Rule 6860(b) addresses the need for Industry Members to capture Manual Order Events in increments up to and including one second, provided that each Industry Member is required to record and report the Electronic Capture Time in milliseconds.
The Commission finds that proposed Rule 6865 is consistent with the Act as it implements the clock synchronization rule violation provisions of the CAT NMS Plan. The Commission notes that proposed Rule 6865 describes potential violations of clock synchronization as well as the time stamp time period requirements set forth in the CAT NMS Plan, and specifically states that an Industry Member that engages in a pattern or practice of reporting Reportable Events with time stamps generated by Business Clocks that are not synchronized according to the requirements set forth in the Rule 6800 Series without reasonable justification or exceptional circumstances may be considered in violation of this Rule.
The Commission finds that proposed Rule 6870—which addresses connectivity and data transmission requirements related to the CAT—is consistent with the Act as it implements the connectivity and data transmission provisions of the CAT NMS Plan. Proposed Rule 6870(a) requires each Industry Member to transmit data as required under the CAT NMS Plan to the Central Repository utilizing such format(s) as may be provided by the Plan Processor and approved by the Operating Committee, and proposed Rule 6870(b) requires each Industry Member to connect to the Central Repository using a secure method(s), including, but not limited to, private line(s) and virtual private network connection(s). Proposed Rule 6870(c) permits Industry Members to use CAT Reporting Agents to fulfill their data reporting obligations related to the CAT. The Commission notes that Rule 6870(c) is substantively similar to FINRA Rule 7450(c), in that proposed Rule 6870(c), like FINRA Rule 7450(c), permits OATS Reporting Members to enter into agreements with Reporting Agents to fulfill the OATS obligations of the OATS Reporting Member, specifies responsibilities and procedures for maintaining such agreements between the OATS Reporting Member and the Reporting Members, and clarifies that an OATS Reporting Member remains primarily responsible for compliance with the OATS reporting rules.
The Commission finds that proposed Rule 6880 is consistent with the Act as it implements the development and testing provisions of the CAT NMS Plan. Proposed Rule 6880(a)(1) addresses Industry Members' connectivity and testing requirements, including connectivity and acceptance testing timelines. Proposed Rule 6880(a)(2) addresses the requirements relating to Industry Members' reporting of Customer and Industry Member information. Proposed Rule 6880(a)(3)-(4) addresses the submission of order data, including the Quote Sent time to be reported by Options Market Makers. Proposed Rule 6880(b) requires that each Industry Member shall participate in the testing related to the Central Repository, including any industry-wide disaster recovery testing.
The Commission finds that proposed Rule 6890 is consistent with the Act. The Commission notes that proposed Rule 6890 requires each Industry Member to maintain and preserve, and specifies the manner in which such records must be maintained and preserved, information required to be recorded under the proposed Rule 6800
The Commission finds that proposed Rule 6893 is consistent with the Act as it implements the requirements for reporting timely, accurate and complete data to the CAT as set forth in the CAT NMS Plan. FINRA notes that proposed Rule 6893 implements the requirement in Rule 613 and the CAT NMS Plan that data reported to the CAT be timely, accurate and complete. Specifically, proposed Rule 6893(a) requires that Industry Members record and report data to the Central Repository as required by the proposed Rule 6800 Series in a manner that ensures the timeliness, accuracy, integrity and completeness of such data. Proposed Rule 6893(b) requires Industry Members to accurately provide the LEIs in their records as required by the proposed Rule 6800 Series and states that Industry Members may not knowingly submit inaccurate LEIs to the Central Repository. Paragraph (b) notes, however, that this requirement does not impose any additional due diligence obligations on Industry Members with regard to LEIs for CAT purposes. Proposed Rule 6893(c) and (d) require Industry Members to be in compliance with the Error Rate as set forth in the CAT NMS Plan and the Compliance Thresholds as discussed in the CAT NMS Plan and determined by the Operating Committee. Proposed Rule 6893 implements the CAT NMS Plan's provisions.
The Commission finds that the compliance dates in proposed Rule 6895 are consistent with the Act, as they implement the compliance dates for reporting data to the CAT as set forth in the CAT NMS Plan and an exemptive order issued by the Commission. Proposed Rule 6895(a) states that, except as set forth in paragraphs (b) and (c) of the Rule or otherwise set forth in this Rule Series, the compliance date for the proposed Rule 6800 Series will be the date of Commission approval of the proposed rule change.
Proposed Rule 6895(b)(1) states that each Industry Member that captures time in milliseconds shall comply with Rule 6820 with regard to Business Clocks on or before March 15, 2017. Paragraph (b)(2) states that each Industry Member that does not capture time in milliseconds shall comply with Rule 6820 with regard to Business Clocks on or before February 19, 2018. The Commission notes that the compliance date set forth in proposed Rule 6895(b)(2) reflects the exemptive relief requested by the Participants and granted by the Commission with regard to the clock synchronization requirements related to Business Clocks that do not capture time in milliseconds.
Proposed Rule 6895(c)(1) requires each Industry Member (other than Small Industry Members) to record and report the Industry Member Data to the Central Repository by November 15, 2018. Proposed rule 6895(c)(2) requires that each Industry Member that is a Small Industry Member to record and report the Industry Member Data to the Central Repository by November 15, 2019.
The Commission notes that one commenter also requested that FINRA classify all firms currently exempt from reporting to OATS to be classified as a “Small Industry Member” as defined by the CAT NMS Plan.
The Commission notes that a commenter suggested that a cost/benefit analysis be performed to review the impact of CAT on firms currently exempt from reporting to OATS. The Participants responded the Commission had already undertaken into account the impact of CAT on firms currently exempt from OATS. The Commission likewise notes that it took into account the impact of the Plan on firms currently exempt from reporting to OATS when it approved the CAT NMS Plan.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 613 of Regulation NMS (17 CFR part 242) required national securities exchanges and national securities associations (“Participants”) to jointly submit to the Commission a national market system (“NMS”) plan to govern the creation, implementation, and maintenance of a consolidated audit trail (“CAT”) and Central Repository for the collection of information for NMS securities. On February 27, 2015, the Participants submitted the CAT NMS Plan to the Commission.
On April 27, 2016, the Commission published a notice soliciting comments from the public (“CAT NMS Plan Notice”).
The Commission believes that these audits, reports, and assessments of various aspects of the CAT NMS Plan are necessary to achieving the CAT NMS Plan's objective of improving the quality of the data available to regulators in four areas that affect the ultimate effectiveness of core regulatory efforts—completeness, accuracy, accessibility and timeliness.
The new information collections further require that each Participant conduct background checks for its employees and contractors that will use the CAT System.
There are 21 respondents that require an aggregate total of 8,269,747.99 hours to comply with the collection of information, as amended. The Commission further estimates that the aggregate cost to comply with the collection of information, as amended, is $534,465,565.81.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this amendment at the following Web site:
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A), (B), and (C) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (2) of the Act. The requested order would permit certain registered open-end investment companies to acquire shares of certain registered open-end investment companies, registered closed-end investment companies, business development companies, as defined in section 2(a)(48) of the Act, and unit investment trusts (collectively, “Underlying Funds”) that are within and outside the same group of investment companies as the acquiring investment companies, in excess of the limits in section 12(d)(1) of the Act.
Allianz Funds Multi-Strategy Trust (the “Trust”), a Massachusetts business trust that is registered under the Act as an open-end management investment company with multiple series, and Allianz Global Investors U.S. LLC (the “Applying Manager”), a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940.
The application was filed on December 23, 2013 and amended on July 30, 2015, May 2, 2016, February 3, 2017, March 8, 2017 and March 13, 2017.
An order granting the requested relief will
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: Allianz Funds Multi-Strategy Trust and Allianz Global Investors U.S. LLC, 1633 Broadway, New York, New York 10019; and George B. Raine, Ropes & Gray LLP, Prudential Tower, 800 Boylston St., Boston, MA 02148.
Mark N. Zaruba, Senior Counsel, at (202) 551-6878, or Robert Shapiro, Branch Chief, at (202) 551-6821 (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. Applicants request an order to permit (a) a Fund
2. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over an Underlying Fund that is not in the same “group of investment companies” as the Fund of Funds through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A), (B), and (C) of the Act.
3. Section 12(d)(1)(J) 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 section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if 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.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of amendments to the Mortgage-Backed
In order to provide transparency with respect to the existing intraday Mark-to-Market charge by codifying FICC's existing practices with respect to the charge, FICC is proposing to amend MBSD Rule 1 (Definitions) to add the defined term “Intraday Mark-to-Market Charge” and to amend Section 2(c) of MBSD Rule 4 (Clearing Fund and Loss Allocation) to include the Intraday Mark-to-Market Charge.
In addition, the proposed rule change would delete the term “End of Day Charge” from the MBSD Rules because it is no longer used, as further discussed below. To effectuate this change, the proposed rule change would delete the definition of End of Day Charge from Rule 1 (Definitions) and would amend Section 2 of MBSD Rule 4 (Clearing Fund and Loss Allocation) to delete the reference to the End of Day Charge.
In its filing with the Commission, the clearing agency 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 clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change would provide transparency in the MBSD Rules with respect to the assessment and collection of the existing Intraday Mark-to-Market Charge, which FICC currently may impose on a Clearing Member on an intraday basis under certain circumstances described below. Once imposed, payment of this charge is due within one hour after notice from FICC to an affected Clearing Member.
The Required Fund Deposit serves as each Clearing Member's margin. The objective of the Required Fund Deposit is to mitigate potential losses to FICC associated with liquidation of the Clearing Member's portfolio in the event that FICC ceases to act for a Clearing Member (hereinafter referred to as a “default”). FICC determines Required Fund Deposit amounts using a number of component charges calculated and assessed daily, the largest of which is the VaR Charge that is a risk-based margin methodology intended to capture market price risk. The methodology uses historical market moves to project or forecast the potential gains or losses on the liquidation of a defaulting Clearing Member's portfolio, assuming that a portfolio would take three days to liquidate or hedge in normal market conditions. The projected liquidation gains or losses are used to determine the Clearing Member's VaR Charge, which is calculated to cover projected liquidation losses at a 99 percent confidence level. The aggregate of all Clearing Members' Required Fund Deposits constitutes the Clearing Fund of MBSD, which FICC would be able to access in the event a defaulting Clearing Member's own Required Fund Deposit is insufficient to satisfy losses to FICC caused by the liquidation of that Clearing Member's portfolio.
MBSD calculates the full suite of components that comprise the Required Fund Deposit and imposes the Required Fund Deposit once per day, at the start of the day, based on a Clearing Member's prior end-of-day positions. Generally, the second largest component of the daily Required Fund Deposit is a start-of-day Mark-to-Market amount, which is designed to mitigate the risk arising out of the value change between the contract/settlement value of a Clearing Member's open positions and the market value at the end of the prior day.
During each trading day, a Clearing Member's exposure may change due to the settlement of existing transactions and new trade activities. In addition, the value of the Clearing Member's portfolio may change due to market influences. Normally, the start-of-day Mark-to-Market component of the daily Required Fund Deposit covers FICC's exposure to a Clearing Member due to market moves and/or trading and settlement activity because it brings the portfolio of outstanding positions up to the market value at the end of the prior day. However, because the start-of-day Mark-to-Market component of the Required Fund Deposit is calculated only once daily using the prior end-of-day positions and prices, it does not cover a Clearing Member's exposure arising out of intraday changes to position and market value in the Clearing Member's portfolio that result in an adverse change to the Clearing Member's Mark-to-Market (“MTM Exposure”). FICC manages this intraday risk exposure by observing snapshots of Clearing Members' portfolios and monitoring intraday changes to each Clearing Member's Mark-to-Market versus the Mark-to-Market that was part of the Required Fund Deposit at the start of the day or, if applicable, any subsequently collected Mark-to-Market amount. FICC then collects an Intraday Mark-to-Market Charge from Clearing Members to cover significant risk exposures that warrant the collection of intraday margin, as further described below.
FICC's current practice with respect to the assessment of the Intraday Mark-to-Market Charge entails tracking three criteria (each, a “Parameter Break”) for each Clearing Member. The Parameter Breaks help FICC determine whether a Clearing Member's MTM Exposure poses a risk to FICC that is significant enough to warrant an Intraday Mark-to-Market Charge. The objective of the Parameter Breaks is to ensure that FICC is able to limit exposure to intraday Mark-to-Market fluctuations that (a) are of a large dollar amount (the “Dollar Threshold”), (b) exhaust a significant portion of a Clearing Member's VaR Charge (the “Percentage Threshold”) and (c) are experienced by Clearing Members with backtesting deficiencies
The purpose of the Dollar Threshold is to identify those Clearing Members whose MTM Exposures represent a large portion of the Clearing Fund. FICC believes that such Clearing Members pose an increased risk of loss to FICC because the coverage provided by the Clearing Fund, which is designed to cover the aggregate losses of all Clearing Members' portfolios, would be substantially impacted by large MTM Exposures. More specifically, if a Clearing Member were to default and the Clearing Member's Required Fund Deposit was not sufficient to satisfy losses to FICC caused by the liquidation of the Clearing Member's portfolio, FICC would be able to access the funds held by it in the Clearing Fund to satisfy such losses. However, because the Clearing Fund must be available to satisfy potential losses to FICC that may arise from any Clearing Member defaults, FICC would be exposed to a significant risk of loss if Clearing Members' MTM Exposures accounted for a substantial portion of the Clearing Fund. The Dollar Threshold is set to an amount that would ensure that the aggregate MTM Exposures of all of its Clearing Members at such threshold would not exceed 5 percent of the Clearing Fund. FICC believes that the availability of 95 percent of the Clearing Fund to satisfy all other liquidation losses arising out of a Clearing Member's default is sufficient to mitigate the risks posed to FICC by such losses. FICC assesses the sufficiency of the Dollar Threshold on an annual basis and may adjust the Dollar Threshold if it determines that such an adjustment is necessary to provide reasonable coverage. Currently, the Dollar Threshold is an adverse intraday Mark-to-Market change in a Clearing Member's portfolio that equals or exceeds $1,000,000 when compared to the Clearing Member's start-of-day Mark-to-Market requirement including, if applicable, any subsequently collected Mark-to-Market amount.
The purpose of the Percentage Threshold is to identify those Clearing Members whose MTM Exposures deplete a significant portion of such Clearing Members' daily VaR Charge. FICC believes that Clearing Members that experience such MTM Exposures pose an increased risk of loss to FICC because the coverage provided by the VaR Charge, which is designed to cover estimated losses to a portfolio over a specified time period at least 99 percent of the time, would be depleted by a significant MTM Exposure that could cause the Clearing Member's Required Fund Deposit to be unable to absorb further intraday losses to the Clearing Member's portfolio. The Percentage Threshold is designed to provide FICC with a reasonable cushion to allow the VaR Charge collected at the start of day to function as expected. More specifically, the VaR Charge is designed to cover potential losses over a three-day time period for a Clearing Member at least 99 percent of the time, assuming normal market conditions. When a Clearing Member's MTM Exposure meets or exceeds a certain percentage as compared to its daily VaR Charge, the value of the Clearing Member's portfolio is trending towards a loss outside of the expected value as determined by such VaR Charge. The Percentage Threshold is calculated to equal a percentage of the daily VaR Charge that FICC has determined would leave it with a sufficient amount of a Clearing Member's remaining VaR Charge after accounting for potential losses arising from the Clearing Member's MTM Exposure. FICC assesses the sufficiency of the Percentage Threshold on an annual basis and may adjust the Percentage Threshold if it determines that such an adjustment is necessary to provide reasonable coverage.
The purpose of the Coverage Target is to identify those Clearing Members that have experienced backtesting deficiencies that bring the results for that Clearing Member below the 99 percent confidence target (
FICC's current practice is to review intraday snapshots of each Clearing Member's portfolios to determine whether the Clearing Member has experienced a MTM Exposure that warrants FICC assessing an Intraday Mark-to-Market Charge. More specifically, if a Clearing Member's MTM Exposure breaches all three Parameter Breaks, the Clearing Member will be subject to the Intraday Mark-to-Market Charge and FICC will collect the charge subject to waivers or changes to the amount of the calculated charge, as described below. However, where FICC determines that certain market conditions exist, including but not limited to (i) sudden swings in an equity index in either direction that exceed certain threshold amounts determined by FICC and (ii) moves in U.S. Treasury yields and mortgage-backed security spreads outside of historically observed market moves, FICC does not require that the Coverage Target be breached; rather, FICC imposes the Intraday Mark-to-Market Charge if only the Dollar Threshold and Percentage Threshold are breached,
Irrespective of market conditions, FICC may impose the Intraday Mark-to-Market Charge on Clearing Members that (i) are approaching but have not yet breached the Percentage Threshold (but are at 20 percent or greater of the daily VaR Charge) and (ii) have a MTM Exposure that exceeds a certain dollar amount (“Surveillance Threshold”) that is set by FICC per Clearing Member based on the Clearing Member's internal Credit Risk Rating Matrix (“CRRM”) rating and/or the Clearing Member's Watch List status, if the Corporation determines that the size of such Clearing Member's Mark-to-Market change exposes the Corporation to increased risk. FICC links the Surveillance Thresholds to a Clearing Member's CRRM rating and Watch List status because a Clearing Member with a weaker internal rating is likely to pose a greater risk of default. Clearing Members with weaker internal credit ratings are assigned lower Surveillance Thresholds than Clearing Members with stronger internal credit ratings. The Surveillance Thresholds are intended as a tool to aid FICC in identifying Clearing Members whose MTM Exposures may necessitate the collection of an Intraday Mark-to-Market Charge. The current Surveillance Thresholds are: (a) $50 million for Clearing Members with a CRRM rating of “1” or “2” and for non-rated Clearing Members that are not on the Watch List; (b) $25 million for Clearing Members with a CRRM rating of “3”; (c) $15 million for Clearing Members with a CRRM rating of “4”; (d) $10 million for Clearing Members with a CRRM rating of “5” or “6” and for non-rated Clearing Members that are on the Watch List; and (e) $5 million for Clearing Members with a CRRM rating of “7.”
Although FICC generally collects the Intraday Mark-to-Market Charge under the conditions described above, FICC retains the discretion to waive or alter such Intraday Mark-to-Market Charge in circumstances where it determines that the MTM Exposure and/or the breaches of the Parameter Breaks do not accurately reflect FICC's risk exposure to the Clearing Member's intraday Mark-to-Market fluctuation (
If FICC determines that FICC should collect an Intraday Mark-to-Market Charge from a Clearing Member, FICC notifies the Clearing Member during the trading day of its requirement to pay the Intraday Mark-to-Market Charge and the amount due. Affected Clearing Members are required to pay the amount due within one hour after FICC has provided the Clearing Member with notification that such payment is due (as long as notification is provided at least one hour prior to the close of the cash Fedwire operated by the Federal Reserve Bank of New York).
Currently, MBSD Rule 4 states that the Required Fund Deposit is equal to the greater of: (i) The Minimum Charge, or (ii) the End of Day Charge,
Section 17A(b)(3)(F) of the Securities Exchange Act of 1934, as amended (the “Act”), requires, in part, that the MBSD Rules promote the prompt and accurate clearance and settlement of securities transactions.
Rule 17Ad-22(b)(1) under the Act requires a clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to measure its credit exposures to its participants at least once a day and limit its exposures to potential losses from defaults by its participants under normal market conditions, so that the operations of the clearing agency would not be disrupted and non-defaulting participants would not be exposed to losses that they
Rule 17Ad-22(b)(2) under the Act requires a clearing agency to maintain and enforce written policies and procedures reasonably designed to use margin requirements to limit its credit exposures to participants under normal market conditions.
The proposed rule changes with respect to the Intraday Mark-to-Market Charge have also been designed to be consistent with Rules 17Ad-22(e)(4) and (e)(6) under the Act, which were recently adopted by the U.S. Securities and Exchange Commission (“Commission”).
Rule 17Ad-22(e)(6) will require FICC to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that is monitored by management on an ongoing basis and regularly reviewed, tested, and verified.
FICC does not believe that the proposed rule change associated with the Intraday Mark-to-Market Charge would impact competition.
FICC does not believe that the proposed rule change to delete the End of Day Charge would impact competition. Changes to the applicable provisions would not impact Clearing Members because the End of Day Charge is not used by MBSD in the calculation of a Clearing Member's Required Fund Deposit. As such, FICC believes that the deletion of these provisions will not impact competition.
FICC has not received any written comments relating to this proposal. FICC will notify the Commission of any written comments received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f) of Rule 19b-4 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Schedule of Fees to: (i) Eliminate the Priority Customer complex order rebate for orders in the NASDAQ 100 Index option (“NDX”) and in the Mini Nasdaq 100 Index option (“MNX”); (ii) increase the Non-Priority Customer License Surcharge for Index Options for NDX and MNX options, and (iii) waive the Marketing Fees for NDX and MNX, as described further below.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to: (i) Eliminate the Priority Customer complex order rebate for orders in NDX and MNX; (ii) increase the Non-Priority Customer License Surcharge for Index Options for NDX and MNX, and (iii) waive marketing fees for NDX and MNX.
Currently, the Exchange provides rebates to Priority Customer
The purpose of the second proposed change is to raise revenue for the Exchange by increasing the Non-Priority Customer License Surcharge for options on NDX and MNX. Currently, a number of Non-Select Symbols are index options that are traded on the Exchange pursuant to license agreements for which the Exchange charges license surcharges. The Exchange charges the following license surcharges for all orders other than Priority Customer orders: $ 0.10 per contract for options on BKX, and $ 0.22 per contract for options on NDX and MNX. The license surcharge fees, which are charged by the Exchange to defray the licensing costs, are charged in addition to transaction fees. The Exchange is now proposing to amend Section IV.B of the Schedule of Fees to increase the Non-Priority Customer License Surcharge for Index Options for NDX and MNX from $ 0.22 per contract to $ 0.25 per contract.
Currently, the Exchange administers a Marketing Fee program that helps Market Makers establish Marketing Fee
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Likewise, in
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers'. . . .”
The Exchange notes that the proposed rule changes are reasonable, equitable and not unfairly discriminatory as NDX and MNX transition to exclusively listed products. Similar to other proprietary products, the Exchange seeks to recoup the operational costs
The Exchange's proposal to eliminate the rebate for Priority Customer complex orders in Non-Select Symbols for orders in NDX and MNX is reasonable because even after elimination of the rebate, Priority Customer complex orders in NDX and MNX will not be assessed any Complex Order transaction fees.
The Exchange's proposal to eliminate the rebate for Priority Customer complex orders in Non-Select Symbols for orders in NDX and MNX is an equitable allocation and is not unfairly discriminatory because the Exchange will eliminate the rebate for all similarly-situated members.
The Exchange believes that its proposal to increase the Non-Priority Customer License Surcharge for Index Options for NDX and MNX is reasonable because it is in line with the options surcharge of $0.25 for transactions in NDX and MNX on NASDAQ PHLX and is in fact lower than the $0.45 C2 Options Exchange surcharge applicable to non-public customer transactions in RUT, which is another broad-based index option and similar proprietary product.
The Exchange believes that its proposal to increase the Non-Priority Customer License Surcharge for Index Options for NDX and MNX is an equitable allocation and is not unfairly discriminatory because the Exchange will apply the increase to all similarly-situated members. The Exchange believes it is equitable and not unfairly discriminatory to assess this increased surcharge on all participants except Priority Customers because the Exchange seeks to encourage Priority Customer order flow and the liquidity such order flow brings to the marketplace, which in turn benefits all market participants.
The Exchange believes that its proposal to waive the Marketing Fee for NDX and MNX is reasonable because the purpose of a Marketing Fee is to attract order flow to the Exchange. Because NDX and MNX are no longer widely traded on many competing options exchanges, a Marketing Fee whose purpose is to attract order flow to the Exchange is no longer necessary to attract order flow to ISE.
The Exchange believes that its proposal to waive the Marketing Fee for NDX and MNX is an equitable allocation and is not unfairly discriminatory because the Exchange will waive the Marketing Fee for all similarly-situated members.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed amendments to the fees will eliminate the rebate for Priority Customer complex orders in Non-Select Symbols for orders in NDX and MNX, increase the Non-Priority Customer License Surcharge for Index Options for NDX and MNX, and waive the Marketing Fee for NDX and MNX. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets or will impose any inter-market burden on competition for the reasons stated above.
In terms of intra-market competition, the elimination of the rebate for Priority Customer complex orders for orders in NDX and MNX will result in total fees for orders in NDX and MNX becoming more uniform across all classes of market participants, while still permitting Priority Customers to transact in NDX and MNX free of any transaction charge. Removing the rebate will also enhance the Exchange's ability to offer other rebates or reduced fees that could incentivize behavior that would enhance market quality on the Exchange, which would benefit all members.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend BOX Rule 7170 (Nullification and Adjustment of Options Transactions) to add IM-7170-4. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend BOX Rule 7170 (Nullification and Adjustment of Options Transactions) to add IM-7170-4. This is filing is based on a proposal recently submitted by Chicago Board Options Exchange, Incorporated (“CBOE”) and approved by the Commission.
Last year, the Exchange and other options exchanges adopted a new, harmonized rule related to the adjustment and nullification of erroneous options transactions, including a specific provision related to coordination in connection with large-scale events involving erroneous options transactions.
Specifically, the options exchanges have been working together to identify ways to improve the process related to the adjustment and nullification of erroneous options transactions as it relates to complex orders
The Proposed Rule is the culmination of this coordinated effort and reflects discussions by the options exchanges whereby the exchanges that offer complex orders and/or stock-option orders will universally adopt new provisions that the options exchanges collectively believe will improve the handling of erroneous options transactions that result from the execution of complex orders and stock-option orders.
The Exchange believes that the Proposed Rule supports an approach consistent with long-standing principles in the options industry under which the general policy is to adjust rather than nullify transactions. The Exchange acknowledges that adjustment of transactions is contrary to the operation of analogous rules applicable to the equities markets, where erroneous transactions are typically nullified rather than adjusted and where there is no distinction between the types of market participants involved in a transaction. For the reasons set forth below, the Exchange believes that the distinctions in market structure between equities and options markets continue to support these distinctions between the rules for handling obvious errors in the equities and options markets.
Various general structural differences between the options and equities markets point toward the need for a different balancing of risks for options market participants and are reflected in this proposal. Option pricing is formulaic and is tied to the price of the underlying stock, the volatility of the underlying security and other factors. Because options market participants can generally create new open interest in response to trading demand, as new open interest is created, correlated trades in the underlying or related series are generally also executed to hedge a market participant's risk. This pairing of open interest with hedging interest differentiates the options market specifically (and the derivatives markets broadly) from the cash equities markets. In turn, the Exchange believes that the hedging transactions engaged in by market participants necessitates protection of transactions through adjustments rather than nullifications when possible and otherwise appropriate.
The options markets are also quote driven markets dependent on liquidity providers to an even greater extent than equities markets. In contrast to the approximately 7,000 different securities
In addition to the factors described above, there are other fundamental differences between options and equities markets which lend themselves to different treatment of different classes of participants that are reflected in this proposal. For example, there is no trade reporting facility in the options markets. Thus, all transactions must occur on an options exchange. This leads to significantly greater retail customer participation directly on exchanges than in the equities markets, where a significant amount of retail customer participation never reaches the Exchange but is instead executed in off-exchange venues such as alternative trading systems, broker-dealer market making desks and internalizers. In turn, because of such direct retail customer participation, the exchanges have taken steps to afford those retail customers—generally Priority Customers—more favorable treatment in some circumstances.
As more fully described below, the Proposed Rule applies much of the Current Rule to Complex Orders.
First, proposed IM-7170-4(a) governs the review of Complex Orders that are executed against individual legs (as opposed to a Complex Order that executes against another Complex Order).
If a Complex Order executes against individual legs and at least one of the legs qualifies as an Obvious or Catastrophic Error under this Rule 7170, then the leg(s) that is an Obvious or Catastrophic Error will be adjusted in accordance with paragraphs (c)(4)(A) or (d)(3), respectively, regardless of whether one of the parties is a Customer. However, any Customer order subject to this paragraph (a) will be nullified if the adjustment would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer's limit price on the Complex Order or individual leg(s). If any leg of a Complex Order is nullified, the entire transaction is nullified.
As previously noted, at least one of the legs of the Complex Order must qualify as an obvious or catastrophic error under the Current Rule in order for the Complex Order to receive obvious or catastrophic error relief. Thus, when the Exchange is notified (within the timeframes set forth in paragraph (c)(2) or (d)(2)) of a Complex Order that is a possible obvious error or catastrophic error, the Exchange will first review the individual legs of the Complex Order to determine if one or more legs qualify as an obvious or catastrophic error.
Reviewing the legs to determine whether one or more legs qualify as an obvious or catastrophic error requires the Exchange to follow the Current Rule. In accordance with paragraphs (c)(1) and (d)(1) of the Current Rule, the Exchange compares the execution price of each individual leg to the Theoretical Price of each leg (as determined by paragraph (b) of the Current Rule). If the execution price of an individual leg is higher or lower than the Theoretical Price for the series by an amount equal to at least the amount shown in the obvious error table in paragraph (c)(1) of the Current rule or the catastrophic error table in paragraph (d)(1) of the Current Rule, the individual leg qualifies as an obvious or catastrophic error, and the Exchange will take steps to adjust or nullify the transaction.
To illustrate, consider a Customer submits a Complex Order to the Exchange consisting of leg 1 and leg 2—Leg 1 is to buy 100 ABC calls and leg 2 is to sell 100 ABC puts. Also, consider that Market-Maker 1 is quoting the ABC calls $1.00-1.20 and Market-Maker 2 is quoting the ABC puts $2.00-2.20. If the Complex Order executes against the quotes of Market-Makers 1 and 2, the Customer buys the ABC calls for $1.20 and sells the ABC puts for $2.00. As with the obvious/catastrophic error reviews for simple orders, the execution price of leg 1 is compared to the Theoretical Price
Paragraph (c)(4)(A) of the Current Rule mandates that if it is determined that an obvious error has occurred, the execution price of the transaction will be adjusted pursuant to the table set forth in (c)(4)(A). Although for simple orders paragraph (c)(4)(A) is only applicable when no party to the transaction is a Customer, for the purposes of Complex Orders paragraph (a) of IM-7170-4 will supersede that limitation; therefore, if it is determined that a leg (or legs) of a Complex Order is an obvious error, the leg (or legs) will be adjusted pursuant to (c)(4)(A), regardless of whether a party to the transaction is a Customer. The Size Adjustment Modifier defined in subparagraph (a)(4) will similarly apply (regardless of whether a Customer is on the transaction) by virtue of the application of paragraph (c)(4)(A).
Furthermore, as with the Current Rule, Proposed IM-7170-4(a) provides protection for Customer orders, stating that where at least one party to a Complex Order transaction is a Customer, the transaction will be nullified if adjustment would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer's limit price on the Complex Order or individual leg(s). For example, assume Customer enters a Complex Order to buy leg 1 and leg 2.
• Assume the NBBO for leg 1 is $0.20-1.00 and the NBBO for leg 2 is $0.50-1.00 and that these have been the NBBOs since the market opened.
• A split-second prior to the execution of the Complex Order a Customer enters a simple order to sell the leg 1 options series at $1.30, and the simple order enters the Exchange's book so that the BBO is $.20-$1.30. The limit price on the simple order is $1.30.
• The Complex Order executes leg 1 against the Exchange's best offer of $1.30 and leg 2 at $1.00 for a net execution price of $2.30.
• However, leg 1 executed on a wide quote (the NBBO for leg 1 was $0.20-1.00 at the time of execution, which is wider than $0.75).
• The Exchange determines that the Theoretical Price for leg 1 is $1.00, which was the best offer prior to the execution. Leg 1 qualifies as an obvious error because the difference between the Theoretical Price ($1.00) and the execution price ($1.30) is larger than $0.25.
• According to Proposed IM-7170-4(a) Customers will also be adjusted in accordance with Rule 7170(c)(4)(A), which for a buy transaction under $3.00 calls for the Theoretical Price to by adjusted by adding $0.15
• However, adjusting the execution price of leg 1 to $1.15 violates the limit price of the Customer's sell order on the simple order book for leg 1, which was $1.30.
• Thus, the entire Complex Order transaction will be nullified
As the above example demonstrates, incoming Complex Orders may execute against resting simple orders in the leg market. If a Complex Order leg is deemed to be an obvious error, adjusting the execution price of the leg may violate the limit price of the resting order, which will result in nullification if the resting order is for a Customer. In contrast, IM-7170-2 provides that if an adjustment would result in an execution price that is higher than an erroneous buy transaction or lower than an erroneous sell transaction the execution will not be adjusted or nullified.
As previously noted, paragraph (d)(3) of the Current Rule already mandates that if it is determined that a catastrophic error has occurred, the execution price of the transaction will be adjusted pursuant to the table set forth in (d)(3). For purposes of Complex Orders under Proposed IM-7170-4(a), if one of the legs of a Complex Order is determined to be a Catastrophic Error under paragraph (d)(3), all market participants will be adjusted in accordance with the table set forth in (d)(3). Again, however, where at least one party to a Complex Order transaction is a Customer, the transaction will be nullified if adjustment would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer's limit price on the Complex Order or individual leg(s). Again, if any leg of a Complex Order is nullified, the entire transaction is nullified.
Other than honoring the limit prices established for Customer orders, the Exchange has proposed to treat Customers and non-Customers the same in the context of the Complex Orders that trade against the leg market. When Complex Orders trade against the leg market, it is possible that at least some of the legs will execute at prices that would not be deemed obvious or catastrophic errors, which gives the counterparty in such situations no indication that the execution will later by adjusted or nullified. The Exchange believes that treating Customers and non-Customers the same in this context will provide additional certainty to non-Customers (especially Market-Makers) with respect to their potential exposure and hedging activities, including comfort that even if a transaction is later adjusted, such transaction will not be fully nullified. However, as noted above, under the Proposed Rule where at least one party to the transaction is a Customer, the trade will be nullified if the adjustment would result in an execution price higher (for buy transactions) or lower (for sell transactions) than the Customer's limit price on the Complex Order or individual leg(s). The Exchange has retained the protection of a Customer's limit price in order to avoid a situation where the adjustment could be to a price that a Customer would not have expected, and market professionals such as non-Customers would be better prepared to recover in such situations. Therefore, adjustment for non-Customers is more appropriate.
Second, proposed IM-7170-4(b) governs the review of Complex Orders
If a Complex Order executes against another Complex Order and at least one of the legs qualifies as an Obvious Error under paragraph (c)(1) or a Catastrophic Error under paragraph (d)(1), then the leg(s) that is an Obvious or Catastrophic Error will be adjusted or busted in accordance with paragraph (c)(4) or (d)(3), respectively, so long as either: (i) The width of the National Spread Market for the Complex Order strategy just prior to the erroneous transaction was equal to or greater than the amount set forth in the wide quote table of paragraph (b)(3) or (ii) the net execution price of the Complex Order is higher (lower) than the offer (bid) of the National Spread Market for the Complex Order strategy just prior to the erroneous transaction by an amount equal to at least the amount shown in the table in paragraph (c)(1). If any leg of a Complex Order is nullified, the entire transaction is nullified. For purposes of Rule 7170, the National Spread Market for a Complex Order strategy is determined by the National Best Bid/Offer of the individual legs of the strategy.
Unlike Proposed IM-7170-4(a), the Exchange is also proposing to compare the net execution price of the entire Complex Order package to the National Spread Market (“NSM”) for the Complex Order strategy.
• If the BBO for the ABC calls is $5.50-7.50 and the BBO for ABC puts is $3.00-4.50, then the Exchange's spread market is $1.00-4.50.
• If the NBBO for the ABC calls is $6.00-6.50 and the NBBO for the ABC puts is $3.50-4.00, then the NSM is $2.00-3.00.
• If the Customer buys the calls at $7.50 and sells the puts at $4.00, the Complex Order Customer receives a net execution price of $3.00 (debit), which is the expected net execution price as indicated by the NSM offer of $3.00.
If the exchange were to solely focus on the $7.50 execution price of the ABC calls or the $4.00 execution price of the ABC puts, the execution would qualify as an obvious or catastrophic error because the execution price on the legs was outside the NBBO, even though the net execution price is accurate. Thus, the additional review of the NSM to determine if the Complex Order was executed at a truly erroneous price is necessary. The same concern is not present when a Complex Order executes against the leg market under IM-7170-4(a) because the Exchange is modifying its system in order to ensure the leg will execute at or within the NBBO of the leg markets.
In order to incorporate NSM, IM-7170-4(b) provides that if the Exchange determines that a leg or legs does qualify as on obvious or catastrophic error, the leg or legs will be adjusted or busted in accordance with paragraph (c)(4) or (d)(3) of the Current Rule, so long as either: (i) The width of the NSM for the Complex Order strategy just prior to the erroneous transaction was equal to or greater than the amount set forth in the wide quote table of paragraph (b)(3) of the Current Rule or (ii) the net execution price of the Complex Order is higher (lower) than the offer (bid) of the NSM for the Complex Order strategy just prior to the erroneous transaction by an amount equal to at least the amount shown in the table in paragraph (c)(1) of the Current Rule.
For example, assume an individual leg or legs qualifies as an obvious or catastrophic error and the width of the NSM of the Complex Order strategy just prior to the erroneous transaction is $6.00-9.00. The Complex Order will qualify to be adjusted or busted in accordance with paragraph (c)(4) of the Current Rule because the wide quote table of paragraph (b)(3) of the Current Rule indicates that the minimum amount is $1.50 for a bid price between $5.00 to $10.00. If the NSM were instead $6.00-7.00 the Complex Order strategy would not qualify to be adjusted or busted pursuant to .07(b)(i) because the width of the NSM is $1.00, which is less than the required $1.50. However, the execution may still qualify to be adjusted or busted in accordance with paragraph (c)(4) or (d)(3) of the Current Rule pursuant to IM-7170-4(b)(ii). Focusing on the NSM in this manner will ensure that the obvious/catastrophic error review process focuses on the net execution price instead of the execution prices of the individual legs, which may have execution prices outside of the NBBO of the leg markets.
Again, assume an individual leg or legs qualifies as an obvious or catastrophic error as described above. If the NSM is $6.00-7.00 (not a wide quote pursuant to the wide quote table in paragraph (b)(3) of the Current Rule) but the execution price of the entire Complex Order package (
Although the Exchange believes adjusting execution prices is generally
Therefore, for purposes of Complex Orders under Proposed IM-7170-4(b), if one of the legs is determined to be an obvious error under paragraph (c)(1), all Customer transactions will be nullified, unless a Participant submits 200 or more Customer transactions for review in accordance with (c)(4)(C).
In order to ensure that the other options exchanges are able to adopt rules consistent with this proposal and to coordinate effectiveness of such harmonized rules, the Exchange proposed to delay the effectiveness of this proposal to April 17, 2017.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
As described above, the Exchange and other options exchanges are seeking to adopt harmonized rules related to the adjustment and nullification of erroneous options transactions. The Exchange believes that the Proposed Rule will provide greater transparency and clarity with respect to the adjustment and nullification of erroneous options transactions. Particularly, the proposed changes seek to achieve consistent results for participants across U.S. options exchanges while maintaining a fair and orderly market, protecting investors and protecting the public interest. Based on the foregoing, the Exchange believes that the proposal is consistent with Section 6(b)(5) of the Act
The Exchange believes the various provisions allowing or dictating adjustment rather than nullification of a trade are necessary given the benefits of adjusting a trade price rather than nullifying the trade completely. Because options trades are used to hedge, or are hedged by, transactions in other markets, including securities and futures, many Participants, and their customers, would rather adjust prices of executions rather than nullify the transactions and, thus, lose a hedge altogether. As such, the Exchange believes it is in the best interest of investors to allow for price adjustments as well as nullifications.
The Exchange does not believe that the proposal is unfairly discriminatory, even though it differentiates in many places between Customers and non-Customers. As with the Current Rule, Customers are treated differently, often affording them preferential treatment. This treatment is appropriate in light of the fact that Customers are not necessarily immersed in the day-to-day trading of the markets, are less likely to be watching trading activity in a particular option throughout the day, and may have limited funds in their trading accounts. At the same time, the Exchange reiterates that in the U.S. options markets generally there is significant retail customer participation that occurs directly on (and only on) options exchanges such as the Exchange. Accordingly, differentiating among market participants with respect to the adjustment and nullification of erroneous options transactions is not unfairly discriminatory because it is reasonable and fair to provide Customers with additional protections as compared to non-Customers.
The Exchange believes that its proposal to adopt the ability to adjust a Customer's execution price when a Complex Order is deemed to be an Obvious or Catastrophic Error is consistent with the Act. A Complex Order that executes against individual leg markets may receive an execution price on an individual leg that is not an Obvious or Catastrophic error but another leg of the transaction is an Obvious or Catastrophic Error. In such situations where the Complex Order is executing against at least one individual or firm that is not aware of the fact that they have executed against a Complex Order or that the Complex Order has been executed at an erroneous price, the Exchange believes it is more appropriate to adjust execution prices if possible because the derivative transactions are often hedged with other securities. Allowing adjustments instead of nullifying transactions in these limited situations will help to ensure that market participants are not left with a hedge that has no position to hedge against.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the proposed rule change is substantially similar to a filing submitted by CBOE that was recently approved by the Commission.
The Exchange believes the proposal will not impose a burden on intermarket competition but will rather alleviate any burden on competition because it is the result of a collaborative effort by all options exchanges to harmonize and improve the process related to the adjustment and nullification of erroneous options transactions. The Exchange does not believe that the rules applicable to such process is an area where options exchanges should
The Exchange does not believe that the proposed rule change imposes a burden on intramarket competition because the provisions apply to all market participants equally within each participant category (
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Surface Transportation Board.
Approval of rail cost adjustment factor.
The Board approves the second quarter 2017 Rail Cost Adjustment Factor (RCAF) and cost index filed by the Association of American Railroads. The second quarter 2017 RCAF (Unadjusted) is 0.904. The second quarter 2017 RCAF (Adjusted) is 0.377. The second quarter 2017 RCAF-5 is 0.358.
Pedro Ramirez, (202) 245-0333. Federal Information Relay Service (FIRS) for the hearing impaired (800) 877-8339.
Additional information is contained in the Board's decision, which is available on our Web site,
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
By the Board, Board Members Begeman, Elliott, and Miller.
The Surface Transportation Board has received a request from a professor at Carnegie Mellon University. (WB17-14—2/23/17) for permission to use certain unmasked data from the Board's 1984-2015 Carload Waybill Samples. A copy of this request may be obtained from the Office of Economics.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant the American Concrete Pumping Association (ACPA) and others an exemption from the 30-minute rest break requirement in the Agency's hours-of-service (HOS) regulations for commercial motor vehicle (CMV) drivers. The exemption enables all concrete pump operators, concrete pumping companies, and drivers who operate concrete pumps in interstate commerce to count on-duty time while attending equipment but performing no other work-related activity, toward the 30-minute rest break provision of the HOS regulations. FMCSA has analyzed the exemption application and the public comments and has determined that the exemption, subject to the terms and conditions imposed, will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
The exemption is effective on March 21, 2017 and expires on March 21, 2019.
Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver, and Vehicle Safety Standards; Telephone: (614) 942-6477. Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The American Concrete Pumping Association (ACPA) represents more than 600 member companies who employ over 7,000 workers nationwide. The exemption would be applied to all interstate concrete pumper trucks and their operators, regardless of the motor carrier or membership in ACPA. Although many of the trucks operate intrastate and would therefore not be covered by an FMCSA exemption, an unknown number of the pumping trucks are operated in metropolitan areas and do routinely cross State lines.
ACPA requests an exemption from the 30-minute rest break provision in 49 CFR 395.3(a)(3)(ii). The exemption would apply industry-wide to all concrete pump operators, concrete pumping companies and drivers who deliver, set-up, and operate concrete pumps in interstate commerce across the United States. ACPA requests the exemption because it states that the mandatory 30-minute rest break increases the risk of dangerous conditions on job sites. A mandatory break during which the concrete pump operator is considered to be “off duty” would require the pump to be shut down and likely cleaned out. Stopping the flow of concrete through the pump creates the risk of introducing air in the pump's pipe system which in turn could cause hose-whipping that can injure not only the pump operator, but any personnel within reach of the hose. Concrete pump operators also already take rest breaks throughout the typical day that reflect the work flow at the job site, so an additional 30-minute rest break does not enhance job safety.
ACPA added that concrete is a perishable product. The perishable nature of concrete also creates difficult schedule coordination issues due to concrete being needed on a just-in-time basis. Concrete pump operators cannot plan the timing of the 30-minute break, as they cannot interrupt their work activity without the threat of failure—failure to accept and deliver concrete within its perishable limits and failure to comply with their contracts. Once the ingredients of ready-mixed concrete have been combined, there is a brief window during which the product can be pumped (roughly 90 minutes before the concrete hardens). Should the concrete pump operator be required to take the 30-minute rest break, it would cause a ripple effect on the ready-mixed concrete trucks in line to supply the pump. Such a delay could cost thousands of dollars to rectify and could potentially violate a delivery contract, according to ACPA. Once the concrete pump starts to receive a delivery, it must be completed without disruption
Further details regarding this industry's safety controls can be found in the application for exemption, which can be accessed in the docket identified at the beginning of this notice. ACPA asserted that granting this exemption would achieve the same level of safety provided by the rule requiring the 30-minute rest break. The Association stated that the concrete pumping industry has a “solid” safety record, and that concrete pump operators already receive numerous other breaks throughout the workday. ACPA's Operation Certification Program ensures, encourages, and educates the industry on safe pumping and placement procedures, and these safety practices allow concrete operators to maintain their safety record through careful training and well-developed safety guidelines. The proposed exemption would be effective for 2 years.
On October 25, 2016, FMCSA published notice of this application, and requested public comment (81 FR 73465); four responses were submitted. Comments in favor of the proposed exemption were submitted by the Western States Trucking Association (WSTA) (formerly known as the California Construction Trucking Association (CCTA)); and the National Ready Mixed Concrete Association (NRMCA). Comments in opposition to the proposed exemption were submitted by the International Brotherhood of Teamsters (IBT). One individual commenter took no formal position on the exemption request.
WSTA stated that it “is supportive of FMCSA granting the exemption requested by the ACPA from the 30-minute rest break provision in 49 CFR 395.3(a) (3) (ii). Concrete is a perishable commodity and as such once the pump-operator begins pumping concrete, needing to comply with the 30-minute break requirement can have significant negative ramifications for both the product and machinery.” WSTA added that the ready-mixed concrete drivers delivering product to a work site that is dependent on the pump operator performing their job function are already exempted from the 30-minute break requirements. WSTA referenced their prior support of the ready-mixed concrete request several years earlier, and further noted that in those same comments they had requested FMCSA to expand the 30-minute break exemption to operators of concrete pumpers.
NRMCA also supported the ACPA exemption request. As the representative of one of the primary material suppliers discharging into concrete pumps, NRMCA asserted that all the claims made and scenarios outlined by ACPA are legitimate and thus valid reasons for granting the requested exemption. NRMCA confirmed APCA's concerns about ready mixed concrete being a perishable product and thus requiring a 30-minute break to be taken at a likely improbable time risks worker safety, equipment malfunctions and the delicate coordination required between ready mixed concrete deliveries and the concrete pump operators. Due to the nature of concrete pump operators' schedules and inherent work practices, NRMCA agreed that requiring a 30-minute break for concrete pump operators would not provide an increased level of safety on our nation's roadways, but in turn would likely create a potentially unsafe work environment.
The International Brotherhood of Teamsters (IBT) opposed the proposed exemption. IBT strongly objected to allowing this class of drivers to use 30 minutes of on-duty “waiting time” to satisfy the requirement for the rest break. IBT cites APCA's argument that the 30-minute rest break would require the concrete pump to be shut down and cleaned out. Stopping the concrete flow, according to ACPA, creates the risk of introducing air into the pipe system and the attendant risk of hose whipping. ACPA stated, according to the IBT, that a hose whipping violently could injure the pump operator and any other workers within reach of the discharge hose. However, IBT contends that ACPA failed to provide any data supporting the contention that this is a frequent occurrence that has caused accidents and even deaths. IBT states that the rest break provision has been in effect since 2011, more than sufficient time to collect data to support ACPA's claims of a safer workplace if the exemption was granted.
FMCSA has evaluated APCA's application and the public comments and decided to grant the exemption. The Agency believes that the exempted concrete pump drivers will likely achieve a level of safety that is equivalent to or greater than, the level of safety achieved without the exemption [49 CFR 381.305(a)]. It is important to note that the Agency is not granting a complete exemption from the 30-minute rest break provision required by 49 CFR 395.3(a)(iii)(2). Instead, FMCSA is granting an exemption for concrete pump operators and drivers who remain with the CMV (
(1) Drivers who deliver, set-up, and operate concrete pumps in interstate commerce across the United States, and all concrete pump operators and concrete pumping companies and drivers, are exempt from the requirement for a 30-minute rest break in Section 395.3(a)(3)(ii), in that they may count “waiting” periods when they are performing no work activity as the required 30-minute break.
(2) Drivers must have a copy of this exemption document in their possession while operating under the terms of the exemption. The exemption document must be presented to law enforcement officials upon request.
(3) All motor carriers operating under this exemption must have a “Satisfactory” safety rating with FMCSA, or be “unrated.” Motor carriers with “Conditional” or “Unsatisfactory” FMCSA safety ratings are prohibited from using this exemption.
This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is granted for the period from March 21, 2017 through March 21, 2019.
This exemption is limited to the provisions of 49 CFR 395.3(a)(3)(ii). These drivers must comply will all other applicable provisions of the FMCSRs.
In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable
Any motor carrier utilizing this exemption must notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMVs operating under the terms of this exemption. The notification must include the following information:
(a) Identity of the exemption: “ACPA”
(b) Name of operating motor carrier and USDOT number,
(c) Date of the accident,
(d) City or town, and State, in which the accident occurred, or closest to the accident scene,
(e) Driver's name and license number and State of issuance
(f) Vehicle number and State license plate number,
(g) Number of individuals suffering physical injury,
(h) Number of fatalities,
(i) The police-reported cause of the accident,
(j) Whether the driver was cited for violation of any traffic laws or motor carrier safety regulations, and
(k) The driver's total driving time and total on-duty time period prior to the accident.
Reports filed under this provision shall be emailed to
FMCSA does not believe the drivers covered by this exemption will experience any deterioration of their safety record. However, should this occur, FMCSA will take all steps necessary to protect the public interest, including revocation of the exemption. The FMCSA will immediately revoke or restrict the exemption for failure to comply with its terms and conditions.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval. This ICR is to collect data on the delays, by State, that applicants face when scheduling a CDL skills test. This information collection and subsequent data analysis is required by section 5506 of the Fixing America's Surface Transportation Act, 2015 (FAST Act).
Please send your comments by April 20, 2017. OMB must receive your comments by this date in order to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2016-0275. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Nicole Michel, Office of Analysis, Research, and Technology/Research Division, Department of Transportation, Federal Motor Carrier Safety Administration, 6th Floor, West Building, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone: 202-366-4354; Email Address:
Section 5506 of the FAST Act (Pub. L. 114-94, Dec. 4, 2015, 49 U.S.C. 31305 note) requires FMCSA to produce a study on CDL skills test delays on an annual basis. The requirements of the study are to submit a report describing:
“(A) the average wait time from the date an applicant requests to take a skills test to the date the applicant has the opportunity to complete such test;
(B) the average wait time from the date an applicant, upon failure of a skills test, requests a retest to the date the applicant has the opportunity to complete such retest;
(C) the actual number of qualified commercial driver's license examiners available to test applicants; and
(D) the number of testing sites available through the State department of motor vehicles and whether this number has increased or decreased from the previous year.”
The report is also required to describe “specific steps the Administrator is
FMCSA has met with several stakeholders, including the American Association of Motor Vehicle Administrators (AAMVA), the Commercial Vehicle Training Association, and State Driver Licensing Agencies to ensure that the information being collected in this survey has not already been collected, is not currently available to FMCSA, and is not in the process of being collected. Extensive background research was conducted to ensure the study was not duplicative. A previous study, done by the Government Accountability Office in 2015, asked for similar information but did not produce specific enough data to be used in this study.
The survey will be sent out via email, with the option for online completion using SurveyMonkey®. Each State can respond via email or the online survey depending on which method is more convenient for the respondent. The welcome letter will indicate that FMCSA prefers responses via the online survey tool.
The information collected will be published annually in a report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. The first report is due to Congress no later than June 1, 2017. FMCSA plans to have a draft report available by June 1, 2017, with the finalized report submitted to congress in August 2017. Subsequent reports will be published on an annual basis thereafter.
On October 5, 2016, FMCSA published a notice in the
Four commenters provided insights into States' current CDL skills testing delays, including an applicant's average wait time to complete a skills test; an applicant's average wait time to complete a retest; the number of qualified commercial driver's license examiners; and the number of State testing sites. FMCSA appreciates this information, and encourages each State to fill out the complete survey when it is administered.
Two commenters indicated that they believe the information collection is necessary and can provide useful information. One commenter noted that FMCSA's primary mission is to reduce crashes, injuries, and fatalities involving large trucks and buses, and that this survey does not advance FMCSA's mission. While FMCSA agrees that the correlation between CDL skills test and increased safety is not immediately apparent, FMCSA believes skills testing is an integral part of truck and bus safety mission. In addition, as discussed above, FMCSA is required to collect this information at this interval based on the FAST Act.
While two commenters indicated that they believe the burden estimate seems reasonable, one commenter strongly disagreed. The commenter estimated that annual burden would be between 200 and 270 hours because the State does not currently track the information subject to the ICR. FMCSA has re-evaluated the burden estimate based on this feedback and feels that the new burden estimate accurately reflects the commenter's concerns. FMCSA also believes the commenter was accounting for a much more in depth analysis, which FMCSA appreciates but does not plan to require. FMCSA has revised the instructions and definitions accordingly to ensure States do not feel unduly burdened by the information collection.
FMCSA received valuable feedback on ways to enhance the quality, usefulness, and clarity of the collected information. Specific suggestions related to the inclusion of additional questions and better defined terms and phrases.
One commenter requested that FMCSA ensure data is as detailed as possible. FMCSA believes the data will become more robust after the first year, as States will be able to better prepare for the annual survey.
One commenter suggested FMCSA inquire as to the source of States' reported estimates, while another commenter voiced concern that there may not be enough space for providing feedback on how estimates were developed, thereby introducing error in the analysis portion of this study. FMCSA has revised the survey to include questions pertaining to how the data was collected and calculated, and the sources used to calculate delays, thereby allowing for more meaningful analysis and more meaningful future data collection.
Several commenters indicated that FMCSA should inquire about mandatory waiting periods for skills testing and retesting. FMCSA has covered this area in multiple questions in the survey to ensure mandatory waiting periods are accurately understood in addition to skills testing delays, as both contribute to the time it takes an applicant to receive their CDL. FMCSA has ensured that mandatory wait times are collected separately from delay periods throughout the ICR.
One commenter requested FMCSA include a question pertaining to shortest and longest wait times. FMCSA has revised the survey to include this question, but has also included an option for States to indicate they cannot collect this information. FMCSA understands that some States will not be able to produce information pertaining to this data.
One commenter was concerned with the definition of “average wait time,” when it should be calculated, and how it should be calculated. In addition, the commenter noted that “average wait time” will vary by region, or by testing location. FMCSA has included detailed instructions in the survey to address these concerns. Furthermore, it has provided the
The commenter also requested FMCSA clarify what is meant by “opportunity to complete such test.” While FMCSA understands some applicants may choose a later test date for personal reasons, a delay incurred by the applicant's personal reasons is not something the State has control over and should not be reflected in this study, to the best ability of the State. FMCSA understands some States may not be able to separate the two, in which case personal delays may be grouped together with test scheduling delays.
One commenter recommended the AAMVA add the required information to additional reports in Commercial Skills Test Information Management System (CSTIMS) to satisfy the information collection request. During
Several comments addressed how the burden could be minimized without reducing the quality of collected information. One commenter indicated that they believe the burden is minimal as it stands. Another commenter suggested that as States become accustomed to this annual data collection, States will be able to collect data in a timelier manner.
One commenter suggested the burden could be minimized by not requiring a year's worth of data to be accumulated and calculated. The commenter suggested that FMCSA distribute a quarterly “snapshot” survey to collect wait times across different seasons and different locales, or to work with AAMVA to readily produce this information in CSTIMs. FMCSA did not intend for every CDL skills test to be included in the average and has provided more concrete instructions for States to collect data that is meaningful while not being overly burdensome. FMCSA has considered the suggestion for a quarterly snapshot survey, and will include a voluntary quarterly survey after the first annual survey. This has been accurately updated in burden estimates and in the information collection package.
Finally, one commenter reported that if they are required to modify their systems to provide the information subject to this ICR, grant funding would be necessary and it would require a long time period to complete these efforts. FMCSA does not intend for States to be required to modify their existing systems, and believes most of the information required should be readily available to a certain degree of granularity.
Department of the Treasury.
Notice of availability; request for comments.
The Board of Trustees of the Western States Office and Professional Employees Pension Fund (WSOPE Pension Fund), a multiemployer pension plan, has submitted an application to Treasury to reduce benefits under the plan in accordance with the Multiemployer Pension Reform Act of 2014 (MPRA). The purpose of this notice is to announce that the application submitted by the Board of Trustees of the WSOPE Pension Fund has been published on the Web site of the Department of the Treasury (Treasury), and to request public comments on the application from interested parties, including participants and beneficiaries, employee organizations, and contributing employers of the WSOPE Pension Fund.
Comments must be received by May 5, 2017.
You may submit comments electronically through the Federal eRulemaking Portal at
Comments may also be mailed to the Department of the Treasury, MPRA Office, 1500 Pennsylvania Avenue NW., Room 1224, Washington, DC 20220. Attn: Eric Berger. Comments sent via facsimile and email will not be accepted.
Additional Instructions. All comments received, including attachments and other supporting materials, will be made available to the public. Do not include any personally identifiable information (such as Social Security number, name, address, or other contact information) or any other information in your comment or supporting materials that you do not want publicly disclosed. Treasury will make comments available for public inspection and copying on
For information regarding the application from the WSOPE Pension Fund, please contact Treasury at (202) 622-1534 (not a toll-free number).
The Multiemployer Pension Reform Act of 2014 (MPRA) amended the Internal Revenue Code to permit a multiemployer plan that is projected to have insufficient funds to reduce pension benefits payable to participants and beneficiaries if certain conditions are satisfied. In order to reduce benefits, the plan sponsor is required to submit an application to the Secretary of the Treasury, which Treasury, in consultation with the Pension Benefit Guaranty Corporation (PBGC) and the Department of Labor, is required to approve or deny.
On February 22, 2017, the Board of Trustees of the WSOPE Pension Fund submitted an application for approval to reduce benefits under the plan. As required by MPRA, that application has been published on Treasury's Web site at
Comments are requested from interested parties, including participants and beneficiaries, employee organizations, and contributing employers of the WSOPE Pension Fund. Consideration will be given to any comments that are timely received by Treasury.
Category | Regulatory Information | |
Collection | Federal Register | |
sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
Publisher | Office of the Federal Register, National Archives and Records Administration |