| Page Range | 17745-17931 | |
| FR Document |
| Page and Subject | |
|---|---|
| 82 FR 17852 - Sunshine Act Meetings | |
| 82 FR 17747 - National Former Prisoner of War Recognition Day, 2017 | |
| 82 FR 17745 - Pan American Day and Pan American Week, 2017 | |
| 82 FR 17884 - Sunshine Act Meetings | |
| 82 FR 17884 - Sunshine Act; Regular Board of Directors Meeting | |
| 82 FR 17751 - Special Local Regulation; Red Bull Air Race-San Diego 2017; San Diego Bay, CA | |
| 82 FR 17754 - Safety Zone; Monongahela 4th of July Celebration, Monongahela River Miles 32.0 to 33.0, Monongahela, PA | |
| 82 FR 17827 - Defense Advisory Committee on Investigation Prosecution and Defense of Sexual Assault in the Armed Forces; Notice of Federal Advisory Committee Meeting | |
| 82 FR 17782 - Special Local Regulations and Safety Zones; Recurring Marine Events Held in the Coast Guard Sector Northern New England Captain of the Port Zone | |
| 82 FR 17780 - Special Local Regulation; Coos Bay, North Bend, OR | |
| 82 FR 17879 - Notice of Public Comment Period on Advancing Forensic Science | |
| 82 FR 17847 - Office of the Director, Office of Science Policy; Meeting | |
| 82 FR 17847 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meetings | |
| 82 FR 17845 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Meetings | |
| 82 FR 17846 - National Institute on Drug Abuse; Notice of Closed Meeting | |
| 82 FR 17845 - National Institute on Drug Abuse; Notice of Meeting | |
| 82 FR 17846 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meetings | |
| 82 FR 17887 - Exemption Request for Waste Control Specialists LLC; Andrews County, Texas | |
| 82 FR 17884 - Duke Energy Carolinas, LLC; Catawba Nuclear Station, Units 1 and 2 | |
| 82 FR 17768 - Emergency Preparedness for Small Modular Reactors and Other New Technologies | |
| 82 FR 17885 - Tennessee Valley Authority; Clinch River Nuclear Site; Early Site Permit Application | |
| 82 FR 17793 - Evaluation of Existing Regulations | |
| 82 FR 17881 - Notice of Lodging Proposed Consent Decree | |
| 82 FR 17799 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project | |
| 82 FR 17826 - Submission for OMB Review; Comment Request | |
| 82 FR 17898 - New Postal Products | |
| 82 FR 17765 - Atlantic Highly Migratory Species; Commercial Aggregated Large Coastal Shark and Hammerhead Shark Management Groups Retention Limit Adjustment | |
| 82 FR 17798 - Malleable Cast Iron Pipe Fittings From the People's Republic of China: Notice of Partial Rescission of the Antidumping Duty Administrative Review; 2015-2016 | |
| 82 FR 17792 - Loan Guaranty: Revisions to Allowable Charges and Fees Assessed Incident to VA-Guaranteed Home Loans | |
| 82 FR 17797 - Antidumping Duty Orders on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China and Antidumping Duty Orders on Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China: Final Results of Changed Circumstances Reviews | |
| 82 FR 17796 - Foreign-Trade Zone (FTZ) 21-Dorchester County, South Carolina; Authorization of Production Activity; AGRU America Charleston, LLC (Industrial Pipes); North Charleston, South Carolina | |
| 82 FR 17794 - Superior National Forest; Minnesota; Application for Withdrawal | |
| 82 FR 17795 - Information Collection; Request for Comment; National Visitor Use Monitoring | |
| 82 FR 17851 - Housing Trust Fund Federal Register Allocation Notice | |
| 82 FR 17834 - Agency Information Collection Activities; Submission for OMB Review; Comment Request | |
| 82 FR 17835 - Division of Consumer and Business Education; Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
| 82 FR 17852 - Notice of Public Meeting for the John Day-Snake Resource Advisory Council, Oregon | |
| 82 FR 17837 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 82 FR 17838 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 82 FR 17931 - Bureau of International Organization Affairs; The U.S. National Commission for UNESCO; Notice of Renewal of Committee Charter | |
| 82 FR 17931 - Compliance Inspection Report | |
| 82 FR 17855 - Information Collection Activities: Platforms and Structures; Submitted for Office of Management and Budget Review; Comment Request | |
| 82 FR 17853 - Information Collection Activities: Open and Nondiscriminatory Access to Oil and Gas Pipelines Under the OCS Lands Act; Submitted for Office of Management and Budget (OMB) Review; Comment Request | |
| 82 FR 17838 - Decision To Evaluate a Petition To Designate a Class of Employees From the Idaho National Laboratory-Idaho Chemical Processing Plant in Scoville, Idaho, To Be Included in the Special Exposure Cohort | |
| 82 FR 17832 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 82 FR 17828 - Information Collections Being Reviewed by the Federal Communications Commission | |
| 82 FR 17844 - Regulation of Intentionally Altered Genomic DNA in Animals; Extension of Comment Period | |
| 82 FR 17840 - Genome Editing in New Plant Varieties Used for Foods; Extension of Comment Period | |
| 82 FR 17841 - Medical Devices; Exemptions From Premarket Notification: Class I Devices | |
| 82 FR 17765 - Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act for a Violation of a Federal Railroad Safety Law, Federal Railroad Administration Safety Regulation or Order, or the Hazardous Material Transportation Laws or Regulations, Orders, Special Permits, and Approvals Issued Under Those Laws | |
| 82 FR 17883 - Proposed Collection; Comment Request | |
| 82 FR 17882 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): Meeting | |
| 82 FR 17881 - Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: 2017 Allowable Charges for Agricultural Workers' Meals and for Travel Subsistence Reimbursement, Including Lodging | |
| 82 FR 17859 - United States v. DIRECTV Group Holdings, LLC, and AT&T, Inc., Proposed Final Judgment and Competitive Impact Statement | |
| 82 FR 17894 - Excepted Service | |
| 82 FR 17896 - Submission for Review: Annuity Supplement Earnings Report, RI 92-22 | |
| 82 FR 17893 - Submission for Review: CSRS/FERS Documentation in Support of Disability Retirement Application, SF 3112 | |
| 82 FR 17916 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Provide for a New Data Repository Feature Called “Insurance Profile” for Transmission of Fee Data and Implement Fees in Connection With This Feature | |
| 82 FR 17927 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX PEARL Fee Schedule | |
| 82 FR 17929 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Program for the Listing and Trading of Options Settling to the RealVolTM | |
| 82 FR 17913 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Approving a Proposed Rule Change, as Modified by Amendments No. 1 and No. 2, To List and Trade Shares of the iShares iBonds Dec 2024 AMT-Free Muni Bond ETF, iShares iBonds Dec 2025 AMT-Free Muni Bond ETF, and iShares iBonds Dec 2026 AMT-Free Muni Bond ETF of the iShares U.S. ETF Trust Under Exchange Rule 14.11(i) | |
| 82 FR 17919 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Remove Section 204.25 (Treasury Stock Changes) From the NYSE Listed Company Manual | |
| 82 FR 17899 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Change Amending Its Price List | |
| 82 FR 17921 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing of Advance Notice To Enhance the Credit Risk Rating Matrix and Make Other Changes | |
| 82 FR 17906 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing of Advance Notice To Enhance the Credit Risk Rating Matrix and Make Other Changes | |
| 82 FR 17901 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing of Advance Notice To Address and Update Practices and Policies With Respect to the Credit Risk Rating Matrix and Make Other Changes | |
| 82 FR 17859 - Certain Pumping Bras: Issuance of a General Exclusion Order; Termination of the Investigation | |
| 82 FR 17897 - Submission for Review: Application for Refund of Retirement Deductions (CSRS), SF 2802 and Current/Former Spouse's Notification of Application for Refund of Retirement Deductions Under the Civil Service Retirement System, SF 2802A | |
| 82 FR 17893 - Submission for Review: Notification of Application for Refund of Retirement Deductions, SF 3106 and Current/Former Spouse(s) Notification of Application for Refund of Retirement Deductions Under FERS, SF 3106A | |
| 82 FR 17891 - Submission for Review: Representative Payee Application, RI 20-7 and Information Necessary for a Competency Determination, RI 30-3 | |
| 82 FR 17892 - Submission for Review: Reinstatement of Disability Annuity Previously Terminated Because of Restoration to Earning Capacity, RI 30-9 | |
| 82 FR 17890 - Submission for Review: Designation of Beneficiary, Federal Employees Retirement System, (FERS), SF 3102 | |
| 82 FR 17895 - Submission for Review: Designation of Beneficiary: Civil Service Retirement System (CSRS), SF 2808 | |
| 82 FR 17891 - Submission for Review: Application To Make Deposit or Redeposit (CSRS), Standard Form 2803, and Application To Make Service Credit Payment for Civilian Service (FERS), Standard Form 3108 | |
| 82 FR 17749 - Airworthiness Directives; Airbus Airplanes | |
| 82 FR 17770 - Airworthiness Directives; Airbus Airplanes | |
| 82 FR 17773 - Airworthiness Directives; The Boeing Company Airplanes | |
| 82 FR 17849 - Nevada; Major Disaster and Related Determinations | |
| 82 FR 17897 - New Postal Products | |
| 82 FR 17833 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 82 FR 17833 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 82 FR 17849 - Michigan; Amendment No. 2 to Notice of an Emergency Declaration | |
| 82 FR 17850 - Oklahoma; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 82 FR 17850 - California; Major Disaster and Related Determinations | |
| 82 FR 17848 - Kansas; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 82 FR 17848 - California; Major Disaster and Related Determinations | |
| 82 FR 17796 - Approval of Subzone Status; Wacker Polysilicon North America LLC, Charleston, Tennessee | |
| 82 FR 17847 - Office of the Director; Notice of Meeting | |
| 82 FR 17899 - Product Change-Priority Mail Negotiated Service Agreement | |
| 82 FR 17899 - Product Change-Priority Mail Express Negotiated Service Agreement | |
| 82 FR 17898 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service Agreement | |
| 82 FR 17899 - Product Change-First-Class Package Service Negotiated Service Agreement | |
| 82 FR 17749 - List of Approved Spent Fuel Storage Casks: AREVA Inc., Standardized NUHOMS® Cask System, Certificate of Compliance No. 1004, Amendment No. 14, and Revision 1 of the Initial Certificate, Amendment Nos. 1 Through 11, and Amendment No. 13 | |
| 82 FR 17828 - Environmental Management Site-Specific Advisory Board Chairs | |
| 82 FR 17776 - Proposed Amendment of Class E Airspace; Medford, OR | |
| 82 FR 17778 - Proposed Amendment of Class E Airspace; Pauls Valley, OK | |
| 82 FR 17754 - Structure and Practices of the Video Relay Services Program |
Forest Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Bureau of Safety and Environmental Enforcement
Land Management Bureau
Antitrust Division
Employment and Training Administration
Workers Compensation Programs Office
Federal Aviation Administration
Federal Railroad 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.
Nuclear Regulatory Commission.
Direct final rule; confirmation of effective date.
The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of April 25, 2017, for the direct final rule that was published in the
Please refer to Docket ID NRC-2016-0200 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Edward Lohr, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0253; email:
On January 25, 2017 (82 FR 8353), the NRC published a direct final rule amending § 72.214 of title 10 of the
In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on April 25, 2017. As described more fully in the direct final rule, a significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. Because no significant adverse comments were received, the direct final rule will become effective as scheduled.
During the comment period for the direct final rule, the NRC identified misspellings and page numbering errors in the draft CoCs and TSs associated with Revision 1 of the Initial Certificate, Amendment Nos. 1 through 11, and Amendment No. 13. The final CoCs and TSs have been corrected for these administrative errors. Also, the draft CoCs were changed to update the signature block for issuing authority. The final CoCs, TSs, and the final Safety Evaluation Report for Revision 1 of the Initial Certificate, Amendment Nos. 1 through 11, and Amendment No. 13 can be viewed in ADAMS under Accession No. ML17067A412.
The final CoC, TSs, and the final Safety Evaluation Report for Amendment No. 14 to CoC No. 1004 can be viewed in ADAMS under Accession No. ML17093A261.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This correction is effective April 17, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 17, 2017 (82 FR 15985, March 31, 2017).
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.
As published, Airworthiness Directive 2017-07-05, Amendment 39-18841 (82 FR 15985, March 31, 2017), requires an inspection to determine if affected hydraulic pressure tube assemblies are installed, and replacement with serviceable hydraulic pressure tube assemblies if necessary, for all Airbus Model A330-243, -243F, -341, -342, and -343 airplanes. That AD also requires repetitive replacements of serviceable hydraulic pressure tube assemblies.
As published, the AD number specified in the preamble and regulatory text is incorrect. The incorrectly specified number was AD 2017-07-05, which is assigned to another AD; the correct number is AD 2017-07-03.
Airbus has issued Alert Operators Transmission (AOT) A71L012-16, Revision 01, dated February 24, 2017. The service information describes procedures for replacing hydraulic pressure tube assembly, part number (P/N) AE711121-18, and hydraulic pressure tube assembly, P/N AE711121-18 Rev A. 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 document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the
The effective date of this AD remains April 17, 2017.
Since this action only corrects an AD number, it has no adverse economic impact and imposes no additional burden on any person. Therefore, we have determined that notice and public procedures are unnecessary.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective April 17, 2017.
None.
This AD applies to Airbus Model A330-243, -243F, -341, -342, and -343 airplanes, certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 71, Powerplant.
This AD was prompted by a determination that cracks can develop on the ripple damper of the hydraulic pressure tube assembly, which could lead to hydraulic leakage and consequent loss of the green hydraulic system. This AD was also prompted by reports of failure of the ripple damper of the hydraulic pressure tube assembly. We are issuing this AD to prevent cracking and failure of the ripple damper of the hydraulic pressure tube assembly, which could, in combination with other system failures, result in reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For the purpose of this AD, a hydraulic pressure tube assembly, part number (P/N) AE711121-18, as introduced by Airbus mod 205242, is hereafter referred to as an “affected part” in this AD.
For the purpose of this AD, a “serviceable part” is a hydraulic pressure tube assembly (which has a double-welded ripple damper installed), P/N AE711121-18 Rev A, that has accumulated fewer than 800 total flight cycles since first installation on an airplane. The hydraulic pressure tube assembly, P/N AE711121-18 Rev A, is introduced by Airbus mod 206979 on the production line.
Within 15 days after April 17, 2017 (the effective date of this AD), inspect to determine the part number of the hydraulic pressure tube assembly that is installed on each engine. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the hydraulic pressure tube assembly can be conclusively determined from that review.
Within the compliance time specified in table 1 to paragraph (j) of this AD, as
Before a serviceable part (see paragraph (h) of this AD) exceeds 800 total flight cycles since first installation on an airplane, replace it with a serviceable part, in accordance with the instructions of Airbus AOT A71L012-16, Revision 01, dated February 24, 2017.
As of April 17, 2017 (the effective date of this AD), except as required by paragraph (m) of this AD, it is allowed to install on any airplane a replacement engine having an affected part (see paragraph (g) of this AD) installed, provided that, before that affected part exceeds 800 total flight cycles since first installation on an airplane, or within 4 months after April 17, 2017 (the effective date of this AD), whichever occurs first, the part is replaced with a serviceable part (see paragraph (h) of this AD), in accordance with the instructions of Airbus AOT A71L012-16, Revision 01, dated February 24, 2017.
As of 4 months after April 17, 2017 (the effective date of this AD): Do not install on any airplane an affected part (see paragraph (g) of this AD), or an engine having an affected part installed.
This paragraph provides credit for actions required by paragraph (j) of this AD, if those actions were performed before April 17, 2017 (the effective date of this AD) using Airbus AOT A71L012-16, dated December 22, 2016.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0041, dated February 24, 2017; corrected February 28, 2017, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to:
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (q)(4) and (q)(5) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on April 17, 2017 (82 FR 15985, March 31, 2017).
(i) Airbus Alert Operators Transmission (AOT) A71L012-16, Revision 01, dated February 24, 2017.
(ii) Reserved.
(4) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(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:
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is temporarily establishing special local regulations for the Red Bull Air Race—San Diego 2017 event held on the navigable waters of San Diego Bay, California. This action is necessary to provide for the safety of life on navigable waters during the event. This
This rule is effective from April 14, 2017 through April 16, 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 Robert D. Cole, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7656, 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 finds good cause 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 NPRM with respect to this rule as there is not enough time to complete notice and comment rulemaking before the event is scheduled to take place due to specific event details that were not provided by the event sponsor in time. For this reason, publishing an NPRM would be impracticable.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Red Bull Air Race—San Diego 2017 event will involve low flying airplanes racing through a predetermined course of inflatable pylons situated on anchored barges and positioned in certain portions of San Diego Bay. The COTP San Diego has determined that potential hazards associated with the air race event would be a safety concern for anyone intending to operate on certain waters of San Diego Bay.
The purpose of this rulemaking is to ensure the safety of event participants, spectators and transiting vessels on the navigable waters of San Diego Bay before, during, and after the scheduled event. 33 U.S.C. 1233, authorizes the Coast Guard to establish and define special local regulations to promote the safety of life on navigable waters.
In this temporary final rule, the regulations in 33 CFR 100.1101 will be temporarily inserted for Table 1, Item 19 of that section in order to reflect that the special local regulation will be effective and enforced from April 14, 2017, from 8:00 a.m.to 6:30 p.m., from April 15, 2017 from 10:00 a.m. to 6:00 p.m., and from April 16, 2017 from 10:00 a.m. to 4:30 p.m. This addition is needed to ensure that adequate regulations are in place to protect the safety vessels and individuals that may be present in the regulated area. No other portion of Table 1 of § 100.1101 or other provisions in § 100.1101 shall be affected by this regulation.
The special local regulations are necessary to provide for the safety of the crew, spectators, participants, and other vessels and users of the San Diego Bay waterway. Persons and vessels will be prohibited from anchoring, blocking, loitering, or impeding within this regulated waterway unless authorized by the COTP, or his designated representative, during the event times. Additionally, the Patrol Commander (PATCOM) will control the movement of all vessels within the regulated area and will restrict vessels from entering the regulated area. Before the effective period, the Coast Guard will publish information on the event in the weekly LNM. The regulatory text appears at the end of this document.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it.
As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. The Coast Guard will publish a LNM, issue a BNM via VHF-FM marine channel 16 that details the vessel restrictions of the regulated area, and distribute a special local regulation flyer for public use.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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.
This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic will be allowed to pass through the area with permission of the COTP, or his designated representative, during a predefined schedule arranged by the event sponsor, and the special local regulation is limited in size and duration. The Coast Guard will issue maritime advisories widely available to all waterway users. Before the effective period, the Coast Guard will publish event information on the internet in the weekly LNM marine information report. 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 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 rule calls for no 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 rule under that Order and determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of marine event special local regulations on the navigable waters of San Diego Bay. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the subject safety zone for the Monongahela Area Chamber of Commerce's Monongahela 4th of July Celebration on the Monongahela River, from mile marker (MM) 32.0 to MM 33.0, extending the entire width of the river. The zone is needed to protect vessels transiting the area and event spectators from the hazards associated with the Celebration's land-based firework display. During the enforcement period, entry into, transiting, or anchoring in the safety zone is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless specifically authorized by the Captain of the Port Pittsburgh (COTP) or a designated representative.
The regulations in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 46 will be enforced from 9:15 p.m. until 11 p.m., on July 4, 2017 with a rain date of July 5, 2017.
If you have questions about this notice of enforcement, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email
The Coast Guard will enforce the Safety Zone for the Monongahela Area Chamber of Commerce's Monongahela 4th of July Celebration on the Monongahela River, listed in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 46 from 9:15 p.m. to 11 p.m. on July 4, 2017 with a rain date of July 5, 2017. Entry into the safety zone is prohibited unless authorized by the COTP or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.
This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice in the
Federal Communications Commission.
Final rule.
In this document, the Commission takes steps to further improve the quality of video relay service (VRS) by authorizing skills-based routing and deaf-interpreter trials, directing the publication of speed-of-answer data, permitting assignment of ten-digit telephone numbers to hearing persons for point-to-point video communication in sign language with VRS users, and authorizing a pilot program in which some VRS calls are interpreted by communications assistants (CAs) at home workstations.
Bob Aldrich, Consumer and Governmental Affairs Bureau (202) 418-0996, email
This is a summary of the Commission's Report and Order, document FCC 17-26, adopted on March 23, 2017, and released on March 23, 2017, in CG Docket Nos. 10-51 and 03-123. The Notice of Inquiry and Further Notice of Proposed Rulemaking, FCC 17-26, adopted on March 23, 2017, and released on March 23, 2017, was published in an earlier issue, and the Order, FCC 17-26, adopted on March 23, 2017, and released on March 23, 2017, will be published in a later issue. The full text of document FCC 17-26 will be available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS), and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
The Commission will send a copy of document FCC 17-26 to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
The Report and Order in document FCC 17-26 contains modified information collection requirements, which are not applicable until approval is obtained from OMB. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in document FCC 17-26 as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. The Commission will publish a separate document in the
1. The Commission authorizes a voluntary trial of skills-based routing by any of the currently certified VRS providers, for calls pertaining to legal, medical, and technical computer support, to be conducted for a period of eight months under the conditions set forth below. There are currently five companies with Commission certification to receive compensation from the Interstate Telecommunications Relay Services Fund (TRS Fund) for providing VRS. The Commission may authorize additional VRS providers to participate in the trial in the event that any new providers apply for and are granted certification before the end of the trial.
2. The Commission is persuaded that enabling consumers to have conversations relayed by interpreters skilled in the vocabulary of these subjects can contribute to achieving functional equivalence in accordance with the goals of 47 U.S.C. 225. The Commission believes that skills-based routing may increase the efficiency of VRS by reducing the duration of calls and the need for duplicative calls. Additionally, the Commission believes it can facilitate compliance with each provider's obligation to ensure that its CAs can interpret effectively and accurately, both receptively and expressively, using any necessary specialized vocabulary.
3. Consumer groups identify the three skills listed above as those most commonly needed. The Commission will limit the trial to these three categories, in order to provide relatively clear-cut criteria for the types of calls that qualify, to maximize the usefulness of the data to be collected, and to provide a circumscribed test case to help the Commission identify and address issues if skills-based routing is permitted on a permanent basis. VRS providers participating in the trial may offer one, two, or all three types of specialized interpretation. Permitting a voluntary trial will allow VRS providers to individually determine whether and how extensively to participate, depending on how skills-based routing fits into their respective budgets and business plans. The Commission further expects that an eight-month period will be sufficient to gather data on the costs and benefits of skills-based routing and to enable the Commission to develop informed rules and policies governing this feature if it is later authorized on a permanent basis.
4. To allow sufficient time for the design of each provider's individual trial, the Commission directs that the formal trial period commence August 1, 2017, and terminate March 31, 2018. Providers interested in participating in the trial must provide notification of their intent to participate to the Commission's Consumer and Governmental Affairs Bureau (CGB) by June 1, 2017, including a description of the standards they will use to determine whether a particular CA may handle each type of skills-based call. Such notification may be sent by email to
5. For the duration of the trial, all participating VRS providers will continue to be compensated at the applicable rate for compensable minutes of use whether handled by a generalist or specialist CA.
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• The number of CAs available for specialist interpreting and the total number of hours per week that all such CAs were assigned to such function (
• The percentage of active telephone numbers on the American Sign Language (ASL) side and the voice side of calls, respectively, for which a specialist interpreter was used for at least one call;
• The numbers of compensable calls and conversation minutes handled by specialist interpreters;
• Identification within monthly call detail reports (CDRs) of those calls routed or transferred to or from specialized CAs;
• For each call sent to a specialist interpreter or queue, the amount of time that elapsed between a request for a specialist interpreter and the time the interpreter joined the call—
• The number of calls for which a specialist interpreter was requested but not provided.
12. The Commission also requires participants to submit, no later than June 1, 2018, a final report on the trial containing the following information, disaggregated by skill set where indicated:
• A description of the standards used to determine (1) whether a specialist interpreter was needed on a call and (2) whether a particular CA was qualified for assignment as a specialist interpreter;
• Detailed documentation of incremental costs incurred in conducting the trial, including any incremental costs associated with CA recruitment, training, and compensation, engineering and technical implementation, marketing, and administrative and management support (including oversight, evaluation, and recordkeeping);
• For providers choosing to notify callers of wait-time estimates, data on such waiting periods, as well as feedback on the benefits and disadvantages of offering this feature; and
• The percentage of requests for specialized interpreting by individuals with disabilities as compared to requests made by hearing individuals.
13. Consideration of whether to allow skills-based routing on a permanent basis also would benefit from the submission by participating providers of studies designed for objective assessment of whether and by how much the accuracy of interpreting improves when calls involving medical, legal, and computer support matters are subject to skills-based routing, with full documentation of the standards and measurement methods used.
14. The Commission requires providers to make all data collected in the trial available upon request to the TRS Fund administrator and the Commission staff. The TRS Fund administrator or the Commission may release the results of the trial in an aggregated or anonymized fashion. All personally identifiable user information gathered for the purposes of the trial shall remain confidential pursuant to the Commission's confidentiality rules.
15. The Commission directs the Office of Managing Director (OMD) and the TRS Fund administrator to consult with each of the providers participating in the trial, to formulate their individual data collection strategies—before the beginning of the trial and as needed during the trial—to ensure that the data collected addresses the categories listed above and is robust enough to provide sufficient basis for a Commission decision on whether to permit skills-based routing on a permanent basis, as well as how to address any issues that surface during the trial.
16. Based on the record in this proceeding, for the same eight-month trial period used for assessing skills-based routing, the Commission conducts a voluntary trial of the provision of deaf interpreters for VRS calls under the conditions set forth below.
17. The Commission is interested in studying whether deaf interpreters improve VRS efficiency and functional equivalency, but presently lacks sufficient information about the demand for, as well as the costs and benefits of, providing deaf interpreters in the VRS setting. The Commission believes that the collection of this and other data over an eight-month period will help inform it about whether and how the provision of such interpreters should be included in allowable costs or otherwise subject to compensation from the TRS Fund.
18. Providers interested in participating in the trial should provide notification of their intent to participate to CGB by June 1, 2017, including a description of the standards they will use to determine whether a deaf interpreter was needed for a call and whether a particular individual is qualified for assignment as a deaf interpreter. Such notification may be sent by email to
• The number of deaf interpreters utilized and the total number of hours for which all such interpreters were employed;
• The percentage of active telephone numbers on the ASL side of a call for which a deaf interpreter was added for at least one call;
• The numbers of compensable calls and conversation minutes in which deaf interpreters participated, broken down, to the extent ascertainable by the CA or provider, by whether such participation was necessary due to the user's (1) age, (2) limited English, (3) limited ASL proficiency, (4) cognitive or motor disability, or (5) other characteristics;
• Identification within monthly CDRs of those calls in which deaf interpreters participated;
• For each call on which a deaf interpreter was used, the amount of time that elapsed between a request for a deaf interpreter and the time a deaf interpreter joined the call—
• For each call on which a deaf interpreter was used, the duration of the deaf interpreter's presence on the call; and
• The number of calls for which a deaf interpreter was requested but not provided.
19. The Commission also requests participants to submit, no later than June 1, 2018, a final report on the trial containing the following information, disaggregated by skill set where indicated:
• A description of the standards that were used to determine (1) whether a deaf interpreter was needed for a call and (2) whether a particular individual is qualified for assignment as a deaf interpreter; and
• Detailed documentation of incremental costs incurred in the use of deaf interpreters, including any incremental costs associated with interpreter recruitment, training, and compensation, engineering and technical implementation, marketing, and administrative and management support (including oversight, evaluation and recordkeeping).
20. The Commission believes that these metrics will assist the Commission in determining, among other things, the general availability of and appropriate service quality for deaf interpreters, an appropriate speed of answer, whether participation of deaf interpreters results in more efficient calls—
21. The Commission expects providers to make all data collected in the trial available upon request to the TRS Fund administrator and the Commission staff. The TRS Fund administrator or the Commission may release the results of the trial in an aggregated or anonymized fashion. All personally identifiable user information gathered for the purposes of the trial will be treated as confidential pursuant to the Commission's confidentiality rules.
22. The Commission directs OMD and the TRS Fund administrator to consult with each of the providers participating in the trial, to formulate their individual data collection strategies—before the beginning of the trial and as needed during the trial—to ensure that the data collected addresses the categories listed above and is robust enough to provide sufficient basis for a Commission decision on whether to incorporate deaf interpreters on a permanent basis, as well as how to address any issues that surface during the trial.
23. VRS providers employing deaf interpreters must comply with all applicable mandatory minimum standards. Because a deaf interpreter does not perform all the functions of a CA, but rather provides supplementary assistance, the participation of a deaf interpreter does not necessarily affect a provider's speed of answer or compliance with other telecommunications relay services (TRS) rules. Further, the Commission leaves the parameters of participation in the deaf interpreters trial largely to the discretion of individual providers. For the same reasons discussed above regarding skills-based routing, in any instance where a caller requests a deaf interpreter in advance of placing a call and is subject to additional waiting time before the call can be placed, in excess of the time needed for a hearing CA to be available, the Commission waives the answer-in-the-order-received and speed-of-answer rules with respect to such additional waiting time, for those providers that participate in the trial and who provide timely and accurate reports containing the information specified above, on condition that the provider makes clear that there will be an additional wait and expressly offers to proceed without a deaf interpreter.
24. The Commission is persuaded that releasing summaries of each provider's speed-of-answer performance data to the public would be beneficial because it will enable consumers to monitor provider performance and supply valuable information that can assist in their selection of VRS providers. The Commission further believes that in the interest of attracting customers, publication of this data may create incentives for providers to tighten their speed-of-answer performance. Accordingly, the Commission directs OMD, in coordination with CGB, to publish summaries of each VRS provider's speed-of-answer data—obtained from the TRS Fund administrator—on a semi-annual basis on the Commission's Web site. The information published shall not identify individual callers or phone numbers. Notification of the release of such information shall be made by Public Notice. The Commission further directs that such information be prepared for the public in an easy-to-read format, to allow for easy comparisons of provider performance, and that the summaries be accompanied by a statement that the data shown are only averages and do not predict how long it will take for a provider to answer any individual call.
25. Given that VRS users are now able to directly dial their destination number without intervention by a CA, the Commission amends its rules to define when VRS calls are “answered” for the purpose of the speed-of-answer measurement as when a call is answered by a CA—
26. The Commission declines to adopt a self-executing exemption from the speed-of-answer standard for calls occurring as a result of specific extraordinary events beyond a provider's control. The Commission's mandatory minimum standards require all TRS providers to have “redundancy features functionally equivalent to the equipment in normal central offices, including uninterruptable power for emergency use.” However, the Commission also recognizes that at times, there may be exigent circumstances that affect either multiple centers at the same time, or a single center in such an extraordinary way that meeting the speed of answer becomes extremely difficult or impossible, and warrant some flexibility by the Commission. Should this occur, providers may bring such circumstances to the attention of the Commission in the form of a waiver request, which shall be reviewed on its merits on a case-by-case basis. The waiver request shall include a description of the nature of the exigent circumstances, a discussion of what the provider is doing to mitigate the effects of such circumstances, and the average speed-of-answer calculations for the period covered by the waiver request. To ensure that any delay in addressing such requests does not unnecessarily disrupt the provision of compensation, the Commission amends its rules to instruct the TRS Fund administrator not to withhold payment pending review of such waiver requests.
27. The Commission believes that enabling registered VRS users to communicate directly with hearing individuals who can sign not only will conserve the resources of the TRS Fund but also will allow “more natural, efficient, and effective communication” between the deaf and hearing communities. Accordingly, the Commission amends the TRS rules to permit VRS providers to assign ten-digit telephone numbers associated with the TRS Numbering Directory (iTRS numbers) to hearing individuals upon their request, in accordance with the rules adopted herein. VRS providers shall allow such iTRS numbers to be
28. Because the Commission is only permitting, and does not require, VRS providers to assign iTRS numbers to hearing individuals, and because such numbers may not be used to access TRS, the Commission will not permit any costs associated with such number assignment to be included as allowable costs in provider cost data submissions to the TRS Fund administrator at this time. Thus, in VRS providers' annual cost submissions, any incremental costs for number assignment, back-office services, and the like associated with providing iTRS numbers and connectivity to hearing individuals shall be separated from any allowable costs associated with number assignment and point-to-point communications for registered VRS users. Such costs may be recovered from the individuals to whom such numbers are assigned.
29. To aid in the prevention of fraud, waste, and abuse, and to ensure that only residents of the United States have access to point-to-point service via iTRS numbers, the Commission requires that VRS providers obtain from each hearing applicant seeking an iTRS number the individual's full name, residential address, birth date, and a signed self-certification that:
• The individual is proficient in sign language;
• The individual understands that the iTRS number may only be used for the sole purpose of communicating—via point-to-point—over distances with registered VRS users;
• The individual understands that such iTRS number may not be used to access VRS; and
• The individual understands that calls to 911 are not supported by such iTRS number.
30. In addition to transmitting the above information, the Commission requires each VRS provider to deliver the following to the TRS User Registration Database (TRS-URD) administrator:
• Each iTRS number assigned in the TRS Numbering Directory to hearing persons;
• The VRS provider's name and dates of service initiation and termination (as applicable); and
• The date on which an iTRS number was assigned to or removed from a hearing person.
31. To ensure that restrictions on the use of these numbers can be implemented and enforced, the Commission requires each default provider distributing an iTRS number to a hearing individual to notify both the TRS Numbering Directory and the TRS-URD that the individual is a hearing person who is not entitled to place or receive VRS calls. Such numbers shall be coded in the TRS-URD and TRS Numbering Directory as restricted numbers that may only be used for point-to-point calls. VRS providers are prohibited from seeking compensation for any call involving an iTRS number assigned to a hearing individual.
32. The Commission requires providers to make all information collected to address the above requirements available upon request to the TRS Fund administrator and the Commission staff. All personally identifiable user information gathered for this purpose shall remain confidential pursuant to the Commission's confidentiality rules.
33. The Commission amends its rules to authorize a voluntary pilot program of at-home VRS call handling, subject to specified safeguards, for a twelve-month period, beginning November 1, 2017, and ending November 1, 2018. During this period, in any month of the program, a participating VRS provider may be compensated for minutes served by at-home CA workstations up to a maximum of
34. The Commission believes that with current technology and experienced CAs, VRS providers likely can protect against waste, fraud, and abuse, and comply with the Commission's mandatory minimum standards while effectively handling VRS calls from CA at-home workstations. This approach aligns with current practices across industry and government sectors that permit at-home communications-related work under strict confidentiality standards. CA workstations, whether located in a call center or at home, can be integrated in a virtual system in which call handling protocols apply seamless capabilities and failover procedures to ensure that quality standards are met at every workstation regardless of its location.
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• Before permitting CAs to handle calls from an at-home workstation, VRS providers must ensure that they have a level of experience, skills, and knowledge to effectively interpret from these workstations, including a thorough understanding of the Commission's mandatory minimum standards. This can be measured, for example, by having providers conduct tests or assessments of a CA's capabilities and knowledge prior to permitting participation in the program.
• To provide a measure of added assurance that CAs working at home have sufficient experience, skills, and knowledge to work without in-person supervision, any CA permitted to work at home first must have three years of experience as a call center CA.
• Before authorizing at-home workstations, VRS providers must establish protocols for the handling of calls from these stations (to the extent there are additional protocols that differ from those applicable to the provider's call centers) and must provide training to at-home CAs on such protocols, in addition to all applicable training that is required of CAs working from call centers.
• Before being permitted to work at home, CAs must certify to the provider in writing their understanding of and commitment to complying with the Commission's rules governing TRS, including rules governing caller confidentiality and fraud prevention.
• VRS providers must provide CAs working from at-home workstations equivalent support to that provided to their counterparts working from call centers, as needed to effectively handle calls, including, where appropriate, the opportunity to team interpret and consult with supervisors. Supervisors located at call centers must be readily available to CAs working from home to resolve problems that may arise during a relay call, such as difficulty in understanding a VRS user's signs, the need for added support for emergency calls, and relieving a CA in the event of the CA's sudden illness.
• Each provider shall establish grounds for dismissing a CA from the at-home program (
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• Each at-home workstation shall reside in a separate, secure location in the CA's home, where access is restricted solely to the CA.
• Each at-home workstation shall allow a CA to use all call-handling technology to the same extent as other CAs, including the ability to transition a non-emergency call to an emergency call, engage in virtual teaming with another CA, and allow supervisors to communicate with and oversee calls.
• VRS providers shall ensure that each at-home workstation is capable of supporting VRS in compliance with the Commission's mandatory minimum technical and emergency call handling standards, including the provision of system redundancy, and other safeguards to the same degree as these are available at call centers, and including the ability to route VRS calls around individual CA workstations in the event they experience a network outage or other service interruption.
• Each at-home workstation shall be equipped with an effective means to prevent eavesdropping, such as white noise emitters or soundproofing, and to ensure that interruptions from noises outside the room do not adversely affect a CA's ability to interpret a call accurately and effectively.
• Each CA workstation must connect to the provider's network over a secure connection to ensure caller privacy.
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• To ensure CA compliance with the enumerated safeguards, VRS providers shall inspect and approve each at-home workstation before activating a CA's workstation for use.
• The VRS provider shall assign a unique call center identification number (ID) to each VRS at-home workstation and use this call center ID to identify all minutes handled from each such workstation in its call detail records submitted monthly to the TRS Fund administrator.
• Each at-home workstation shall be equipped with monitoring technology sufficient to ensure that off-site supervision approximates the level of supervision at the provider's call center, including the ability to monitor both ends of a call,
• Each provider shall keep all records pertaining to at-home work stations, including the data produced by any at-home workstation monitoring technology, except for any data that records the content of an interpreted conversation, for a minimum of three years. At-home workstations and workstation records shall be subject to review, audit, and inspection by the Commission and the Fund administrator to the same extent as data produced from other call centers subject to the Commission's rules.
• Each provider must conduct random and unannounced inspections of at least five percent (5%) of all at-home workstations during the pilot program and report its findings as specified below. In addition, each at-home work environment may be subject to unannounced on-site inspections by the Commission.
• Each at-home workstation will be subject to audits to the same extent as other call centers subject to the Commission's rules.
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• A description of the screening process used to select CAs for the at-home call handling program;
• A description of specific training to be provided for at-home CAs;
• A description of the protocols and CA expectations developed for the at-home call handling program;
• A description of the grounds for dismissing a CA from the at-home program and the process for such termination in the event that the CA fails to adhere to applicable requirements;
• A description of all steps that will be taken to install a workstation in a CA's home, including evaluations that will be performed to ensure all workstations are sufficiently secure and equipped to prevent eavesdropping and outside interruptions;
• A description of the monitoring technology to be used by the provider to ensure that off-site supervision approximates the level of supervision at the provider's call center;
• An explanation of how the provider's workstations will connect to the provider's network, including how they will be integrated into the call center routing, distribution, tracking, and support systems, and how the provider will ensure system redundancy in the event of service disruptions in at-home workstations;
• A signed certification by an officer of the provider that the provider will conduct random and unannounced inspections of at least five percent (5%) of all at-home workstations during the pilot program; and
• The provider's commitment to comply with all other safeguards enumerated above and Commission rules governing TRS.
40. CGB, in consultation with OMD, will approve plans that demonstrate that the provider will fully comply with the Commission's standards and safeguards. Such approval may be canceled if the provider falls out of such compliance at any time. In addition, providers may be subject to withholding, forfeitures, and penalties for noncompliant minutes handled by at-home workstations, as is the case for non-compliant minutes handled by call centers.
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• The call center ID and full street address (number, street, city, state, and zip code) for each at-home workstation and the CA ID number for each individual handling VRS calls from that workstation; and
• The location and call center IDs of call centers providing supervision for at-home workstations, plus the names of persons at such call centers responsible for oversight of these workstations.
42. In addition to these monthly reports, the Commission requires participants to submit, no later than seven months after the start of the program, a report covering the first six months of their individual pilot programs containing the following information:
• A description of the actual screening process used to select CAs for the at-home call handling program;
• Copies of training materials provided to at-home CAs;
• Copies of written protocols used for CAs working from home;
• The total number of CAs handling VRS calls from at-home workstations over the first six months of the program;
• The number of 911 calls handled by the provider's at-home workstations;
• A description and copies of any surveys or evaluations taken of CAs concerning their experience using at-home workstations and participating in an at-home call handling program;
• The total number of CAs terminated from the program;
• The total number of complaints, if any, submitted to the provider regarding its at-home call handling program or calls handled by at-home CAs;
• The total number of on-site inspections of at-home workstations conducted, along with the dates and locations of such inspections;
• A description of the monitoring technology used to monitor CAs working at home and an analysis of the experience of supervisors overseeing at-home CAs compared to overseeing CAs in a call center;
• Copies of any reports produced by tracking software and a description explaining how the provider analyzed the reports for anomalies; and
• Detailed documentation of costs incurred in the use of at-home workstations, including any costs associated with CA recruitment, training and compensation, engineering and technical set-up (including workstation set-up), and administrative and management support (including oversight, evaluation, and recording).
43. In light of these information reporting requirements, during the pilot program the Commission does not require VRS providers to include redundant data pertaining to at-home call handling workstations in semi-annual call center reports and in call center change notifications under the Commission's existing rules.
44. The Commission acknowledges the concerns of some commenters about the costs that may be associated with safeguards required for at-home call handling. However, the Commission's action today authorizes, rather than mandates, participation in the at-home pilot program. Accordingly, each VRS provider has the opportunity to assess for itself whether the costs of implementing this practice—and the requisite safeguards—outweigh its benefits. Additionally, the Commission believes that there may be some cost savings associated with implementing at-home interpreting. The Commission is hopeful that the data it collects during the pilot program will test the accuracy of this assumption and provide comprehensive information about the costs and benefits of allowing at-home workstations. The Commission concludes that if implemented with safeguards, the benefits of a pilot at-home interpretation program may outweigh its costs and warrant lifting the prohibition against this feature for a one-year period. The Commission will evaluate the value and effectiveness of this program at the conclusion of this period to make a determination on its continuation.
45. The Commission concludes it has authority under 47 U.S.C. 225 to conduct trials of skills-based routing and the use of deaf interpreters, and to establish a pilot program for at-home interpreting. Section 225 of the Act defines TRS as services that enable individuals with hearing and speech disabilities to engage in communication in a manner that is functionally equivalent to voice communications service, directs the Commission to ensure that such services are available to the extent possible and the most efficient manner, and authorizes the Commission to prescribe regulations to implement section 225 of the Act, including functional requirements, guidelines, operational procedures, and minimum standards. 47 U.S.C. 225(a)(3), (b)(1), (d)(1), (d)(1)(A), (B). The record indicates that the use of skills-based routing, deaf interpreters, and at-home interpreting may improve the functional equivalence and efficiency of VRS. The data gathered from these trials and pilot program will enable the Commission to more fully assess these benefits as well as any additional costs resulting from such practices.
46. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, the Commission incorporated an Initial Regulatory Flexibility Analysis (IRFA) into each of the Further Notices of Proposed Rulemaking. The Commission sought written public comment on the proposals in the
47. Document FCC 17-26 makes rule changes to improve the functional equivalence of VRS by approving, pursuant to Commission authority under 47 U.S.C. 225, eight-month trials for: (a) skills-based routing by which VRS calls can be routed to a CA who specializes in legal, medical or technical terminology; and (b) the use of deaf interpreters who work in conjunction with hearing interpreters in special situations, such as when a caller has limited signing ability. Document FCC 17-26 also: (a) Modifies the formula for calculating the speed of answer so that the measured wait time does not end
48. No comments were filed in response to either IRFA.
49. The rules adopted in document FCC 17-26 will affect obligations of VRS Providers. These services can be included within the broad economic category of All Other Telecommunications. Five providers currently receive compensation from the TRS Fund for providing VRS: ASL Services Holdings, LLC; CSDVRS, LLC; Convo Communications, LLC; Purple Communications, Inc.; and Sorenson Communications, Inc.
50. The two trials—for skills-based routing and deaf interpreters—are voluntary. There are some recordkeeping, reporting and other compliance requirements associated with the trials, but those requirements apply only if a VRS provider decides to engage in a trial.
51. The long-term rules adopted in the document FCC 17-26 have minor compliance requirements. First, the modification for measuring the speed-of-answer only requires VRS providers to make minor adjustments to their automated methods of keeping records of how fast calls are answered. Second, the assignment of iTRS numbers to hearing individuals who can sign is essentially an extension of the VRS providers' existing obligation to collect and maintain the required data to facilitate the assignment and usage of such numbers by VRS callers and to prevent waste, fraud, and abuse. Finally, although document FCC 17-26 includes regulatory requirements associated with a pilot program for at-home VRS call handling, including training, having secure workstations in a separate room, monitoring, and reporting to the Commission on the number of CAs working from home, their locations, and the minutes of use, such requirements are necessary to protect the privacy of users and prevent waste, fraud, and abuse.
52. The skills-based routing trial and the trial of deaf interpreters are voluntary, thereby minimizing the potential recordkeeping, reporting, and compliance requirements. Even for VRS providers that choose to participate in the trials, the VRS providers will be designing their own trials; therefore, they will control the sizes of their trials and the corresponding compliance impacts. Moreover, the proposal for a skills-based routing trial was initially made jointly by all of the VRS providers in 2015, and many of the reporting requirements for both trials have been suggested by the smaller VRS providers.
53. The new rules concerning speed of answer evolved from a proposal to increase the speed-of-answer requirement. To address concerns raised by the VRS providers of having to comply with an increased speed of answer without receiving corresponding increases in their compensation, the Commission decided not to change the speed of answer at this time. The small change in the methodology for calculating speed-of-answer will have minimal impact on the VRS providers.
54. The authorization to provide iTRS numbers to hearing individuals will have similar proportional impact on large and small VRS providers. The data gathering and recordkeeping associated with the provision of such numbers is basically an extension of the VRS providers' current roles in providing iTRS numbers to VRS users. The costs of number assignments, back-office services, and the like shall be handled in the same manner as comparable cost functions performed in connection with number assignment and point-to-point communications for registered VRS users.
55. The regulatory requirements associated with the pilot program for at-home VRS call handling, including training, having secure workstations in a separate room, monitoring, and reporting to the Commission on the number of CAs working from home, their locations, and the minutes of use, are necessary to protect the privacy of users and prevent waste, fraud, and abuse. The VRS providers will be in control of the number of such CAs working at home, and a VRS provider can decide not to allow any CAs to work at home. The costs of setting up the necessary workstations and the associated training, monitoring, reporting, etc. shall be handled in a manner similar to comparable functions performed at the VRS providers' call centers.
56. No commenters raised other alternatives that would lessen the impact of any of these requirements on small entities vis-à-vis larger entities.
57. None.
Pursuant to sections 1, 2, 225, and 251 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 225, 251, document FCC 17-26
The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Individuals with disabilities, Telecommunications, Telecommunications relay services, Video relay services.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:
47 U.S.C. 154, 225, 254(k), 403(b)(2)(B), (c), 715, Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.
(a) * * *
(47)
(48)
(49)
(b) * * *
(2) * * *
(iii) * * *
(B) VRS CA service providers must meet the speed of answer requirements for VRS providers as measured from the time a VRS call reaches facilities operated by the VRS CA service provider to the time when the call is answered by a CA—
(4) * * *
(iii) A VRS CA may not handle VRS calls from a location primarily used as his or her home unless as part of the voluntary at-home VRS call handling pilot program as provided for by paragraph (b)(8) of this section.
(8)
(i)
(A) A description of the screening process used to select CAs for the at-home call handling program;
(B) A description of specific training to be provided for at-home CAs;
(C) A description of the protocols and CA expectations developed for the at-home call handling program;
(D) A description of the grounds for dismissing a CA from the at-home program and the process for such termination in the event that the CA fails to adhere to applicable requirements;
(E) A description of all steps that will be taken to install a workstation in a CA's home, including evaluations that will be performed to ensure all workstations are sufficiently secure and equipped to prevent eavesdropping and outside interruptions;
(F) A description of the monitoring technology to be used by the provider to ensure that off-site supervision approximates the level of supervision at the provider's call center;
(G) An explanation of how the provider's workstations will connect to the provider's network, including how they will be integrated into the call center routing, distribution, tracking, and support systems, and how the provider will ensure system redundancy in the event of service disruptions in at-home workstations;
(H) A signed certification by an officer of the provider that the provider will conduct random and unannounced inspections of at least five percent (5%) of all at-home workstations during the pilot program; and
(I) A commitment to comply with all other safeguards enumerated in this paragraph (b)(8) and the applicable rules in this chapter governing TRS.
(ii)
(iii)
(iv)
(A) Ensure that each CA handling calls from an at-home workstation has the experience, skills, and knowledge necessary to effectively interpret from these workstations, including a thorough understanding of the TRS mandatory minimum standards and at least three years of experience as a call center CA.
(B) Establish protocols for the handling of calls from at-home workstations (to the extent there are additional protocols that differ from those applicable to the provider's call centers) and provide training to at-home CAs on such protocols, in addition to all applicable training that is required of CAs working from call centers.
(C) Provide each CA working from an at-home workstation equivalent support to that provided to CAs working from call centers, as needed to effectively handle calls, including, where appropriate, the opportunity to team interpret and consult with supervisors, and ensure that supervisors are readily available to a CA working from home to resolve problems that may arise during a relay call, such as difficulty in understanding a VRS user's signs, the need for added support for emergency calls, and relieving a CA in the event of the CA's sudden illness.
(D) Establish grounds for dismissing a CA from the at-home VRS call handling program (
(E) Obtain from each CA handling calls from an at-home workstation a certification in writing of the CA's understanding of and commitment to complying with the rules in this chapter governing TRS, including rules governing caller confidentiality and fraud prevention, and the CA's understanding of the reasons and process for dismissal from the at-home VRS call handling program.
(v)
(A) Resides in a separate, secure location in the CA's home, where access is restricted solely to the CA;
(B) Allows a CA to use all call-handling technology to the same extent as other CAs, including the ability to transition a non-emergency call to an emergency call, engage in virtual teaming with another CA, and allow supervisors to communicate with and oversee calls;
(C) Is capable of supporting VRS in compliance with the applicable mandatory minimum technical and emergency call handling standards to the same degree as these are available at call centers, including the ability to route VRS calls around individual CA workstations in the event the CA experiences a network outage or other service interruption;
(D) Is equipped with an effective means to prevent eavesdropping, such as white noise emitters or soundproofing, and to ensure that interruptions from noises outside the room do not adversely affect a CA's ability to interpret a call accurately and effectively; and
(E) Is connected to the provider's network over a secure connection to ensure caller privacy.
(vi)
(A) Inspect and approve each at-home workstation before activating a CA's workstation for use;
(B) Assign a unique call center identification number (ID) to each VRS at-home workstation and use this call center ID to identify all minutes handled from each such workstation in its call detail records submitted monthly to the TRS Fund administrator;
(C) Equip each at-home workstation with monitoring technology sufficient to ensure that off-site supervision approximates the level of supervision at the provider's call center, including the ability to monitor both ends of a call,
(D) Keep all records pertaining to at-home workstations, including the data produced by any at-home workstation monitoring technology, except for any data that records the content of an interpreted conversation, for a minimum of five years; and
(E) Conduct random and unannounced inspections of at least five percent (5%) of all at-home workstations during the pilot program.
(vii)
(viii)
(A) The call center ID and full street address (number, street, city, state, and zip code) for each at-home workstation and the CA ID number for each individual handling VRS calls from that workstation; and
(B) The location and call center IDs of call centers providing supervision for at-home workstations, plus the names of persons at such call centers responsible for oversight of such workstations.
(ix)
(A) A description of the actual screening process used to select CAs for the at-home call handling program;
(B) Copies of training materials provided to at-home CAs;
(C) Copies of written protocols used for CAs working from home;
(D) The total number of CAs handling VRS calls from at-home workstations over the first six months of the program;
(E) The number of 911 calls handled by the provider's at-home workstations;
(F) A description and copies of any surveys or evaluations taken of CAs concerning their experience using at-home workstations and participating in an at-home call handling program;
(G) The total number of CAs terminated from the program;
(H) The total number of complaints, if any, submitted to the provider regarding its at-home call handling program or calls handled by at-home CAs;
(I) The total number of on-site inspections conducted of at-home workstations and the date and location of each inspection;
(J) A description of the monitoring technology used to monitor CAs working at home and an analysis of the experience of supervisors overseeing at-home CAs compared to overseeing CAs in a call center;
(K) Copies of any reports produced by tracking software and a description explaining how the provider analyzed the reports for anomalies; and
(L) Detailed documentation of costs incurred in the use of at-home workstations, including any costs associated with CA recruitment, training, and compensation, engineering and technical set-up (including workstation set-up), and administrative and management support (including oversight, evaluation, and recording).
(c) * * *
(5) * * *
(iii) * * *
(L) * * *
(
The additions and revision read as follows:
(a) * * *
(5)
(A) Is proficient in sign language;
(B) Understands that the iTRS number may be used only for the purpose of
(C) Understands that such iTRS number may not be used to access VRS.
(ii) Before assigning an iTRS telephone number to a hearing individual, a VRS provider also shall obtain the individual's consent to provide the information required by this paragraph (a)(5) to the TRS User Registration Database. Before obtaining such consent, the VRS provider, using clear, easily understood language, shall describe the specific information to be provided, explain that the information is provided to ensure proper administration of the TRS program and inform the individual that failure to provide consent will result in denial of service. VRS providers shall obtain and keep a record of affirmative acknowledgment of such consent by every hearing point-to-point video user to whom an iTRS number is assigned.
(iii) The certification required by paragraph (a)(5)(i) of this section must be made on a form separate from any other agreement or form, and must include a separate signature specific to the certification. For the purposes of this rule, an electronic signature, defined by the Electronic Signatures in Global and National Commerce Act, as an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record, has the same legal effect as a written signature. For the purposes of this rule, an electronic record, defined by the Electronic Signatures in Global and National Commerce Act as a contract or other record created, generated, sent, communicated, received, or stored by electronic means, constitutes a record.
(iv) Before commencing service to any hearing point-to-point video user to whom a VRS provider assigns an iTRS number on or after the TRS User Registration Database is operational, a VRS provider shall submit to the TRS User Registration Database the information listed in paragraph (a)(5)(i) of this section and the following additional information:
(A) The ten-digit telephone number assigned in the TRS Numbering Directory to the hearing point-to-point user;
(B) The VRS provider's name and the date of service initiation; and
(C) The date on which a ten-digit number was assigned to or removed from a hearing point-to-point user.
(v) For all other hearing point-to-point video users to whom a VRS provider has assigned an iTRS number, the VRS provider shall transmit the information required by paragraph (a)(5)(iv) of this section within 60 days after the TRS User Registration Database is operational.
(vi) Upon the termination of service to any hearing point-to-point video user, a VRS provider shall submit to the TRS User Registration Database the date of termination of service.
(vii) A VRS provider shall maintain the confidentiality of the information about hearing individuals required by this paragraph (a)(5) and may not disclose such information except as required by law or regulation.
(viii) Before commencing service to a hearing point-to-point video user who is transferring point-to-point video service from another VRS provider, a VRS provider shall notify the TRS User Registration Database of such transfer and shall obtain and submit a properly executed certification under paragraph (a)(5)(i) of this section.
(ix) Hearing individuals who are assigned iTRS numbers under this paragraph (a)(5) shall not be deemed registered VRS users. VRS providers shall not be compensated and shall not seek compensation from the TRS Fund for any VRS calls to or from such iTRS numbers.
(c) * * *
(2) * * *
(i) Take such steps as are necessary to cease acquiring routing information from any VRS, IP Relay, or hearing point-to-point video user that ports his or her number to another VRS or IP Relay provider or otherwise selects a new default provider;
(g) * * *
(1) * * *
(vii) If the provider assigns iTRS numbers to hearing point-to-point video users, an explanation that hearing point-to-point video users will not be able to place an emergency call.
(a) * * *
(1) The TRS Numbering Directory shall contain records mapping the geographically appropriate NANP telephone number of each Registered Internet-based TRS User and hearing point-to-point video user to a unique Uniform Resource Identifier (URI).
(2) For each record associated with a VRS or hearing point-to-point video user's geographically appropriate NANP telephone number, the URI shall contain the IP address of the user's device. For each record associated with an IP Relay user's geographically appropriate NANP telephone number, the URI shall contain the user's user name and domain name that can be subsequently resolved to reach the user.
(a) * * *
(3) * * *
(i) Each VRS provider shall request that the administrator of the TRS User Registration Database remove from the TRS User Registration Database user information for any registered VRS user or hearing point-to-point video user:
(A) Who informs its default provider that it no longer wants use of a ten-digit number for TRS or (in the case of a hearing point-to-point video user) for point-to-point video service; or
(a) * * *
(1) All VRS users and hearing point-to-point video users must be able to place a VRS or point-to-point video call through any of the VRS providers' services, and all VRS providers must be able to receive calls from, and make calls to, any VRS or hearing point-to-point video user.
(a) Sections 64.630 through 64.636 governing changes in default TRS providers shall apply to any provider of IP Relay or VRS eligible to receive payments from the TRS Fund.
(b) For purposes of §§ 64.630 through 64.636, the term
(b)
(m)
Federal Railroad Administration (FRA), Department of Transportation.
Final rule.
On July 1, 2016, FRA published two interim final rules to comply with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. FRA received no comments in response to the interim final rules. This document confirms the July 1, 2016, interim final rules will not be changed and the effective date is August 1, 2016.
This final rule is effective April 13, 2017.
Veronica Chittim, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590 (telephone 202-493-0273),
Because FRA received no comments on its interim final rules published July 1, 2016, we are making no changes to the rules and the effective date is August 1, 2016. For regulatory analyses and notices associated with this action, please see the interim final rules published at 81 FR 43105 and 81 FR 43101.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason retention limit adjustment.
NMFS is adjusting the commercial aggregated large coastal shark (LCS) and hammerhead shark management group retention limit for directed shark limited access permit holders in the Atlantic region from 25 LCS other than sandbar sharks per vessel per trip to 3 LCS other than sandbar sharks per vessel per trip. This action is based on consideration of the regulatory determination criteria regarding inseason adjustments. The retention limit will remain at 3 LCS other than sandbar sharks per vessel per trip in the Atlantic region through the rest of the 2017 fishing season or until NMFS announces via a notification in the
This retention limit adjustment is effective at 11:30 p.m. local time April 15, 2017 through the end of the 2017 fishing season on December 31, 2017, or until NMFS announces via a notification in the
Lauren Latchford, Guý DuBeck, or Karyl Brewster-Geisz 301-427-8503; fax 301-713-1917.
Atlantic shark fisheries are managed under the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and implementing regulations (50 CFR part 635) issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Under § 635.24(a)(8), NMFS may adjust the commercial retention limit in the shark fisheries during the fishing season. Before making any adjustment, NMFS must consider specified regulatory criteria and other relevant factors See § 635.24(a)(8)(i) through (vi). After considering these criteria as discussed below, we have concluded that reducing the retention limit of the Atlantic aggregated LCS and hammerhead management groups for directed shark limited access permit holders will slow the fishery catch rates to allow the fishery throughout the Atlantic region to remain open for the rest of the year. Since landings have reached 20 percent of the quota and are projected to reach 80 percent before the end of the 2017 fishing season, NMFS is reducing the commercial Atlantic aggregated LCS and hammerhead shark retention limit from 25 to 3 LCS other than sandbar per vessel per trip.
• NMFS considered the inseason retention limit adjustment criteria listed in § 635.24(a)(8), which includes (broken down by bullet points): The amount of remaining shark quota in the relevant area, region, or sub-region, to date, based on dealer reports.
Based on dealer reports, 32.9 mt dw or 19.5 percent of the 168.9 mt dw shark quota for the aggregated LCS management group has already been harvested in the Atlantic region. This means that approximately 80 percent of
• The catch rates of the relevant shark species/complexes in the region or sub-region, to date, based on dealer reports.
Based on the average catch rate of landings data from dealer reports, the amount of aggregated LCS harvested on a daily basis is high. While fishermen are landing sharks within their per-trip limit of 25 fish per trip on a given day, they are making multiple trips a day that overall result in high numbers of aggregated LCS being caught rapidly throughout the fishery. This daily average catch rate means that aggregated LCS are being harvested too quickly to ensure fishing opportunities throughout the season. If the per trip limit is left unchanged, aggregated LCS would likely be harvested at such a high rate that there would not be enough aggregated LCS quota remaining to keep the fishery open year-round, precluding equitable fishing opportunities for the entire Atlantic region.
• Estimated date of fishery closure based on when the landings are projected to reach 80 percent of the quota given the realized catch rates.
Once the landings reach 80 percent of the quota, NMFS would have to close the aggregated LCS management group as well as any other management group with “linked quotas” such as the hammerhead shark management group. Current catch rates would likely result in reaching this limit by the beginning of July. A closure so early in the year would preclude fishing opportunities in the Atlantic region for the remainder of the year.
• Effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments.
Reducing the retention limit for the aggregated LCS and hammerhead management group from 25 to 3 LCS per trip would allow for fishing opportunities later in the year consistent with the FMP's objectives to ensure equitable fishing opportunities throughout the fishing season and to limit bycatch and discards.
• Variations in seasonal distribution, abundance, or migratory patterns of the relevant shark species based on scientific and fishery-based knowledge.
The directed shark fisheries in the Atlantic region exhibit a mixed species composition, with a high abundance of aggregated LCS caught in conjunction with hammerhead sharks. As a result, by slowing the harvest and reducing landings on a per-trip basis, both fisheries could remain open for the remainder of the year.
• Effects of catch rates in one part of a region or sub-region precluding vessels in another part of that region or sub-region from having a reasonable opportunity to harvest a portion of the relevant quota.
Based on dealer reports, and given NMFS' notice to the regulated community (81 FR 84491) that a goal of this year's fishery was to ensure fishing opportunities throughout the fishing season, NMFS has concluded that the aggregated LCS quota is being harvested too quickly to meet conservation and management goals for the fishery. If the harvest of these species is not slowed down, we estimate that the fishery would close by the beginning of July. Closing the fishery so early would prevent fishermen from other parts of the Atlantic region from having the same opportunities to harvest the aggregated LCS quota later in the year.
On November 23, 2016 (81 FR 84491), NMFS announced that the aggregated LCS and hammerhead shark fisheries management groups for the Atlantic region would open on January 1 with a quota of 168.9 metric tons (mt) dressed weight (dw) (372,552 lb dw) and 27.1 mt dw (59,736 lb dw), respectively. In that final rule, NMFS also announced that if it appeared that the quota is being harvested too quickly, precluding fishing opportunities throughout the entire region (
Accordingly, as of 11:30 p.m. local time April 15, 2017, NMFS is reducing the retention limit for the commercial aggregated LCS and hammerhead shark management groups in the Atlantic region for directed shark limited access permit holders from 25 LCS other than sandbar sharks per vessel per trip to 3 LCS other than sandbar sharks per vessel per trip. If the vessel is properly permitted to operate as a charter vessel or headboat for HMS and is engaged in a for-hire trip, in which case the recreational retention limits for sharks and “no sale” provisions apply (§ 635.22(a) and (c)), or if the vessel possesses a valid shark research permit under § 635.32 and a NMFS-approved observer is onboard, then they are exempted from the retention limit adjustment.
All other retention limits and shark fisheries in the Atlantic region remain unchanged. This retention limit will remain at 3 LCS other than sandbar sharks per vessel per trip for the rest of the 2017 fishing season, or until NMFS announces via a notification in the
The boundary between the Gulf of Mexico region and the Atlantic region is defined at § 635.27(b)(1) as a line beginning on the East Coast of Florida at the mainland at 25°20.4′ N. lat, proceeding due east. Any water and land to the north and east of that boundary is considered, for the purposes of quota monitoring and setting of quotas, to be within the Atlantic region.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. Providing prior notice and an opportunity for comment is impracticable because the catch and landings that need to be reduced are ongoing and must be reduced immediately to meet conservation and management objectives for the fishery. Continued fishing at those levels during the time that notice and comment takes place would result in the much of the quota being landed and could result in a very early closure of the fishery, contrary to the objectives of the existing conservation and management measures in place for those species. These objectives include ensuring that fishing opportunities are equitable and that bycatch and discards are minimized. Allowing fishing to continue at the existing rates even for a limited time is contrary to these objectives and would thus be impracticable. It would also be contrary to the public interest because, if the quota continues to be caught at the current levels, the quota will not last throughout the remainder of the fishing season and a large number of fishermen would be denied the opportunity to land sharks from the quota. Furthermore, continued catch at the current rates, even for a limited period,
16 U.S.C. 1801
Nuclear Regulatory Commission.
Draft regulatory basis; public meeting, and request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is requesting comment on a draft regulatory basis to support a rulemaking that would develop new emergency preparedness (EP) requirements for small modular reactors (SMRs) and other new technologies (ONTs), such as non-light-water reactors (non-LWRs) and medical isotope production facilities. The new EP regulations would be consequence-oriented, performance-based, and technology inclusive to the extent possible, and continue to provide reasonable assurance of adequate protection of public health and safety. The new EP regulations would be applicable to SMR and ONT facilities only. Large light-water reactors (LWRs), fuel cycle facilities, research and test reactors and other non-power, non-commercial, facilities are not in the scope of this rulemaking. The NRC plans to hold a public meeting to promote full understanding of the rulemaking and facilitate public participation.
Submit comments by June 27, 2017. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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•
•
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Andrew Carrera, Office of New Reactors, telephone: 301-415-1078, email:
Please refer to Docket ID NRC-2015-0225 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2015-0225 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is requesting comments on a draft regulatory basis to support a rulemaking that would amend part 50 of title 10 of the
The scope of the draft regulatory basis includes EP for new SMR and ONT facilities licensed under 10 CFR parts 50 and 52. Under current regulations for large LWR designs, the plume exposure pathway emergency planning zone (EPZ) size is about 10 miles (16 kilometers). However, SMRs and ONTs may have comparatively smaller reactor core size and also include passive design safety features, which result in potential accident releases and offsite radiation dose consequences that are smaller and may be delayed when compared to large LWRs. To account for this difference as compared to large LWRs, the NRC plans to develop a consequence-oriented, performance-based, and technology inclusive approach to EP for these SMR and ONT designs. With the proposed adoption of an approach for these designs where the plume exposure pathway EPZ size is scalable in proportion with potential accident consequences, the potential exists for this EPZ to be contained within the site boundary. The draft regulatory basis, in part, explains why the NRC believes the existing regulations should be updated, revised, and enhanced; presents alternatives to rulemaking; and discusses costs and other impacts of the potential changes.
The NRC is seeking comments and supporting rationale from the public on the following questions:
• Is the NRC considering an appropriate approach for each objective described in the draft regulatory basis?
• Section 3 of the draft regulatory basis discusses the regulatory concerns the NRC expects to address through rulemaking. Section 4 presents the intended regulatory changes to address those regulatory concerns, and also discusses alternatives to rulemaking considered by the NRC. Are there other regulatory concerns within or related to the scope of the rulemaking efforts (see Section 4) that the NRC should consider? Are there other approaches or alternatives the NRC should consider to resolve those regulatory concerns?
• Are there any other alternatives for EP for SMRs and ONTs to address beyond those discussed in the draft regulatory basis that the NRC should consider?
• Are there other EP related issues that the NRC staff should consider in further developing this regulatory basis?
• Is the scope of facilities to be included under the ONT umbrella (see Section 1.1) appropriate or can you suggest additions or deletions?
• What are the benefits of a performance-based EP approach, other than those described in the draft regulatory basis?
• Should the NRC continue research to establish performance-based criteria specific for SMRs and ONTs in the EP area? Examples of such research that has been performed are discussed in SECY-14-0038, “Performance-Based Framework for Nuclear Power Plant Emergency Preparedness Oversight,” (ADAMS Accession No. ML14259A589).
• Is it appropriate to establish combined risk-informed and performance-based criteria, and can you suggest EP areas or methods where they could successfully be implemented?
• Section 5 of the draft regulatory basis presents the NRC's initial consideration of costs and other impacts for a number of key aspects of the potential regulatory changes. This initial assessment is based on limited available data. The NRC is seeking additional data and input relative to expected and/or unintentional impacts from the desired regulatory changes. What would be the potential impacts to stakeholders, such as applicants, licensees, and the public, from implementing any of the desired regulatory changes described in this draft regulatory basis? We are also seeking comments on reasonable cost estimates for implementation of the EP for SMRs and ONTs regulations, including one-time startup cost and annual cost?
• What would the cost be for 10 CFR part 52 licensees to be licensed under the proposed performance-based EP approach? What would be the cost difference between this new EP approach and the current EP approach in 10 CFR part 50?
• What impacts, other than cost, would result from the rulemaking action under consideration?
The cumulative effects of regulation (CER) describes the challenges that licensees or other impacted entities (such as State agency partners, Tribal and local governments) may face while implementing new regulatory positions, programs, and requirements (
1. In light of any current or projected CER challenges, what should be a reasonable effective date, compliance date, or submittal date(s) from the time the final rule is published to the actual implementation of any proposed requirements, including changes to programs, procedures, and the facility?
2. If CER challenges currently exist or are expected, what should be done to address them? For example, if more time is required for subsequent implementation of the new requirements, what period of time is sufficient?
3. Do other (NRC or other agency) regulatory actions (
4. Are there unintended consequences? Does the draft regulatory basis create conditions that would be contrary to the draft regulatory basis' purpose and objectives? If so, what are the unintended consequences, and how should they be addressed?
The NRC may post documents related to this rulemaking activity to the Federal rulemaking Web site at
The Federal rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2015-0225); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).
The Plain Writing Act of 2010(Pub. L. 111-274) requires Federal
The NRC plans to hold a public meeting during the public comment period for this notice. The public meeting will provide a forum for the NRC staff to discuss the issues and questions with external stakeholders regarding the draft regulatory basis to add new EP requirements for SMRs and ONTs. The NRC does not intend to provide detailed responses to comments or other information submitted during the public meeting.
The public meeting will be noticed on the NRC's public meeting Web site at least 10 calendar days before the meeting. Stakeholders should monitor the NRC's Public Meeting Schedule Web page for additional information about the public meeting at
The NRC will post a notice for the public meeting and may post additional material related to this action to the Federal rulemaking Web site at
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2014-26-10, for all Airbus Model A318, A319, A320, and A321 series airplanes. AD 2014-26-10 currently requires revising the maintenance or inspection program to incorporate maintenance requirements and airworthiness limitations. Since we issued AD 2014-26-10, we have determined that more restrictive maintenance instructions and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or revised airworthiness limitation requirements. This proposed AD also removes airplanes from the applicability. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by May 30, 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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•
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For service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email:
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1405; fax: 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On December 19, 2014, we issued AD 2014-26-10, Amendment 39-18061 (80 FR 2813, January 21, 2015) (“AD 2014-26-10”), for all Airbus Model A318, A319, A320, and A321 series airplanes. AD 2014-26-10 was prompted by a determination that the maintenance actions for airplane systems susceptible to aging must be mandated. AD 2014-26-10 requires revising the maintenance or inspection program to incorporate maintenance requirements and airworthiness limitations. We issued AD 2014-26-10 to mitigate the risks associated with aging effects of airplane systems. Such aging effects could change the characteristics of the systems leading to an increased potential for failure, which could result in failure of certain life-limited parts, and reduced structural integrity or reduced controllability of the airplane.
Since we issued AD 2014-26-10, we have determined that more restrictive maintenance instructions and airworthiness limitations are necessary.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0093, dated May 13, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the
The airworthiness limitations for Airbus A320 family aeroplanes are currently defined and published in Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) documents. The airworthiness limitations applicable to the System Equipment Maintenance Requirements, which are approved by [European Aviation Safety Agency] EASA, are specified in ALS Part 4.
The instructions contained in the ALS Part 4 have been identified as mandatory actions for continued airworthiness. Failure to comply with these instructions could result in an unsafe condition.
Previously, EASA issued AD 2013-0146 [which corresponds to FAA AD 2014-26-10] to require accomplishment of all maintenance actions as described in ALS Part 4 at Revision 01. The new ALS Part 4 Revision 03 (hereafter referred to as `the ALS' in this AD) includes new and/or more restrictive requirements. ALS Part 4 Revision 03, issue 02, has been released to include editorial changes.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013-0146, which is superseded, and requires accomplishment of the actions specified in the ALS.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Airbus A318/A319/A320/A321 ALS Part 4, “System Equipment Maintenance Requirements (SEMR)” Revision 03 at Issue 02, dated January 22, 2016. The service information describes preventative maintenance requirements and includes updated inspections and intervals to be incorporated into the maintenance or inspection program. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
The EASA AD specifies that if there are findings from the ALS inspection tasks, then corrective action must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement because operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to use FAA-acceptable methods when performing maintenance. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
Although the EASA AD recommends accomplishing the tasks specified in the ALS after the effective date of the EASA AD, and revising the maintenance program within 12 months after the effective date of the EASA AD, this proposed AD would only require revising the maintenance or inspection program within 30 days after the effective date of this AD, which correlates with the compliance time required by AD 2014-26-10. In developing an appropriate compliance time for this proposed AD, we considered the degree of urgency associated with the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the revision (1 work-hour). In light of these factors, we find that a 30-day compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.
These differences have been coordinated with the EASA and Airbus.
The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.
Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.
In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 14 CFR 91.403(c), unless an alternative has been approved by the FAA.
When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).
The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.
To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.
However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.
This proposed AD therefore would apply to the airplanes identified in
We estimate that this proposed AD affects 1,032 airplanes of U.S. registry.
The actions required by AD 2014-26-10, and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2014-26-10 is $85 per product.
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 $87,720, 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:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 30, 2017.
This AD replaces AD 2014-26-10, Amendment 39-18061 (80 FR 2813, January 21, 2015) (“AD 2014-26-10”).
This AD applies to the Airbus airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD; certificated in any category; with an original certificate of airworthiness or original export certificate of airworthiness issued on or before December 21, 2015.
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Model A320—211, -212, -214, -231, -232, and -233 airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that more restrictive maintenance instructions and airworthiness limitations are necessary. We are issuing this AD to mitigate the risks associated with aging effects of airplane systems. Such aging effects could change the characteristics of the systems leading to an increased potential for failure, which could result in failure of certain life-limited parts, and reduced structural integrity or reduced controllability 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 2014-26-10, with no changes. Within 30 days after February 25, 2015 (the effective date of AD 2014-26-10): Revise the maintenance or inspection program, as applicable, to incorporate Airbus A318/A319/A320/A321 Airworthiness Limitations Section, ALS Part 4, “Aging Systems Maintenance,” Revision 01, dated June 15, 2012. The initial compliance time for doing the actions is at the applicable time specified in Airbus A318/A319/A320/A321 Airworthiness Limitations Section, ALS Part 4, “Aging Systems Maintenance,” Revision 01, dated June 15, 2012; or within 2 weeks after revising the maintenance or inspection program; whichever occurs later. Accomplishing the actions specified in paragraph (i) of this AD terminates the requirements of this paragraph.
This paragraph restates the requirements of paragraph (h) of AD 2014-26-10, with new paragraph reference. Except as required by paragraph (i) of this AD, after accomplishment of the revision required by paragraph (g) of this AD, no alternative actions (
Within 30 days after the effective date of this AD: Revise the maintenance or inspection program, as applicable, to incorporate Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR)” Revision 03 at Issue 02, dated January 22, 2016. The initial compliance time for doing the actions is at the applicable time specified in Airbus A318/
After the action required by paragraph (i) of this AD has been done, no alternative actions (
The following provisions also apply to this AD:
(1)
(i) 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.
(ii) AMOCs approved previously for AD 2014-26-10 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0093, dated May 13, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 757-200, -200PF, and -200CB series airplanes. This proposed AD was prompted by reports of slats disbonding on airplanes on which the terminating actions of AD 2005-07-08 had been performed. We have also received reports of slats disbonding on airplanes outside of the applicability of AD 90-23-06, AD 91-22-51, and AD 2005-07-08. This proposed AD would require determining the type of trailing edge slat wedges of the leading edge slats, repetitive inspections for disbonding on certain trailing edge slat wedges, and corrective actions, if necessary. This proposed AD would also provide an optional terminating action for the repetitive inspections. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by May 30, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet
You may examine the AD docket on the Internet at
Lu Lu, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6478; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of slats disbonding on airplanes on which the terminating actions of AD 2005-07-08, Amendment 39-14032 (70 FR 16403, March 31, 2005), had been performed. We have also received reports of slats disbonding on airplanes outside of the applicability of AD 90-23-06, Amendment 39-6794 (55 FR 46499, November 5, 1990); AD 91-22-51, Amendment 39-8129 (57 FR 781, January 9, 1992); and AD 2005-07-08. Inspection of submitted damaged trailing edge slat wedges indicated that the panels had been contaminated with moisture ingression, as there was evidence of aluminum oxide powder on the core, and the adhesive had failed at the skin-to-core bondline. It is suspected that there was incomplete removal of moisture and honeycomb core corrosion during the repair of the trailing edge slat wedges or that moisture had previously migrated into the panel and was subsequently sealed inside.
One operator reported major skin-to-core disbonding of a trailing edge slat wedge when the airplane had accumulated 42,603 total flight hours and 9,808 total flight cycles. Another operator reported the departure of a trailing edge slat wedge during flight when the airplane had accumulated 47,470 total flight hours and 17,579 total flight cycles. We are proposing this AD to prevent delamination of the trailing edge slat wedges of the leading edge slats. This delamination could cause loss of pieces of the trailing edge slat wedge assemblies during flight, reduction of the maneuver and stall margins, and consequent reduced controllability of the airplane.
We reviewed Boeing Special Attention Service Bulletin 757-57-0066, Revision 1, dated June 7, 2016 (“SASB 757-57-0066, R1”). The service information describes procedures for doing inspections on trailing edge slat wedges of the leading edge slats for areas of skin-to-core and aft edge disbonding, and corrective actions including replacement of certain slat wedges. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at
The phrase “related investigative actions” is used in this proposed 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 proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
SASB 757-57-0066, R1, specifies to contact the manufacturer for certain instructions, but this proposed AD would require using repair methods, modification deviations, and alteration deviations in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 469 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspections. We have no way of determining the number of aircraft that might need these replacements:
The on-condition costs are an estimate of the cost of replacing a type A wedge with a type B wedge, which is a terminating action for the required inspections. There are up to 10 wedge assemblies per airplane, and the price range for a new assembly is $50,923 to $84,636 based on the information provided by Boeing.
The cost of repairing a type A wedge cannot be estimated because damage type and size may vary widely.
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
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 30, 2017.
This AD affects AD 90-23-06, Amendment 39-6794 (55 FR 46499, November 5, 1990) (“AD 90-23-06”); AD 91-22-51, Amendment 39-8129 (57 FR 781, January 9, 1992) (“AD 91-22-51”); and AD 2005-07-08, Amendment 39-14032 (70 FR 16403, March 31, 2005) (“AD 2005-07-08”).
This AD applies to all The Boeing Company Model 757-200, -200PF, and -200CB series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of slats disbonding on airplanes on which the terminating actions of AD 2005-07-08 had been performed. We have also received reports of slats disbonding on airplanes outside of the applicability of AD 90-23-06, AD 91-22-51, and AD 2005-07-08. We are issuing this AD to prevent delamination of the trailing edge slat wedges of the leading edge slats. This delamination could cause loss of pieces of the trailing edge slat wedge assemblies during flight, reduction of the maneuver and stall margins, and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-57-0066, Revision 1, dated June 7, 2016 (“SASB 757-57-0066, R1”), except as specified in paragraph (j)(1) of this AD: Inspect each trailing edge slat wedge of the leading edge slats in accordance with Appendices A, B, C, and D of SASB 757-57-0066, R1, or review the airplane maintenance records, to determine whether the slat wedge is a type A or a type B. If a maintenance records review cannot conclusively determine a slat wedge is a type B, it must be assumed to be a type A slat wedge or a physical inspection must be done as specified in this paragraph.
For each type A trailing edge slat wedge found during the inspection or records review required by paragraph (g) of this AD: At the applicable time specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, except as specified in paragraph (j)(1) of this AD, do an ultrasonic low frequency bond test inspection, a tap test inspection, or a through transmission ultrasonic (TTU) inspection for skin-to-core disbonds of the honeycomb area of the trailing edge slat wedge; do a detailed inspection for aft edge disbonds of the aft edge of the trailing edge slat wedge; do a general visual inspection for any previously accomplished repair; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 757-57-0066, R1, except as specified in paragraphs (i) and (j)(2) of this AD. Do all applicable related investigative and corrective actions at the applicable time specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1. Repeat the applicable inspections on each type A trailing edge slat wedge thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1.
(1) For each type A trailing edge slat wedge with any class 1 disbond repair or any previously accomplished repair subject to the Part 2 inspection as identified in SASB 757-57-0066, R1: At the applicable time specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, do an ultrasonic low frequency bond test inspection, a tap test inspection, or a TTU inspection for skin-to-core disbonds in the repaired area of the trailing edge slat wedge; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 757-57-0066, R1, except as specified in paragraph (j)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspection on each type A trailing edge slat wedge thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1.
(2) For each type A trailing edge slat wedge with any time-limited class 2 disbond repair as identified in SASB 757-57-0066, R1: At the applicable time specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, do a detailed inspection for any peeling or deterioration of the aluminum foil tape of the repaired area on the trailing edge slat wedge; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 757-57-0066, R1, except as specified in paragraph (j)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspection on each type A trailing edge slat wedge thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, until a permanent repair is done to complete the actions required for the time-limited class 2 disbond repair, specified as corrective actions in paragraph (h) of this AD.
(3) For each type A trailing edge slat wedge with any permanent class 2 disbond repair as identified in SASB 757-57-0066, R1: At the applicable time specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, do an ultrasonic low frequency bond test
(4) For each type A trailing edge slat wedge with any class 3 or class 4 disbond repair, or any previously accomplished repair subject to Part 5 inspection as identified in SASB 757-57-0066, R1: At the applicable time specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, do the applicable actions specified in paragraphs (i)(4)(i) and (i)(4)(ii) of this AD.
(i) For any class 3 disbond repair with a repair doubler common to the aft edge of the trailing edge slat wedge; for any previously accomplished repair with a repair doubler common to the aft edge of the trailing edge slat wedge; and for any class 4 disbond repair: Do an ultrasonic low frequency bond test inspection or a TTU inspection for any disbonding of the aft edge repaired areas; a detailed inspection for disbonds along the aft edge of the repaired areas; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 757-57-0066, R1, except as specified in paragraph (j)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspection on each type A trailing edge slat wedge thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1.
(ii) For any class 3 disbond repair without a repair doubler common to the aft edge of the trailing edge slat wedge; and for any previously accomplished repair without a repair doubler common to the aft edge of the trailing edge slat wedge: Do an ultrasonic low frequency bond test inspection, a tap test inspection, or a TTU inspection for skin-to-core disbonds of the honeycomb area of the trailing edge slat wedge in the repaired area; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of SASB 757-57-0066, R1, except as specified in paragraph (j)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspection on each type A trailing edge slat wedge thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1.
(1) Where paragraph 1.E., “Compliance,” of SASB 757-57-0066, R1, specifies a compliance time “after the Revision 1 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) If any disbonding is found during any inspection required by this AD, and SASB 757-57-0066, R1, specifies to contact Boeing for appropriate action: Before further flight, repair the disbonding using a method approved in accordance with the procedures specified in paragraph (n) of this AD.
Replacing a type A trailing edge slat wedge with a type B trailing edge slat wedge in accordance with the Accomplishment Instructions of SASB 757-57-0066, R1, terminates the repetitive inspections required by this AD for the replaced wedge.
Accomplishing the initial inspections required by paragraphs (g) and (h) of this AD on a trailing edge slat wedge terminates all the requirements of AD 90-23-06, AD 91-22-51, and AD 2005-07-08 for that slat wedge.
As of the effective date of this AD: A replacement type A wedge may be installed provided that the initial and repetitive inspections specified in paragraph (h) and (i) of this AD are done within the applicable compliance times specified in paragraph (h) and (i) of this AD and all applicable related investigative and corrective actions are done within the applicable compliance times specified in paragraphs (h) and (i) of this AD.
(1) The Manager, Seattle 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 (o)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (j)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (n)(4)(i) and (n)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Lu Lu, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6478; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace designated as an extension to a Class D or E surface area, modify Class E airspace extending upward from 700 feet above the surface, and remove Class E airspace upward from 1,200 feet above the surface at Rogue Valley International-Medford Airport, Medford, OR. This action is necessary due to the proposed decommissioning of the PUMIE locator outer marker and removal of the VHF Omnidirectional Range/Tactical Air Navigation (VORTAC) from the airspace
Comments must be received on or before May 30, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2017-0195; Airspace Docket No. 16-ANM-14, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would allow the transition to satellite navigation by amending Class D and Class E airspace at Rogue Valley International-Medford Airport, Medford, OR.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0195/Airspace Docket No. 16-ANM-14.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace designated as an extension to a Class D or E surface area, modifying Class E airspace extending upward from 700 feet above the surface, and removing Class E airspace upward from 1,200 feet above the surface at Rogue Valley International-Medford Airport, Medford, OR. This action is necessary due to the proposed decommissioning of the PUMIE locator outer marker and for the safety and management of the national airspace system as the FAA transitions from ground based navigation aids to satellite based navigation.
Class E airspace designated as an extension to Class D or E surface area northeast of the airport would be reduced to a 4-mile wide segment (from 5.5 miles wide) extending to 11 miles northwest (from 17.5 miles northwest) of the airport, and the segment to the southeast would be reduced to a 5-mile wide segment (from 8 miles), extending to 9 miles (from 19.4 miles) southeast of the airport. Class E airspace extending upward from 700 feet above the surface would be reduced northeast, southeast, and southwest of the airport to only that area necessary to contain IFR departures within 1,500 feet of the surface and IFR departures until reaching 1,200 feet above the surface. Additionally, the Class E airspace area extending upward from 1,200 feet above the surface designated for Rogue Valley International-Medford Airport would be removed, as this airspace duplicates the Rogue Valley Class E en route airspace area.
Also, the geographic coordinates for the airport included in the legal descriptions for Class D and E airspace areas would be updated to match the FAA's current aeronautical database.
Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11A,
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 3,800 feet MSL within a 4.1-mile radius of Rogue Valley International-Medford Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within a 4.1-mile radius of Rogue Valley International-Medford Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 2.5 miles each side of the 159° bearing from the Rogue Valley International-Medford Airport, extending from the 4.1-mile radius of the airport to 9 miles southeast of the airport, and within 2 miles each side of the 339° bearing from the airport extending from the 4.1-mile radius of the airport to 11 miles northwest of the airport.
That airspace extending upward from 700 feet above the surface within a 9-mile radius of Rogue Valley International-Medford Airport, and within 4 miles each side of the 159° bearing from the airport extending from the 9-mile radius to 18.5 miles southeast of the airport, and within 9 miles west and 5.5 miles east of the 352° bearing from the airport extending from the 9-mile radius of the airport to 26 miles northwest of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace extending up to 700 feet above the surface at Pauls Valley Municipal Airport, Pauls Valley, OK. Airspace reconfiguration is necessary due to the decommissioning of the Pauls Valley non-directional radio beacon (NDB), and cancellation of the NDB approach. This proposed action would enhance the safety and management of standard instrument approach procedures for instrument flight rules (IFR) operations at the airport.
Comments must be received on or before May 30, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826, or 1-800-647-5527. You must identify FAA Docket No. FAA-2017-0184; Airspace Docket No. 17-ASW-5, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Ron Laster, Federal Aviation Administration, Contract Support, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5879.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify Class E airspace extending up to and including 700 feet above the surface area at Pauls Valley Municipal Airport, Pauls Valley, OK.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0184/Airspace Docket No. 17-ASW-5.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Pauls Valley Municipal Airport, Pauls Valley, OK. The segment 2.6 miles each side of the 169° bearing from the Pauls Valley NDB extending from the 6.6-mile radius to 7.6 miles south of the airport would be removed due to the decommissioning of the NDB, and cancellation of NDB approach. This action would enhance the safety and management of the standard instrument approach procedures for IFR operations at the airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Pauls Valley Municipal Airport, and within 4 miles each side of the 000° bearing from the airport extending from the 6.6-mile radius to 11.6 miles north of the airport.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary regulated area during the inbound and outbound transit of the tall ships participating in the Festival of Sail to be held on the waters of Coos Bay. This action is necessary to safeguard participants and spectators from the hazards associated with the limited maneuverability of tall ships and to ensure public safety during their transit. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before May 15, 2017.
You may submit comments identified by docket number USCG-USCG-2017-0207 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LCDR Laura Springer, MSU Portland Waterways; 503-240-9319, email
On June 1, 2017, and again on June 5, 2017, several class A and B tall sailing ships will be transiting the waters of Coos Bay as part of the Festival of Sail Coos Bay. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard proposes to temporarily restrict vessel traffic during the the inbound and outbound transit of the tall sailing ships.
The purpose of this rulemaking is to protect the tall ships from potential harm and to protect the public from the hazards associated with the limited maneuverability of these types of ships. Many factors amplify the potential hazardousness of the situation, including: large numbers of local recreational and fishing vessels; a narrow channel; and, low maneuverability of the tall ships. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1233.
The Coast Guard proposes to establish a regulated area during the inbound and outbound transit of participating tall sailing ships on June 1, 2017 and June 5, 2017. The regulated area would cover all navigable waters of Coos Bay from the sea buoy to the Ferndale Lower Range in North Bend, OR. The duration of the regulated area is intended to ensure the safety of vessels, bystanders, and the navigable waters during the tall ships' inbound and outbound transits. The Coast Guard, at its discretion, would allow the passage of affected vessels. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. 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 related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it.
As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs'” (February 2, 2017).
This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. Although this proposal would prevent traffic from transiting portions of Coos Bay, the effect of this regulation would not be significant due to the limited duration that the regulated area will be in effect and will allow waterway users to enter or transit through the zone when deemed safe by the on-scene patrol commander. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated area.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this 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 Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a Special Local Regulation for a regulated area lasting less than 3 hours during each transit period that will prohibit vessels from entering an area encompassing Coos Bay from the sea buoy to the Ferndale Lower Range unless given permission to do so by the on-scene patrol commander or his designated representative. 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 docket at
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)
(b)
(2) Entrance into the regulated area is prohibited unless authorized by the Patrol Commander. The Patrol Commander may control the movement of all vessels in the regulated area. When hailed or signaled to stop by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(3) All vessels permitted to transit the regulated area shall maintain a separation of at least 100 yards away from the participating tall sailing ships and a distance of at least 50 yards away while transiting in the vicinity of the McCullough Memorial Bridge and the Coos Bay railroad bridge.
(c)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to update the special local regulations and permanent safety zones in Coast Guard Sector Northern New England Captain of the Port Zone for annual recurring marine events. When enforced, these proposed special local regulations and safety zones would restrict vessels from portions of water areas during certain annually recurring events. The proposed special local regulations and safety zones are intended to expedite public notification and ensure the protection of the maritime public and event participants from the hazards associated with certain maritime events. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before May 15, 2017.
You may submit comments identified by docket number USCG-2016-0998 using the Federal eRulemaking Portal at
If you have questions on this proposed rulemaking, call or email Chief Marine Science Technician Chris Bains, Sector Northern New England Waterways Management Division, U.S. Coast Guard; telephone 207-347-5003, email
Swim events, fireworks displays, and marine events are held on an annual recurring basis on the navigable waters within the Coast Guard Sector Northern New England COTP Zone. The Coast Guard has established special local regulations, regulated areas, and safety zones for these annual recurring events on a case by case basis to ensure the protection of the maritime public and event participants from the hazards associated with these events. In the past, the Coast Guard has not received public comments or concerns regarding the impact to waterway traffic from the Coast Guard's regulations associated with these annually recurring events. Known events were assessed for their likelihood to recur in subsequent years or to discontinue, and were added to or deleted from the tables accordingly. In addition, minor changes to existing events were made to ensure the accuracy of event details. The purpose of this rulemaking is to reduce administrative overhead, expedite public notification of events, and ensure the protection of the maritime public during marine events in the Sector Northern New England area.
The proposed rule would update the tables of annual recurring events in the existing regulation for the Coast Guard Sector Northern New England COTP Zone, deleting outdated zones and providing updated information on dates, times, and locations. The tables provide the event name, sponsor, and type, as well as approximate times, dates, and locations of the events. Advanced public notification of specific times, dates, regulated areas, and enforcement periods for each event will be provided through appropriate means, which may include, but are not limited to, the Local Notice to Mariners, Broadcast Notice to Mariners, or a Notice of Enforcement published in the
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and
The Office of Management and Budget (OMB) has not designated this proposed rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it.
As this proposed rule is not a significant regulatory action, this proposed rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
We expect the economic impact of this proposed rule to be minimal. This regulation may have an impact on the general public, but that potential impact will likely be minimized for the following reason: The Coast Guard is only modifying an existing regulation to account for updated information.
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 will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zones or special local regulations 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 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 proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves water activities including swimming events and fireworks displays and may be categorically excluded from further review under paragraph 34(g)(Safety Zones) and (34)(h)(Special Local Regulations) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
We accept anonymous comments. All comments received will be posted without change to
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 100 and 165 as follows:
33 U.S.C. 1233.
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
Department of Veterans Affairs.
Advanced notice of proposed rulemaking.
The Department of Veterans Affairs (VA) Loan Guaranty Service (LGY) is currently reviewing its regulations governing the allowable expenses that a veteran may pay or be charged in connection with obtaining a VA-guaranteed home loan. By issuing this advanced notice of proposed rulemaking, LGY seeks comments on how the public believes VA should approach this undertaking. Although LGY identifies specific issues for discussion below, it encourages commenters to discuss any issue related to improving these specific regulations.
Comments must be received on or before June 12, 2017.
Written comments may be submitted through
John Bell, III, Assistant Director for Loan Policy and Valuation, Loan Guaranty Service (262), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-8786. (This is not a toll-free number.)
VA has promulgated a list of permissible charges and fees a borrower may be charged or may pay incident to obtaining a VA-guaranteed home loan. See 38 CFR 36.4313. In 1948, VA published its rule regulating charges and fees which was codified at the former 38 CFR 36.4312. See 13 FR 7275, Nov. 27, 1948. That rule set forth the costs and expenses that loan proceeds could be used to pay, but was silent on whether a veteran might be allowed to pay such costs and expenses out of his or her own cash reserves. Id. Under the rule, borrowers could use proceeds from the loan to pay any cost or expense normally paid under local lending customs, except for certain brokerage and service charges. Id.
In 1954, VA substantially altered the rule's regulatory scheme. Instead of permitting lenders to charge costs and expenses normally paid under local lending customs, VA restricted the types of charges and fees veterans were allowed to pay by expressly enumerating the types allowed. See 19 FR 6717, Oct. 19, 1954. VA instituted this rule amendment in order to protect veterans from what are commonly known as “junk fees”.
The current charges and fees rule, now codified at 38 CFR 36.4313, is substantially similar to the 1954 version. While VA has amended the rule to modify the types of permissible charges and fees in the intervening years, the rule still retains the express enumeration scheme established by the 1954 version. In other words, the current rule protects veterans from having to satisfy any charge or fee not expressly allowed by the schedule codified at 38 CFR 36.4313(d). The rule, however, does allow a lender to charge a veteran, and for the veteran to pay, an origination fee of up to 1 percent of the loan amount, provided that the 1 percent fee be charged in lieu of all other fees permitted by the schedule. See 38 CFR 36.4313(d)(2). Compared with a conventional housing loan transaction, the fees the rule permits to be charged to veterans are relatively limited. Consequently, in transacting a sale with a VA-guaranteed loan borrower, sellers and lenders must bear many of the customary real estate transaction expenses.
Since implementation, the rule has protected many veterans from having to incur unreasonable closing costs. However, the home buying process has changed significantly since VA last implemented substantive changes to the permissible fee schedule. In recent years, some veterans and their representatives have complained to VA that certain provisions of the rule can be detrimental to veterans' bargaining position during real estate negotiations. These parties have asserted that VA-guaranteed loan borrowers are sometimes unable to compete with other offerors whose financing options are not restricted by similar regulatory constraints. VA recognizes that these constraints can contribute to sellers' decisions to accept other offers or lead lenders to charge higher interest rates to offset losses.
VA will continue to safeguard the best interests of veteran homebuyers by protecting them from excessive and unreasonable closing costs. However, VA recognizes that an overly restrictive list of permissible charges and fees might, in certain circumstances, motivate market participants to avoid financing or selling homes to veterans.
In order to strike the appropriate balance between making it easier for veterans to utilize their home loan benefits and protecting them from unreasonable charges and fees, VA is considering ways to revise the list of acceptable charges and fees specified by the schedule codified at 38 CFR 36.4313(d). VA invites responses to the following questions:
1. What are ways that VA can protect veterans from incurring excessive closing costs, without being overly restrictive?
2. Under the current rule, VA distinguishes between a “fee” and a “charge” but does not define the terms. VA invites comments as to whether the public finds the distinction meaningful. Should VA eliminate the distinction? If not, how should VA define the terms?
3. Does the term “origination fee” accurately reflect what a borrower would pay to a lender in order to originate a loan? What do veterans and lenders view as the purpose of an origination fee?
4. How should VA identify which closing costs are acceptable for the veteran to pay, which are acceptable for another party but not a veteran to pay, and which, if any, should be prohibited?
5. To what extent, if at all, should VA limit third-party charges or fees to the actual costs of the service provided? Alternatively, should VA permit borrowers, sellers, and lenders to negotiate their own bargains?
6. To what extent, if at all, should local real estate customs affect (i) the types and amounts of closing costs that VA allows and (ii) which party is responsible for paying such costs?
7. In a non-VA-guaranteed loan transaction, how are attorneys' fees usually paid when the attorney is not representing the veteran? Should VA allow a borrower to pay an attorney fee if the attorney does not have a fiduciary duty to the borrower?
8. Should VA allow lenders to charge veterans differently depending upon the type of transaction (
9. What other lending programs, whether public or private, might VA consider as models in considering amendments to VA's charges and fees rule? What characteristics make these programs useful analogs to the VA-guaranteed loan program?
10. What other information should VA consider in determining the types of expenses a veteran should be expected to pay to close a VA-guaranteed loan?
11. What charges or fees should VA allow veterans to pay in order to close a construction or rehabilitation/renovation loan?
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on March 17, 2017, for publication.
Environmental Protection Agency (EPA).
Request for comment.
In accordance with Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” EPA is seeking input on regulations that may be appropriate for repeal, replacement, or modification.
Comments must be received on or before May 15, 2017.
Submit your comments, identified by Docket ID No. EPA-HQ-OA-2017-0190 at
For further information on this document, please contact Sarah Rees, Director, Office of Regulatory Policy and Management, Office of Policy, 1200 Pennsylvania Avenue NW., Mail Code 1803A, Washington, DC 20460, Phone: (202) 564-1986;
On February 24, 2017, President Trump signed Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which established a federal policy “to alleviate unnecessary regulatory burdens” on the American people. Section 3(a) of the EO directs federal agencies to establish a Regulatory Reform Task Force (Task Force). One of the duties of the Task Force is to evaluate existing regulations and “make recommendations to the agency head regarding their repeal, replacement, or modification.” The EO further asks that each Task Force “attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) are outdated, unnecessary, or ineffective;
(iii) impose costs that exceed benefits;
(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriates Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard of reproducibility; or
(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.”
Section 3(e) of the E.O. calls on the Task Force to “seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations” on regulations that meet some or all of the criteria above. Through this notice, EPA is soliciting such input from the public to inform its Task Force's evaluation of existing regulations. EPA requests that commenters be as specific as possible, include any supporting data or other information such as cost information, provide a
Forest Service, USDA.
Revised notice of intent to extend the scoping comment period for preparation of an environmental impact statement.
The Superior National Forest published a Notice of Intent in the
The purpose of the withdrawal request is protection of the natural resources and waters located on NFS lands from the potential adverse environmental impacts arising from exploration and development of fully Federally-owned minerals conducted pursuant to the mineral leasing laws within the Rainy River Watershed that flow into the Boundary Waters Canoe Area Wilderness (BWCAW) and the Boundary Waters Canoe Area Wilderness Mining Protection Area (MPA) in northeastern Minnesota. The USFS acknowledges this proposed request subjects these NFS lands to temporary segregation for up to 2 years from entry under the United States mineral and geothermal leasing laws. The lands have been and will remain open to such forms of use and disposition as may be allowed by law on National Forest System lands including the disposition of mineral materials. The USFS recognizes that any segregation or withdrawal of these lands will be subject to valid existing rights and therefore inapplicable to private lands owned in fee, private mineral estates, and private fractional minerals interests. This notice also gives the public an opportunity to comment on the proposed request for withdrawal, and announces the opportunity for a future public meeting.
Comments concerning the proposed request for withdrawal and the scope of the environmental analysis must be received by August 11, 2017. This revised Notice coincides with the Bureau of Land Management's (BLM) “Notice of Application for Withdrawal and Notification of Public Meeting” announced in the
The draft environmental impact statement is expected Spring 2020 and the final environmental impact statement is expected January 2021.
Address written comments regarding the environmental effects associated with this proposed request for withdrawal to Connie Cummins, Forest Supervisor, Superior National Forest. Written comments are to be mailed to 8901 Grand Avenue Place, Duluth, MN 55808-1122. Comments may also be sent via email to
Matt Judd, Superior National Forest (218-626-4382). The Superior National Forest Web site (
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday. This relay service is available 24 hours a day, 7 days a week, to leave a message or question. You will receive a reply during normal business hours.
The USFS has submitted an application on January 5, 2017 to the Secretary of the Interior proposing to withdraw the identified lands from disposition under United States mineral and geothermal leasing laws (subject to valid existing rights) for a period of 20 years.
All the NFS Lands identified in this application are described in Appendix A and displayed on a map in Appendix B. This application is available upon request at the Superior National Forest office (8901 Grand Ave Place, Duluth, MN 55808) or their Web site (
The areas described contain approximately 234,328 acres of NFS lands that overlay Federally-owned minerals in Cook, Lake, and Saint Louis Counties, Minnesota located adjacent to the BWCAW and the MPA.
The purpose of this withdrawal request is protection of NFS lands located in the Rainy River Watershed, and preservation of NFS lands within the BWCAW, from the potential adverse environmental impacts arising from exploration and development of fully Federally-owned minerals conducted pursuant to the Federal mineral leasing laws.
The 234,328 acres of Federal land in this proposed request for withdrawal are located within the Rainy River watershed on the Superior National
The United States Forest Service (USFS) has submitted an application to the Secretary of Interior proposing a withdrawal, for a 20-year term, of approximately 234,328 acres of NFS lands within the Rainy River Watershed on the Superior National Forest from disposition under United States mineral and geothermal leasing laws, subject to valid existing rights. This proposal will also include an amendment to the Superior National Forest Land and Resource Management Plan to reflect this withdrawal.
In addition to the USFS proposal, a “no action” alternative will be analyzed, and no additional alternatives have been identified at this time. No alternative sites are feasible because the lands subject to the withdrawal application are the lands for which protection is sought from the impacts of exploration and development under the United States mineral and geothermal leasing laws.
The USFS will be the lead agency. The USFS will designate the BLM as a cooperating agency. The BLM shall independently evaluate and review the draft and final environmental impact statements and any other documents needed for the Secretary of Interior to make a decision on the proposed withdrawal.
Forest Supervisor, Superior National Forest.
The Responsible Official will complete an environmental impact statement, documenting the information and analysis necessary to support a decision on withdrawal, and to support an amendment to the Superior National Forest Land and Resource Management Plan.
The Secretary of Interior is the authorized official to approve a proposal for withdrawal.
The Responsible Official is the authorized official to approve an amendment to the Superior National Forest Land and Resource Management Plan to reflect the proposed withdrawal.
This notice of intent revises the scoping period in preparing this environmental impact statement. The USFS and Bureau of Land Management (BLM) held a public meeting within the initial 90-day comment period to gather public input on the proposed request for withdrawal. This meeting was held at the Duluth Entertainment and Convention Center on March 16, 2017 in Duluth, MN. The scoping period will be extended an additional 120 days to accommodate the immense public interest and complexity of the proposal. Within the first 30 days, more than 30,000 written comments were received on the withdrawal proposal. The scoping period extenstion will also allow more time for additional public meetings. At least one additional public meeting will be scheduled on the Iron Range before the close of the scoping period. Further opportunities for public particpation will be provided upon publication of the Draft EIS, including a minimum 45-day public comment period. A plan amendment is subject to pre-decisional objection procedures at 36 CFR 219, subpart B.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension of a currently approved information collection, National Visitor Use Monitoring (0596-0110).
Comments must be received in writing on or before June 12, 2017 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Dr. Donald B.K. English, Recreation, Heritage, and Volunteer Resources, Mailstop 1125, Forest Service, USDA, 1400 Independence Ave. SW., Washington, DC 20250-1125.
Comments also may be submitted via facsimile to 202-205-1145 or by email to:
Dr. Donald B.K. English, Recreation, Heritage, and Volunteer Resources staff, at 202-205-9595. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339,
The data from this collection provides vital information for strategic planning efforts, decisions regarding allocation of resources, and revisions of land and resource management plans for national forests. It provides managers with reliable estimates of the number of recreational visitors to a national forest, activities of those visitors (including outdoor physical activities), customer satisfaction, and visitor values. The knowledge gained from this effort helps identify recreational markets as well as the economic contributions visitors' spending has on economic areas around forest lands. For the Forest Service, the collection is designed for a five-year cycle of coverage across all national forests. Conducting the collection less frequently puts information updates out of cycle with forest planning and other data preparation and reporting activities.
At recreation sites or access points, agency personnel or contractors will conduct onsite interviews of visitors as they complete their visit. Interviewers will ask about the purpose and length of the visit, the trip origin, activities, annual visitation rates, trip-related spending patterns, use of recreation facilities, satisfaction with agency services and facilities, and the composition of the visiting party. Primary analysis of the information for the Forest Service and partnering agencies will be performed by Forest Service staff in the Washington Office and by scientists in one or more of the agency's research stations.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the 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 the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
On December 9, 2016, the South Carolina State Ports Authority, grantee of FTZ 21, submitted a notification of proposed production activity to the FTZ Board on behalf of AGRU America Charleston, LLC, within Site 5, in North Charleston, South Carolina.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 6, 2017, the Department of Commerce (the “Department”) published its notice of initiation and preliminary results of changed circumstances reviews (“CCRs”) of the antidumping duty (“AD”) orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, (“solar cells”) from the People's Republic of China (“PRC”) and certain crystalline silicon photovoltaic products (“solar products”) from the PRC (
The Department preliminarily determined that Hanwha Q CELLS (Qidong) Co. Ltd. (“Q CELLS Qidong”) is the successor-in-interest to Hanwha SolarOne (Qidong) Co., Ltd. (“SolarOne Qidong”) for purposes of the AD orders on solar cells and solar products from the PRC and that Hanwha Q CELLS Hong Kong Limited (“Q CELLS Hong Kong”) is the successor-in-interest to Hanwha SolarOne Hong Kong Limited (“SolarOne Hong Kong”) for purposes of the AD order on solar products from the PRC. As such, the Department preliminarily determined that Q CELLS Qidong is entitled to SolarOne Qidong's AD cash deposit rates for purposes of the AD orders on solar cells and solar products from the PRC and Q CELLS Hong Kong is entitled to SolarOne Hong Kong's AD cash deposit rate for purposes of the AD order on solar products from the PRC.
We provided interested parties 14 days from the date of publication of the
For these final results, the Department finds that Q CELLS Qidong is the successor-in-interest to SolarOne Qidong for purposes of the AD orders on solar cells and solar products from the PRC and Q CELLS Hong Kong is the successor-in-interest to SolarOne Hong Kong for purposes of the AD order on solar products from the PRC.
Effective April 13, 2017.
Eli Lovely, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1593.
On December 7, 2012, the Department published the AD order on solar cells from the PRC in the
The merchandise covered by the
The merchandise covered by the
Because no interested party submitted comments on, and the record contains no information or evidence that calls into question, the
Based on these final results, we intend to instruct U.S. Customs and Border Protection (“CBP”) to collect estimated duties for all shipments of solar cells from the PRC and solar products from the PRC exported and produced by Q CELLS Qidong and entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice in the
The Department furthermore intends to instruct CBP to collect estimated duties for all shipments of solar products from the PRC exported by Q CELLS Hong Kong and produced by Q CELLS Qidong, and entered or withdrawn from warehouse, for consumption on or after the publication date of this notice in the
This notice serves as a final reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing this final results notice in accordance with sections 751(b) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.216 and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On February 13, 2017, the Department of Commerce (“Department”) initiated an administrative review of the antidumping duty order on malleable cast iron pipe fittings from the People's Republic of China (“PRC”) for four companies. Based on a timely withdrawal of request for review, we are rescinding this administrative review with respect to two companies, Langfang Pannext Pipe Fitting Co., Ltd. (“Pannext”) and Jinan Meide Casting Co., Ltd. (“JMC”).
Effective April 13, 2017.
Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401
On December 1, 2016, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on malleable cast iron pipe fittings from the PRC.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested a review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. Petitioner timely withdrew its request for an administrative review of JMC and Pannext; no other party requested a review of these companies. Accordingly, we are rescinding this review, in part, with respect to these companies, pursuant to 19 CFR 351.213(d)(1).
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. For JMC and Pannext, the companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a 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 antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice serves as a final reminder to parties subject to an administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under an APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received a request from the San Francisco Bay Area Water Emergency Transportation Authority (WETA) for authorization to take marine mammals incidental to construction activities as part of a ferry terminal expansion and improvements project. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting public comment on its proposal to issue an incidental harassment authorization (IHA) to WETA to incidentally take marine mammals, by Level B harassment only, during the specified activity.
Comments and information must be received no later than May 15, 2017.
Comments on this proposal should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910, and electronic comments should be sent to
Laura McCue, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
NMFS published an Environmental Assessment (EA) in 2016 on WETA's ferry terminal construction activities. NMFS found that there would be no significant impacts to the human environment and signed a finding of no significant impact (FONSI) on June 28, 2016. Because the activities and analysis are the same as WETA's 2016 activities, NMFS believes it appropriate to use the existing EA and FONSI for WETA's 2017 activities.
NMFS received a request from WETA for an IHA to take marine mammals incidental to pile driving and removal in association with the San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project (Project) in San Francisco Bay, California. In-water work associated with the project is expected to be completed within 23 months. This proposed IHA is for the first phase of construction activities (June 1, 2017-May 31, 2018).
The use of both vibratory and impact pile driving and removal is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Seven species of marine mammals have the potential to be affected by the specified activities: harbor seal (
WETA received authorization for take of marine mammals incidental to these same activities in 2016 (81 FR 43993; July 6, 2016); however construction activities did not occur. Therefore, the specified activities described in the previous notice of proposed IHA are identical to the activities described here. In addition, similar construction and pile driving activities in San Francisco Bay have been authorized by NMFS in the past. These projects include construction activities at the Exploratorium (75 FR 66065, October 27, 2010), Pier 36 (77 FR 20361, April 4, 2012), and the San Francisco-Oakland Bay Bridge (71 FR 26750, May 8, 2006; 72 FR 25748, August 9, 2007; 74 FR 41684, August 18, 2009; 76 FR 7156, February 9, 2011; 78 FR 2371, January 11, 2013; 79 FR 2421, January 14, 2014; and 80 FR 43710, July 23, 2015).
The WETA is expanding berthing capacity at the Downtown San Francisco Ferry Terminal (Ferry Terminal), located at the San Francisco Ferry Building (Ferry Building), to support existing and future planned water transit services operated on San Francisco Bay by WETA and WETA's emergency operations.
The Downtown San Francisco Ferry Terminal Expansion Project would eventually include phased construction of three new water transit gates and overwater berthing facilities, in addition to supportive landside improvements, such as additional passenger waiting and queuing areas, circulation improvements, and other water transit-related amenities. The new gates and other improvements would be designed to accommodate future planned water transit services between Downtown San Francisco and Antioch, Berkeley, Martinez, Hercules, Redwood City, Richmond, and Treasure Island, as well as emergency operation needs. According to current planning and operating assumptions, WETA will not require all three new gates (Gates A, F, and G) to support existing and new services immediately. As a result, WETA is planning that project construction will be phased. The first phase will include construction of Gates F and G, as well as other related improvements in the South Basin.
The total project is expected to require a maximum of 130 days of in-water pile driving. The project may require up to 23 months for completion; with a maximum of 106 days for pile driving in the first year. In-water activities are limited to occurring between June 1 and November 30 of any year to minimize impacts to special-status and commercially important fish species, as established in WETA's Long-Term Management Strategy. If in-water work will extend beyond the effective dates of the IHA, a second IHA application will be submitted by WETA. This proposed authorization would be effective from June 1, 2017 through May 31, 2018.
The San Francisco ferry terminal is located in the western shore of San Francisco Bay (see Figure 1 of WETA's application). The ferry terminal is five blocks north of the San Francisco Oakland Bay Bridge. More specifically, the south basin of the ferry terminal is located between Pier 14 and the ferry plaza. San Francisco Bay and the adjacent Sacramento-San Joaquin Delta make up one of the largest estuarine systems on the continent. The Bay has undergone extensive industrialization, but remains an important environment for healthy marine mammal populations year round. The area surrounding the proposed activity is an intertidal landscape with heavy industrial use and boat traffic. Ambient sound levels are not available for the SF Ferry terminal; however, in this industrial area, ambient sound levels are expected to exceed 120 dB RMS as a result of the consistent recreational and commercial boat traffic.
The project supports existing and future planned water transit services operated by WETA, and regional policies to encourage transit uses. Furthermore, the project addresses deficiencies in the transportation network that impede water transit operation, passenger access, and passenger circulation at the Ferry Terminal.
The project includes construction of two new water transit gates and associated overwater berthing facilities, in addition to supportive improvements, such as additional passenger waiting and queuing areas and circulation improvements in a 7.7-acre area (see Figure 1 in the WETA's application, which depicts the project area, and Figure 2, which depicts the project improvements). The two-year project includes the following elements: (1) Removal of portions of existing deck and pile construction (portions will remain as open water, and other portions will be replaced); (2) Construction of two new gates (Gates F and G); (3) Relocation of an existing gate (Gate E); and (4) Improved passenger boarding areas, amenities, and circulation, including extending the East Bayside Promenade along Gates E, F, and G; strengthening the South Apron of the Agriculture Building; creating the Embarcadero Plaza; and installing weather protection canopies for passenger queuing. This notice of proposed IHA will describe activities for the two-year project, but will only analyze activities that are expected to occur in 2017.
Implementation of the project improvements will result in a change in the type and area of structures over San Francisco Bay. In some areas, structures will be demolished and then rebuilt. In 2017, the project activities will include both the removal and installation of piles as summarized in Table 1. Demolition and construction could be completed within 23 months.
As part of the project, the remnants of Pier 2 will be demolished and removed. This consists of approximately 21,000 square feet of existing deck structure supported by approximately 350 wood and concrete piles. In addition, four dolphin piles will be removed. Demolition will be conducted from barges. Two barges will be required: One for materials storage, and one outfitted with demolition equipment (crane, clamshell bucket for pulling of piles, and excavator for removal of the deck). Diesel-powered tug boats will bring the barges to the project area, where they will be anchored. Piles will be removed by either cutting them off two feet below the mud line or pulling the pile through vibratory extraction.
The new gates (Gates F and G) will be built similarly in 2018. Each gate will be designed with an entrance portal—a prominent doorway physically separating the berthing structures from the surrounding area. Berthing structures will be provided for each new gate, consisting of floats, gangways, and guide piles. The steel floats will be approximately 42 feet wide by 135 feet long. The steel truss gangways will be approximately 14 feet wide and 105 feet long. The gangway will be designed to rise and fall with tidal variations while meeting Americans with Disabilities Act (ADA) requirements. The gangway and the float will be designed with canopies, consistent with the current design of existing Gates B and E. The berthing structures will be fabricated off site and floated to the project area by barge. Six steel guide piles will be required to secure each float in place. In addition, dolphin piles may be used at each berthing structure to protect against the collision of vessels with other structures or vessels. A total of up to 14 dolphin piles may be installed.
Chock-block fendering will be added along the East Bayside Promenade, to adjacent structures to protect against collision. The chock-block fendering will consist of square, 12-inch-wide, polyurethane-coated, pressure-treated wood blocks that are connected along the side of the adjacent pier structure, and supported by polyurethane-coated, pressure-treated wood piles.
In addition, the existing Gate E float will be moved 43 feet to the east, to align with the new gates and East Bayside Promenade. The existing six 36-inch-diameter steel guide piles will be removed using vibratory extraction, and reinstalled to secure the Gate E float in place. Because of Gate E's new location, to meet ADA requirements, the existing 90-foot-long steel truss gangway will be replaced with a longer, 105-foot-long gangway.
Several improvements will be made to passenger boarding and circulation areas. New deck and pile-supported structures will be built.
• An Embarcadero Plaza, elevated approximately three to four feet above current grade, will be created. The Embarcadero Plaza will require new deck and pile construction to fill an open-water area and replace existing structures that do not comply with Essential Facilities requirements.
• The East Bayside Promenade will be extended to create continuous pedestrian access to Gates E, F, and G, as well as to meet public access and pedestrian circulation requirements along San Francisco Bay. It will extend approximately 430 feet in length, and will provide an approximately 25-foot-wide area for pedestrian circulation and public access along Gates E, F, and G. The perimeter of the East Bayside Promenade will also include a curbed edge with a guardrail.
• Short access piers, approximately 30 feet wide and 45 feet long, will extend from the East Bayside Promenade to the portal for each gate.
• The South Apron of the Agriculture Building will be upgraded to temporarily support access for passenger circulation. Depending on their condition, as determined during Final Design, the piles supporting this apron may need to be strengthened with steel jackets.
• Two canopies will be constructed along the East Bayside Promenade: one between Gates E and F, and one between Gates F and G. Each of the canopies will be 125 feet long and 20 feet wide. Each canopy will be supported by four columns at 35 feet on center, with 10-foot cantilevers at either end. The canopies will be constructed of steel and glass, and will include photovoltaic cells.
The new deck will be constructed on the piles, using a system of beam-and-flat-slab-concrete construction, similar to what has been built in the Ferry Building area. The beam-and-slab construction will be either precast or cast-in-place concrete (or a combination of the two), and approximately 2.5 feet thick. Above the structure, granite paving or a concrete topping slab will provide a finished pedestrian surface.
The passenger facilities, amenities, and public space improvements—such as the entrance portals, canopy structures, lighting, guardrails, and furnishings—will be surface-mounted on the pier structures after the new construction and repair are complete. The canopies and entrance portals will be constructed offsite, delivered to the site, craned into place by barge, and assembled onsite. The glazing materials, cladding materials, granite pavers, guardrails, and furnishings will be assembled onsite.
Both vibratory and impact pile-driving are listed as potential methods for pile installation. WETA proposes to use impact pile-driving as a contingency. WETA's preferred method of pile installation is vibratory pile-driving; however, if the substrate gives refusal, the impact driver will be used to complete pile installation. There is a small chance that an entire pile may be driven entirely with the impact hammer, but this is unlikely. In this analysis we conservatively estimate take for both vibratory and impact pile-driving and we assume entire piles will be driven with an impact hammer to assess the worst case scenario.
The side-loading vessels require a depth of 12.5 feet below mean lower low water (MLLW) on the approach and in the berthing area. Based on a bathymetric survey conducted in 2015, it is estimated that the new Gates F and G will require dredging to meet the required depths. The expected dredging volumes are presented in Table 2. These estimates are based on dredging the approach areas to 123.5 feet below MLLW, and 2 feet of overdredge depth, to account for inaccuracies in dredging practices. The dredging will take approximately 2 months.
Based on observed patterns of sediment accumulation in the Ferry Terminal area, significant sediment accumulation will not be expected, because regular maintenance dredging is not currently required to maintain operations at existing Gates B and E. However, some dredging will likely be required on a regular maintenance cycle beneath the floats at Gates F and G, due to their proximity to the Pier 14 breakwater. It is expected that maintenance dredging will be required every 3 to 4 years, and will require removal of approximately 5,000 to 10,000 cubic yards of material.
Dredging and disposal of dredged materials will be conducted in cooperation with the San Francisco Dredged Materials Management Office (DMMO), including development of a sampling plan, sediment characterization, a sediment removal plan, and disposal in accordance with the Long-Term Management Strategy for San Francisco Bay to ensure beneficial reuse, as appropriate. Based on the results of the sediment analysis, dredged materials will be disposed at the San Francisco Deep Ocean Disposal Site, disposal at an upland facility, or beneficial reuse. Selection of the disposal site was reviewed and approved by the DMMO.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see
We have reviewed WETA's species information—which summarizes available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 4 and 5 of the applications, as well as to NMFS's Stock Assessment Reports (SAR;
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. Survey abundance (as compared to stock or species abundance) is the total number of individuals estimated within the survey area, which may or may not align completely with a stock's geographic range as defined in the SARs. These surveys may also extend beyond U.S. waters.
There are seven marine mammal species that may inhabit or may likely transit through the waters nearby the Ferry Terminal, and are expected to potentially be taken by the specified activity. These include the Pacific harbor seal (
Below, for those species that are likely to be taken by the activities described, we offer a brief introduction to the species and relevant stock as well as available information regarding population trends and threats, and describe any information regarding local occurrence.
The Pacific harbor seal is one of five subspecies of
Although generally solitary in the water, harbor seals congregate at haulouts to rest, socialize, breed, and molt. Habitats used as haul-out sites include tidal rocks, bayflats, sandbars, and sandy beaches (Zeiner
California sea lions range all along the western border of North America. The breeding areas of the California sea lion are on islands located in southern California, western Baja California, and the Gulf of California (Allen and Angliss 2015). Although California sea lions forage and conduct many activities in the water, they also use haul-outs. California sea lions breed in Southern California and along the Channel Islands during the spring. The current population estimate for California sea lions is 296,750 animals. This species is not considered strategic under the MMPA, and is not designated as depleted. This species is also not listed under the ESA. PBR is 9,200 (Carretta
El Niño affects California sea lion populations, with increased observations and strandings of this species in the area. Current observations of this species in CA have increased significantly over the past few years. Additionally, as a result of the large numbers of sea lion strandings in 2013, NOAA declared an unusual mortality event (UME). Although the exact causes of this UME are unknown, two hypotheses meriting further study include nutritional stress of pups resulting from a lack of forage fish available to lactating mothers and unknown disease agents during that time period.
In San Francisco Bay, sea lions haul out primarily on floating K docks at Pier 39 in the Fisherman's Wharf area of the San Francisco Marina. The Pier 39 haul out is approximately 1.5 miles from the project vicinity. The Marine Mammal Center (TMMC) in Sausalito, California has performed monitoring surveys at this location since 1991. A maximum of 1,706 sea lions was seen hauled out during one survey effort in 2009 (TMMC 2015). Winter numbers are generally over 500 animals (Goals Project 2000). In August to September, counts average from 350 to 850 (NMFS 2004). Of the California sea lions observed, approximately 85 percent were male. No pupping activity has been observed at this site or at other locations in the San Francisco Bay (Caltrans 2012). The California sea lions usually frequent Pier 39 in August after returning from the Channel Islands (Caltrans 2013). In addition to the Pier 39 haul-out, California sea lions haul out on buoys and similar structures throughout San Francisco Bay. They mainly are seen swimming off the San Francisco and Marin shorelines within San Francisco Bay, but may occasionally enter the project area to forage.
Although there is little information regarding the foraging behavior of the California sea lion in the San Francisco Bay, they have been observed foraging on a regular basis in the shipping channel south of Yerba Buena Island. Foraging grounds have also been identified for pinnipeds, including sea lions, between Yerba Buena Island and Treasure Island, as well as off the Tiburon Peninsula (Caltrans 2001).
Northern elephant seals breed and give birth in California (U.S.) and Baja California (Mexico), primarily on offshore islands (Stewart
Northern elephant seals are common on California coastal mainland and island sites where they pup, breed, rest, and molt. The largest rookeries are on San Nicolas and San Miguel islands in the Northern Channel Islands. In the vicinity of San Francisco Bay, elephant seals breed, molt, and haul out at Año Nuevo Island, the Farallon Islands, and Point Reyes National Seashore (Lowry
Northern fur seals
In the Pacific, harbor porpoise are found in coastal and inland waters from Point Conception, California to Alaska and across to Kamchatka and Japan (Gaskin 1984). Harbor porpoise appear to have more restricted movements along the western coast of the continental U.S. than along the eastern coast. Regional differences in pollutant residues in harbor porpoise indicate that they do not move extensively between California, Oregon, and Washington (Calambokidis and Barlow 1991). That study also showed some regional differences within California (Allen and Angliss 2014). Of the 10 stocks of Pacific harbor porpoise, only the San Francisco-Russian River stock is considered here since it is the only stock to occur near the action area. This current abundance estimate for this stock is 9,886 animals, with a PBR of 66 animals (Carretta
Once common throughout the Northern Hemisphere, the gray whale was extinct in the Atlantic by the early 1700s. Gray whales are now only commonly found in the North Pacific. Genetic comparisons indicate there are distinct “Eastern North Pacific” (ENP) and “Western North Pacific” (WNP) population stocks, with differentiation in both mitochondrial DNA (mtDNA) haplotype and microsatellite allele frequencies (LeDuc
Bottlenose dolphins are distributed worldwide in tropical and warm-temperate waters. In many regions, including California, separate coastal and offshore populations are known (Walker 1981; Ross and Cockcroft 1990; Van Waerebeek
This section includes a summary and discussion of the ways that components of the specified activity (
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the ‘loudness’ of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson
• Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.
• Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.
• Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.
• Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
The underwater acoustic environment at the ferry terminal is likely to be dominated by noise from day-to-day port and vessel activities. This is a highly industrialized area with high-use from small- to medium-sized vessels, and larger vessel that use the nearby major shipping channel. Underwater sound levels for water transit vessels, which operate throughout the day from the San Francisco Ferry Building ranged from 152 dB to 177 dB (WETA, 2003a). While there are no current measurements of ambient noise levels at the ferry terminal, it is likely that levels within the basin periodically exceed the 120 dB threshold and, therefore, that the high levels of anthropogenic activity in the basin create an environment far different from quieter habitats where behavioral reactions to sounds around the 120 dB threshold have been observed (
In-water construction activities associated with the project would include impact pile driving and vibratory pile driving and removal. The sounds produced by these activities fall into one of two general sound types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak SPLs may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman
Hearing is the most important sensory modality for marine mammals, and exposure to sound can have deleterious effects. To appropriately assess these potential effects, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
As mentioned previously in this document, seven marine mammal species (three cetaceans and four pinnipeds) may occur in the project area. Of these three cetaceans, one is classified as a low-frequency cetacean (
Please refer to the information given previously (
Richardson
We describe the more severe effects (
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak
Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to high level underwater sound or as a secondary effect of extreme behavioral reactions (
When a live or dead marine mammal swims or floats onto shore and is incapable of returning to sea, the event is termed a “stranding” (16 U.S.C. 1421h(3)). Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series (
1.
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale [
2.
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
3.
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
4.
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
In the absence of mitigation, impacts to marine species could be expected to include physiological and behavioral responses to the acoustic signature (Viada
Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds. With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:
• Drastic changes in diving/surfacing patterns (such as those thought to cause beaked whale stranding due to exposure to military mid-frequency tactical sonar);
• Longer-term habitat abandonment due to loss of desirable acoustic environment; and
• Longer-term cessation of feeding or social interaction.
The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall
Natural and artificial sounds can disrupt behavior by masking. The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water pile driving and removal is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. The most intense underwater sounds in the proposed action are those produced by impact pile driving. Given that the energy distribution of pile driving covers a broad frequency spectrum, sound from these sources would likely be within the audible range of marine mammals present in the project area. Impact pile driving activity is relatively short-term, with rapid pulses occurring for approximately fifteen minutes per pile. The probability for impact pile driving resulting from this proposed action masking acoustic signals important to the behavior and survival of marine mammal species is low. Vibratory pile driving is also relatively short-term, with rapid oscillations occurring for approximately one and a half hours per pile. It is possible that vibratory pile driving resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for vibratory and impact pile driving, and which have already been taken into account in the exposure analysis.
Airborne noise will primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria in Table 5. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' as a result of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple instances of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.
The proposed activities at the Ferry Terminal would not result in permanent negative impacts to habitats used directly by marine mammals, but may have potential short-term impacts to food sources such as forage fish and may affect acoustic habitat (see masking discussion above). There are no known foraging hotspots or other ocean bottom structure of significant biological importance to marine mammals present in the marine waters of the project area. Therefore, the main impact issue associated with the proposed activity would be temporarily elevated sound levels and the associated direct effects on marine mammals, as discussed previously in this document. The primary potential acoustic impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory and impact pile driving and removal in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.
Construction activities would produce continuous (
The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.
The area likely impacted by the project is relatively small compared to the available habitat in San Francisco Bay. Avoidance by potential prey (
In summary, given the short daily duration of sound associated with individual pile driving events and the relatively small areas being affected, pile driving activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat, or populations of fish species. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to vibratory and impact pile driving and removal. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound. In practice, depending on the amount of information available to characterize daily and seasonal movement and distribution of affected marine mammals, it can be difficult to distinguish between the number of individuals harassed and the instances of harassment and, when duration of the activity is considered, it can result in a take estimate that overestimates the number of individuals harassed. In particular, for stationary activities, it is more likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site (
The area where the ferry terminal is located is not considered important habitat for marine mammals, as it is a highly industrial area with high levels of vessel traffic and background noise. While there are harbor seal haul outs within 2 miles of the construction activity at Yerba Buena Island, and a California sea lion haul out approximately 1.5 miles away at Pier 39, behavioral disturbances that could result from anthropogenic sound associated with these activities are expected to affect only a relatively small number of individual marine mammals that may venture near the ferry terminal, although those effects could be recurring over the life of the project if the same individuals remain in the project vicinity. WETA has requested authorization for the incidental taking of small numbers of harbor seals, northern elephant seals, northern fur seals, California sea lions, harbor porpoise, bottlenose dolphin, and gray whales near the San Francisco Ferry Terminal that may result from construction activities associated with the project described previously in this document.
In order to estimate the potential instances of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We first provide information on applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential instances of take.
We use generic sound exposure thresholds to determine when an activity that produces sound might result in impacts to a marine mammal such that a take by Level B harassment might occur. These thresholds (Table 5) are used to estimate when harassment may occur (
On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance) (NMFS 2016, 81 FR 51694). This new guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. WETA used this new guidance to determine sound exposure thresholds to determine when an activity that produces sound might result in impacts to a marine mammal such that a take by injury, in the form of PTS, might occur. These acoustic thresholds are presented using dual metrics of cumulative sound exposure level (SEL
This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log[range]). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log[range]). A practical spreading value of 15 is often used under conditions, such as at the San Francisco Ferry Terminal, where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss (4.5 dB reduction in sound level for each doubling of distance) is assumed here.
In order to determine reasonable SPLs and their associated effects on marine mammals that are likely to result from vibratory or impact pile driving or removal at the ferry terminal, we considered existing measurements from similar physical environments (
The values used to calculate distances at which sound would be expected to exceed the Level A thresholds for impact driving of 24-in and 36-in piles include peak values of 210 dB for 36-in piles and 207 dB for 24-in piles (Caltrans 2015a). Anticipated SELs for unattenuated impact pile-driving would be 183 dB for 36-inch pile driving and 178 dB for 24-inch piles (Caltrans 2015a). Bubble curtains will be used during the installation of these piles, which is expected to reduce noise levels by about 10 dB rms (Caltrans 2015a), which are the values used in Table 7. Vibratory driving source levels include 165 dB RMS for 24-in piles and 175 dB RMS for 36-in piles (Caltrans 2015a). In the user spreadsheet from NMFS' Guidance, 1800 strikes per pile with 2 piles per day was used for impact driving of 36-in piles, and 1800 strikes per pile with 3 piles per day was used for impact driving of 24-in piles. Total duration for vibratory driving of 24-in or 36-in piles is one hour. Both pile sizes are analyzed, but only 36-in piles are used to conservatively calculate take.
The values used to calculate distances at which sound would be expected to exceed the Level A thresholds for impact driving of 14-in wood piles include a peak value of 180 dB and SEL value of 148 dB (Caltrans 2015a). Vibratory driving source level is assumed to be 144 dB RMS (Caltrans 2015a). In the user spreadsheet from NMFS' Guidance, 200 strikes per pile and 6 piles per day were used. Total duration for vibratory driving of 14-in wood piles is one hour.
For 24- and 36-inch steel piles using an impact hammer, projects include the driving of similarly sized piles at the Alameda Bay Ship and Yacht project; the Rodeo Dock Repair project; and the Amorco Wharf Repair project. During impact pile-driving associated with these projects, measured RMS sound levels averaged about 193 dB rms at 10m for 36-inch piles, and 190 dB rms at 10m for 24-inch piles (Caltrans 2012). It is estimated that an average of four of these piles would be installed per day with the vibratory hammer.
Projects conducted under similar circumstances with similar piles were reviewed to approximate the noise effects of the 14-inch wood piles. The best match for estimated noise levels is from the impact driving of timber piles at the Port of Benicia. Noise levels produced during this installation were an average of 158 dB rms at 33 feet (10 meters) from the pile (Caltrans 2012a). It is estimated that an average of four of these piles would be installed per day with a vibratory hammer.
The best fit data for vibratory driving of 24-inch-diameter steel shell piles comes from projects completed in Shasta County, California, and the Stockton Marina, Stockton, California. For these projects, the typical noise levels for pile-driving events were 163 dB rms at 33 feet (10 meters) (Caltrans 2012).
A review of available acoustic data for pile driving indicates that Test Pile Program at Naval Base Kitsap at Bangor, Washington (Illingsworth and Rodkin, 2013) provides the data for vibratory installation of 36-inch piles. For 36-inch-diameter piles driven by the Navy, the average level for all pile-driving events was 159 dB rms at 33 feet (10 meters). There was a considerable range in the rms levels measured across a pile-driving event; with measured values from 147 to 169 dB rms, the higher value is used in this analysis. It is estimated that an average of four of these piles would be extracted per day of pile driving during the proposed project. It is estimated that an average of four 14-inch polyurethane-coated wood piles would be installed per day of vibratory pile driving. The best match for estimated noise levels for vibratory driving of these piles is from the Hable River in Hampshire, England, where wooden piles were installed with this method. Rms noise levels produced during this installation were on average 142 dB rms at 33 feet (10 meters) from the pile (Nedwell
Approximately 350 wood and concrete piles, 12 to 18 inches in diameter, would be removed using a vibratory pile-driver. With the vibratory hammer activated, an upward force would be applied to the pile to remove it from the sediment. On average, 12 of these piles would be extracted per work day. Extraction time needed for each pile may vary greatly, but could require approximately 400 seconds (approximately 7 minutes) from an APE 400B King Kong or similar driver. The most applicable noise values for wooden pile removal from which to base estimates for the terminal expansion project are derived from measurements taken at the Port Townsend dolphin pile removal in the State of Washington. During vibratory pile extraction associated with this project, measured peak noise levels were approximately 164 dB at 16 m, and the rms was approximately 150 dB (WSDOT 2011). Applicable sound values for the removal of concrete piles could not be located, but they are expected to be similar to the levels produced by wooden piles described above, because they are similarly sized, nonmetallic, and will be removed using the same methods.
All calculated distances to, and the total area encompassed by, the marine mammal sound thresholds are provided
Tables 6 and 7 show the expected underwater sound levels for pile driving activities and the estimated distances to the Level A (Table 7) and Level B (Table 8) thresholds.
At-sea densities for marine mammal species have been determined for harbor seals and California sea lions in San Francisco Bay based on marine mammal monitoring by Caltrans for the San Francisco-Oakland Bay Bridge Project from 2000 to 2015 (Caltrans 2016) ; all other estimates here are determined by using observational data taken during marine mammal monitoring associated with the Richmond-San Rafael Bridge retrofit project, the San Francisco-Oakland Bay Bridge (SFOBB), which has been ongoing for the past 15 years, and anecdotal observational reports from local entities.
All estimates are conservative and include the following assumptions:
• All pilings installed at each site would have an underwater noise disturbance equal to the piling that causes the greatest noise disturbance
• Exposures were based on estimated total of 106 work days. Each activity ranges in amount of days needed to be completed (Table 1).
• In absence of site specific underwater acoustic propagation modeling, the practical spreading loss model was used to determine the ZOI.
• All marine mammal individuals potentially available are assumed to be present within the relevant area, and thus incidentally taken;
• An individual can only be taken once during a 24-hour period; and,
• Exposures to sound levels at or above the relevant thresholds equate to take, as defined by the MMPA.
The estimation of marine mammal takes typically uses the following calculation:
For harbor seals and California sea lions: Level B exposure estimate = D (density) * Area of ensonification) * Number of days of noise generating activities.
For all other marine mammal species: Level B exposure estimate = N (number of animals) in the area * Number of days of noise generating activities.
To account for the increase in California sea lion density due to El Niño, the daily take estimated from the observed density has been increased by a factor of 10 for each day that pile driving or removal occurs.
There are a number of reasons why estimates of potential instances of take may be overestimates of the number of individuals taken, assuming that available density or abundance estimates and estimated ZOI areas are
Table 9 lists the total estimated instances of expected take.
Monitoring of marine mammals in the vicinity of the SFOBB has been ongoing for 15 years; from those data, Caltrans has produced at-sea density estimates for Pacific harbor seal of 0.83 animals per square kilometer for the fall season (Caltrans 2016). Using this density, the potential average daily take for the areas over which the Level B harassment thresholds may be exceeded are estimated in Table 10.
A total of 4,798 harbor seal takes are estimated for 2017 (Table 9). Level A take is not expected for harbor seal based on area of ensonification and density of the animals in that area. While the Level A zone is relatively large for this hearing group (approximately 270 m), there will be 2 MMOs monitoring the zone in the most advantageous locations to spot marine mammals. If a harbor seal (or any other marine mammal) is seen approaching the Level A zone, a shutdown will be in place. We do not anticipate that Level A harassment would occur.
Monitoring of marine mammals in the vicinity of the SFOBB has been ongoing for 15 years; from those data, Caltrans has produced at-sea density estimates for California sea lion of 0.09 animal per square kilometer for the post-breeding season (Caltrans 2016). Using this density, the potential average daily take for the areas over which the Level B harassment thresholds may be exceeded is estimated in Table 11.
All California sea lion estimates were multiplied by 10 to account for the increased occurrence of this species due to El Niño. A total of 5,200 California sea lion takes is estimated for 2017 (Table 9). Level A take is not expected for California sea lion based on area of ensonification and density of the animals in that area.
Monitoring of marine mammals in the vicinity of the SFOBB has been ongoing for 15 years; from those data, Caltrans has produced an estimated at-sea density for northern elephant seal of 0.03 animal per square kilometer (Caltrans, 2016). Most sightings of northern elephant seal in San Francisco Bay occur in spring or early summer, and are less likely to occur during the periods of in-water work for this project (June through November). As a result, densities during pile driving and removal for the proposed action would be much lower. Therefore, we estimate that it is possible that a lone northern elephant seal may enter the Level B harassment area once per week during pile driving or removal, for a total of 26 takes in 2017 (Table 9). Level A take of Northern elephant seal is not requested, nor is it proposed to be authorized because although one animal may approach the large Level B zones, it is not expected that it will continue in the area of ensonification into the Level A zone. Further, if the animal does approach the Level A zone, construction will be shut down. We do not anticipate that Level A harassment would occur.
During the breeding season, the majority of the worldwide population is found on the Pribilof Islands in the southern Bering Sea, with the remaining animals spread throughout the North Pacific Ocean. On the coast of California, small breeding colonies are present at San Miguel Island off southern California, and the Farallon Islands off central California (Carretta
In the last six decades, harbor porpoises were observed outside of San Francisco Bay. The few harbor porpoises that entered were not sighted past central Bay close to the Golden Gate Bridge. In recent years, however, there have been increasingly common observations of harbor porpoises in central, north, and south San Francisco Bay. Porpoise activity inside San Francisco Bay is thought to be related to foraging and mating behaviors (Keener 2011; Duffy 2015). According to observations by the Golden Gate Cetacean Research team as part of their multi-year assessment, over 100 porpoises may be seen at one time entering San Francisco Bay; and over 600 individual animals are documented in a photo-ID database. However, sightings are concentrated in the vicinity of the Golden Gate Bridge and Angel Island, north of the project area, with lesser numbers sighted south of Alcatraz and west of Treasure Island (Keener 2011). Harbor porpoise generally travel individually or in small groups of two or three (Sekiguchi 1995).
Monitoring of marine mammals in the vicinity of the SFOBB has been ongoing for 15 years; from those data, Caltrans has produced an estimated at-sea density for harbor porpoise of 0.021 animal per square kilometer (Caltrans 2016). However, this estimate would be an overestimate of what would actually be seen in the project area. In order to estimate a more realistic take number, we assume it is possible that a small group of individuals (three harbor porpoises) may enter the Level B harassment area on as many as three days of pile driving or removal, for a total of nine harbor porpoise takes per year (Table 9). It is possible that harbor porpoise may enter the Level A harassment zone for high frequency cetaceans; however, 2 MMOs will be monitoring the area and WETA would implement a shutdown for the entire zone if a harbor porpoise (or any other marine mammal) approaches the Level A zone; therefore Level A take is not being requested, nor authorized for this species.
Historically, gray whales were not common in San Francisco Bay. The Oceanic Society has tracked gray whale sightings since they began returning to San Francisco Bay regularly in the late 1990s. The Oceanic Society data show that all age classes of gray whales are entering San Francisco Bay, and that they enter as singles or in groups of up to five individuals. However, the data do not distinguish between sightings of gray whales and number of individual whales (Winning 2008). Caltrans Richmond-San Rafael Bridge project monitors recorded 12 living and two dead gray whales in the surveys performed in 2012. All sightings were in either the central or north Bay; and all but two sightings occurred during the months of April and May. One gray whale was sighted in June, and one in October (the specific years were unreported). It is estimated that two to six gray whales enter San Francisco Bay in any given year. Because construction
Since the 1982-83 El Niño, which increased water temperatures off California, bottlenose dolphins have been consistently sighted along the central California coast (Carretta
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully balance two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat—which considers the nature of the potential adverse impact being mitigated (likelihood, scope, range), as well as the likelihood that the measure will be effective if implemented; and the likelihood of effective implementation, and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see
The following measures would apply to WETA's mitigation through shutdown and disturbance zones:
Given the size of the disturbance zone for vibratory pile driving, it is impossible to guarantee that all animals would be observed or to make comprehensive observations of fine-scale behavioral reactions to sound, and only a portion of the zone (
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. A minimum of two observers will be required for all pile driving/removal activities. However, if after performing hydroacoustic monitoring the monitoring results indicate that the Level A zones for impact driving of 24-in and 36-in steel piles is considerably smaller than expected, with concurrence from NMFS, WETA may reduce the number of MMOs for impact driving to one. Marine Mammal Observer (MMO) requirements for construction actions are as follows:
(a) Independent observers (
(b) At least one observer must have prior experience working as an observer;
(c) Other observers (that do not have prior experience) may substitute education (undergraduate degree in biological science or related field) or training for experience;
(d) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
(e) NMFS will require submission and approval of observer CVs.
Qualified MMOs are trained biologists, and need the following additional minimum qualifications:
(a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
(b) Ability to conduct field observations and collect data according to assigned protocols;
(c) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(d) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(e) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and
(f) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(2) Prior to the start of pile driving activity, the shutdown zone will be monitored for fifteen minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (
(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of small cetaceans and pinnipeds, and thirty minutes for gray whales. Monitoring will be conducted throughout the time required to drive a pile.
(4) Using delay and shut-down procedures, if a species for which authorization has not been granted (including but not limited to Guadalupe fur seals and humpback whales) or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level B harassment zone, activities will shut down immediately and not restart until the animals have been confirmed to have left the area.
The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer.
Two types of sound attenuation devices would be used during impact pile-driving: Bubble curtains and pile cushions. WETA would employ the use of a bubble curtain during impact pile-driving, which is assumed to reduce the source level by 10 dB. Bubble curtains will not be used during impact driving of wood piles because the sound levels produced would be significantly less than those from steel piles. WETA would also employ the use of 12-inch-thick wood cushion block on impact hammers to attenuate underwater sound levels.
We have carefully evaluated WETA's proposed mitigation measures and considered their effectiveness in past implementation to preliminarily determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat.
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the
(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal);
(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only);
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only);
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only);
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time; and
(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of WETA's proposed measures, as well as any other potential measures that may be relevant to the specified activity, we have preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) population, species, or stock;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
WETA's proposed monitoring and reporting is also described in their Marine Mammal Monitoring Plan, on the Internet at
Hydroacoustic monitoring will be conducted in consultation with the California Department of Fish and Wildlife (CDFW) during a minimum of ten percent of all pile driving activities. The monitoring will be done in accordance with the methodology outlined in this Hydroacoustic Monitoring Plan (see Appendix A of WETA's application for more information on this plan, including the methodology, equipment, and reporting information). The monitoring will be conducted based on the following:
• Be based on the dual metric criteria (Popper
• Establish field locations that will be used to document the extent of the area experiencing 187 decibels (dB) SEL accumulated;
• Establish the distance to the Marine Mammal Level A and Level B shutdown and Harassment zones;
• Describe the methods necessary to continuously measure underwater noise on a real-time basis, including details on the number, location, distance and depth of hydrophones, and associated monitoring equipment;
• Provide a means of recording the time and number of pile strikes, the peak sound energy per strike, and interval between strikes; and
• Provide all monitoring data to the CDFW and NMFS.
WETA will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All marine mammal observers (MMOs) will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. A minimum of two MMOs will be required for all pile driving/removal activities, unless only impact driving is to occur on that day, in which case only one observer will be required. WETA will monitor the shutdown zone and disturbance zone before, during, and after pile driving, with observers located at the best practicable vantage points. Based on our requirements, WETA would implement the following procedures for pile driving and removal:
• MMOs would be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible;
• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals;
• If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity would be halted; and
• The shutdown and disturbance zones around the pile will be monitored for the presence of marine mammals before, during, and after any pile driving or removal activity.
Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. The monitoring biologists
In additions, the MMO(s) will survey the potential Level A and nearby Level B harassment zones (areas within approximately 2,000 feet of the pile-driving area observable from the shore) on 2 separate days—no earlier than 7 days before the first day of construction—to establish baseline observations. Monitoring will be timed to occur during various tides (preferably low and high tides) during daylight hours from locations that are publicly accessible (
We require that observers use approved data forms. Among other pieces of information, WETA will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, WETA will attempt to distinguish between the number of individual animals taken and the number of incidences of take. We require that, at a minimum, the following information be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel, and if possible, the correlation to SPLs;
• Distance from pile driving or removal activities to marine mammals and distance from the marine mammals to the observation point;
• Description of implementation of mitigation measures (
• Locations of all marine mammal observations; and
• Other human activity in the area.
A draft report would be submitted to NMFS within 90 days of the completion of marine mammal monitoring, or sixty days prior to the requested date of issuance of any future IHA for projects at the same location, whichever comes first. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving and removal days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments on the draft report.
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving and removal activities associated with the ferry terminal construction project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving and removal. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving and removal occurs.
No injury, serious injury, or mortality is anticipated given the nature of the activities and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory hammers will be the primary method of installation (impact driving is included only as a contingency). Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. If impact driving is necessary, implementation of soft start and shutdown zones significantly reduces any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to it becoming potentially injurious. WETA will also employ the use of 12-inch-thick wood cushion block on impact hammers, and a bubble curtain as sound attenuation devices. Environmental conditions in San Francisco Ferry Terminal mean that marine mammal detection ability by trained observers is high, enabling a high rate of success in implementation of shutdowns to avoid injury.
WETA's proposed activities are localized and of relatively short duration (a maximum of 106 days for pile driving and removal in the first year). The entire project area is limited to the San Francisco ferry terminal area and its immediate surroundings. These localized and short-term noise exposures may cause short-term behavioral modifications in harbor seals, northern fur seals, northern elephant seals, California sea lions, harbor porpoises, bottlenose dolphins, and gray whales. Moreover, the proposed mitigation and monitoring measures are expected to reduce the likelihood of injury and behavior exposures. Additionally, no important feeding and/or reproductive areas for marine mammals are known to be within the ensonified area during the construction time frame.
The project also is not expected to have significant adverse effects on affected marine mammals' habitat. The
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized;
• Injurious takes are not expected due to the presumed efficacy of the proposed mitigation measures in reducing the effects of the specified activity to the level of least practicable impact;
• Level B harassment may consist of, at worst, temporary modifications in behavior (
• The lack of important feeding, pupping, or other areas in the action area;
• The high level of ambient noise already in the ferry terminal area; and
• The small percentage of the stock that may be affected by project activities (< 15 percent for all species).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from WETA's ferry terminal construction activities will have a negligible impact on the affected marine mammal species or stocks.
Table 12 details the number of instances that animals could be exposed to received noise levels that could cause Level B behavioral harassment for the proposed work at the ferry terminal project site relative to the total stock abundance. The numbers of animals authorized to be taken for all species would be considered small relative to the relevant stocks or populations even if each estimated instance of take occurred to a new individual—an extremely unlikely scenario. The total percent of the population (if each instance was a separate individual) for which take is requested is approximately 15 percent for harbor seals, approximately 7 percent for bottlenose dolphins, less than 2 percent for California sea lions, and less than 1 percent for all other species (Table 12). For pinnipeds, especially harbor seals occurring in the vicinity of the ferry terminal, there will almost certainly be some overlap in individuals present day-to-day, and the number of individuals taken is expected to be notably lower. We preliminarily find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No incidental take of ESA-listed marine mammal species is proposed for authorization or expected to result from these activities. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
NMFS published an EA in 2016 on WETA's ferry terminal construction activities. NMFS found that there would be no significant impacts to the human environment and signed a finding of no significant impact (FONSI) on June 28, 2016. Because the activities and analysis are the same as WETA's 2016 activities, NMFS believes it appropriate to use the existing EA and FONSI for WETA's 2017 activities.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to WETA for conducting their Downtown San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording
1. This Incidental Harassment Authorization (IHA) is valid for one year from June 1, 2017 through May 31, 2018.
2. This IHA is valid only for pile driving and removal activities associated with the Downtown San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project in San Francisco Bay, CA.
3. General Conditions
(a) A copy of this IHA must be in the possession of WETA, its designees, and work crew personnel operating under the authority of this IHA.
(b) The species authorized for taking are summarized in Table 1.
(c) The taking, by Level B harassment only, is limited to the species listed in condition 3(b). See Table 1 for numbers of take authorized.
(d) The taking by injury (Level A harassment), serious injury, or death of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
(e) WETA shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, and WETA staff prior to the start of all pile driving and removal activities, and when new personnel join the work.
4. Mitigation Measures
The holder of this Authorization is required to implement the following mitigation measures.
(a) For all pile driving and removal, WETA shall implement a minimum shutdown zone of 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(b) For in-water heavy machinery work other than pile driving (
(c) WETA shall establish monitoring locations as described below. Please also refer to the Marine Mammal Monitoring Plan (see
i. For all pile driving and removal activities, a minimum of two observers shall be deployed, with one positioned to achieve optimal monitoring of the shutdown zone and the second positioned to achieve optimal monitoring of surrounding waters of the ferry terminal and portions of San Francisco Bay. If practicable, the second observer should be deployed to an elevated position with clear sight lines to the ferry terminal.
ii. These observers shall record all observations of marine mammals, regardless of distance from the pile being driven, as well as behavior and potential behavioral reactions of the animals. Observations within the ferry terminal shall be distinguished from those in the nearshore waters of San Francisco Bay.
iii. All observers shall be equipped for communication of marine mammal observations amongst themselves and to other relevant personnel (
(d) Monitoring shall take place from fifteen minutes prior to initiation of pile driving and removal activity through thirty minutes post-completion of pile driving and removal activity. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (
(e) If a marine mammal approaches or enters the shutdown zone, all pile driving and removal activities at that location shall be halted. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of small cetaceans and pinnipeds and 30 minutes for gray whales.
(f) Level A and Level B zones may be modified if additional hydroacoustic measurements of construction activities have been conducted and NMFS has approved of the revised zones.
(g) Using delay and shut-down procedures, if a species for which authorization has not been granted (including but not limited to Guadalupe fur seals and humpback whales) or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level B harassment zone, activities will shut down immediately and not restart until the animals have been confirmed to have left the area.
(h) Monitoring shall be conducted by qualified observers, as described in the Monitoring Plan. Trained observers shall be placed from the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Observer training must be provided prior to project start and in accordance with the monitoring plan, and shall include instruction on species identification (sufficient to distinguish the species listed in 3(b)), description and categorization of observed behaviors and interpretation of behaviors that may be construed as being reactions to the specified activity, proper completion of data forms, and other basic components of biological monitoring, including tracking of observed animals or groups
(i) WETA shall use soft start techniques recommended by NMFS for impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
(j) Sound attenuation devices—Approved sound attenuation devices (
(k) Pile driving shall only be conducted during daylight hours.
5. Monitoring
The holder of this Authorization is required to conduct marine mammal monitoring during pile driving and removal activities. Marine mammal monitoring and reporting shall be conducted in accordance with the Monitoring Plan.
(a) WETA shall collect sighting data and behavioral responses to pile driving and removal for marine mammal species observed in the region of activity during the period of activity. All observers shall be trained in marine mammal identification and behaviors, and shall have no other construction-related tasks while conducting monitoring.
(b) For all marine mammal monitoring, the information shall be recorded as described in the Monitoring Plan.
6. Reporting
The holder of this Authorization is required to:
(a) Submit a draft report on all monitoring conducted under the IHA within ninety days of the completion of marine mammal monitoring, or sixty days prior to the issuance of any subsequent IHA for projects at the San Francisco Ferry Terminal, whichever comes first. A final report shall be prepared and submitted within thirty days following resolution of comments on the draft report from NMFS. This report must contain the informational elements described in the Monitoring Plan, at minimum (see
i. Detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any.
ii. Description of attempts to distinguish between the number of individual animals taken and the number of incidents of take, such as ability to track groups or individuals.
iii. An estimated total take estimate extrapolated from the number of marine mammals observed during the course of construction activities, if necessary.
(b) Reporting injured or dead marine mammals:
i. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, WETA shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the following information:
A. Time and date of the incident;
B. Description of the incident;
C. Environmental conditions (
D. Description of all marine mammal observations in the 24 hours preceding the incident;
E. Species identification or description of the animal(s) involved;
F. Fate of the animal(s); and
G. Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with WETA to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. WETA may not resume their activities until notified by NMFS.
ii. In the event that WETA discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
The report must include the same information identified in 6(b)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with WETA to determine whether additional mitigation measures or modifications to the activities are appropriate.
iii. In the event that WETA discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (
7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHAs for WETA's ferry terminal construction activities. Please include with your comments any supporting data or literature citations to help inform our final decision on WETA's request for MMPA authorization.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The National Oceanic and Atmospheric Administration (NOAA) has established large-scale depth-based management areas, referred to as Groundfish Conservation Areas (GCAs), where groundfish fishing is prohibited or restricted. These areas were specifically designed to reduce the catch of species while allowing healthy fisheries to continue in areas and with gears where little incidental catch of overfished species is likely to occur. Because NOAA needs methods to effectively enforce area restrictions, certain commercial fishing vessels are required to install and use a vessel monitoring system (VMS) that automatically send hourly position reports. Exemptions from the reporting requirement are available for inactive vessels or vessels fishing outside the monitored area. The vessels are also required to declare what gear will be used.
To ensure the integrity of the GCAs and Rockfish Conservation Areas, a pilot VMS program was implemented on January 1, 2004. The pilot program required vessels registered to Pacific Coast groundfish fishery limited entry permits to carry and use VMS transceiver units while fishing off the coasts of Washington, Oregon and California. On January 1, 2007, the VMS program coverage was expanded on to include all open access fisheries in addition to the limited entry fisheries. Finally, in 2010, NMFS expanded the declaration reports to include several more limited entry categories.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
General Counsel of the Department of Defense, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Investigation Prosecution and Defense of Sexual Assault in the Armed Forces will take place.
Open to the public, Friday, April 28, 2017, from 10:00 a.m. to 5:15 p.m.
One Liberty Center, 875 N. Randolph Street, Suite 1432, Arlington, Virginia 22203.
Dwight Sullivan, 703-695-1055 (Voice), 703-693-3903 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
For information contact Ms. Julie Carson, DAC-IPAD, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, Virginia 22203. Email:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB) Chairs. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Luther F. Carson Four Rivers Center, 100 Kentucky Avenue, Myre River Room, Paducah, Kentucky 42001.
David Borak, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; Phone: (202) 586-9928.
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
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 June 12, 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 Commission is submitting a revision to this information collection which results from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted a Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.
Although there are no changes to the FCC Form 2100, Schedule C itself, there are changes to the substance, burden hours, and costs as described herein.
The information collection requirements contained in 47 section 74.799 (previously 74.800) permits LPTV and TV translator stations to seek approval to share a single television channel with other LPTV and TV translator stations and with full power and Class A stations. Stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule C in order to have the channel sharing arrangement approved. If the sharing station is proposing to make changes to its facility to accommodate the channel sharing, it must also file FCC Form 2100 Schedule C.
The Commission is submitting this revising this information collection which results from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.
Although there are no changes to the FCC Form 2100, Schedule D itself, there are changes to the substance, burden hours, and costs as described herein.
The information collection requirements contained in 47 section 74.799 (previously 74.800) permits LPTV and TV translator stations to seek approval to share a single television channel with other LPTV and TV translator stations and with full power and Class A stations. Stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule D in order to complete the licensing of their channel sharing arrangement.
Although there are no changes to the FCC Form 2100, Schedule A itself, there are changes to the substance, burden hours, and costs as described herein.
The information collection requirements contained in 47 CFR 73.3800 allows full power television stations to channel share with other full power stations, Class A, LPTV and TV translator stations outside of the incentive auction context. Full power stations file FCC Form 2100, Schedule A in order to obtain Commission approval to operate on a shared channel.
The Commission is submitting this revision to this information collection which results from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, (Low Power Television) LPTV and TV translator stations.
Although there are no changes to the FCC Form 2100, Schedule B itself, there are changes to the substance, burden hours, and costs as described herein.
The information collection requirements contained in 47 CFR 73.3800 allows full power television stations to channel share with other full power stations, Class A, LPTV and TV translator stations outside of the incentive auction context. Full power stations file FCC Form 2100, Schedule B in order to complete the licensing of their shared channel.
The Commission is submitting this revision to this information collection, which results from the provisions adopted in the FCC 17-29. On March
Although there are no changes to the FCC Form 2100, Schedule F itself, there are changes to the substance, burden hours, and costs as described herein.
The information collection requirements contained in 47 CFR 73.6028 permits Class A stations to seek approval to share a single television channel with LPTV, TV translator, full power and Class A television stations. Class A stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule F in order to complete the licensing of their channel sharing arrangement.
Class A applications for a major change are subject to third party disclosure requirement of Section 73.3580 which requires local public notice in a newspaper of general circulation of the filing of all applications for major changes in facilities. This notice must be completed within 30 days of the tendering of the application. This notice must be published at least twice a week for two consecutive weeks in a three-week period. A copy of this notice must be placed in the public inspection file along with the application.
47 CFR 74.793(d) requires that digital low power and TV translator stations shall be required to submit information as to vertical radiation patterns as part of their applications (FCC Forms 346 and 301-CA) for new or modified construction permits.
The Commission is submitting this revision to this information collection, which results from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, LPTV and TV translator stations.
Although there are no changes to the FCC Form 2100, Schedule E itself, there are changes to the substance, burden hours, and costs as described herein.
The information collection requirements contained in 47 CFR 73.6028 permits Class A stations to seek approval to share a single television channel with Low Power Television (LPTV), TV translator, full power and Class A television stations. Class A stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule E in order to obtain Commission approval for their channel sharing arrangement.
The information collection requirements contained in 47 CFR 73.3700 requires that full power and Class A television stations assigned a new channel in the incentive auction repacking, relinquishing their channel or moving to a new channel as a result of a winning bid in the auction, notify MVPDs of their termination of operations or change in channel.
On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations. Channel sharing stations also must notify MVPDs of the fact that stations will be terminating operations on one channel to share another station's channel.
The information collection requirements contained in 47 CFR 73.3800, Full Power Television Channel Sharing Outside the Incentive Auction, Section 73.6028 Class A Television Channel Sharing Outside the Incentive Auction and Section 74.799 Low Power Television and TV Translator Channel Sharing require that stations seeking to channel share outside of the incentive auction provide notification to MVPDs of the fact that the station will be terminating operations on one channel to share another station's channel.
The Commission is submitting this revision to this information collection, which results from the rule provisions adopted in the FCC 14-50 and FCC 17-29.
On June 2, 2014 the Commission released a rulemaking titled “Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions,” GN Docket 12-268, Report and Order, FCC 14-50, 29 FCC Rcd 6567 (2014) which adopted rules for holding an Incentive Auction. Full power and Class A stations are permitted to propose to relinquish their channels in the auction and to share the channel of another station.
The information collection requirements contain in 47 CFR 73.3700 requires that full power and Class A television stations seeking approval to channel share in the incentive auction provide the Commission with a copy of their CSA for review.
On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.
The information collection requirements contained in 47 CFR 73.3800, Full Power Television Channel Sharing Outside the Incentive Auction, Section 73.6028, Class A Television Channel Sharing Outside the Incentive Auction and Section 73.799, Low Power Television and TV Translator Channel Sharing require that stations seeking to channel share outside of the incentive auction provide a copy of their “CSA” to the Commission for review.
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
Written PRA comments should be submitted on or before June 12, 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 notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 26, 2017.
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 5, 2017.
A.
1.
Federal Trade Commission (“FTC”).
Notice and request for comment.
In compliance with the Paperwork Reduction Act (PRA) of 1995, the FTC is seeking public comments on its request to OMB for a three-year extension of the current PRA clearance for information collection requirements contained in its Informal Dispute Settlement Procedures Rule. That clearance expires on April 30, 2017.
Comments must be received by May 15, 2017.
Interested parties may file a comment online or on paper by following the instructions in the Request for Comments part of the
Requests for additional information or copies of the proposed information requirements should be addressed to Christine M. Todaro, Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., CC-8528, Washington, DC 20580, (202) 326-3711.
On January 27, 2017, the Commission sought comment on the Rule's information collection requirements. 82 FR 8614. No germane comments were received.
(a) Recordkeeping—IDSMs, 2, 30 minutes/case for 10,727 annual consumer cases;
(b) Reporting—IDSMs, 2, 10 minutes/case for 10,727 annual consumercases; &
(c) Disclosures—Warrantors, 17, annual 30 hours each; IDSMs, 2, 5 minutes/case for 2,145 consumer cases.
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before May 15, 2017. Write “Warranty Rules: Paperwork Comment, FTC File No. P044403” on your comment. Your comment, including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as anyone's Social Security number, date of birth, driver's license number or other state
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you are required to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online, or to send it to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Warranty Rules: Paperwork Comment, FTC File No. P044403” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex J), 600 Pennsylvania Avenue NW., Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
Comments on the information collection requirements subject to review under the PRA should also be submitted to OMB. If sent by U.S. mail, address comments to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395-5167.
Federal Trade Commission (“FTC” or “Commission”).
30-Day notice of submission of information collection approval from the Office of Management and Budget (“OMB”) and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the FTC is submitting a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act.
Comments must be submitted May 15, 2017.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
To request additional information, please contact Bridget Small at 202-326-3266.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate,
The FTC received one responsive comment
Below are the FTC's projected average annual estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The control number for the existing clearance (expiring April 30, 2017) is 3084-0159. The FTC seeks renewed three-year clearance under this control number for the prospective collection of information and the associated burden estimates.
You can file a comment online or on paper. For the FTC to consider your comment, we must receive it on or before May 15, 2017. Write “FTC Generic Clearance ICR, Project No. P035201” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “FTC Generic Clearance ICR, Project No. P035201” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Comments on any proposed information collection requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395-5806.
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be placed on the public record—including the publicly accessible FTC Web site at
Once your comment has been posted on the public FTC Web site—as legally
The Agency for Toxic Substances and Disease Registry (ATSDR) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
The Agency for Toxic Substances and Disease Registry (ATSDR) serves the public through responsive public health actions to promote healthy and safe environments and to prevent harmful exposures in communities across the nation. ATSDR's Partnership to Promote Local Efforts to Reduce Environmental Exposure (APPLETREE) Program is critical to ATSDR's success in this mission. The purpose of the program is to: (1) Identify pathways of exposure to hazardous substances at hazardous waste sites and releases; (2) identify, implement, and coordinate public health interventions to reduce exposures to hazardous substances which occur at levels of health concern; and (3) provide training at the state level to promote and achieve the safe siting of child care facilities in the United States. The APPLETREE Program is also a mechanism which enhances ATSDR's communication with state, local, and federal health and environmental agencies. This program is authorized under sections 104(i)(15) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986 [42 U.S.C. 9604(i)(15)].
Under the new three-year APPLETREE cooperative agreement (Funding Opportunity Announcement No. CDC-RFA-TS17-1701), eligible applicants include federally recognized American Indian/Alaska Native tribal governments; American Indian/Alaska native tribally designated organizations; political subdivisions of states (in consultation with states); and state and local governments or their bona fide agents. ATSDR technical project officers (TPOs) will assist approximately 25 APPLETREE awardees to address site-specific issues involving human exposure to hazardous substances. Key capacities include identification of human exposure pathways at ATSDR sites, education of affected communities and local health professionals about site contamination and potential health effects; making appropriate recommendations to prevent exposure; reviewing health outcome data to evaluate potential links between site contaminants and community health; and documenting the effects of environmental remediation on health.
ATSDR will collect information related to awardee activities, and the process and outcome performance measures outlined by the cooperative agreement program. Information will be used to monitor progress toward program goals and objectives, and for program quality improvement.
ATSDR seeks a three-year information collection clearance. Awardee reporting is a mandatory requirement of the APPLETREE cooperative agreement. The total annual time burden requested is 272 hours.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services.
Notice.
NIOSH gives notice of a decision to evaluate a petition to designate a class of employees from the Idaho National Laboratory—Idaho Chemical Processing Plant in Scoville, Idaho, to be included in the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000.
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health, 1090 Tusculum Avenue, MS C-46, Cincinnati, OH 45226-1938, Telephone 877-222-7570. Information requests can also be submitted by email to
42 CFR 83.9-83.12.
Pursuant to 42 CFR 83.12, the initial proposed definition for the class being evaluated, subject to revision as warranted by the evaluation, is as follows:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the
Written comments will be received on or before June 12, 2017.
You may submit comments, identified by Docket No. CDC-2017-0022 by any of the following methods:
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All public comment should be submitted through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Assessing School-centered HIV/STD Prevention Efforts in a Local Education Agency (OMB Control No. 0920-0135; Expiration 11/30/2017)—Revision—Division of Adolescent and School Health (DASH), National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, Centers for Disease Control and Prevention (CDC).
HIV infections remain high among young men who have sex with men. The estimated number of new HIV infections increased between 2008 and 2010 both overall and among MSM ages 13 to 24. Furthermore, sexual risk behaviors associated with HIV, other STD, and pregnancy often emerge in adolescence. For example, 2015 Youth Risk Behavior Surveillance System (YRBSS) data revealed 41.2% of U.S. high school students reported having had sex, and among those who had sex in the previous three months, only 56.9% reported having used a condom during last sexual intercourse. In addition, 2015 YRBSS data revealed high school students identifying as gay, lesbian, and bisexual and those reporting sexual contact with both males and females were more likely to engage in sexual risk-taking behaviors than heterosexual students.
Given the disproportionate risk for HIV among YMSM ages 13-24, it is important to find ways to reach the younger youth (
The CDC requests a one-year approval to conduct a revised information collection entitled, “Assessing School-Centered HIV/STD Prevention Efforts in a Local Education Agency” (OMB Control Number 0920-1035). This revised information collection request covers the third in a series of three data collections; the previous two were covered under the previously approved information collection.
The information collection uses a self-administered paper-pencil questionnaire, the Youth Health and School Climate Questionnaire, to assess HIV and STD prevention efforts in one local education agency (LEA) funded by the CDC, Division of Adolescent and School Health (DASH) under strategy 4 (School-Centered HIV/STD Prevention for Young Men Who Have Sex with Men) of PS13-1308:
This data collection will provide data and reports for the funded LEA, and will allow the LEA to identify program areas that are working well and other areas that need improvement. In addition, the findings will allow CDC to determine the potential impact of currently recommended strategies and make changes to those recommendations if necessary. The questionnaire will include questions on
This data collection system involves administration of a paper-and-pencil questionnaire to seven high schools that are participating in the HIV/STD prevention project of a local education agency that is funded with support from CDC's PS13-1308 cooperative agreement. The questionnaire, the Youth Health and School Climate Questionnaire, will be administered to approximately 16,500 students across the seven schools in the 2017-2018 school year. This is the third and final data collection of a four-year project that includes three data collections; previous data collections occurred in December 2014 and December 2016. Data collection points coincide with the approximate beginning, mid-way, and end points of the PS13-1308 cooperative agreement. We anticipate the final data collection will yield data from up to 16,500 high school students in grades 9 through 12 at the selected schools. Although some students may have completed the questionnaire in one or more of the previous years, this is not a longitudinal design and individual student responses will not be tracked across the years. No personally identifiable information will be collected.
All students' parents will receive parental consent forms that provide them with an opportunity to opt their children out of the study. In addition, each student will be read verbal assent language that explains he or she may choose not to take the questionnaire or may skip any questions in the questionnaire with no penalty. Participation is completely voluntary.
The estimated burden per response ranges from 35-45 minutes. This variation in burden is due to the slight variability in skip patterns that may occur with certain responses and variations in the reading speed of students. The burden estimate presented here is based on the assumption of a 40-minute response time per response. Students will complete the questionnaire only once under this approval. Annualizing the collection over one year results in an estimated annualized burden of 11,000 hours for respondents. There are no costs to respondents other than their time.
Food and Drug Administration, HHS.
Notification; extension of comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for a docket to receive information and comments on the use of genome editing techniques to produce new plant varieties that are used for human or animal food. We established the docket through a notice that appeared in the
We are extending the comment period on the notice that published January 19, 2017 (82 FR 6564). Submit either electronic or written comments by June 19, 2017. Late, untimely filed comments will not be considered. The
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.” We will review this copy, including the claimed confidential information, in our 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
In the
We have received requests for a 60-day extension of the comment period. The requests conveyed concern that the current 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful comments to the questions and issues we presented in the notice.
We have considered the requests and are extending the comment period for 60 days, until June 19, 2017. A 60-day extension allows more time for interested persons to submit comments to the docket on this issue.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) has identified a list of class I devices that are now exempt from premarket notification requirements, subject to certain limitations. FDA is publishing this notice of that determination in accordance with procedures established by the 21st Century Cures Act. This notice represents FDA's final determination with respect to the class I devices included in this document. FDA's action will decrease regulatory burdens on the medical device industry and will eliminate private costs and expenditures required to comply with certain Federal regulation.
Bryce Bennett, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5244, Silver Spring, MD 20993, 301-348-1446, email:
Under section 513 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c), FDA must classify devices into one of three regulatory classes: Class I, class II, or class III. FDA classification of a device is determined by the amount of regulation necessary to provide a reasonable assurance of safety and effectiveness. Under the Medical Device Amendments of 1976 (1976 amendments) (Pub. L. 94-295), and the Safe Medical Devices Act of 1990 (Pub. L. 101-629), devices are classified into class I (general controls) if there is information showing that the general controls of the FD&C Act are sufficient to assure safety and effectiveness; into class II (special controls), if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide such assurance; and into class III (premarket approval), if there is insufficient information to support classifying a device into class I or class II and the device is a life sustaining or life supporting device, or is for a use which is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury.
Most generic types of devices that were on the market before the date of the 1976 amendments (May 28, 1976) (generally referred to as preamendments devices) have been classified by FDA under the procedures set forth in section
The 21st Century Cures Act (Pub. L. 114-255) was signed into law on December 13, 2016. Section 3054 of that Act amended section 510(l) of the FD&C Act. As amended, section 510(l)(2) of the FD&C Act requires FDA to identify through publication in the
As stated previously, section 3054 of the 21st Century Cures Act amended section 510(l) of the FD&C Act. In doing so, the amendments reorganized section 510(l) into subsections 510(l)(1) and (2). As such, subsection 510(l)(1) provides that a class I device is exempt from the premarket notification requirements under section 510(k) of the FD&C Act, unless the device is intended for a use which is of substantial importance in preventing impairment of human health or it presents a potential unreasonable risk of illness or injury (hereafter “reserved criteria”). Based on these reserved criteria, FDA has evaluated all class I devices to determine which device types should be exempt from premarket notification requirements. In developing the list of exempt devices, the Agency considered its experience in reviewing premarket notifications for these devices, focusing on the risk inherent with the device and the disease being treated or diagnosed (
FDA believes that the types of class I devices listed in this notice should be exempt from the premarket notification requirements found under section 510(k) of the FD&C Act. However, an exemption from the requirement of premarket notification does not mean that the device is exempt from any other statutory or regulatory requirements, unless such exemption is explicitly provided by order or regulation. FDA's determination that premarket notification is unnecessary to provide a reasonable assurance of safety and effectiveness for devices listed in this document is based, in part, on the assurance of safety and effectiveness that other regulatory controls, such as current good manufacturing practice requirements, provide.
In addition to being subject to the general limitations to the exemptions found in 21 CFR 862.9, 864.9, 866.9, 872.9, 876.9, 878.9, 880.9, 882.9, 884.9 and 886.9, FDA may also partially limit the exemption from premarket notification requirements to specific devices within a listed device type. In table 1, for example, FDA lists the exemption of the ataxiagraph device as 510(k) exempt, but limits the exemption to such devices that do not provide an interpretation or a clinical implication of the measurement. All other ataxiagraph devices are still subject to premarket notification requirements because FDA determined that premarket notification is necessary to provide a reasonable assurance of safety and effectiveness for these devices.
FDA is identifying the following list of class I devices that no longer require premarket notification under section 510(k) of the FD&C Act, subject to the general limitations to the exemptions:
Food and Drug Administration, HHS.
Notice of availability; extension of comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for the draft guidance for industry (GFI) #187 entitled “Regulation of Intentionally Altered Genomic DNA in Animals” that was announced in the
We are extending the comment period on the draft guidance published January 19, 2017 (82 FR 6561). Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on this draft guidance, submit either electronic or written comments on the draft guidance by June 19, 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:
• Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• 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
Laura R. Epstein, Center for Veterinary Medicine (HFV-1), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 301-796-8558,
In the
We have received several requests for a 60-day extension of the comment period for the draft guidance and the questions we posted in the notice announcing the availability of the guidance. Each request conveyed concern that the current 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the draft guidance and the questions in the notice.
We have considered the requests and are extending the comment period for the draft guidance for 60 days, until June 19, 2017. A 60-day extension allows more time for interested persons to submit comments, including comments on all aspects of the draft guidance.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of meetings of the National Diabetes and Digestive and Kidney Diseases Advisory Council.
The meetings will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the 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.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council on Drug Abuse.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the 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/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, 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.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of a meeting of the NIH Clinical Center Research Hospital Board.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The portion of the meeting devoted to the identification and evaluation of specific candidates for consideration for leadership positions in the Clinical Center will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B) and 552b(c)(6), Title 5 U.S.C., as amended. Premature disclosure of potential candidates and their qualifications, as well as the discussions by the committee, could significantly frustrate NIH's ability to recruit these individuals and the consideration of personnel qualifications, performance, and the competence of individuals as candidates would constitute a clearly unwarranted invasion of personal privacy.
Open: 8:30 a.m. to 3:20 p.m.
Any interested person may file written comments with the committee by forwarding the 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.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the meeting of the National Science Advisory Board for Biosecurity (NSABB).
Under authority 42 U.S.C. 217a, section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established the National Science Advisory Board for Biosecurity (NSABB) to provide advice regarding federal oversight of dual use research—defined as legitimate biological research that generates information and technologies that could be misused to pose a biological threat to public health and/or national security.
The toll-free teleconference line will be open to the public at 1:30 p.m. to allow time for operator-assisted check-in. Members of the public planning to participate in the teleconference may also pre-register online via the link provided below or by calling Palladian Partners, Inc. (Contact: Carly Sullivan at 301-318-0841). Pre-registration will close at 12:00 p.m. Eastern on May 8, 2017. After that time, attendees may register their information with the teleconference operator upon dialing into the meeting. Individuals who plan to participate and need special assistance should submit a request to the contact person listed on this notice by May 3, 2017.
In addition, interested persons may file written comments at any time with the Board via an email sent to
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Kansas (FEMA-4304-DR), dated February 24, 2017, and related determinations.
Effective March 23, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Kansas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 24, 2017.
Rice and Russell Counties for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of California (FEMA-4305-DR), dated March 16, 2017, and related determinations.
Effective March 16, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated March 16, 2017, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of California resulting from severe winter storms, flooding, and mudslides during the period of January 18-23, 2017, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Timothy J. Scranton, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of California have been designated as adversely affected by this major disaster:
El Dorado, Kern, Los Angeles, Mendocino, Napa, Orange, Riverside, Sacramento, San Diego, San Luis Obispo, San Mateo, Santa Barbara, Santa Cruz, Trinity, Tuolumne, and Yolo Counties for Public Assistance.
All areas within the State of California are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Michigan (FEMA-3375-EM), dated January 16, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that the incident period for this emergency is closed effective August 14, 2016.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Nevada (FEMA-4307-DR), dated March 27, 2017, and related determinations.
Effective March 27, 2017.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated March 27, 2017, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Nevada resulting from severe winter storms, flooding, and mudslides during the period of February 5-22, 2017, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Rosalyn L. Cole, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Nevada have been designated as adversely affected by this major disaster:
• The counties of Douglas (including the Washoe Tribe of Nevada and California within the State of Nevada), Elko (including the South Fork Band of Te-Moak Tribe of Western Shoshone), Humboldt, and Washoe and the independent city of Carson City for Public Assistance.
All areas within the State of Nevada are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of California (FEMA-4308-DR), dated April 1, 2017, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated April 1, 2017, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of California resulting from severe winter storms, flooding, and mudslides during the period of February 1-23, 2017, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Timothy J. Scranton, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of California have been designated as adversely affected by this major disaster:
Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Kings, Lake, Lassen, Marin, Mariposa, Merced, Modoc, Monterey, Napa, Nevada, Plumas, Sacramento, San Benito, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba Counties for Public Assistance.
All areas within the State of California are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oklahoma (FEMA-4299-DR), dated February 10, 2017, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Oklahoma is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 10, 2017.
Blaine County for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of corrected fiscal year 2016 funding allocations.
The Housing and Economic Recovery Act of 2008 (HERA) established the Housing Trust Fund (HTF) to be administered by HUD. Pursuant to the Federal Housing Enterprises Financial Security and Soundness Act of 1992 (the Act), as amended by HERA, Division A, eligible HTF grantees are the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, the Commonwealth of Northern Mariana Islands, and the United States Virgin Islands.
Virginia Sardone, Director, Office of Affordable Housing Programs, Room 7164, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410-7000; telephone (202) 708-2684. (This is not a toll-free number.) A telecommunications device for hearing- and speech-impaired persons (TTY) is available at 800-877-8339 (Federal Information Relay Service).
Section 1131 of HERA Division A amended the Act to add a new section 1337 entitled “Affordable Housing Allocations” and a new section 1338 entitled “Housing Trust Fund.” HUD's implementing regulations are codified at 24 CFR part 93. In accordance with Section 1338(c)(4)(A) of the Act, this notice announces the formula allocation amount for each eligible HTF grantee.
Congress authorized the HTF with the stated purpose of: (1) Increasing and preserving the supply of rental housing for extremely low-income families with incomes between 0 and 30 percent of area median income and very low-income families with incomes between 30 and 50 percent of area median income, including homeless families, and (2) increasing homeownership for extremely low-income and very low-income families.
Section 1337 of the Act provides for the HTF (and other programs) to be funded with an affordable housing set aside by Fannie Mae and Freddie Mac. The total set-aside amount is equal to 4.2 basis points (.042 percent) of Fannie Mae and Freddie Mac's new mortgage purchases, a portion of which is for the HTF.
Section 1338 of the Act directs HUD to establish, through regulation, the formula for distribution of amounts made available for the HTF. The statute specifies the factors to be used for the formula and priority for certain factors. The factors and methodology HUD uses to allocate HTF funds among eligible grantees are established in the HTF regulation. HTF formula allocations for Fiscal Year 2016 totaling $173,591,160 were announced in the
April 24, 2017, 9:00 a.m.-12:30 p.m.
Inter-American Foundation, 1331 Pennsylvania Ave., Suite 1200, NW., Washington, DC 20004.
Meeting of the Board of Directors, Open to the public.
Paul Zimmerman, General Counsel, (202) 683-7118.
Bureau of Land Management, Interior.
Notice.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) John Day—Snake Resource Advisory Council (RAC) will meet as indicated below.
The John Day—Snake RAC will hold a public meeting on Thursday and Friday, May 18 and 19, 2017, starting at 8 a.m. Pacific Daylight Time (PDT) both days.
The meeting will be held at the Grand Geyser Hotel, 1996 Main Street, Baker City, OR 97814. The telephone conference line number for the meeting is 1-866-650-5651, Participant Code: 3696961.
Lisa Clark, Public Affairs Officer, BLM Prineville District Office, 3050 NE 3rd St., Prineville, Oregon 97754; (541) 416-6700; or
The John Day—Snake RAC consists of 15 members appointed by the Secretary of the Interior. Their diverse perspectives are represented in commodity, conservation, and general interests. They provide advice to BLM and Forest Service resource managers regarding management plans and proposed resource actions on public land in central and eastern Oregon. This meeting is open to the public in its entirety. Information to be distributed to
The May 18 meeting will consist of a field trip to the Greater sage-grouse habitat to the east of Baker City to discuss the presence of the species as well as public uses on the same land. The tour will begin at 8 a.m. PDT and end at 5 p.m. PDT. The May 19 meeting will begin at 8 a.m. PDT and end at 3 p.m. PDT. The agenda will be released online at
The agenda includes a 30-minute public comment period that will begin at 11:30 on May 19. Each speaker may address the John Day—Snake RAC for a maximum of 5 minutes. Meeting times and the duration of the scheduled public comment period may be extended or altered when the authorized representative considers it necessary to accommodate necessary business and all who seek to be heard regarding matters before the John Day—Snake RAC.
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
30-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations,
You must submit comments by May 15, 2017.
Submit comments by either fax (202) 395-5806 or email (
• Electronically go to
• Email
Nicole Mason, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR. To see a copy of the entire ICR submitted to OMB, go to
The OCSLA requires open and nondiscriminatory access to oil and gas pipelines. The OCSLA provides the Secretary of the Interior the authority to issue and enforce rules to assure open and nondiscriminatory access to pipelines. These regulations provide a mechanism for entities who believe they have been denied open and nondiscriminatory access to pipelines on the OCS. The BSEE established a process, via the subject regulations, to submit complaints alleging denial of access or discriminatory access for a shipper transporting oil or gas production from Federal leases on the OCS. The complaint should include a comprehensive written brief stating the legal and factual basis for the allegation that a shipper was denied open and nondiscriminatory access, together with supporting material. Upon completion, the BSEE Director will review the complaint, answer, and other information, and will serve all parties with a written decision that may include remedial action.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy, BSEE is required to charge fees for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (FCPIA of 2015). The OCSLA directs the Secretary of the Interior to adjust the OCSLA maximum civil penalty amount at least once every three years to reflect any increase in the Consumer Price Index (CPI) to account for inflation (43 U.S.C. 1350(b)(1)). The FCPIA of 2015 requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment, if warranted, through rulemaking and then to make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes. Regulations at §§ 291.110 and 291.113 address civil penalties for failure to provide BSEE additional requested information, and/or to comply with a BSEE order to provide open access or nondiscriminatory access.
This authority and responsibility are among those delegated to BSEE. The regulations at 30 CFR 291 concern open and nondiscriminatory access to pipelines, and are the subject of this collection. This request also covers any related Notices to Lessees and Operators (NTLs) that BSEE issues to clarify, supplement, or provide additional guidance on some aspects of our regulations.
Responses are voluntary but are required to obtain or retain a benefit. No questions of a sensitive nature are asked. The BSEE protects information considered confidential commercial or proprietary according to the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2); 30 CFR 291.111,
The BSEE uses the submitted information to initiate a more detailed review into the specific circumstances associated with a complainant's allegation of denial of access or discriminatory access to pipelines on the OCS. The complaint information will be provided to the alleged offending party. Alternative dispute resolution may be used either before or after a complaint has been filed to informally resolve the dispute. The BSEE may request additional information upon completion of the initial review.
To comply with the public consultation process, on September 22, 2016, BSEE published a
The authorities for this action are the Outer Continental Shelf (OCS) Lands Act (43 U.S.C. 1334), and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
30-Day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is notifying the public that we have submitted to the Office of Management and Budget (OMB) an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under subpart I,
You must submit comments by May 15, 2017.
Submit comments by either fax (202) 395-5806 or email (
•
• Email
Nicole Mason, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR. To see a copy of the entire ICR submitted to OMB, go to
In addition to the general rulemaking authority of the OCSLA at 43 U.S.C. 1334, section 301(a) of the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. 1751(a), grants authority to the Secretary to prescribe such rules and regulations as are reasonably necessary to carry out FOGRMA's provisions. While the majority of FOGRMA is directed to royalty collection and enforcement, some provisions apply to offshore operations. For example, section 108 of FOGRMA, 30 U.S.C. 1718, grants the Secretary broad authority to inspect lease sites for the purpose of determining whether there is compliance with the mineral leasing laws. Section 109(c)(2) and (d)(1), 30 U.S.C. 1719(c)(2) and (d)(1), impose substantial civil penalties for failure to permit lawful inspections and for knowing or willful preparation or submission of false, inaccurate, or misleading reports, records, or other information. Because the Secretary has delegated some of the authority under FOGRMA to the Bureau of Safety and Environmental Enforcement (BSEE), 30 U.S.C. 1751 is included as additional authority for these requirements.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy, BSEE is required to charge fees for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which accrue to the public at large. Various applications and reports for Platform Verification Program, fixed structure, Caisson/Well Protector, and modification repairs are subject to cost recovery, and BSEE regulations specify service fees for these requests (§ 250.125).
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act
These authorities and responsibilities are among those delegated to BSEE. The regulations at 30 CFR 250, subpart I, pertain to Platforms and Structures and are the subject of this collection. This request also covers the related Notices to Lessees and Operators (NTLs) that BSEE issues to clarify, supplement, or provide additional guidance on some aspects of our regulations.
While most responses are mandatory, some are required to obtain or retain a benefit. No questions of a sensitive nature are asked. The BSEE will protect any confidential commercial or proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2); section 26 of OCSLA (43 U.S.C. 1352); 30 CFR 250.197,
The BSEE uses the information submitted under subpart I to determine the structural integrity of all OCS platforms and floating production facilities and to ensure that such integrity will be maintained throughout the useful life of these structures. We use the information to ascertain, on a case-by-case basis, that the fixed and floating platforms and structures are structurally sound and safe for their intended use to ensure safety of personnel and prevent pollution. More specifically, we use the information to:
• Review data concerning damage to a platform to assess the adequacy of proposed repairs.
• Review applications for platform construction (construction is divided into three phases—design, fabrication, and installation) to ensure the structural integrity of the platform.
• Review verification plans and third-party reports for unique platforms to ensure that all nonstandard situations are given proper consideration during the platform design, fabrication, and installation.
• Review platform design, fabrication, and installation records to ensure that the platform is constructed according to approved applications.
• Review inspection reports to ensure that platform integrity is maintained for the life of the platform.
To comply with the public consultation process, on September 22, 2016, we published a
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has issued a general exclusion order (GEO) denying entry of certain pumping bras. The investigation is terminated.
Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on March 14, 2016, based on a complaint filed on behalf of Simple Wishes, LLC (“Simple Wishes”) of Sacramento, California. 81 FR 13419-20 (Mar. 14, 2016). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, by reason of infringement of certain claims of U.S. Patent Nos. 8,192,247 (“the '247 patent”) and 8,323,070 (“the '070 patent”). The complaint further alleges that a domestic industry exists. The Commission's notice of investigation named Buywish, TANZKY, BabyPreg, and Deal Perfect, all of China, as respondents. Simple Wishes asserted the '247 patent only against respondent Buywish. The Office of Unfair Import Investigations (OUII) is also a party to the investigation.
The Commission previously determined not to review an initial determination finding respondents TANZKY, BabyPreg, and Deal Perfect in default pursuant to 19 CFR 210.16 and 210.17.
On August 30, 2016, Simple Wishes filed a motion for summary determination on domestic industry and violation of section 337 by the defaulting respondents. On October 31, 2016, the ALJ issued an ID (Order No. 11) granting Simple Wishes' motion for summary determination and recommending that the Commission issue a GEO and set a bond of 100 percent during the Presidential review period. On December 14, 2016, the Commission determined to review the ID in-part, and on review, to modify the ID to set aside the patent and trademark prosecution and maintenance expenses from the domestic industry analysis.
On January 3, 2017, Simple Wishes submitted a brief on remedy, the public interest, and bonding, requesting that the Commission issue a GEO and set a bond of 100 percent during the Presidential review period. On January 4, 2017, the Commission Investigative Attorney (“IA”) also submitted a brief on remedy, the public interest, and bonding, supporting the ALJ's recommended GEO and bond of 100 percent. The IA further filed a response brief on January 11, 2017.
The Commission finds that the statutory requirements for relief under section 337(g)(2) and section 337(d)(2) (19 U.S.C. 1337(g)(2) and 1337(d)(2)) are met with respect to the defaulting respondents. In addition, the Commission finds that the public interest factors enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude issuance of the statutory relief.
The Commission has determined that the appropriate remedy in this investigation is a GEO prohibiting the unlicensed entry of certain pumping bras that infringe one or more of claims 10, 12, 14, and 27-37 of the '070 patent. The Commission has also determined that the bond during the period of Presidential review pursuant to 19 U.S.C. 1337(j) shall be in the amount of 100 percent of the entered value of the imported articles that are subject to the GEO. The Commission's order was delivered to the President and to the United States Trade Representative on the day of its issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in part 210 of the Commission's Rules of Practice and Procedure, 19 CFR part 210.
By order of the Commission.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)-(h), that a proposed
Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Antitrust Division's website at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the Antitrust Division's website, filed with the Court, and, under certain circumstances, published in the
UNITED STATES OF AMERICA,
The United States of America, by its attorneys acting under the direction of the Attorney General of the United States, brings this civil antitrust action against Defendants DIRECTV Group Holdings, LLC (“DIRECTV”) and AT&T, Inc. (“AT&T”) to obtain equitable relief to prevent and remedy violations of Section 1 of the Sherman Act, 15 U.S.C. § 1.
1. For almost 60 years, the Los Angeles Dodgers have been a beloved professional sports team in Los Angeles (“LA”). During this time, LA Dodgers fans have seen their team win five World Series championships, closely followed the Hall of Fame careers of baseball greats such as Sandy Koufax and Tommy Lasorda, and listened to the play-by-play calls of broadcast legend Vin Scully. But a significant number of Dodgers fans have had no opportunity in recent years to watch their team play on television because overlapping and competitive pay television providers did not telecast Dodgers games. Those consumers were deprived of a fair competitive process when DIRECTV unlawfully exchanged strategic information with three competitors during their parallel negotiations concerning carrying Dodgers games.
2. This Complaint focuses on DIRECTV, the ringleader of information sharing agreements with three different rivals that corrupted the Dodgers Channel carriage negotiations and the competitive process that the Sherman Act protects. DIRECTV was the one company that unlawfully exchanged information with multiple rivals, and without it competition would not have been harmed and none of the violations would have occurred. Accordingly, the United States seeks declaratory and injunctive relief against DIRECTV and its corporate successor AT&T.
3. In early 2013, SportsNet LA (the “Dodgers Channel”), a partnership between the LA Dodgers and Time Warner Cable (“TWC”), acquired the exclusive rights to telecast almost all live Dodgers games in the LA area. Beginning in January 2014, TWC offered various multichannel video programming distributors (“MVPDs”),
4. During negotiations with TWC and as he prepared for those negotiations, DIRECTV's Chief Content Officer, Daniel York, exchanged information with his counterparts at Cox, Charter, and AT&T about their carriage plans for the Dodgers Channel. These unlawful exchanges were intended to reduce each rival's fear that competitors would carry the Dodgers Channel, thereby providing DIRECTV and its competitors artificially enhanced bargaining leverage to force TWC to accept their terms. Through each of these information sharing arrangements, Mr. York disclosed non-public information about the status of DIRECTV's negotiations with TWC and DIRECTV's future carriage plans and, in return, learned similar non-public information from each of these competitors.
5. The sharing of this competitively sensitive information among direct competitors made it less likely that any of these companies would reach a deal because they no longer had to fear that a decision to refrain from carriage would result in subscribers switching to a competitor that offered the channel. As each company's contemporaneous business documents show, the elimination of this risk was valuable because each company identified a competitor's decision to telecast the Dodgers Channel as a significant
6. These competitor information exchanges took place against the backdrop of limited competition among pay television providers. Most residential consumers in the LA area had a choice of only three or four pay television providers: the incumbent cable company (like Charter, Cox, or TWC); the two national satellite pay television providers (like DIRECTV) and sometimes a telephone incumbent (like AT&T).
7. Among the small group of competitors, DIRECTV stood apart. Unlike its cable company rivals such as Cox and Charter, which have concentrated geographic footprints within the LA area, DIRECTV directly competes for subscribers with every MVPD in the LA area. Consequently, DIRECTV—which has sought to distinguish itself from other MVPDs by offering subscribers the broadest range of live sports content—was more susceptible than other MVPDs to pressure to reach a deal with TWC. In addition, DIRECTV had the most subscribers that could watch the Dodgers Channel on TWC.
8. Conversely, as the largest direct competitor of every MVPD in the LA area, a DIRECTV plan to carry the Dodgers Channel would have increased the pressure on other MVPDs to do the same in order to avoid the risk of losing subscribers to DIRECTV. As one senior DIRECTV executive noted, with its competitors “sit[ting] on the sidelines,” the company was the “first domino in the sequencing of deals.” This potential domino effect made DIRECTV a central player in the Dodgers Channel negotiations. Indeed, Cox, Charter, and AT&T all viewed DIRECTV as the competitor whose decision to carry the Dodgers Channel could force them to reach a deal with TWC, even if doing so meant paying a price above the one targeted in their internal financial analyses.
9. DIRECTV executives expressly acknowledged that they would be in a stronger bargaining position if DIRECTV's competitors stayed on the sidelines and did not launch the Dodgers Channel. For instance, DIRECTV's CEO Mike White told Mr. York that he believed the distributors “may have more leverage if we all stick together” and Mr. York “[a]greed” that “others holding firm is key.” A DIRECTV content executive believed that TWC would “become more creative to improve [DIRECTV's] deal” as the rest of the industry was “waiting for us to launch.” In May of 2014, while the negotiating process was ostensibly proceeding, Mr. White spoke publicly—and proudly—about what DIRECTV had achieved, telling the audience for a large telecommunications and media industry conference that it was important that “the distributors start to stand together, like most of us have been doing in Los Angeles for the first time ever, by the way, with the Dodgers on outrageous increases and excesses.”
10. Mr. York—the DIRECTV executive who orchestrated these bilateral information sharing agreements—regularly communicated with his counterparts at Cox, Charter, and AT&T during their Dodgers Channel negotiations with TWC. Many of these communications occurred at important points in the negotiations with TWC, such as within days of each company receiving TWC's initial offer and when Mr. York and his counterparts were preparing to make recommendations to their CEOs.
11. During some of these communications, Mr. York assured his counterparts at Cox, Charter, and AT&T that DIRECTV would not be launching the Dodgers Channel any time soon and received similar assurances.
12. For example, when informed by Cox's senior content executive that TWC had indicated that it was close to reaching a deal with another MVPD, Mr. York told this executive that DIRECTV was
13. Mr. York and his counterpart at AT&T exchanged texts and voice messages that improperly discussed non-public information about their content negotiations and future plans, including the Dodgers Channel. For example:
• In March 2014, AT&T's most senior content executive, who was in frequent contact with Mr. York, left Mr. York a voicemail: “I had three things to catch up with you on, ah, two sports and one news.” A few days later, they spoke on the phone for twelve minutes. That same AT&T executive recommended not launching the Dodgers Channel to AT&T's CEO the following day.
• Later that month, TWC told AT&T it was unlikely to lower its initial offer for Dodgers Channel carriage rights. That same AT&T executive—who has referred to content offers as “pitches”—again texted Mr. York: “Forgot to tell you but we got a [##] mph pitch yesterday,”
14. Mr. York and his counterpart at Charter also communicated at key points in the Dodgers Channel negotiations. During those communications they shared non-public strategic information about their Dodgers Channel negotiations and future plans for the channel. For example, Charter's most senior content executive recommended a Dodgers Channel strategy to his CEO for the first time the day after a phone call with Mr. York. The executive told the CEO he thought Charter should “sit[] [the Dodgers Channel] out until at least if and when Direct does a deal.” He testified that he based his recommendation on a “gut feeling” rather than a formal financial analysis. When a subordinate pushed back against his choice of strategy, the executive declined to change course, explaining “I think Direct will not be there at launch.” The Charter executive also texted Mr. York to ask to speak with him the day that he and Charter's CEO met to set Charter's 2014 content budget, including for the Dodgers Channel. Later in the negotiations, Mr. York and the Charter executive spoke in person about “the high price that TWC paid for the rights to SportsNet LA and was demanding for carriage.” The Charter executive testified that they discussed that the price TWC offered their respective companies for carriage was “outrageous.”
15. Based on these private communications and a series of public communications, Mr. York and his counterparts at Cox, Charter, and AT&T knew they were unlikely to lose subscribers to each other while they waited to carry the Dodgers Channel. For example, when Mr. York's counterpart at Charter recommended that Charter delay launching the Dodgers Channel because “I think Direct will not be there at launch,” he explained that as a result there would be “nowhere to get the games in [Charter's] markets.” Similarly, Mr. York assured DIRECTV's CEO, Mr. White, that DIRECTV's competitors appeared “in no rush to do a deal” for the Dodgers Channel, which was a “strategic consideration” against DIRECTV launching the channel itself.
16. The information that was exchanged as part of this scheme had an anticompetitive effect on DIRECTV's and its competitors' decision-making about whether to carry the Dodgers Channel. DIRECTV's unlawful
17. DIRECTV and each of Cox, Charter, and AT&T, respectively, agreed to share forward-looking strategic information about the Dodgers Channel, and did share that information. Their information exchanges demonstrate their agreements and reflect concerted action between horizontal competitors.
18. DIRECTV's unlawful information exchanges with Cox, Charter, and AT&T concerning carriage of the Dodgers Channel lack any countervailing procompetitive benefits and should therefore be condemned as unlawful.
19. The United States, through this action, asks this Court to declare Defendants' conduct unlawful and to enjoin Defendants from sharing strategic competitive information with other MVPDs and their executives in order to prevent further harm to competition and consumers.
20. Defendant DIRECTV is a Delaware corporation with headquarters located in El Segundo, California, offering direct broadcast satellite service nationwide. As of 2014, DIRECTV had approximately 1.25 million video subscribers in the LA area. In 2015, Defendant AT&T acquired DIRECTV in a transaction valued at approximately $49 billion.
21. Defendant AT&T is a Delaware corporation with headquarters located in Dallas, Texas. AT&T is a multinational telecommunications company offering mobile telephone service, wireline Internet and television service, and satellite television service through its 2015 acquisition of DIRECTV. AT&T offers wireline television service through its U-verse video product, which distributes video content using AT&T's telecommunications infrastructure. Following its acquisition of DIRECTV, AT&T is now the largest pay television provider in the United States with more than 25 million video subscribers nationwide. As of 2014, AT&T had approximately 400,000 video subscribers in the LA area.
22. The United States brings this action pursuant to Section 4 of the Sherman Act, 15 U.S.C. § 4, to obtain equitable and other relief to prevent and restrain Defendants' violations of Section 1 of the Sherman Act, 15 U.S.C. § 1.
23. This Court has subject matter jurisdiction over this action under Section 4 of the Sherman Act, 15 U.S.C. § 4, and 28 U.S.C. §§ 1331, 1337(a), and 1345.
24. This Court has personal jurisdiction over each Defendant and venue is proper in the Central District of California under 28 U.S.C. § 1391 and Section 22 of the Clayton Act, 15 U.S.C. § 22. Each Defendant transacts business in this District. Each Defendant provides pay television services to customers in this District and has substantial contacts in this District. DIRECTV committed acts in furtherance of unlawful concerted action in this District.
25. Both DIRECTV and AT&T are engaged in, and their activities substantially affect, interstate trade and commerce. Each Defendant sells video distribution services throughout the United States to millions of consumers. These sales substantially affect interstate commerce. In 2014, U.S. consumers spent a total of about $26 billion on DIRECTV's video distribution services, and a total of about $6.8 billion on AT&T's video distribution services. Each Defendant also purchases television content from numerous content providers in the flow of interstate commerce. In addition, each Defendant's decision not to carry the Dodgers Channel substantially affected interstate commerce. DIRECTV and AT&T could have acquired the right to offer the channel to thousands of subscribers outside of California, including subscribers in parts of Nevada and Hawaii. Moreover, each Defendant's decision not to carry the Dodgers Channel affected the sale of advertisements on that channel to companies based outside of California that would run during Dodgers games.
26. AT&T is DIRECTV's successor in interest, including for purposes of this action. When AT&T acquired DIRECTV, it acquired all of DIRECTV's stock (by merging DIRECTV into a subsidiary company wholly owned by AT&T), and thereby acquired all of DIRECTV's assets. AT&T proceeded to fully integrate DIRECTV's operations into its own, with the result that DIRECTV's operations have been continued within AT&T. Additionally, the merger agreement did not expressly limit AT&T's liabilities. These circumstances indicate AT&T's intent to assume DIRECTV's liability for these Sherman Act violations.
27. The Chief Content Officer of AT&T negotiates and supervises the negotiation of content agreements for DIRECTV, as well as for AT&T's other video platforms. These contracts may be negotiated across all AT&T's video platforms; in fact, when AT&T acquired DIRECTV, it noted that the combined companies' scale would give them greater leverage with content providers. The presence of AT&T is therefore necessary in order to effectuate the requested relief.
28. MVPDs spend billions of dollars on sports content each year. Over the years, MVPDs have complained about the rising cost of such content. The desire to depress the cost of sports content—often a key component of competition between MVPDs—provides MVPDs a strong incentive to obtain bargaining leverage. MVPDs may seek to unlawfully obtain bargaining leverage by engaging in collusive action designed to force sports content providers—such as TWC in this case—to accept different terms than they otherwise would in a negotiating process where MVPDs make carriage decisions independent of each other. Such collusive activity harms competition by corrupting the competitive process and ultimately harms consumers by causing likely reductions in quality and output, as happened with respect to the blackout of the Dodgers Channel, which has now covered three baseball seasons.
29. In 2011, TWC acquired the rights to locally telecast and distribute LA Lakers basketball games in the LA area.
30. DIRECTV initially declined to carry the Lakers Channel, reasoning that TWC's asking price was too high and that it could negotiate a better rate than its smaller competitors if it held out. However, TWC sought to increase the competitive pressure on DIRECTV, realizing that DIRECTV would be more likely to carry the Lakers Channel if its smaller competitors carried the channel because such a move would expose DIRECTV to the risk of losing subscribers to these competitors. Accordingly, TWC approached the smaller MVPDs with a time-sensitive offer: in exchange for an early agreement to carry the Lakers Channel, the smaller distributors would receive a size-insensitive most favored nation clause (“MFN”) in their carriage agreements. This clause would guarantee the smaller distributors that they would get the same price for the Lakers Channel as a larger distributor, such as DIRECTV (although it is common industry practice that larger companies with more subscribers pay a lower price per subscriber than their smaller competitors).
31. During the negotiations over carriage of the Lakers Channel, Mr. York heard a “rumor” about TWC's size-insensitive MFN offer. Mr. York was concerned that if the smaller distributors buckled under the pressure of the MFN offer and agreed to carry the Lakers Channel before the larger distributors negotiated a deal, it would “empower[ ] TWC to hold firm on their price.” Mr. York was right.
32. Charter signed a Lakers Channel carriage agreement on October 25, 2012, just before the NBA season started. At that time, Mr. York told a colleague that he believed Charter agreed to TWC's rates in order to get the MFN protection.
33. Two days later, on October 27, 2012, AT&T signed a Lakers Channel carriage deal.
34. The Lakers season tipped off on October 30, 2012.
35. The MVPDs that had already launched the Lakers Channel aggressively marketed against their competitors that had not reached a deal with TWC. They sensed an opportunity to win subscribers who wanted to watch Lakers games live on television but could not due to their video provider's lack of carriage. For example, Charter ran radio advertisements targeting AT&T before AT&T's U-verse video service launched the Lakers Channel. Similarly, after launching the Lakers Channel, AT&T began using a marketing campaign in its stores targeting Cox subscribers: “See both Padres and Lakers on U-verse TV but not Cox.”
36. TWC succeeded in its strategy. On November 7, 2012, less than one week after the NBA season started, Cox agreed to carry the Lakers Channel. Cox had intended to hold out, but AT&T—which offers its U-verse video service inside the Cox local market—was offering the Lakers Channel. Cox agreed to pay TWC's full asking price despite internal analyses estimating the Lakers Channel was worth significantly less. Indeed, Cox paid nearly 60% higher than its analyses had initially suggested the Lakers Channel was worth.
37. DIRECTV faced a similar dilemma. Most of its competing video distributors in the LA area had launched the Lakers Channel, and it was losing hundreds of customers per week to them. Consequently, on November 14, 2012, ten days after Cox agreed to carry the Lakers Channel, DIRECTV agreed to pay TWC's initial asking price, even though DIRECTV's internal analyses estimated that carriage of the Lakers Channel was worth significantly less. DIRECTV agreed to pay almost 50% more than its internal financial analysis suggested.
38. Moreover, TWC was able to point to the size-insensitive MFNs in the smaller distributor carriage agreements as a reason not to offer DIRECTV a lower per subscriber fee for the Lakers Channel.
39. Thus, DIRECTV rolled the dice during the Lakers Channel negotiations but lost because TWC was able to pursue a divide-and-conquer strategy by offering DIRECTV's smaller competitors financial incentives to sign a deal early in the negotiating process. Having been burned by this experience, DIRECTV approached the Dodgers Channel negotiations determined not to allow TWC to successfully employ such a strategy again.
40. A few months after successfully outmaneuvering DIRECTV during the Lakers Channel negotiations, TWC acquired, in January 2013, the local telecast rights for Dodgers baseball games beginning in the 2014 season. As it had with the Lakers, TWC launched a new RSN—the Dodgers Channel—to serve as the exclusive home for Dodgers games. Media reports at the time suggested that TWC would likely seek monthly distribution rates close to $5 a month per subscriber for the Dodgers Channel.
41. In January 2014, TWC began discussing carriage of the Dodgers Channel with other LA area video distributors. In doing so, TWC sought a higher per subscriber rate from each distributor for carriage in the LA area (“Zone 1”), and lower per subscriber rates in other zones, located in regions further from LA.
42. But, unlike TWC's experience with the Lakers Channel, none of TWC's competitors agreed to carry the Dodgers Channel that year.
43. Hundreds of thousands of LA area residents—essentially, everyone living outside of TWC's service area—were unable to watch most televised Dodgers games during the 2014 baseball season.
44. To this day, TWC and its affiliates remain the only LA area video distributors that carry the Dodgers Channel, following a negotiation process corrupted by DIRECTV's orchestration of unlawful information sharing agreements with Cox, Charter, and AT&T.
45. In assessing whether to carry the Dodgers Channel, DIRECTV conducted financial analyses indicating that DIRECTV's decision not to carry the Dodgers Channel would cause it to lose tens of millions of dollars in subscriber revenues in 2014 and each year thereafter. These financial analyses also indicated that this anticipated loss would be reduced by approximately
46. Similarly, Cox, Charter, and AT&T each concluded that the decision of a competitor to carry the Dodgers Channel would be a significant development that could force each of them to reach a deal with TWC. For example, on September 18, 2013, Charter's head of content acquisition suggested to Charter's CEO that “we discuss sitting this one out until at least if and when Direct does a deal.” Similarly, an undated Cox “Dodgers Discussion” document states that Cox should “consider a rate MFN'd deal only in the event DirecTV, Dish or ATT do a deal, accept any related rate penalty if we are forced to.” In addition, a February 26, 2014 Dodgers Channel presentation by AT&T's President of Content recommended to his direct supervisor that a “key decision point[ ]/risk factor[ ]” would be “carriage decisions by DirecTV.”
47. Given that TWC's negotiating strategy had forced DIRECTV to pay more for the Lakers Channel than it thought the channel was worth, DIRECTV and its Chief Content Officer, Mr. York, were determined not to let that happen again. To achieve this objective, Mr. York orchestrated a series of unlawful bilateral information sharing agreements with three of DIRECTV's MVPD competitors: Cox, Charter, and AT&T.
48. In numerous phone calls and other private conversations, Mr. York and his counterparts at DIRECTV's rivals Cox, Charter, and AT&T discussed non-public information about the status of their negotiations with TWC and their future plans about whether to carry the Dodgers Channel. For instance:
• Cox's senior content executive, the Senior Vice President of Content Acquisition, testified under oath that he and Mr. York discussed their companies' Dodgers Channel carriage plans on multiple occasions. During one of these conversations, the Cox executive inquired about the status of DIRECTV's negotiations with TWC because TWC had indicated to him that it was close to reaching a deal with a video distributor. Mr. York responded that DIRECTV was not close to signing a deal and the two executives agreed to give one another a “heads-up” before launching the Dodgers Channel.
• Mr. York also offered to give this Cox executive an opportunity to sign a Dodgers Channel deal with TWC first before DIRECTV and thus protect any MFN terms.
• Charter's senior content executive, the Senior Vice President of Programming, testified under oath that he and Mr. York discussed that the price TWC offered their respective companies for the right to carry the Dodgers Channel was “outrageous.”
• In a two-hour span the day after DIRECTV received TWC's initial Dodgers Channel offer, Mr. York spoke or attempted to speak with his counterparts at Cox, Charter, and AT&T. Mr. York later recommended against launching the channel because “other MVPDs appear in no rush to do a deal.” At that point in time, no distributor had made public statements about its Dodgers Channel carriage negotiations or plans.
• AT&T's senior content executive, the President of Content and Advertising Sales, called Mr. York on the day that he presented his recommendation against AT&T carrying the Dodgers Channel to his direct supervisor. Over the course of the next few weeks, this AT&T senior executive attempted to speak with Mr. York on multiple occasions and did speak to him the day before he presented his recommendation to AT&T's CEO.
49. Despite reservations about the carriage price TWC would request for the Dodgers Channel, DIRECTV's content team indicated in October 2013 that the company should “Plan to Launch” the Dodgers Channel and directed DIRECTV's technical staff to allocate sufficient satellite capacity to accommodate the network.
50. On January 21, 2014, TWC presented its first formal Dodgers Channel carriage offer to a group of DIRECTV content executives, including Mr. York.
51. The next day, Mr. York spoke with his Cox counterpart for twenty minutes and his Charter counterpart on a call or voicemail lasting about thirty seconds. Later that day, Mr. York and his AT&T counterpart spoke for twelve minutes. Mr. York spoke with his Charter counterpart for twenty minutes on January 29, 2014.
52. Around this time period, a senior DIRECTV content executive emailed Mr. York to discuss the disagreement between DIRECTV's marketing and content groups about whether to carry the Dodgers Channel. He asked for Mr. York's “thoughts about having a meeting” with the marketing team before the groups met with DIRECTV's CEO, Mr. White, on February 4, 2014 about carrying the Dodgers Channel, because the content team “think[s] don't do a deal,” while the marketing team “want[s] to do a deal.” The DIRECTV marketing team had calculated that TWC's asking price was higher than financial analysis suggested it was worth—but nonetheless recognized that other factors not captured in that calculation made the Dodgers Channel worth carrying.
53. In preparing for the meeting with DIRECTV's CEO, the marketing team put together a draft presentation deck that emphasized the Dodgers' iconic reputation and the fact that carrying the Dodgers Channel was important to DIRECTV's marketing strategy of being a leader in sports content. For example, the deck listed as reasons for doing a deal that “LA is our largest subscriber market” and that “not offering a marquee franchise will significantly diminish our sports leadership claim.” Mr. York edited this deck before it was presented to DIRECTV's CEO. Notably, on a slide listing strategic considerations for and against carrying the Dodgers Channel, Mr. York, having spoken with his counterparts at Cox, Charter, and AT&T added that one reason DIRECTV should not carry the channel at TWC's asking price was that “[o]ther MVPDs appear in no rush to do a deal.”
54. At the time that Mr. York made this edit, no other distributor had made public statements about its Dodgers Channel carriage negotiations or plans.
55. On February 4, 2014, Mr. York, along with members of his content team and DIRECTV's marketing team, met with Mr. White to discuss their strategy for responding to TWC's offer. At this meeting, Mr. York and his colleagues recommended against carrying the Dodgers Channel at TWC's asking price. To support this recommendation, Mr. York used the presentation deck mentioned above, which incorporated his edit indicating that “[n]o other MVPD appears to be in a rush to do the Dodgers deal” in the final text.
56. Based on the information he was provided, Mr. White “planned to carry the channel” and “budgeted to carry the channel,” but hoped to negotiate TWC down from its initial asking price. Following the February 4, 2014 meeting with Mr. White, DIRECTV informed TWC that its initial asking price was too high.
57. About one month later, Mr. White sent an email to Mr. York declaring that the MVPDs “may have more leverage if we all stick together” on the Dodgers Channel. Mr. York “[a]greed” that “others holding firm is key.” This email exchange occurred right before the start of the 2014 baseball season and during the heart of TWC's Dodgers Channel negotiations.
58. Two months later, Mr. White made a similar pronouncement during an industry conference, stating that MVPDs should “start to stand together, like most of us have been doing in Los Angeles for the first time ever, by the way, with the Dodgers on outrageous increases and excesses.” At the time that Mr. White made this public statement, Mr. York had already been having discussions with his counterparts at Cox, Charter, and AT&T and, unsurprisingly, none of them had reached a deal with TWC to carry the Dodgers Channel.
59. During DIRECTV's negotiations with TWC, at least one person informed DIRECTV that Mr. York had exchanged strategic information with competitors in order to facilitate a Dodgers Channel blackout in the LA area. In April 2014, an anonymous complaint filed on the DIRECTV ethics portal claimed that Mr. York had been “[s]peaking with other satellite, cable, and telco companies about NOT carrying the Dodgers on DIRECTV.” Similar internal ethics complaints about Mr. York's exchanges of information with competitors were filed in May and September 2014.
60. Publicly messaging its opposition to TWC's initial offer for Dodgers Channel carriage also helped DIRECTV to further its information sharing scheme. A DIRECTV executive told Mr. York and others that DIRECTV's competitors were emboldened to “sit on the sidelines” because they had not “seen any `not if, but when' rhetoric from DTV” regarding carriage of the Dodgers Channel, and encouraged DIRECTV employees to “message internally and externally alike that we are NOT doing the Dodgers deal.” A DIRECTV executive testified that if DIRECTV had “started messaging that we are going to do a deal, that probably would have spurred on others to do the deal” and that such a scenario “wouldn't benefit [DIRECTV] in any way.” This testimony further reflects the fact that DIRECTV understood that its expected carriage plans would have a domino effect on competitors in the Dodgers Channel negotiations with TWC.
61. Accordingly, DIRECTV employees regularly touted their opposition to carrying the Dodgers Channel in the press. For instance, in March 2014, Mr. York was quoted in the press stating that it was “highly unlikely that anybody of any real merit will be carrying that network soon.” The same article also reported that Mr. York “predict[ed]” that the Dodgers carriage “logjam will not break before the first week of the new season is over and perhaps not for a long time after that.” In April 2014, Mr. York was quoted as stating that DIRECTV had an obligation to “not say[ ] yes to everything that's proposed” to it when he was asked about carriage of the Dodgers Channel.
62. At the beginning of the 2014 baseball season, on March 29, 2014, TWC offered DIRECTV incentives and
63. After no MVPD agreed to carry the Dodgers Channel, TWC offered in August 2014 to allow immediate carriage of the Dodgers Channel by any video distributor that agreed to binding arbitration. Specifically, TWC proposed that both it and any interested distributor submit their best-and-final offer to a mutually agreed-upon arbitrator, who would then decide which proposal reflected the most fair carriage terms. This offer had no price floor, but no video distributor agreed to arbitration, even though arbitration would have allowed each MVPD to present its valuation analysis to a neutral party who could order TWC to accept that valuation without regard to TWC's previous bargaining position.
64. DIRECTV still does not carry the Dodgers Channel even though it has otherwise sought to distinguish itself from competitors by offering consumers the broadest range of sports content.
65. Mr. York and his counterpart at Cox, the Senior Vice President of Programming, agreed to share forward-looking strategic information about the Dodgers Channel, and did share that information. Their exchanges of information demonstrate their agreement and reflect concerted action between horizontal competitors.
66. On October 2, 2013, Cox's then-incoming Senior Vice President of Programming and his colleagues met to discuss their carriage plans for the Dodgers Channel. They concluded that Cox should decline carrying the network unless one of the video distributors that overlapped with Cox's service area, such as DIRECTV or AT&T, reached a deal with TWC, at which point Cox would need to reassess its position.
67. Eight days later, on October 10, 2013, Cox's incoming Senior Vice President of Programming met Mr. York for breakfast in New York City. That executive has admitted that he and Mr. York discussed the “rising sports costs” their competing companies faced, including the Dodgers Channel.
68. On January 21, 2014, TWC presented its initial formal Dodgers Channel carriage offer to DIRECTV. The next day, Mr. York called his Cox counterpart and they spoke for twenty minutes. That same day, Mr. York also spoke or attempted to speak with his counterparts at Charter and AT&T.
69. On January 27, 2014, TWC presented its formal Dodgers Channel carriage offer to Cox. TWC asked for the same rate structure as it had sought from DIRECTV and other video distributors.
70. On February 4, 2014, Cox decided that it was interested in pursuing an
71. During the first quarter of 2014, Cox increased its monthly fees for all subscribers in the LA area. Cox increased its prices in part to recoup the anticipated cost of carrying the Dodgers Channel, which it never launched.
72. Mr. York spoke with his Cox counterpart, the Senior Vice President of Programming, on at least ten separate occasions between March and July 2014 as the baseball season began and the companies' Dodgers Channel carriage negotiations continued. At least seven of their phone conversations were more than ten minutes long.
73. Cox's Senior Vice President of Programming has admitted under oath that he and Mr. York shared strategic information about their companies' non-public, future Dodgers Channel carriage plans on at least two calls.
74. During one call, which took place between March and June of 2014, Cox's Senior Vice President of Programming reached out to Mr. York after TWC told him that “an agreement between another distributor and SportsNet LA was imminent.” The Cox executive called Mr. York to ask “if DIRECTV was the other distributor.” Mr. York told the Cox executive that DIRECTV was not close to launching. During this conversation, they expressly agreed to “give each other a heads-up if their respective MVPDs were going to launch” the Dodgers Channel “before it was public knowledge.”
75. In another call during the same time period, Mr. York called his Cox counterpart and said that “before DIRECTV were to sign a deal [to carry the Dodgers Channel], Mr. York would let [him] know, in case [he] wanted to sign a deal and protect any MFN terms, so [Cox] could choose to sign first.” Mr. York's offer to forgo a first-mover advantage was contrary to DIRECTV's own economic interest as his plan could risk the terms DIRECTV would have negotiated with TWC and could also reduce the costs of one of DIRECTV's competitors.
76. Cox did not carry the Dodgers Channel in 2014 and has still not reached an agreement to carry the channel. Consumers located in the Cox service territory in the LA area did not have regular access to most televised Dodgers games during the 2014, 2015, and 2016 baseball seasons.
77. Mr. York and his counterpart at Charter, the Senior Vice President of Programming (the most senior content executive at Charter), agreed to share forward-looking strategic information about the Dodgers Channel, and did share that information. Their exchanges of information demonstrate their agreement and reflect concerted action between horizontal competitors.
78. Charter conducted no formal analysis to assess the value of offering the Dodgers Channel. Instead, Charter's Senior Vice President of Programming recommended a strategy—that Charter hold out until DIRECTV carried the Dodgers Channel and then reevaluate. Charter's senior content executive testified that his recommendation on this important carriage decision was based on a “gut feeling early on in the process” that Charter should not be the first MVPD to launch the Dodgers Channel, which “sort of solidified, came together by the end of summer, fall of 2013.” Mr. York and his counterpart at Charter spoke on the phone at least twice during that time period.
79. Mr. York and his Charter counterpart had a history of sharing information with one another about strategic negotiations and plans while negotiations were ongoing. In January 2014 (as discussions about the Dodgers Channel began to heat up), DIRECTV's carriage negotiations with The Weather Channel failed and the channel went into a blackout on DIRECTV. During the blackout, The Weather Channel sought to run advertisements attacking DIRECTV over Charter's service. Charter's Senior Vice President of Programming left a voicemail for Mr. York. In the voicemail, this Charter senior executive assured Mr. York that he would stop The Weather Channel from running such an ad over Charter's service, calling the favor “my little bit for the planet earth.”
80. Similarly, in September 2014, Charter's Senior Vice President of Programming left Mr. York several voicemails concerning Charter's negotiations with the co-owner of Hulu
81. On September 17, 2013, Mr. York and his counterpart at Charter spoke to one another on the phone. The day after this conversation, Mr. York's Charter counterpart proposed for the first time to Charter's CEO that Charter adopt a strategy of waiting for DIRECTV to carry the Dodgers Channel. Specifically, this senior executive “[s]uggest[ed] we discuss sitting this one out until at least if and when Direct does a deal.”
82. On October 24, 2013, Charter's Senior Vice President of Programming met with his CEO to set Charter's content budget for 2014, including estimated costs for carrying the Dodgers Channel. This senior executive proposed that Charter “hold tight, see where we are in July . . . if Direct goes in May/June we can still get that deal. But let it play out.” Later that day, this senior executive texted Mr. York: “Can I call you now? Funny had something for u. Where can I call.”
83. On November 5, 2013, a subordinate of Charter's Senior Vice President of Programming suggested that Charter take a “first in strategy” with the Dodgers Channel that would “guarantee[ ] carriage and put[ ] pressure on others” while affording Charter “solid MFN” protection, such as the MFN protection Charter received from TWC during the Lakers Channel negotiations. Charter's Senior Vice President of Programming declined to pursue the same strategy that Charter had used for the Lakers Channel, explaining that “I think Direct will not be there at launch. Maybe AT&T will but if no [satellite] carriage at launch there is nowhere to get the games in our markets.” At the time, DIRECTV had not made any public statements about its Dodgers Channel carriage plans.
84. On January 21, 2014, TWC made its initial offer to DIRECTV. Mr. York called his counterpart at Charter the following afternoon (and spoke with both his Cox counterpart and AT&T counterpart). On January 23, 2014, TWC sent Charter its Dodgers Channel offer. After playing phone tag for several days, Mr. York and his Charter counterpart had a twenty-minute call on January 29, 2014.
85. Charter's Senior Vice President of Programming consistently told TWC that Charter would not consider carrying the Dodgers Channel unless DIRECTV launched first.
86. Charter's Senior Vice President of Programming admitted that, on April 30, 2014, about one month after the baseball season began but while negotiations were still continuing, he and Mr. York discussed “the high cost of sports programming, including the high price that TWC paid for the rights to SportsNet LA and was demanding for carriage.” He also testified that he and Mr. York discussed that the price TWC offered their respective companies for carriage was “outrageous.”
87. Charter did not carry the Dodgers Channel during the 2014 baseball season. Subscribers located in the Charter service territory in the LA area did not have regular access to most televised Dodgers games during the 2014 baseball season or at the start of the 2015 season.
88. Charter announced that it would acquire TWC in May 2015. Soon thereafter, Charter agreed to carry the Dodgers Channel.
89. Mr. York and his counterpart at AT&T, the most senior content executive there, agreed to share forward-looking strategic information about the Dodgers Channel, and did share that information. Their exchanges of information demonstrate their agreement and reflect concerted action between horizontal competitors.
90. Mr. York's AT&T counterpart became President of Content and Advertising Sales (“President of Content”) in June 2013 and Mr. York, who previously had worked at AT&T, cultivated a close relationship with this person. Mr. York offered to “show [him] around [LA] and help meet the players in this crazy content world.” Thus, as AT&T's President of Content testified, Mr. York “helped [him] get a lay of the land in the industry” and introduced him to “various players in the industry.”
91. AT&T's President of Content understood the importance of developing relationships with AT&T's direct competitors. In a handwritten note taken a few weeks after assuming his new position, he wrote that he “need[ed] to go meet industry peers,” including DIRECTV. Mr. York organized a one-on-one breakfast with his AT&T counterpart several weeks later at a hotel near AT&T's offices.
92. On January 16, 2014, TWC presented its formal Dodgers Channel carriage offer to AT&T. TWC asked for the same rate structure as it later sought from DIRECTV and other video distributors.
93. On January 21, 2014, AT&T's President of Content met with other members of his content team to discuss TWC's offer. Like Charter's Senior Vice President of Programming, AT&T's President of Content indicated that his “gut” instinct was to “sit on sidelines,” but noted that the possibility that “DIRECTV may move” was a factor that could cause AT&T to revisit its position.
94. On January 22, 2014, Mr. York and his AT&T counterpart spoke for twelve minutes. At the time of this call, DIRECTV and AT&T had both recently received Dodgers Channel offers from TWC.
95. On February 25, 2014, an AT&T Vice President expressed concern that his earlier public comments to Bloomberg News about the Dodgers Channel were “too vanilla” and stated that AT&T might “need to take more of a stand.” Ten days later, the executive suggested that AT&T publicly communicate its Dodgers Channel carriage “position more aggressively to influence other MVPD's strategy.”
96. On February 26, 2014, AT&T's President of Content and his content team recommended to his direct supervisor that AT&T decline to launch the Dodgers Channel at TWC's asking price. They described AT&T's “initial implementation strategy” as “[h]old-out as long as DirecTV does not carry.” The day of this presentation, AT&T's President of Content left a voicemail for Mr. York. He then tried to reach Mr. York on February 28, 2014, texting “Just tried you. I am around if you free up. I will try u tomorrow if not.” Then, the next day, AT&T's President of Content left another voicemail for Mr. York, this time stating “I had three things to catch up with you on, ah, two sports and one news.”
97. After leaving this message, AT&T's President of Content went to AT&T's Dallas headquarters for a series of strategy meetings and kept trying to reach Mr. York. This AT&T senior executive and Mr. York finally spoke for twenty minutes on March 4, 2014. The next day, this same AT&T executive met with AT&T's CEO to discuss TWC's Dodgers Channel offer. AT&T's President of Content “recommend[ed] not launching [the Dodgers Channel] unless TWC reduces the rate materially,” but noted that DIRECTV launching was an “outstanding risk
98. On March 11, 2014, TWC told an AT&T negotiator that it “was unlikely to move off [its] initial asking price of $[#.##] now because [TWC] wouldn't be able to offer [AT&T] a lower rate and not offer it to a larger distributor.”
99. The next day, Mr. York texted AT&T's President of Content “Got a sec to talk?” and Mr. York's AT&T counterpart responded “Yep. You on cell or work?” Mr. York responded “Work.” The following day, AT&T's President of Content—who has referred to carriage offers as “pitches”—again texted Mr. York “Forgot to tell you but we got a [##] mph pitch yesterday.”
100. AT&T acquired DIRECTV in July 2015. AT&T still does not carry the Dodgers Channel. AT&T subscribers outside of TWC's service territory in the LA area did not have regular access to most televised Dodgers games during the 2014, 2015, or 2016 baseball seasons.
101. One tool that courts use to assess the competitive effects of concerted action is defining a relevant market—the zone of competition among the agreeing rivals in which the agreement may affect competition. A relevant market contains both a product dimension (the “product market”) and a geographic dimension (the “geographic market”). This case concerns the distribution of professional video content (especially sports content) by MVPDs in multiple geographic markets.
102. Video distributors acquire the rights to transmit video content from programmers, then aggregate that content and distribute it to subscribers who pay for the service. For example, subscribers to an MVPD's pay television service typically purchase access to a sizeable array of channels, including for example news, dramas, and reality television programs, as well as the type of sports content at issue in this case. Subscribers, as well as industry participants, view these services as reasonably interchangeable with each other. Moreover, subscribers and industry participants view video distribution services as distinct from—and not reasonably interchangeable with—other forms of entertainment, such as attending live sports games or a music concert. The distribution of professional video programming services to residential or business customers (“video distribution services”) is a relevant product market.
103. Video distributors compete with each other on price and programming content to attract and retain paid video customers. MVPDs, especially DIRECTV, often attempt to distinguish themselves from their competitors on the basis of sports content. DIRECTV bills itself as the “undisputed leader” for sports content among video distributors and, to support that claim, spends over $1 billion each year to obtain the exclusive rights to provide NFL Sunday Ticket and features it prominently in its marketing materials.
104. Local sports content is a crucial component of competition between video distributors. Sports are often telecast locally on RSNs, and DIRECTV has publicly identified the availability of RSNs as vital to its ability to compete. In filings submitted to the Federal Communications Commission (“FCC”) regarding its program access regulations, which had previously reduced DIRECTV access to local RSNs, DIRECTV described local sports content on RSNs as “some of the most popular and expensive in the market” and questioned whether a video distributor could compete at all without access to this programming. DIRECTV even complained that a cable company's decision to deny DIRECTV access to an RSN “caused a 33 percent reduction in the households subscribing to [satellite TV] service.”
105. Consumers seeking to purchase video distribution services must choose from among those providers that can offer such services directly to their home or business. Direct broadcast satellite providers, such as DIRECTV, can serve customers almost anywhere in the United States. In addition, online video distributors are available to any consumer with internet service sufficient to deliver video of an acceptable quality. In contrast, wireline video distributors such as cable and telephone companies, which include Cox, Charter, and AT&T, serve only distinct geographic areas where they have deployed network facilities. A customer cannot purchase video distribution services from a wireline distributor that does not operate network facilities that connect to the customer's home or business.
106. Thus, from a customer's perspective, the relevant geographic market for video distribution services is whatever services are available on an individual location-by-location basis. For ease of analysis, however, these markets can be aggregated to portions of the local franchise areas, or footprints, of the various video distribution service providers where consumers face similar service-provider choices.
107. In the Dodgers Channel carriage area in 2014, three cable companies offered video distribution services to a significant area: TWC, Cox, and Charter.
108. Cox's service area within the LA area is a relevant geographic market. As discussed further below, consumers within this area generally faced the same service-provider choices. Customers within the Cox service area could choose from Cox, DIRECTV, DISH, and nationwide online providers. Some customers within the Cox service area might have AT&T or Verizon as an additional competitive option, but not both. Nevertheless, because a small but significant price increase by a hypothetical monopolist of video distribution services in this area would not be made unprofitable by consumers switching to other services offered outside of the area, the Cox LA service area is a relevant geographic market.
109. Charter's service area within the LA area is also a relevant geographic market. As discussed further below, consumers within this area generally faced the same service-provider choices. Customers within the Charter service area could choose from Charter, DIRECTV, DISH, and nationwide online providers. Some customers within the Charter service area might have AT&T or Verizon as an additional competitive option, but not both. Nevertheless, because a small but significant price
110. Local video distribution service markets are characterized by high barriers to entry. Providers seeking to expand their geographic reach or reposition themselves to offer such services in a particular area face high entry barriers as well.
111. In order to offer video distribution services, wireline and direct broadcast satellite providers must incur enormous upfront investment to construct a distribution infrastructure. Wireline distributors must construct network facilities that reach every home or business that they wish to serve. Likewise, satellite companies such as DIRECTV must launch satellites and deploy earth stations to receive signals from those satellites.
112. Providers may also need to obtain the proper regulatory authority prior to offering video distribution services. Wireline providers generally must obtain a franchise from local, municipal, or state authorities. Direct broadcast satellite providers must obtain approval from the FCC prior to operating the satellites and earth stations that comprise their networks.
113. Online video distributors represent the most likely prospect for successful and significant competitive entry, but they face significant barriers that limit their ability to compete with MVPDs in the short-to-medium term. One such barrier is the need to obtain access to a sufficient amount of content to become viable substitutes. Online video distributors generally offer less content than MVPDs and fewer live sports telecasts of local games. Due in part to these limitations, online video distributors account for only 5% of total video distribution service revenues.
114. Consumers in the Cox service area faced limited choices for video distribution services in 2014. In many parts of this area, customers could access video distribution services from only three providers: Cox, DISH, or DIRECTV. In some areas within the Cox footprint, customers could also access video services from either AT&T or Verizon (but not both) where those companies had upgraded their telephone networks to offer video service as a fourth alternative for consumers.
115. DIRECTV acted in concert with Cox and, therefore, it is appropriate to consider the combined market power of the two firms in the relevant geographic market. DIRECTV and Cox combined account for a greater than 70% share of the Cox local market. By acting in concert under these circumstances, DIRECTV and Cox had the ability to reduce output and product quality to subcompetitive levels.
116. DIRECTV also acted in concert with AT&T in Cox's service area. DIRECTV, Cox, and AT&T combined account for a greater than 75% share of the Cox local market. By acting in concert under these circumstances, the three companies had the ability to reduce output and product quality to subcompetitive levels.
117. Consumers in the Charter service area also faced limited choices for video distribution services in 2014. In many parts of the Charter service area, customers could access video services from only three providers: Charter, DISH, or DIRECTV. In some areas within the Charter footprint, customers could also access video services from either AT&T or Verizon (but not both) where those companies had upgraded their telephone networks to offer video service as a fourth alternative for consumers.
118. DIRECTV acted in concert with Charter and, therefore, it is appropriate to consider the combined market power of the two firms in the relevant geographic market. DIRECTV and Charter combined account for a greater than 50% share of the Charter local market. By acting in concert under these circumstances, DIRECTV and Charter had the ability to reduce output and product quality to subcompetitive levels.
119. DIRECTV also acted in concert with AT&T in Charter's service area. DIRECTV, Charter, and AT&T combined account for a greater than 55% share of the Charter local market. By acting in concert under these circumstances, DIRECTV, Charter, and AT&T had the ability to reduce output and product quality to subcompetitive levels.
120. The market for video distribution services in the LA area is highly concentrated. The local markets for video distribution services are characterized by high barriers to entry, just three to four entrenched competitors, and a history of interdependent price and output.
121. Competition is likely to be harmed when competitors with market power in concentrated markets, such as the markets at issue, directly exchange strategic information about current and forward-looking plans for product features on which they compete. Here, the information exchanged directly concerned the negotiating positions that were being taken by competitors leading up to and during their negotiations with a common programming supplier. That supplier had every legitimate reason to believe that the companies were viewing each other warily and calculating the risk that the other might move first.
122. The strategic information that DIRECTV exchanged with Cox, Charter, and AT&T was competitively sensitive and a material factor to their decisions not to carry the Dodgers Channel. Like price, content carriage—and particularly local sports content carriage—is a crucial aspect of competition between video programming distributors to attract and retain subscribers. Just as a subscriber might switch away from a distributor in order to obtain a lower price, a subscriber might switch away from a distributor in order to watch programming that the subscriber's current distributor does not offer. But if the subscriber has no alternative video programming distributor from which to obtain the desired content, the possibility that this subscriber might switch to a competitor is eliminated. When video distributors that are competing for the same subscribers exchange their strategic carriage plans, comfort replaces uncertainty and reduces their incentives to launch that content. After all, if no competitor offers particular content, there is no risk current subscribers would switch to a competitor in order to watch that content on another distributor's video service.
123. Information regarding sports content is particularly significant, as sports are an important aspect of the video distribution that customers in the LA region purchase. As noted above, DIRECTV has recognized that RSN
124. The direct competitor communications at issue here took place between DIRECTV's Chief Content Officer and his counterparts at Cox, Charter, and AT&T. These high-level executives had direct authority over their respective companies' content carriage negotiations and significant influence over their companies' content carriage decisions, thereby allowing them to act on the information that they learned and steer their companies' decisions and negotiation strategies for the Dodgers Channel.
125. These direct communications took place in private settings and involved the exchange of confidential, non-public information. The information was at times exchanged in coded language intended to mask the content of the communications. In addition to the direct communications, DIRECTV executives consistently messaged DIRECTV's opposition to carriage of the Dodgers Channel through the press.
126. The information sharing agreements that DIRECTV orchestrated with its direct competitors at Cox, Charter, and AT&T tainted the competitive process for carriage of the Dodgers Channel. They dampened the incentives of the companies to negotiate for and carry the Dodgers Channel, reduced their responsiveness to customer demand, and deprived LA area Dodgers fans of a competitive process that took into full account market demand for watching Dodgers games on television.
127. The information shared between DIRECTV and its competitors was a material factor in their decisions about whether and when to offer the Dodgers Channel in competition with one another.
128. During the Dodgers Channel carriage negotiations, DIRECTV learned valuable strategic information from Cox, Charter, and AT&T that reduced the uncertainty that DIRECTV should have faced from not knowing whether its subscribers would have the option of switching to these competitors in order to watch Dodgers games on television. This knowledge was a material factor in DIRECTV's decision not to launch the Dodgers Channel. Mr. York testified that other MVPDs not appearing to be in any rush to do the Dodgers Channel deal was a strategic consideration against DIRECTV doing the deal. Indeed, he edited a presentation given to DIRECTV's CEO to make sure the presentation included that important factor. One of Mr. York's subordinates testified that information about competitors' plans could lead DIRECTV to be less aggressive in its proposals because the company would be “less inclined to engage more meaningfully if everybody was going to collectively sit on the sidelines.”
129. Cox, Charter, and AT&T each used strategic information obtained from DIRECTV to reduce the uncertainty that they each should have faced from not knowing whether their respective subscribers would be able to switch to DIRECTV in order to watch Dodgers games on television. This strategic information was a material factor in their decisions not to launch the Dodgers Channel. Thus, this knowledge tainted what should have been their independent decisions about whether to launch the Dodgers Channel.
130. Because the information sharing agreements made it less likely that DIRECTV and its major MVPD competitors would carry the Dodgers Channel, those agreements had the tendency to reduce the quality of the video distribution services DIRECTV, Cox, Charter, and AT&T provided in the LA area. They likewise had the tendency to reduce output by delaying the day when, if ever, the Dodgers Channel will be widely carried. These effects were ultimately felt throughout the Dodgers Channel broadcast territories where these companies offer service. The reduction in quality and output was felt acutely in the spring of 2014, when the actions of these MVPDs contributed to the Dodgers Channel not being carried during the first weeks of the new season, a time when DIRECTV believed ratings would peak. It continues to be felt by consumers today.
131. DIRECTV's unlawful information exchanges with Cox, Charter, and AT&T were not reasonably necessary to further any procompetitive purpose. The information directly and privately shared between high-level executives was disaggregated, company specific, forward-looking, confidential, and related to a core characteristic of competition between them.
132. DIRECTV and Cox have engaged in an information sharing agreement in unreasonable restraint of interstate trade and commerce, constituting a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. This offense is likely to continue and recur unless the requested relief is granted.
133. This information exchange scheme consisted of an agreement between DIRECTV and Cox to share strategic information about their companies' Dodgers Channel carriage negotiations and plans in order to limit the competitive pressure on either of them to carry the Dodgers Channel.
134. The information sharing agreement between DIRECTV and Cox has harmed competition. Their exchange of strategic information blunted the companies' competitive incentives and corrupted the competitive process, which had the likely and foreseeable result of decreasing quality and reducing output by contributing to a blackout of the Dodgers Channel in part of the LA area.
135. DIRECTV and Charter have engaged in an information sharing agreement in unreasonable restraint of interstate trade and commerce, constituting a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. This offense is likely to continue and recur unless the requested relief is granted.
136. The information exchange scheme consisted of an agreement between DIRECTV and Charter to share strategic information about their companies' Dodgers Channel carriage negotiations and plans in order to limit the competitive pressure on either of them to carry the Dodgers Channel.
137. The information sharing agreement between DIRECTV and Charter has harmed competition. Their exchange of strategic information blunted the companies' competitive incentives and corrupted the competitive process, which had the likely and foreseeable result of decreasing quality and reducing output by contributing to a blackout of the Dodgers Channel in part of the LA area.
138. DIRECTV and AT&T have engaged in an information sharing agreement in unreasonable restraint of interstate trade and commerce, constituting a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
139. The information exchange scheme consisted of an agreement between DIRECTV and AT&T to share strategic information about their companies' Dodgers Channel carriage negotiations and plans in order to limit the competitive pressure on either of them to carry the Dodgers Channel.
140. The information sharing agreement between DIRECTV and AT&T has harmed competition. Their exchange of strategic information blunted the companies' competitive incentives and corrupted the competitive process, which had the likely and foreseeable result of decreasing quality and reducing output by contributing to a blackout of the Dodgers Channel in part of the LA area.
141. WHEREFORE, the United States requests that final judgment be entered against DIRECTV and AT&T declaring, ordering, and adjudging that:
a. The aforesaid bilateral information sharing agreements unreasonably restrain trade and are unlawful under Section 1 of the Sherman Act, 15 U.S.C. § 1;
b. DIRECTV and AT&T be permanently enjoined from transmitting non-public information concerning DIRECTV's and/or AT&T's negotiating position, strategy, or tactics concerning potential agreements for video programming distribution with any other MVPD when DIRECTV and/or AT&T and another MVPD anticipate negotiating, or are negotiating, with a common programming provider, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1;
c. DIRECTV and AT&T be required to monitor communications or other contacts between, on the one hand, the executives involved in these unlawful information sharing agreements and others who may take their place in the future, and on the other hand, their horizontal competitors, and to periodically report the time, place, participants, and substance of any such communications to the Department of Justice;
d. DIRECTV and AT&T be required to implement training and compliance programs to instruct their executives that exchanging non-public strategic information about competitive offerings with competitors when not necessary to further a procompetitive purpose is a violation of the antitrust laws and report on these programs to the Department of Justice; and
e. The United States be awarded its costs of this action and such other relief as may be appropriate and as the Court may deem just and proper, and such other relief as may be appropriate and as the Court may deem proper.
Plaintiff United States of America (“United States”), pursuant to the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. § 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment against Defendants DIRECTV Group Holdings, LLC (“DIRECTV”) and its corporate successor AT&T, Inc. (“AT&T”) submitted for entry in this civil antitrust proceeding.
On November 2, 2016, the United States filed a civil antitrust Complaint alleging that DIRECTV acted as the ringleader of a series of unlawful information exchanges between DIRECTV and three of its competitors—Cox Communications, Inc., Charter Communications, Inc. and AT&T (prior to its 2015 acquisition of DIRECTV)—during the companies' parallel negotiations to carry SportsNet LA, which holds the exclusive rights to telecast almost all live Dodgers games in the Los Angeles area. The Complaint alleges that DIRECTV unlawfully exchanged competitively sensitive information with Cox, Charter and AT&T during the companies' negotiations for the right to telecast SportsNet LA (the “Dodgers Channel”).
Specifically, the Complaint alleges that DIRECTV and each of these competitors agreed to and did exchange non-public information about their companies' ongoing negotiations to telecast the Dodgers Channel, as well as their companies' future plans to carry—or not carry—the channel. The Complaint also alleges that each company engaged in this conduct in order to obtain bargaining leverage and reduce the risk that the company's rival would choose to carry the Dodgers Channel (while the company did not), resulting in a loss of subscribers to that rival. The Complaint further alleges that the information learned through these
The Complaint alleges that these agreements amounted to a restraint of trade in violation of Section 1 of the Sherman Act, which outlaws “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. The Complaint seeks injunctive relief to prevent DIRECTV and AT&T from sharing non-public information with any other multichannel video programming distributor (“MVPD”)
The Defendants filed a motion to dismiss the Complaint for failure to state a claim on January 10, 2017 (ECF No. 16), and the United States filed its corrected memorandum in opposition to that motion on February 8, 2017 (ECF No. 23). The Defendants filed their reply brief in support of their motion on February 21, 2017 (ECF No. 24), and the motion was due to be argued at a hearing set for March 13, 2017 (ECF No. 18). Prior to the hearing, the United States and the Defendants filed a stipulation seeking a two-week continuance of the motion hearing because the parties were engaged in productive settlement negotiations (ECF No. 27), and the Court granted the requested continuance (ECF No. 28).
The United States today filed a Stipulation and Order and proposed Final Judgment which would remedy the violation alleged in the Complaint by prohibiting Defendants from sharing or seeking to share competitively sensitive information with any MVPD. Such information includes without limitation non-public information relating to negotiating position, tactics or strategy, video programming carriage plans, pricing or pricing strategies, costs, revenues, profits, margins, output, marketing, advertising, promotion, or research and development.
The United States and the Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States withdraws its consent. Entry of the proposed Final Judgment would terminate this action, except that this Court would retain jurisdiction to construe, modify, and enforce the proposed Final Judgment and to punish violations thereof.
Defendant DIRECTV is a Delaware corporation with headquarters located in El Segundo, California, offering direct broadcast satellite television service nationwide. As of 2014, DIRECTV was the second largest MVPD in the United States, selling subscriptions to pay television services to approximately 20 million consumers. As of 2014, DIRECTV had approximately 1.25 million video subscribers in the Los Angeles area. In 2015, Defendant AT&T acquired DIRECTV in a transaction valued at approximately $49 billion. Following that acquisition, AT&T is now the largest pay television provider in the United States with more than 25 million video subscribers nationwide.
Cox Communications (“Cox”) is a privately held Delaware corporation with its headquarters in Atlanta, Georgia. Cox is currently the third-largest cable provider in the United States. As of 2014, Cox was the fourth-largest cable provider in the United States and had approximately 500,000 subscribers in the Los Angeles area.
In 2014, Charter Communications (“Charter”) was the third-largest cable company in the United States and had approximately 270,000 subscribers in the Los Angeles area. In 2016, Charter merged with Time Warner Cable (“TWC”), which owns the rights to the Dodgers Channel. As of 2014, TWC was the second-largest cable company in the United States with approximately 1.3 million subscribers in the Los Angeles area.
AT&T, a Delaware corporation with headquarters located in Dallas, Texas, is a defendant in this action as the corporate successor to DIRECTV. AT&T is a multinational telecommunications company offering mobile telephone service, wireline Internet and television service, and satellite television service through its 2015 acquisition of DIRECTV. AT&T offers wireline television service through its U-verse video product, which distributes video content using AT&T's telecommunications infrastructure. As of 2014, AT&T had approximately 400,000 U-Verse video subscribers in the Los Angeles area.
In early 2013, TWC announced that it had partnered with the Los Angeles Dodgers to acquire the exclusive rights to telecast almost all live Dodgers games in the Los Angeles area. The Dodgers Channel was set to launch at the beginning of the 2014 baseball season. TWC approached MVPDs in Los Angeles—including DIRECTV, Cox, Charter and AT&T—and attempted to negotiate agreements for carriage of the Dodgers Channel. TWC failed to reach agreement with any other MVPD. Currently, apart from TWC itself (and Charter following its 2015 agreement to acquire TWC), no MVPD in the Los Angeles area carries the Dodgers Channel, leaving hundreds of thousands of area consumers without access to live telecasts of Dodgers games.
MVPDs acquire the rights to transmit content from video programmers and then distribute that content to subscribers who pay for the service. MVPDs compete with each other to attract and retain paying subscribers, both through the prices they charge and the programming content they offer. The Complaint alleges that the distribution of professional video programming services to residential or business customers is a relevant product market in which to evaluate the effects of the alleged antitrust violations.
MVPDs particularly depend on sports content as a way to distinguish themselves from their competitors. For example, DIRECTV refers to itself as the “undisputed leader” for sports content and spends over $1 billion annually to obtain the exclusive rights to provide its Sunday Ticket package of live National Football League games. MVPDs also consider offering local, live sports content to be a crucial component of competition between them. Telecasts of local sports games are often available only through a regional sports network (“RSN”), like the Dodgers Channel. DIRECTV has publicly highlighted the popularity of RSNs and considers offering RSN content to be essential to its ability to compete. Similarly, MVPDs will purchase the right to telecast certain sports events and create an RSN to carry the telecasts, as TWC did with the Dodgers Channel. Residential and business consumers in the Los Angeles area can only watch Dodgers telecasts by subscribing to a video distribution
The Complaint alleges that Cox's and Charter's Los Angeles service areas are relevant geographic markets in which to evaluate the effects of the alleged antitrust violations. The availability of video distribution services is controlled by which MVPDs offer services to a given location. In the Los Angeles area in 2014, the market for purchasing video distribution services was highly concentrated and consumers could choose from only a handful of providers. Direct broadcast satellite providers, like DIRECTV, can serve customers almost anywhere in the United States. But wireline video distributors, including cable companies like Cox and Charter and telephone companies like AT&T, serve only geographic areas where they have installed infrastructure that reaches a consumer's home or business.
Consumers thus can purchase video distribution services only from those providers that offer services to their location. In 2014, only three cable companies—TWC, Charter, and Cox—offered video distribution services to a significant portion of the Los Angeles area.
The Complaint alleges that the relevant market is represented by the competitive choices for video distribution services faced by a consumer at a given location. For ease of analysis, these markets can be aggregated to geographic areas where consumers face similar competitive choices. In the Cox and Charter areas, many consumers could access video programming services only from the cable provider (Cox or Charter) or one of the two satellite providers, DIRECTV and DISH Network. In some areas within these footprints, consumers could choose from four MVPD providers because they could also access video services from either AT&T or Verizon (but not both). The Complaint alleges that these markets are highly concentrated and that, by acting in concert, DIRECTV, Charter, Cox, and AT&T had market power in these geographic markets.
As detailed in the Complaint, during the negotiations with TWC regarding carriage of the Dodgers Channel, DIRECTV orchestrated a series of agreements with Cox, Charter and AT&T to exchange competitively sensitive, forward-looking, strategic information about whether or not they would carry the Dodgers Channel. DIRECTV competes with every other MVPD in the Los Angeles area, making it the natural ringleader of these anticompetitive agreements. By contrast, cable companies serve discrete geographic areas and do not compete with each other for subscribers. Likewise, legacy telephone companies also serve limited territories and compete with the cable companies but not with each other. This meant that if DIRECTV did not carry the Dodgers Channel, it risked losing subscribers to any MVPD in the Los Angeles area that chose to carry the channel. If DIRECTV chose to carry the Dodgers Channel, it stood to gain subscribers from any MVPD that did not. Cox, Charter, and AT&T understood that if DIRECTV decided to carry the Dodgers Channel, competitive pressure could force them to carry it too. DIRECTV also recognized that it would lose leverage with TWC and risk losing subscribers each time any other MVPD chose to carry the channel.
In January 2013, TWC acquired the rights to telecast Dodgers games starting with the 2014 season. DIRECTV, Cox, Charter, and AT&T formed their strategies for the channel in fall 2013, and negotiations with TWC began in January 2014 and continued past the start of the 2014 Major League Baseball season in the Spring. Throughout this period, Dan York—DIRECTV's Chief Content Officer—exchanged strategic information about the Dodgers Channel with rival executives at Cox, Charter, and AT&T.
For example, Mr. York agreed with his Cox rival to give each other a “heads-up” “before it was public knowledge” if either company was going to launch the channel. On another occasion, Mr. York offered to give Cox advance notice before DIRECTV signed a Dodgers Channel deal so that Cox could choose to sign first. Mr. York told his competitor this would help Cox “protect any MFN terms”—that is, it would enable Cox to sign a contract with a most favored nation term and thereby gain the benefit of any better bargain DIRECTV subsequently could extract from TWC due to its larger size. In making this offer, Mr. York was likely sacrificing the benefits of the better deal he could negotiate because of DIRECTV's size and undercutting DIRECTV's claim to be the “undisputed leader” for sports content.
Mr. York and Charter's senior content executive also discussed their respective Dodgers Channel negotiations while they were ongoing. Charter's executive and Mr. York discussed “the high price” that TWC had paid for the Dodgers Channel and the “outrageous” price that TWC “was demanding for carriage.” Charter's executive spoke to Mr. York the day before recommending to his CEO that Charter wait for DIRECTV to launch, and he relied on his knowledge of DIRECTV's plans, telling a colleague “I think Direct will not be there at launch.” The Charter executive tried to speak with Mr. York again the day Charter set its content budget for the 2014 fiscal year. The two executives checked in after each company had received TWC's offer, and as negotiations continued, the Charter executive maintained to TWC that Charter would not carry the channel unless DIRECTV launched first.
Mr. York also agreed to exchange competitively sensitive Dodgers Channel information with the senior content executive at AT&T. Mr. York and the AT&T executive exchanged text messages that discussed the price of the Dodgers Channel. After the AT&T executive sent Mr. York a coded text message with Time Warner Cable's latest asking price, Mr. York responded by suggesting that he would not want AT&T to accept that offer. The AT&T executive tried to contact Mr. York the same day the AT&T executive recommended that AT&T adopt a Dodgers strategy that depended on DIRECTV. The AT&T executive continued to reach out, leaving Mr. York a voicemail asking to catch up on “three things . . . two sports and one news.” The two connected over the phone the day before the AT&T executive met with AT&T's CEO and recommended that AT&T not carry the channel.
The Complaint alleges that Mr. York instigated and continued these information exchanges with his
The Complaint alleges that DIRECTV's information-sharing agreements with its direct competitors at Cox, Charter, and AT&T harmed competition by making it less likely each competitor would carry the Dodgers Channel and by disrupting the competitive process. These agreements dampened the incentives of the companies to negotiate for and carry the Dodgers Channel, reduced their responsiveness to customer demand, and deprived Los Angeles area Dodgers fans of a competitive process that took into full account market demand for watching Dodgers games on television. The harm to competition and consumers stems from the basic principle that an MVPD need not worry about losing subscribers to a competitor over content if it has learned the competitor will not carry that content.
The sharing of competitively sensitive information among direct competitors made it less likely that any of the MVPDs would reach a deal for the Dodgers Channel because it increased their confidence that a decision to refrain from carriage would not result in subscribers switching to a competitor that offered the channel. The reduction of this uncertainty was valuable because each company identified a competitor's decision to telecast the Dodgers Channel as a significant development that could force it to reach a deal with TWC. Indeed, the information shared between DIRECTV and its competitors was a material factor in their decisions not to launch the Dodgers Channel. These unlawful exchanges were intended to reduce—and did reduce—each rival's uncertainty about whether competitors would carry the Dodgers Channel, thereby providing DIRECTV and its competitors artificially enhanced bargaining leverage.
Because the information sharing agreements made it less likely that DIRECTV and its major MVPD competitors would carry the Dodgers Channel, those agreements had the tendency to reduce the quality of the co-conspirator video distribution services in the Los Angeles area and to reduce output by delaying the day when, if ever, the Dodgers Channel will be widely carried. These effects were ultimately felt throughout the Dodgers Channel broadcast territories where these companies offer service. DIRECTV's unlawful information exchanges harmed consumers by making it less likely that they would be able to watch Dodgers games on television, and this harm continues to be felt by consumers today. DIRECTV's unlawful information exchanges also harmed competition by corrupting the competitive process that should have resulted in each company making an independent decision on whether to carry the Dodgers Channel, subject to competitive pressures arising from independent decisions made by other, overlapping MVPDs.
DIRECTV's three bilateral agreements to share forward-looking strategic information concerning carriage of the Dodgers Channel lacked any countervailing procompetitive benefits and were not reasonably necessary to further any legitimate business purpose. The information directly and privately shared between high-level executives was disaggregated, company specific, forward-looking, confidential, and related to a core characteristic of competition between them.
The terms of the proposed Final Judgment closely track the relief sought in the Complaint and are intended to provide prompt, certain and effective remedies that will ensure that Defendants and their executives will not impede competition by sharing competitively sensitive information with their counterparts at rival MVPDs. The requirements and prohibitions provided for in the proposed Final Judgment will terminate Defendants' illegal conduct, prevent recurrence of the same or similar conduct, and ensure that Defendants establish a robust antitrust compliance program. The proposed Final Judgment protects consumers by putting a stop to the anticompetitive information sharing alleged in the Complaint, while permitting certain potentially beneficial collaborations and transactions as detailed below.
The proposed Final Judgment does not and is not intended to compel any MVPD to reach an agreement to carry any particular video programming, including the Dodgers Channel. Negotiations between video programmers and MVPDs are often contentious, high-stakes undertakings where one or both sides threatens to walk away, or even temporarily terminates the relationship (sometimes called a “blackout” or “going dark”) in order to secure a better deal. The proposed Final Judgment is not intended to address such negotiating tactics, or to impose any agreement upon TWC, which owns rights to the Dodgers Channel, or any MVPD that is not the result of an unfettered negotiation in the marketplace. Rather, the Final Judgment is intended to prevent the competitive process for acquiring video programming from being corrupted by improper information sharing among rivals and to prevent harm to consumers when such collusion taints that competitive process and makes carriage on competitive terms less likely.
The proposed Final Judgment broadly prohibits Defendants from sharing strategic competitive information with direct competitors and thus protects the competitive process for negotiating video programming. Specifically, Section IV ensures that Defendants will not, directly or indirectly, communicate a broad array of competitively sensitive, non-public strategic information (such as negotiating strategy, carriage plans or pricing) to any MVPD, will not request such information from any MVPD, and will not encourage or facilitate the communication of such information from any MVPD.
Section IV makes clear that the proposed Final Judgment does not prohibit Defendants from sharing or receiving competitively sensitive strategic information in certain specified circumstances where the information sharing appears unlikely to cause harm to competition.
Section IV(D) allows the communication of competitively
Section IV(E) permits the communication of competitively sensitive information pursuant to negotiations with another MVPD to sell video programming to that MVPD, or to buy video programming from it.
Likewise, Section IV(F) permits Defendants to communicate competitively sensitive information with video programmers, including those affiliated with MVPDs, so long as the information pertains only to the potential or actual carriage of the programmer's content by Defendants.
Section IV(G) permits Defendants to respond to news media questions about programming distribution and carriage negotiations, provided Defendants' negotiating strategy is not disclosed.
Finally, Section IV(H) confirms that the proposed Final Judgment does not prohibit petitioning conduct protected by the Noerr-Pennington doctrine.
As outlined in Section V, Defendants must designate an Antitrust Compliance Officer, who is responsible for implementing training and antitrust compliance programs and achieving full compliance with the Final Judgment. Among other duties, the Antitrust Compliance Officer will be required to distribute copies of the Final Judgment; ensure training related to the Final Judgment and the antitrust laws is provided to Defendants' directors, officers, and certain other executives; certify annual compliance with the Final Judgment; and maintain and submit periodically a log of all communications relating to competitively sensitive information between Defendants' covered executives and employees of other MVPDs. The Defendants are subject to these compliance obligations for the five-year term of the proposed Final Judgment. This compliance program is necessary considering the extensive communications among rival executives that facilitated Defendants' agreements.
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the proposed Final Judgment has no
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to:
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, seeking injunctive relief against Defendants' conduct through a full trial on the merits. The United States is satisfied, however, that the relief in the proposed Final Judgment will terminate the anticompetitive conduct alleged in the Complaint and prevent its recurrence, preserving competition for the acquisition and carriage of video programming in the United States. Thus, the proposed Final Judgment would protect competition as effectively as would any remedy available through litigation, but avoids the time, expense, and uncertainty of a full trial on the merits.
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. § 16(e)(1). “The APPA was enacted in 1974 to preserve the integrity of and public confidence in procedures relating to settlements via consent decree procedures.”
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. § 16(e)(2);
No determinative documents or material within the meaning of the APPA were considered by the Department in formulating the proposed Final Judgment.
This document will also be made available on the Antitrust Division's website at https://www.justice.gov/atr/case/us-v-directv-group-holdings-llc-and-att-inc.
WHEREAS, Plaintiff, United States of America, filed its Complaint on November 2, 2016, alleging Defendants' violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Plaintiff and Defendants, by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of fact or law;
AND WHEREAS, Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prohibition of certain alleged information sharing between Defendants and their competitors;
NOW THEREFORE, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is ORDERED, ADJUDGED AND DECREED:
This Court has jurisdiction over the subject matter of and the parties to this action. Venue is proper in the Central District of California. For the purposes of this Final Judgment only, Defendants stipulate that the Complaint states a claim upon which relief may be granted against Defendants under Section 1 of the Sherman Act (15 U.S.C. § 1).
A. “AT&T” means AT&T, Inc., a Delaware corporation with its headquarters in Dallas, Texas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
B. “Communicate,” “Communicating,” and “Communication” means any transfer or dissemination of information, whether directly or indirectly, and regardless of the means by which it is accomplished, including without limitation orally or by printed or electronic means.
C. “Competitively Sensitive Information” means any non-public information of Defendants or any competing MVPD relating to Video Programming distribution services in the United States, including without limitation non-public information relating to negotiating position, tactics or strategy, Video Programming carriage plans, pricing or pricing strategies, costs, revenues, profits, margins, output, marketing, advertising, promotion, or research and development.
D. “Defendants” means DIRECTV and AT&T.
E. “DIRECTV” means DIRECTV Group Holdings, LLC, a Delaware corporation with its headquarters in El Segundo, California, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “MFN Clause” means a contractual provision that entitles an MVPD to modify a programming agreement to incorporate more favorable rates, contract terms, or conditions that the Video Programmer agrees to with another MVPD.
G. “MVPD” means a multichannel video programming distributor as that
H. “Person” means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental.
I. “Video Programmer” means any Person that provides Video Programming for distribution through MVPDs.
J. “Video Programming” means programming provided by, or generally considered comparable to programming provided by, a television broadcast station or cable network, regardless of the medium or method used for distribution.
This Final Judgment applies to Defendants, as defined above, and all other Persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
Defendants shall not, directly or indirectly:
A. Communicate Competitively Sensitive Information to any MVPD;
B. Request Competitively Sensitive Information from any MVPD; or
C. Encourage or facilitate the Communication of Competitively Sensitive Information to or from any MVPD.
Notwithstanding the foregoing, nothing in this Final Judgment shall prohibit Defendants from:
D. After securing advice of counsel and in consultation with the Antitrust Compliance Officer, Communicating Competitively Sensitive Information to or requesting Competitively Sensitive Information from any MVPD when such communication is reasonably related to a lawful purpose, such as a lawful joint venture or legally supervised due diligence for a potential transaction, or the enforcement of MFN clauses;
E. Communicating Competitively Sensitive Information to or requesting Competitively Sensitive Information from an MVPD if such Competitively Sensitive Information pertains only to either (a) Defendants' supply of Video Programming to that MVPD, or (b) that MVPD's carriage or potential carriage of Defendants' Video Programming;
F. Communicating Competitively Sensitive Information to or requesting Competitively Sensitive Information from a Video Programmer, including one affiliated with an MVPD, if such Competitively Sensitive Information pertains only to either (a) that Video Programmer's supply of Video Programming to Defendants, or (b) Defendants' carriage or potential carriage of that Video Programmer's Video Programming;
G. Responding to any question from any news organization related to the distribution of Video Programming or to any actual or proposed transaction with any MVPD, provided that response does not disclose Defendants' negotiation strategy; or
H. After securing advice of counsel and in consultation with the Antitrust Compliance Officer, engaging in conduct in accordance with the doctrine established in
A. Defendants shall implement a training and antitrust compliance program to instruct their executives and employees responsible for, or participating in, content carriage negotiations that Communicating Competitively Sensitive Information with competing MVPDs when not reasonably related to a lawful purpose may be a violation of the antitrust laws. This compliance program shall include designating, within thirty (30) days of entry of this Final Judgment, an Antitrust Compliance Officer with responsibility for implementing the training and antitrust compliance program and achieving full compliance with this Final Judgment.
B. The Antitrust Compliance Officer shall, on a continuing basis, be responsible for the following:
1. Distributing, within thirty (30) days from the effective date hereof, a copy of this Final Judgment to (i) each of the officers of Defendants who has duties or responsibilities related to the acquisition of Video Programming or to Video Programming carriage plans and decisions; (ii) each of the other employees and agents of Defendants who has duties or responsibilities related to the acquisition of Video Programming or to Video Programming carriage plans and decisions; and (iii) each of the other employees or agents of Defendants who has duties or responsibilities related to reviewing any submissions to Defendants' ethics portal or to any other anonymous suggestion or complaint vehicle available to Defendants' employees or agents.
2. Distributing within thirty (30) days a copy of this Final Judgment to any person who succeeds to a position described in Section V(B)(1).
3. Briefing annually those persons identified in Sections V(B)(1) and (2) on the meaning and requirements of this Final Judgment and of the antitrust laws, and advising them that Defendants' legal advisors are available to confer with them regarding compliance with both the Final Judgment and the antitrust laws.
4. Obtaining from each person identified in Sections V(B)(1) and (2) an annual written certification that he or she: (i) has read, understands, and agrees to abide by the terms of this Final Judgment; (ii) is not aware of any violation of this Final Judgment that has not been reported to the Antitrust Compliance Officer; (iii) has been advised and understands that his or her failure to comply with this Final Judgment may result in an enforcement action for civil or criminal contempt of court against Defendants or any other person who violates this Final Judgment; and (iv) has maintained and submitted a record of all Communications of Competitively Sensitive Information with any MVPD, other than those consistent with Sections IV(D), (E), (F), (G) and (H).
5. Maintaining (i) a record of all certifications received pursuant to Section V(B)(4); (ii) a file of all documents in existence at the commencement of and related to any investigation by the Antitrust Compliance Officer of any alleged violation of this Final Judgment; and (iii) a record of all communications generated after the commencement of any such investigation and related to any such alleged violation, which shall identify the date and place of the communication, the persons involved, the subject matter of the communication, and the results of any related investigation.
6. Maintaining, and furnishing to the United States, on a quarterly basis for the first year and annually thereafter, a log of all Communications, between or among any person identified in Sections V(B)(1) and (2) and any person employed by or associated with any other MVPD, relating, in whole or in part, to Competitively Sensitive Information, excluding those communications consistent with Sections IV(D), (E), (F), (G) and (H). The log shall include but not be limited to an identification (by name, employer and job title) of all participants in the communication; the date, time, and duration of the communication; the medium of the communication; and a description of the subject matter of the communication.
C. If Defendants' Antitrust Compliance Officer learns of any allegations of a violation of any of the terms and conditions contained in this Final Judgment, Defendants shall immediately investigate to determine if a violation has occurred and appropriate action is required to comply with this Final Judgment. If Defendants' Antitrust Compliance Officer learns of any violation of any of the terms and conditions contained in this Final Judgment, Defendants shall immediately take appropriate action to terminate or modify the activity so as to comply with this Final Judgment. Defendants shall report any such investigation or action in the annual compliance statement required by Section VI(B).
D. If Defendants' Antitrust Compliance Officer learns any Competitively Sensitive Information has been communicated from an MVPD to any person identified in Sections V(B)(1) and (2), excluding those communications consistent with Sections IV(D), (E), (F), (G) and (H), the Antitrust Compliance Officer shall instruct that person that he or she must not consider the Competitively Sensitive Information in any way, shall advise counsel for the MVPD which communicated the Competitively Sensitive Information that such information must not be communicated to Defendants, and report the circumstances of the Communication of the Competitively Sensitive Information and the response by the Antitrust Compliance Officer in the annual compliance statement required by Section VI(B).
A. Within sixty (60) days after entry of this Final Judgment, Defendants shall certify to Plaintiff whether they have designated an Antitrust Compliance Officer and have distributed the Final Judgment in accordance with Section V(B) above. This certification shall include the name, title, business address, email address, and business phone number of the Person designated as Antitrust Compliance Officer.
B. For the term of this Final Judgment, on or before its anniversary date, Defendants shall file with the Plaintiff an annual statement as to the fact and manner of its compliance with the provisions of Section V, including the record(s) created in accordance with Section V(B)(4) above.
A. For purposes of determining or securing compliance with this Final Judgment, or of determining whether this Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
1. access during Defendants' office hours to inspect and copy, or at the United States' option, to require Defendants and their members to provide copies of all books, ledgers, accounts, records, and documents in their possession, custody, or control, relating to any matters contained in this Final Judgment; and
2. to interview, either informally or on the record, Defendants' officers, employees, or other representatives, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports and interrogatory responses, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by Defendants to the United States, Defendants identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then the United States shall give ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire five (5) years from its date of entry.
The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and responses to comments filed with the Court, entry of this Final Judgment is in the public interest.
Department of Justice.
Request for public comment.
It is the Department's mission to ensure public safety and provide federal leadership in preventing and controlling crime. Advancing the practice of forensic science is an important part of that effort. The more effective a forensic system we have, the better equipped we are to solve crimes, more swiftly absolving the innocent and bringing the guilty to justice. The second term of the National Commission on Forensic Science (NCFS) is set to expire on April 23, 2017. As part of the Department's continued efforts to advance the practice of forensic science following NCFS's expiration, the Department is seeking comment on how the
Written public comment regarding the issue for comment should be submitted through
The Office of Legal Policy, 950 Pennsylvania Avenue NW., Washington, DC 20530, by phone at 202-514-4601 or via email at
In February 2013, the U.S. Department of Justice and the National Institute of Standards and Technology (NIST) announced a partnership that included the formation of the National Commission on Forensic Science (NCFS). The NCFS is one of several federal initiatives relating to forensic science that was created following the 2009 report by the National Academy of Sciences National Research Council on “Strengthening Forensic Science in the United States: A Path Forward.” NCFS was established under the Federal Advisory Committee Act to provide advice and recommendations to the Attorney General on: (1) Strengthening the reliability and usefulness of the forensic sciences (including medicolegal death investigation); (2) enhancing quality assurance and quality control in forensic science laboratories and units; (3) identifying and recommending scientific guidance and protocols for evidence seizure, testing, analysis, and reporting by forensic science laboratories and units; and (4) identifying and assessing other needs of the forensic science communities to strengthen their disciplines and meet the increasing demands generated by the criminal and civil justice systems at all levels of government.
The NCFS charter identifies six goals: (1) To recommend priorities for standards development to the Attorney General; (2) to review and recommend guidance identified or developed by subject-matter experts; (3) to develop proposed guidance concerning the intersection of forensic science and the courtroom; (4) to develop policy recommendations, including a uniform code of professional responsibility and minimum requirements for training, accreditation, and certification; (5) to consider the recommendations of the National Science and Technology Council's Subcommittee on Forensic Science; and (6) to identify and assess the current and future needs of the forensic sciences to strengthen their disciplines and meet growing demands. The NCFS's supporting documents, including current charter, bylaws, and work product development guidance, are available for review at
Federal advisory committees operate on two-year renewable terms. Term 1 for NCFS began on April 23, 2013, when the original charter was filed, and concluded on April 23, 2015. NCFS was renewed for Term 2, which expires on April 23, 2017. Over the last 3 years (as of April 9, 2017), NCFS developed 43 work products, including 20 recommendations to the Attorney General, to support these goals. The NCFS has met its initial mandate, and in light of the upcoming expiration of its charter, the Department is now considering appropriate next steps.
In formulating a proposal, commenters may wish to consider the following questions:
(A) What are the biggest needs in forensic science inside the Department and at the federal, state, local, and tribal level?
(B) What is required to improve forensic science practices at the federal, state, local, and tribal levels?
(C) What is needed to improve capacity at federal, state, local, and tribal levels?
(D) What are the barriers to improving capacity and what resources are needed to overcome those barriers?
(E) What are the specific issues related to digital forensic evidence analysis and how can the Department address those needs?
(F) How should the Department, or any Department entity, coordinate with the Organization of Scientific Area Committees?
(G) What resources and relationships can the Department draw on to ensure thoughtful and representative input?
Proposals may include some combination of a Federal Advisory Committee, a new office at the Department, an inter-agency working group, regularly scheduled stakeholder meetings, etc. If the commenter believes a Federal Advisory Committee structure is appropriate, commenters are encouraged to address structural issues such as size, membership, work product development process, reporting structure (
In accordance with the Federal Records Act, please note that all comments received are considered part of the public record, and shall be made available for public inspection online at
The Department will post all comments received on
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Georgia Coastal Land Company, Provident Land Holdings Company, Provident Construction Company, and William L. Nutting, pursuant to Sections 301, 309, and 404 of the Clean Water Act, 33 U.S.C. 1311(a), 1319(g)(9), and 1344(s), to obtain injunctive relief from and impose civil penalties against the Defendants for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendants to restore impacted areas and perform mitigation, and to pay civil and administrative penalties.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Samara Spence, Trial Attorney for the United States Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, Post Office Box 7611, Washington, DC 20044 and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Southern District of Georgia, Brunswick Division, 801 Gloucester Street, Brunswick, GA 31520. In addition, the proposed Consent Decree may be examined electronically at
Employment and Training Administration, Department of Labor.
Notice.
The Employment and Training Administration of the Department of Labor is issuing this Notice to announce: (1) The allowable charges for 2017 that employers seeking H-2A workers in occupations other than range herding may charge their workers when the employer provides three meals a day, and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim in 2017 under the H-2A and H-2B programs. The Notice also includes a reminder regarding employers' obligations with respect to overnight lodging costs as part of required subsistence.
Effective on April 13, 2017.
William W. Thompson, II, Administrator, Office of Foreign Labor Certification (OFLC), U.S. Department of Labor, 200 Constitution Avenue NW., Room PPII-12-200, Washington, DC 20210. Telephone: 202-513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The United States (U.S.) Citizenship and Immigration Services of the Department of Homeland Security will not approve an employer's petition for the admission of H-2A or H-2B nonimmigrant temporary workers in the U.S. unless the petitioner has received from the DOL an H-2A or H-2B labor certification. Both the H-2A and H-2B labor certifications provide that: (1) There are not sufficient U.S. workers who are qualified and who will be available to perform the labor or services involved in the petition; and (2) the employment of the foreign worker(s) in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
Among the minimum benefits and working conditions that the Department requires employers to offer their U.S. and H-2A workers who are not engaged in range occupations are three meals a day or free and convenient cooking and kitchen facilities so workers may prepare their own meals.
The Department establishes the methodology for determining the maximum amounts that H-2A agricultural employers may charge their U.S. and foreign workers for providing them with three meals per day during employment.
The percentage change in the CPI-U for Food between December 2015 and December 2016 was -0.2 percent.
The H-2A regulations (20 CFR 655.122(h)(1)) and the H-2B regulations (20 CFR 655.20(j)(1)(i)) establish that the minimum daily travel subsistence expense for meals, for which a worker is entitled to reimbursement, must be at
The Department bases the maximum meals component of the daily travel subsistence expense on the standard minimum Continental United States (CONUS) per diem rate as established by the General Services Administration (GSA). The CONUS minimum meals component, reported as Meals and Incidental Expenses, remains $51.00 per day for 2017.
The term “subsistence” includes both meals and lodging during travel to and from the worksite. Therefore, an H-2A employer is responsible for providing (either paying in advance or reimbursing a worker) the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and upon the worker completing the contract or being dismissed without cause, return costs. Similarly, an H-2B employer is responsible for providing (either paying in advance or reimbursing a worker) the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the job order period of employment, and upon the worker completing the job order period of employment or being dismissed early, return costs. In those instances where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well.
Employers are required to assume responsibility for the reasonable costs associated with the worker's travel, including transportation, food, and, in those instances where it is necessary, lodging. The minimum and maximum daily travel meal reimbursement amounts are established above. If transportation and lodging are not provided by the employer, the amount an employer must pay for transportation and, where required, lodging, must be no less than (and is not required to be more than) the most economical and reasonable costs. The employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours, and if the worker completes the contract or is dismissed as described above, return transportation and subsistence costs, including lodging costs where necessary. This policy applies equally to instances where the worker is traveling within the U.S. to the employer's worksite.
For further information on when the employer is responsible for lodging costs, please see the Department's H-2A Frequently Asked Questions on Travel and Daily Subsistence, which may found on the OFLC Web site:
Veterans' Employment and Training Service (VETS), Department of Labor.
Notice of open meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the ACVETEO. The ACVETEO will discuss the DOL core programs and services that assist veterans seeking employment and raise employer awareness as to the advantages of hiring veterans. There will be an opportunity for individuals or organizations to address the committee. Any individual or organization that wishes to do so should contact Mr. Gregory Green at 202-693-4734.
Individuals who will need accommodations for a disability in order to attend the meeting (
Wednesday, May 3, 2017 beginning at 9:30 a.m. and ending at approximately 4:00 p.m. (EST).
The meeting will take place at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW., Washington, DC 20210, Conference Room N3437 A, B, C and D. Members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
Mr. Gregory Green, Assistant Designated Federal Official for the ACVETEO, (202) 693-4734.
The ACVETEO is a Congressionally mandated advisory committee authorized under Title 38, U.S. Code, Section 4110 and subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended. The ACVETEO is responsible for: assessing employment and training needs of veterans; determining the extent to which the programs and activities of the U.S. Department of Labor meet these needs; assisting to conduct outreach to employers seeking to hire veterans; making recommendations to the Secretary, through the Assistant Secretary for VETS, with respect to outreach activities and employment and training needs of Veterans; and carrying out such other activities necessary to make required reports and recommendations. The ACVETEO meets at least quarterly.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event being attended: The meeting event is the Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO).
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk.
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro's Judiciary Square station is the easiest way to access the Frances Perkins Building.
Division of Longshore and Harbor Workers' Compensation, Office of Workers' Compensation Programs, Department of Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the paperwork Reduction Act of 1995 (PRA95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation (OWCP) is soliciting comments concerning the proposed collection: Request for Examination and/or Treatment (LS-1). A copy of the proposed information collection request can be obtained by contacting the office listed below in the address section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before June 12, 2017.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3323, Washington, DC 20210, telephone/fax (202) 354-9647, Email
I.
Under section 7 (33 U.S.C., Chapter 18, Section 907) of the Longshore Act the employer/insurance carrier is responsible for furnishing medical care for the injured employee for such period of time as the injury or recovery period may require. Form LS-1 serves two purposes: It authorizes the medical care, and it provides a vehicle for the treating physician to report the findings, treatment given, and anticipated physical condition of the employee. This information collection is currently approved for use through August 31, 2017.
II.
• 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,
III.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
9:00 a.m. to 3:15 p.m., Wednesday, April 26, 2017.
The offices of the Morris K. Udall and Stewart L. Udall Foundation, 130 South Scott Avenue, Tucson, AZ 85701.
This meeting of the Board of Trustees will be open to the public.
(1) Call to Order & Chair's Remarks; (2) Executive Director's Remarks; (3) Election of Officers of the Board and Executive Committee; (4) Consent Agenda Approval (Minutes of the October 27, 2016, and February 9, 2017, Board of Trustees Meetings; Board Reports submitted for Education Programs, Finance and Management, Udall Center for Studies in Public Policy-Native Nations Institute-Udall Archives & their Revised Workplan, and U.S. Institute for Environmental Conflict Resolution; resolution regarding Revised Allocation of Funds to the Udall Center for Studies in Public Policy; and Board takes notice of any new and updated Personnel Policies); (5) 2018-2022 Strategic Planning Session; (6) U.S. Institute for Environmental Conflict Resolution presentation; (7) Ethics Training; and (8) Financial and Internal Controls Update.
Philip J. Lemanski, Executive Director, 130 South Scott Avenue, Tucson, AZ 85701, (520) 901-8500.
1:00 p.m., Tuesday, April 18, 2017.
NeighborWorks America—Gramlich Boardroom, 999 North Capitol Street NE., Washington, DC 20002.
Open (with the exception of Executive Sessions).
Jeffrey Bryson, EVP & General Counsel/Secretary, (202) 760-4101;
The General Counsel of the Corporation has certified that in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552 (b)(2) and (4) permit closure of the following portion(s) of this meeting:
Nuclear Regulatory Commission.
License amendment application; withdrawal by applicant.
The U.S. Nuclear Regulatory Commission (NRC) has granted the request of Duke Energy Carolinas, LLC to withdraw its application dated May 26, 2016, for a proposed amendment to Facility Operating License Nos. NPF-35 and NPF-52. The proposed amendment would have revised the Updated Final Safety Analysis Report (UFSAR) to add descriptions to several sections of the UFSAR to clarify how a shutdown unit supplying either it's normal or emergency power source may be credited for operability of shared components supporting the operating unit.
April 13, 2017.
Please refer to Docket ID NRC-2017-0097 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Michael Mahoney, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone 301-415-3857, email:
The NRC has granted the request of Duke Energy Carolinas, LLC (the licensee) to withdraw its May 26, 2016, application (ADAMS Accession No. ML16147A105) for proposed amendment to Facility Operating License No. NPF-35 and NPF-52 for the Catawba Nuclear Station, Units 1 and 2, located in York County, South Carolina.
The proposed amendment would have revised the Updated Final Safety Analysis Report (UFSAR) to add descriptions to several sections of the UFSAR to clarify how a shutdown unit supplying either it's normal or emergency power source may be credited for operability of shared components supporting the operating unit.
The licensee's application was previously noticed in the
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Intent to prepare environmental impact statement and conduct scoping process; public meeting and request for comment.
The U.S. Nuclear Regulatory Commission (NRC) received an application from the Tennessee Valley Authority (TVA), for an early site permit (ESP) for the Clinch River Nuclear (CRN) Site, located in Roane County, Tennessee, along the Clinch River, approximately 25 miles west-southwest of downtown Knoxville, Tennessee. The purposes of this notice are to inform the public that the NRC staff will be preparing an environmental impact statement (EIS) as part of the review of the application for the ESP and to provide the public with an opportunity to participate in the environmental scoping process as defined in the regulations.
Submit comments by June 12, 2017. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date. The public scoping meetings will be held on May 15, 2017.
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on accessing information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Patricia Vokoun, telephone: 1-800-368-5642, extension 3470, email:
Please refer to Docket ID NRC-2016-0119 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
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Please include Docket ID NRC-2016-0119 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions received through the Federal Rulemaking Web site (
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Pursuant to part 52 of title 10 of the
A notice of receipt and availability of the application, including the environmental report (ER), was published in the
The purposes of this notice are to inform the public that the NRC staff will be preparing an environmental impact statement as part of the review of the application for the ESP and to provide the public with an opportunity to participate in the environmental scoping process as defined in 10 CFR 51.29.
In addition, as outlined in 36 CFR 800.8(c), “Coordination with the National Environmental Policy Act,” the NRC staff plans to coordinate compliance with Section 106 of the National Historic Preservation Act (NHPA) with steps taken to meet the requirements of the National Environmental Policy Act of 1969, as amended (NEPA). Pursuant to 36 CFR 800.8(c), the NRC staff intends to use the process and documentation for the preparation of the EIS on the proposed action to comply with Section 106 of the NHPA in lieu of the procedures set forth on 36 CFR 800.3 through 800.6.
In accordance with 10 CFR 51.45 and 51.50, TVA submitted the environmental ER as part of the application; the ER is available in ADAMS under Accession No. ML16144A145. The application may also be viewed on the NRC's public Web site at
This notice advises the public that the NRC intends to gather the information necessary to prepare an EIS as part of the review of the application for the ESP at the CRN Site. Possible alternatives to the proposed action (issuance of the ESP for the CRN Site) include no action and alternate sites. As set forth in 10 CFR 51.20(b)(1), issuance of an ESP under 10 CFR part 52 is an action that requires an EIS. This notice is being published in accordance with NEPA and the NRC's regulations in 10 CFR part 51.
The NRC will first conduct a scoping process for the EIS and, as soon as practicable thereafter, will prepare a draft EIS for public comment. Participation in this scoping process by members of the public and local, State, Tribal, and Federal Government agencies is encouraged. The scoping process for the draft EIS will be used to accomplish the following:
a. Define the proposed action that is to be the subject of the EIS;
b. Determine the scope of the EIS and identify the significant issues to be analyzed in depth;
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant;
d. Identify any environmental assessments and other EISs that are being or will be prepared that are related to but are not part of the scope of the EIS being considered;
e. Identify other ER and consultation requirements related to the proposed action;
f. Identify parties consulting with the NRC under the NHPA, as set forth in 36 CFR 800.8(c)(1)(i);
g. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule;
h. Identify any cooperating agencies and, as appropriate, allocate assignments for preparation and schedules for completing the EIS to the NRC and any cooperating agencies; and
i. Describe how the EIS will be prepared, including any contractor assistance to be used.
The NRC invites the following entities to participate in the scoping process:
a. The applicant, TVA;
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved or that is authorized to develop and enforce relevant environmental standards;
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards;
d. Any affected Indian Tribe;
e. Any person who requests or has requested an opportunity to participate in the scoping process; and
f. Any person who intends to petition for leave to intervene in the proceeding, or who has submitted such a petition, who is admitted as a party.
The following table indicates how the key reference documents related to the application and the NRC staff's review processes may be accessed.
The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at
In accordance with 10 CFR 51.26, the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC will hold two identical public scoping meetings for the EIS regarding the TVA ESP application.
The scoping meetings will be held at Pollard Technology Conference Center Auditorium, 210 Badger Avenue, Oak Ridge, Tennessee on May 15, 2017. The meeting will convene at 2:00 p.m. and will continue until approximately 4:00 p.m. The second meeting will convene at 7:00 p.m., with a repetition of the overview portions of the first meeting, and will continue until approximately 9:00 p.m. The meetings will be transcribed and will include the following:
(1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the EIS, and the proposed review schedule; and
(2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the EIS. Additionally, the NRC staff will host informal discussions for 1 hour prior to the start of each public meeting. No formal comments on the proposed scope of the EIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meeting or in writing, as discussed below.
Persons may register to attend or present oral comments at the meeting on the scope of the NEPA review by contacting Ms. Patricia Vokoun by telephone at 1-800-368-5642, extension 3470, or by email to the NRC at
At the conclusion of the scoping process, the NRC staff will prepare a concise summary of the determination and conclusions reached on the scope of the environmental review including the significant issues identified, and will send this summary to each participant in the scoping process for whom the staff has an address and will make this summary publicly available. The NRC staff will then prepare and issue for comment the draft EIS, which will be the subject of a separate
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) in support of the NRC's consideration of issuance of a new 2017 order that would supersede an order previously issued to Waste Control Specialists LLC (WCS) on December 3, 2014 (2014 Order). The 2014 Order contained conditions and criteria that allowed WCS to be exempt from the NRC's regulations concerning special nuclear material (SNM).
The EA and FONSI are available as of April 13, 2017.
Please refer to Docket ID NRC-2017-0098 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document using any of the following methods:
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James Park, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-6954; email:
The current action is in response to WCS's December 4, 2014, request for an exemption from NRC regulations to transfer aboveground, under specified conditions, wastes containing SNM in excess of the critical mass limits specified in section 150.11 of title 10 of the
The WCS operates a facility in Andrews County, Texas, (WCS site) that is currently licensed by Texas to receive, possess, use, store, dispose and transfer certain types of radioactive material contained in Low-Level Waste (LLW) and Mixed Waste (MW) (
On November 30, 1997, the State of Texas Department of Health (TDH) issued WCS a radioactive materials license (RML) to possess, treat, and store LLW (RML R04971). In 1997, WCS began accepting Resource Conservation and Recovery Act and Toxic Substance Control Act wastes for treatment, storage, and disposal. Later that year, WCS received a license from the TDH for treatment and storage of MW and LLW. The MW and LLW streams may contain quantities of SNM. In 2007, regulatory responsibility for RML R04971 was transferred by TDH to the Texas Commission on Environmental Quality (TCEQ). In September 2009, the TCEQ issued RML R04100 to WCS for disposal of LLW.
Section 70.3 of 10 CFR part 70 requires persons who own, acquire, deliver, receive, possess, use, or transfer SNM to obtain a license pursuant to the requirements of 10 CFR part 70, “Domestic Licensing of Special Nuclear Material.” The licensing requirements in 10 CFR part 70 apply to persons in Agreement States possessing greater than critical mass quantities, as defined in 10 CFR 150.11, “Critical Mass.” However, the Commission may grant exemptions from the requirements of specific regulations pursuant to 10 CFR 70.17(a), if the Commission determines the exemptions are “authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.”
In September 2000, WCS submitted to the NRC an exemption request from the licensing requirements in 10 CFR part 70. On November 21, 2001, the NRC issued an Order to WCS (2001 Order) granting an exemption to WCS from certain NRC regulations and permitted WCS, under specified conditions, to possess waste containing SNM in greater quantities than specified in 10 CFR part 150, “Exemptions and Continued Regulatory Authority in Agreement States and in Offshore Waters under Section 274,” at the WCS Site without obtaining an NRC license pursuant to 10 CFR part 70. The NRC published the 2001 Order in the
By letters dated August 6, 2003, and March 14, 2004, WCS requested a modification to the 2001 Order to allow it to use additional reagents for chemical stabilization of mixed waste containing SNM. The NRC issued the new Order on November 4, 2004 (2004 Order), which superseded the 2001 Order. The NRC published the 2004 Order in the FR on November 12, 2004 (69 FR 65468). The October 2004 EA (ADAMS Accession No. ML043020614) and October 2004 SER (ADAMS Accession No. ML042250362) discussed the new conditions specified in the 2004 Order. The 2004 Order allowed WCS to use such chemical reagents as it deems necessary for treatment and stabilization of mixed waste containing SNM, provided that the SNM mass does not exceed specified concentration limits.
By letter dated December 10, 2007, WCS requested modifications to the 2004 Order. The NRC issued the new Order to WCS on October 29, 2009 (2009 Order), which superseded the 2004 Order. The NRC published the 2009 Order in the FR on October 26, 2009 (74 FR 55072). The October 2009 EA (ADAMS Accession No. ML092460509) and October 2009 SER (ADAMS Accession No. ML093070307) discussed the new conditions specified in the 2009 Order. The 2009 Order changed the 2004 Order Conditions regarding sampling of waste, what is allowed to be in the waste, and the amount of highly water soluble SNM in each waste package.
In July 2013, the TCEQ began to merge the license requirements in RML R04971 (for the radioactive waste treatment, storage, and processing facility) with the requirements in RML R04100 (for the LLW land disposal facility). In Amendment No. 22 of RML R04100, the TCEQ license requirements related to the 2009 Order in RML R04971 for the WCS treatment, storage, and processing facility were transferred to RML R04100. Previous NRC Orders referred to that location as the treatment, storage, and processing facility. Subsequently, WCS began referring to that location as the “Treatment, Storage and Disposal Facility.” The NRC will use the name “Treatment, Storage, and Disposal Facility” and the abbreviation TSDF to reference that location at the WCS Site in this EA.
By letter dated July 18, 2014, WCS requested modifications to the 2009 Order to allow movement to and temporary storage of some of the Los Alamos National Laboratory (LANL) Waste at the WCS Federal Waste Disposal Facility (FWF) rather than at the TSDF. The LANL Waste is U.S. Department of Energy (DOE) waste that originated at the LANL that is destined for disposal at the DOE Waste Isolation Pilot Plant (WIPP) Facility. Due to the February 14, 2014, WIPP incident, the DOE suspended operations at the WIPP Facility. In April 2014, WCS began receiving some LANL Waste from DOE that met the conditions in the 2009 Order and WCS began storing the waste at the TSDF. The NRC issued the 2014 Order to WCS on December 11, 2014, which superseded the 2009 Order. The NRC published the 2014 Order in the FR on December 11, 2014 (79 FR 73647), allowing temporary storage of some of the LANL Waste at the WCS FWF. The October 2014 EA (ADAMS Accession No. ML14238A208) and November 2014 SER (ADAMS Accession No. ML14230A804) discussed the new conditions specified in the 2014 Order.
The previous NRC Orders (2001, 2004, 2009, and 2014) addressed the issue that 10 CFR 70.3 requires persons who own, acquire, deliver, receive, possess, use, or transfer SNM to obtain an NRC license pursuant to the requirements in 10 CFR part 70. However, 10 CFR 150.10 exempts a person in an Agreement State who possesses SNM in quantities not sufficient to form a critical mass from the NRC's imposed licensing requirements and regulations. The method for calculating the quantity of SNM not sufficient to form a critical mass is set out in 10 CFR 150.11. Therefore, prior to the 2001 Order, WCS was required to comply with NRC regulatory requirements and obtain an NRC specific license to possess SNM in quantities greater than amounts established in 10 CFR 150.11. The 2001 WCS exemption request to NRC proposed to use concentration-based limits rather than mass-based limits at a specific location at the WCS Site. The 2001 Order granted, and the subsequent
By letter dated December 4, 2014 (ADAMS Accession No. ML14342A773), WCS requested an exemption from NRC regulations to possess SNM in excess of the critical mass limits specified in 10 CFR 150.11 while performing specific transfers aboveground at the WCS Site, without first obtaining a 10 CFR part 70 license. Through subsequent public interactions between the NRC and WCS, the WCS request was revised to allow transfer of waste from off-site the WCS Site directly to either the Compact Waste Facility (CWF) or the FWF, only for disposal (Direct Transfer), without the waste being applied towards the aboveground SNM possession limit for the WCS Site. Pursuant to the NRC proposed conditions in the 2017 Order: (1) WCS would continue to possess waste when it enters the WCS-owned rail spur (for rail shipments) or when it enters the WCS Site (for truck shipments); (2) for Direct Transfers, waste would not apply towards the aboveground SNM possession limit until it is removed from the rail car (for rail shipments) or removed from the truck (for truck shipments); and (3) for Direct Transfers, waste would not be processed, treated, or stored at the WCS Site. The NRC used the concept of Criticality Safety Index (CSI) as the safety basis to support the NRC proposed conditions in the 2017 Order. All aboveground waste containing SNM possessed by WCS would apply towards the aboveground SNM possession limit, except waste meeting the Direct Transfer proposed conditions in the 2017 Order.
The NRC staff evaluated the three types of Direct Transfers:
• Off-site containerized waste that arrives by truck and sent directly to the CWF only for disposal;
• Off-site containerized waste that arrives by truck and sent directly to the FWF only for disposal; and
• Off-site bulk waste that arrives by truck and sent directly to the FWF only for disposal.
The following factors informed the NRC's evaluation of the proposed action:
• The concept of CSI is discussed in 10 CFR part 71, “Packaging and Transport of Radioactive Material.” The provisions in 10 CFR part 71 regulate the packaging, preparation for shipment, and transportation of radioactive material on public roadways.
•
•
•
• Use of the CSI of 50 from 10 CFR part 71 for the safe transportation of radioactive material on public roads provides adequate safety for direct transfers at the WCS Site.
• The definition of “conveyance” in 10 CFR 71.4 includes: “For transport by public highway or rail any transport vehicle or freight container . . . .”
• A transportation package is a container placed on or in a conveyance. A transportation package can contain one or more waste packages.
• A waste package is a container with waste that was placed inside a transportation package.
• For this modified request, the concept of CSI only applies to transportation packages.
• The SNM contained in either a transportation package or a waste package that meets the NRC proposed conditions in the 2017 Order do not apply towards the aboveground SNM possession limit at the WCS Site. Otherwise, that SNM does apply towards the aboveground SNM possession limit at the WCS Site.
• When waste is removed from a railcar at the WCS Site, the SNM contained in that waste does apply towards the aboveground SNM possession limit at the WCS Site.
Under the modified request, the Direct Transfers would only occur on appropriately dedicated secure access roads, with conveyances travelling to either the CWF or the FWF under the 25 miles per hour speed limit. Additionally, Direct Transfers would be escorted by at least two radiation safety technicians and two waste acceptance personnel, with entrances to the access roads blocked for a distance of 50 yards from a Direct Transfer.
At any one time, WCS may have one conveyance containing one or more transportation packages with waste traveling to the CWF and one conveyance containing one or more transportation packages with waste traveling to the FWF. There would be no limit to the number of empty conveyances (
The need expressed by WCS in its initial December 4, 2014, request for the proposed action is to reduce the number of onsite transfers required to process rail and truck shipments of wastes containing SNM. The WCS considers that approval of this proposed action would result in a safer (less handling), more secure (less time above ground), and more efficient (less cost) handling of SNM waste shipments.
The purpose of this EA is to assess the potential environmental impacts of the WCS December 2014 exemption request as modified through subsequent public interactions with the NRC. This EA does not approve or deny the requested action. A separate SER has been prepared in support of approval or denial of the requested action.
The NRC does not expect that significant changes in radiation hazards to workers would result from the proposed action. In performing the Direct Transfers, WCS would follow its State of Texas-approved radiation protection procedures (
To reduce the potential for inadvertent criticality, WCS would: (1) Be limited in the number of transportation packages transferred on a single conveyance to the CWF or the FWF using the total CSI of less than 50; (2) be required to have a maximum of only one transportation package open in the CWF and the FWF at the same time; and (3) be required to safely dispose of the waste in the CWF or the FWF within 24 hours.
The NRC staff does not expect the proposed action to result in substantive changes to the transportation impacts identified in prior EAs. The modified exemption request addresses only changes to onsite movement of SNM-bearing wastes. Direct Transfers to the CWF or the FWF would take place within an area under control by WCS, on pre-existing dedicated secure access roads, and with administrative controls (speed limits and enforced road blockages during Direct Transfers) intended to reduce the potential for, the severity of, and the potential consequences of accidents. Additionally, all Direct Transfers to the CWF and to the FWF would be escorted by radiation safety technicians and waste acceptance personnel. All other environmental impacts would be the same as those evaluated in the EAs that supported the previous versions of the NRC Order.
If WCS' modified exemption request is approved by the NRC staff, then the NRC would issue a new Order to supersede the 2014 Order, with new conditions added to address the modified exemption request. The WCS would continue to be permitted to possess SNM at the TSDF that meets the concentration limits and controls without an NRC part 70 license. The WCS would continue to be permitted to possess at the TSDF, highly water soluble forms of SNM limited to amounts of SNM less than “special nuclear material of low strategic significance,” as defined in 10 CFR 70.4.
The State of Texas regulates effluent releases and potential doses to the public under the WCS license. The State of Texas would continue to regulate the SNM at the WCS facility subject to the Order, as long as WCS complies with the NRC Order.
As an alternative to the proposed action, the NRC staff considered denial of the WCS' modified exemption request. This would result in the NRC not issuing a new order that would supersede the 2014 Order (
On December 21, 2016, the staff consulted with the TCEQ, providing by email a copy of the draft EA for review and comment (ADAMS Accession No. ML17026A356). In an email dated January 12, 2017, the TCEQ stated that it had no comments of the draft EA (ADAMS Accession No. ML17026A360).
The proposed action does not involve the development or disturbance of additional land. Hence, the NRC has determined that the proposed action will not affect listed endangered or threatened species or their critical habitat. Therefore, no further consultation is required under Section 7 of the Endangered Species Act. Likewise, the NRC staff has determined that the proposed action does not have the potential to cause effects on historic properties even if they were present. Direct Transfers would take place on dedicated secure access roads within the WCS site, and no ground disturbing activities are associated with the proposed action. Therefore, no consultation is required under Section 106 of the National Historic Preservation Act.
The NRC has reviewed WCS' December 4, 2014, request, as revised through subsequent public interactions between the NRC and WCS, to amend the 2014 Order. The NRC has found that effluent releases and potential radiological doses to the public are not anticipated to change as a result of this proposed action and that occupational exposures are expected to remain within regulatory limits and ALARA. On the basis of the environmental assessment, the NRC finds that the proposed action has no significant impact on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For the U.S. Nuclear Regulatory Commission.
Office of Personnel Management.
60-Day Notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension, without change, of a currently approved information collection request (ICR), Designation of Beneficiary (FERS), SF 3102.
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Retirement Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0173): The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Standard Form 3102 is used by an employee or an annuitant covered under the Federal Employees Retirement System to designate a beneficiary to receive any lump sum due in the event of his/her death.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension without change, of a currently approved information collection request (ICR), Representative Payee Application, RI 20-7 and Information Necessary for a Competency Determination, RI 30-3.
Comments are encouraged and will be accepted until June 12, 2017. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB 3206-0140). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of OPM, including whether the information will have practical utility;
2. Evaluate the accuracy of OPM's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Form RI 20-7 is used by the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) to collect information from persons applying to be fiduciaries for annuitants or survivor annuitants who appear to be incapable of handling their own funds or for minor children. RI 30-3 collects medical information regarding the annuitant's competency for OPM's use in evaluating the annuitant's condition.
Office of Personnel Management.
Notice.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension without change of a currently approved information collection (ICR), Application to Make Deposit or Redeposit (CSRS) Standard Form (SF) 2808 and Application to Make Service
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to U.S. Office of Personnel Management, Retirement Services, 1900 E Street NW., Room 2347-E, Washington, DC 20415, Attention: Alberta Butler or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995 (Pub. Law 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0134). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Standard Form (SF) 2803, Application to Make Deposit or Redeposit (CSRS) and SF 3108, Application to Make Service Credit Payment for Civilian Service (FERS), are applications to make payment used by persons who are eligible to pay for Federal service which was not subject to retirement deductions and/or for Federal service which was not subject to retirement deductions which were subsequently refunded to the applicant.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on an extension without change of a currently approved information collection (ICR), Reinstatement of Disability Annuity Previously Terminated Because of Restoration to Earning Capacity, RI 30-9.
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0138). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Form RI 30-9, Reinstatement of Disability Annuity Previously Terminated Because of Restoration to Earning Capacity informs disability annuitants of their right to request restoration under title 5, U.S.C. 8337 and 8455. It also specifies the conditions to be met and the documentation required for a person to request reinstatement.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension without change, of a currently approved information collection request (ICR), CSRS/FERS Documentation in Support of Disability Retirement Application, SF 3112.
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0228).
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Standard Form 3112, CSRS/FERS Documentation in Support of Disability Retirement Application collects information from applicants for disability retirement so that OPM can determine whether to approve a disability retirement under title 5, U.S.C. Sections 8337 and 8455. The applicant will only complete Standard Forms 3112A and 3112C. Standard Forms 3112B, 3112D and 3112E will be completed by the immediate supervisor and the employing agency of the applicant.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension, without change, of a currently approved information collection (ICR), Notification of Application for Refund of Retirement Deductions, SF 3106 and SF 3106A.
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0170). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Standard Form 3106, Application for Refund of Retirement Deductions under FERS is used by former Federal employees under FERS, to apply for a refund of retirement deductions withheld during Federal employment, plus any interest provided by law. Standard Form 3106A, Current/Former Spouse(s) Notification of Application for Refund of Retirement Deductions Under FERS, is used by refund applicants to notify their current/former spouse(s) that they are applying for a
Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from December 1, 2016 to December 31, 2016.
Senior Executive Resources Services, Senior Executive Service and Performance Management, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No schedule A authorities to report during December 2016.
No schedule B authorities to report during December 2016.
The following Schedule C appointing authorities were approved during December 2016.
The following Schedule C appointing authorities were revoked during December 2016.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
Office of Personnel Management.
Notice.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension, without change of a currently approved information collection request (ICR), Designation of Beneficiary: Civil Service Retirement System (CSRS), SF 2808.
Comments are encouraged and will be accepted until May 15, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The information collection (OMB No. 3206-0142) was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Standard Form 2808 is used by persons covered by CSRS to designate a beneficiary to receive the lump sum payment due from the Civil Service Retirement and Disability Fund in the event of their death.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension, without change, of a currently approved information collection request (ICR), Annuity Supplement Earnings Report, RI 92-22.
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent by email to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, U.S. Office of Personnel Management, 1900 E Street NW., Room 3316-L Washington, DC 20415, Attention: Cyrus S. Benson or sent by email to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. RI92-22). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of OPM, including whether the information will have practical utility;
2. Evaluate the accuracy of OPM's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Form RI 92-22, Annuity Supplement Earnings Report, is used each year to obtain the earned income of Federal Employees Retirement System (FERS) annuitants receiving an annuity supplement. The annuity supplement is paid to eligible FERS annuitants who are not retired on disability and are not yet age 62. The supplement approximates the portion of a full career Social Security benefit earned while under FERS and ends at age 62. Like Social Security benefits, the annuity supplement is subject to an earnings limitation.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension, without change of a currently approved information collection (ICR), Application For Refund of Retirement Deductions, Civil Service Retirement System, SF 2802 and Current/Former Spouse's Notification of Application for Refund of Retirement Deductions Under the Civil Service Retirement System, SF 2802A.
Comments are encouraged and will be accepted until June 12, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the U.S. Office of Personnel Management 1900 E Street NW., Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, U.S. Office of Personnel Management, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0128). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Standard Form 2802 is used to support the payment of monies from the Retirement Fund. It identifies the applicant for refund of retirement deductions. Standard Form 2802A is used to comply with the legal requirement that any spouse or former spouse of the applicant has been notified that the former employee is applying for a refund.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. 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
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This notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. 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.
1.
This notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 6, 2017, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 6, 2017, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 6, 2017, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 6, 2017, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List to provide that the monthly DMM credit for certain securities will be prorated to the number of trading days in a month that a security is assigned to a DMM. The Exchange proposes to implement this change to its Price List effective March 29, 2017. The proposed change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Price List to provide that the monthly DMM credit for certain securities will be prorated to the number of trading days in a month that a security is assigned to a DMM. The proposed change is the same as that adopted by the Exchange's affiliate New York Stock Exchange LLC for its DMMs.
The proposed changes would apply to both credits in transactions in securities priced $1.00 or more and those priced below $1.00.
The Exchange proposes to implement this change to its Price List effective March 29, 2017.
Currently, DMMs are eligible for a monthly credit of $100 for each security whose consolidated average daily volume or CADV during the current month is less than 50,000 shares per day and for which the DMM has met its 10% quoting requirement in that month. The flat dollar credit supplements the DMM credit in securities that do not trade actively and is applicable to all Exchange-listed securities regardless of price.
The Exchange proposes to revise its Price List to provide that the rebate would be prorated to the number of trading days in a month that a stock is assigned to a DMM. The Exchange believes prorating the rebate to the number of trading days that a stock is assigned to a DMM would [sic] to ensure that the monthly rebate has a nexus to the time for which a DMM has affirmative obligations for that stock pursuant to Rule 104—Equities. For example, if a stock is assigned to more than one DMM unit within a month, such as when a stock is transferred temporarily from one DMM to another and then returned to the original DMM, the Exchange does not believe that it is appropriate that both DMMs that were assigned that stock in a given month should both be eligible for the full monthly rebate.
Similarly, if a stock begins trading at the Exchange mid-month, because of an initial public offering or transfer of a listed security from another exchange, the Exchange does not believe it is appropriate for a DMM to receive a full monthly credit. For example, in a month with 20 trading days, assume a less active security transfers from DMM 1 to DMM 2 after the 15th trading day. The DMM monthly rebate would be prorated for the two DMM firms as follows: DMM 1 would be rebated $75 (15 assigned trading days/20 trading days in the month × $100) and DMM 2 would be rebated $25 (5 assigned trading days/20 trading days in the month × $100).
The Exchange believes that prorating the rebate for the number of trading days in a month that a stock is assigned to a DMM is appropriate and would ensure that the DMM with responsibility for the stock receives the appropriate rebate for the responsibilities performed for that symbol in the month.
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed prorating of the DMM monthly rebate is reasonable because it would provide a nexus between the rebate paid to a DMM and the number of days that a DMM has been assigned a stock. The Exchange therefore believes that the proposed prorating of the monthly DMM rebate is equitable and not unfairly discriminatory because it directly ties the monthly rebate to the number of trading days for which a DMM has regulatory responsibility for a stock pursuant to Rule 104—Equities. The Exchange also believes that the proposed prorating is equitable and not unfairly discriminatory because all DMMs would be treated the same.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing 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 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 and rebates 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 and credits 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. As a result of all of these considerations, the Exchange does not believe that the proposed changes will impair the ability of member organizations or competing order execution venues to maintain their competitive standing in the financial markets.
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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
This Advance Notice consists of proposed modifications to DTC's Rules, By-Laws and Organization Certificate (“Rules”).
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the Advance Notice and discussed any comments it received on the Advance Notice. 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 and B below, of the most significant aspects of such statements.
Written comments relating to this proposal have not been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The proposed rule change would amend Rules 1 and 2 in order to (i) address and update DTC's practices and policies with respect to the CRRM and (ii) provide more transparency and clarity regarding DTC's current membership monitoring process. In this regard, the proposed rule change would (i) add proposed definitions for the terms “Credit Risk Rating Matrix” and “Watch List” to Rule 1 (Definitions), as discussed below and (ii) amend Rule 2 (Participants and Pledgees) to (A) clarify a provision in Section 1 relating to the types of information a Participant must provide to DTC upon DTC's request for the Participant to demonstrate its
DTC occupies an important role in the securities settlement system by, among other things, providing services for the settlement of book-entry transfer and pledge of interests in eligible deposited securities and net funds settlement, in connection with which Participants may incur net funds settlement obligations to DTC. DTC uses the CRRM, the Watch List and the enhanced surveillance to manage and monitor default risks of Participants on an ongoing basis, as discussed below. The level and frequency of such monitoring for a Participant is determined by the Participant's risk of default as assessed by DTC. Participants that are deemed by DTC to pose a heightened risk to DTC and its Participants are subject to closer and more frequent monitoring.
Pursuant to the 2006 Rule Change, all Participants that are either U.S. broker-dealers or U.S. banks are assigned a rating generated solely based on quantitative factors by entering financial data of those Participants into an internally generated credit rating matrix,
The 2006 Rule Change explained that credit risk staff could downgrade a particular Participant's credit rating based on various qualitative factors. An example of such qualitative factors might be that the Participant in question received a qualified audit opinion on its annual audit. DTC noted in the 2006 Rule Change that in order to protect DTC and its other Participants, it was important that credit risk staff maintain the discretion to downgrade a Participant's credit rating on the CRRM and thus subject the Participant to closer monitoring.
The current CRRM is comprised of two credit rating models—one for the U.S. broker-dealers and one for the U.S. banks—and generates credit ratings for the relevant Participants based on a 7-point rating system, with “1” being the strongest credit rating and “7” being the weakest credit rating.
Over time, the current CRRM has not kept pace with DTC's evolving Participant membership base and heightened expectations from regulators and stakeholders for robustness of financial models. Specifically, the current CRRM only generates credit ratings for those Participants that are U.S. banks or U.S. broker-dealers that file standard reports with their regulators, which currently comprise 80% of Participants; foreign banks and trust companies currently account for 5% of Participants.
As mentioned above, a Participant's credit rating is currently based solely upon quantitative factors. It is only after the CRRM has generated a credit rating with respect to a Participant that such Participant's credit rating may be downgraded manually by credit risk staff, after taking into consideration relevant qualitative factors. The inability of the current CRRM to take into account qualitative factors requires frequent and manual overrides by credit risk staff, which may result in inconsistent and/or incomplete credit ratings for Participants.
Furthermore, the current CRRM uses a relative scoring approach and relies on peer grouping of Participants to calculate the credit rating of a Participant. This approach is not ideal because a Participant's credit rating can be affected by changes in its peer group even if the Participant's financial condition is unchanged.
To improve the coverage and the effectiveness of the current CRRM, DTC is proposing three enhancements to the CRRM. The first proposed enhancement would expand the scope of CRRM coverage by enabling the CRRM to generate credit ratings for Participants that are foreign banks or trust companies and that have audited financial data that is publicly available. The second proposed enhancement would incorporate qualitative factors into the CRRM and therefore is expected to reduce the need and the frequency of manual overrides of Participant credit ratings. The third enhancement would replace the relative scoring approach currently used by CRRM with a statistical approach to estimate the absolute probability of default of each Participant.
The current CRRM is comprised of two credit rating models—one for the U.S. broker-dealers and one for the U.S. banks. DTC is proposing to enhance the CRRM by adding an additional credit
With the proposed enhancement to the CRRM as described above, applicable foreign bank or trust company Participants would be included in the CRRM process and be evaluated more effectively and efficiently because financial data with respect to these foreign bank or trust company Participants could be extracted from data sources in an automated form.
After the proposed enhancement, CRRM would be able to generate credit ratings on an ongoing basis for all Participants that are U.S. banks, U.S. brokers-dealers and foreign banks and trust companies, which together represent approximately 85% of Participants.
In addition, as proposed, the enhanced CRRM would blend both qualitative factors and quantitative factors to produce a credit rating for each applicable Participant in relation to the Participant's credit risk. For U.S. and foreign banks and trust companies, the enhanced CRRM would use a 70/30 weighted split between quantitative and qualitative factors to generate credit ratings. For U.S. broker-dealers, the weight split between quantitative and qualitative factors would be 60/40. These weight splits have been chosen by DTC based on the industry best practice as well as research and sensitivity analysis conducted by DTC. DTC would review and adjust the weight splits as well as the quantitative and qualitative factors, as needed, based on recalibration of the CRRM to be conducted by DTC approximately every three to five years.
Although there are advantages to measuring credit risk quantitatively, quantitative evaluation models alone are incapable of fully capturing all credit risks. Certain qualitative factors may indicate that a Participant is or will soon be undergoing financial distress, which may in turn signal a higher default exposure to DTC and its other Participants. As such, a key enhancement being proposed to the CRRM is the incorporation of relevant qualitative factors into each of the three credit rating models mentioned above. By including qualitative factors in the three credit rating models, the enhanced CRRM would capture risks that would otherwise not be accounted for with quantitative factors alone.
As proposed, the enhanced CRRM would use an absolute scoring approach and rank each Participant based on its individual probability of default rather than the relative scoring approach that is currently in use. This proposed change is designed to have a Participant's CRRM-generated credit rating reflect an absolute measure of the Participant's default risk and eliminate any potential distortion of a Participant's credit rating from the Participant's peer group that may occur under the relative scoring approach used in the existing CRRM.
In addition to the Watch List, DTC also maintains an enhanced surveillance list (referenced herein and in the proposed rule text as “enhanced surveillance”) for membership monitoring. The enhanced surveillance list is generally used when Participants are undergoing drastic and unexpected changes in their financial conditions or operation capabilities and thus are deemed by DTC to be of the highest risk level and/or warrant additional scrutiny due to DTC's ongoing concerns about these Participants. Accordingly, Participants that are subject to enhanced surveillance are reported to DTC's management committees and are also regularly reviewed by a cross-functional team comprised of senior management of DTC. More often than not, Participants that are subject to enhanced surveillance are also on the Watch List. The group of Participants that is subject to enhanced surveillance is generally much smaller than the group on the Watch List. The enhanced surveillance list is an internal tool for DTC that triggers increased monitoring of a Participant above the monitoring that occurs when a Participant is on the Watch List.
A Participant could be placed on the Watch List either based on its credit rating of 5, 6 or 7, which can either be generated by the CRRM or from a manual downgrade, or when DTC deems such placement as necessary to protect DTC and its Participants. In contrast, a Participant would be subject to enhanced surveillance only when close monitoring of the Participant is deemed necessary to protect DTC and its Participants.
The 2006 Rule Change, while setting forth the procedures DTC follows with regard to the CRRM and the Watch List, did not incorporate these procedures into the text of the Rules. Pursuant to the proposed rule change, DTC would amend the Rules to incorporate the CRRM with the enhancements proposed above, including (1) the use of both quantitative and qualitative factors in generating credit ratings for CRRM-Rated Participants, (2) the expansion of the scope of CRRM coverage to enable the CRRM to generate credit ratings for Participants that are (a) U.S. banks that file the Consolidated Report of
In this regard, the proposed rule change would (i) add proposed definitions for CRRM and Watch List to Rule 1 (Definitions) and (ii) amend Rule 2 (Participants and Pledgees) (A) Section 1 to clarify a provision relating to the types of information a Participant must provide to DTC upon DTC's request for the Participant to demonstrate its satisfactory financial condition and operational capability, including its risk management practices with respect to services of DTC utilized by the Participant for another Person or Persons and (B) to add a new Section 10 to include provisions relating to the monitoring, surveillance and review of Participants, including, but not limited to, the application of the CRRM and proposed enhancements to the CRRM, as further discussed below.
The proposed rule change would amend Rule 1 to add definitions for the CRRM and the Watch List.
The proposed definition of the CRRM would provide that the term “Credit Risk Rating Matrix” means a matrix of credit ratings of Participants as specified in the proposed new Section 10(a) of Rule 2. As proposed, the definition would state that the CRRM is developed by DTC to evaluate the credit risk such Participants pose to DTC and its Participants and is based on factors determined to be relevant by DTC from time to time, which factors are designed to collectively reflect the financial and operational condition of a Participant. The proposed definition would also state that these factors include (i) quantitative factors, such as capital, assets, earnings and liquidity and (ii) qualitative factors, such as management quality, market position/environment and capital and liquidity risk management.
The proposed definition of the Watch List would provide that the term “Watch List” means, at any time and from time to time, the list of Participants whose credit ratings derived from the CRRM are 5, 6 or 7, as well as Participants that, based on DTC's consideration of relevant factors, including those that would be set forth in the proposed new Section 10 of Rule 2 (described below), are deemed by DTC to pose a heightened risk to DTC and its Participants.
Section 1 of Rule 2 provides, among other things, that upon the request of DTC, a Participant shall furnish to DTC information sufficient to demonstrate its satisfactory financial condition and operational capability. The proposed rule change would, by way of example, clarify that the types of information that DTC may require in this regard include, but are not limited to, such information as DTC may request regarding the businesses and operations of the Participant and its risk management practices with respect to services of DTC utilized by the Participant for another Person.
The proposed rule change would add a new Section 10 of Rule 2 to include provisions relating to the monitoring, surveillance and review of Participants, including, but not limited to, the application of, and the proposed enhancements to, the CRRM. In this regard, the proposed new Section 10 of Rule 2 would provide that:
(1) All Participants would be monitored and reviewed by DTC on an ongoing and periodic basis, which may include monitoring of news and market developments and review of financial reports and other public information.
(2)(i) A Participant that is (A) qualified to be a Participant pursuant to (x) Rule 3, Section 1(d) and files the Call Report (
(ii) Because the factors used as part of the CRRM may not identify all risks that a CRRM-Rated Participant may present to DTC, DTC may, in its discretion, override the CRRM-Rated Participant's credit rating derived from the CRRM to downgrade that Participant. In this regard, the proposed rule change would provide that (A) such a downgrading may result in the Participant being placed on the Watch List, and/or it may subject the Participant to enhanced surveillance based on relevant factors, including those described in paragraph (4) below and (B) DTC may also take such additional actions with regard to the Participant as are permitted by the Rules and Procedures.
(3) Participants other than CRRM-Rated Participants would not be assigned a credit rating by the CRRM but may be placed on the Watch List and/or may be subject to enhanced surveillance based on relevant factors, including those described in paragraph (4) below, as DTC deems necessary to protect it and its Participants.
(4) The factors to be considered by DTC as proposed in paragraphs (2)(ii) and (3) above would include, but would not be not limited to, (i) news reports and/or regulatory observations that raise reasonable concerns relating to the Participant, (ii) reasonable concerns around the Participant's liquidity arrangements, (iii) material changes to the Participant's organizational structure, (iv) reasonable concerns of DTC about the Participant's financial stability due to particular facts and circumstances, such as material litigation or other legal and/or regulatory risks, (v) failure of the Participant to demonstrate satisfactory financial condition or operational capability or if DTC has a reasonable concern regarding the Participant's ability to maintain applicable participation standards and (vi) failure of the Participant to provide information required by DTC to assess risk exposure posed by the Participant's activity (including information requested by DTC pursuant to Section 1 of Rule 2).
(5) A Participant being subject to enhanced surveillance or being placed on the Watch List would result in more thorough monitoring of the Participant's financial condition and/or operational capability, which could include, for example, on-site visits or additional due
Pending Commission approval, DTC expects to implement this proposal promptly. Participants would be advised of the implementation date of this proposal through issuance of a DTC Important Notice.
The proposed rule changes would mitigate Participant credit risk posed to DTC from Participant activity by allowing DTC to more accurately monitor the creditworthiness and risk profile of its Participants. The enhanced CRRM would provide a more robust credit rating methodology by incorporating qualitative factors and adopting an absolute scoring approach. Both of these enhancements would improve DTC's ability to monitor the credit risk of its Participants and are expected to lessen the frequency of manual overrides. The enhanced CRRM would also expand the coverage Participants by providing credit ratings for Participants that are foreign banks or trust companies, which are not covered under the existing CRRM.
By mitigating credit risk to DTC as described above, the enhanced CRRM would also mitigate risk for Participants because lowering the risk profile for DTC would in turn lower the risk exposure that Participants may have with respect to DTC in its role as a securities settlement system.
The proposed rule changes are designed to mitigate credit risk for DTC from Participant activity and to provide greater clarity and transparency to DTC's Participants regarding the risk management approach used by DTC in this regard.
The enhanced CRRM would improve DTC's ability to monitor the probability of default for Participants that are rated by the CRRM and is expected to lessen the need and the frequency of manual downgrades due to the anticipated improvement in the accuracy of the credit ratings generated by the enhanced CRRM.
DTC employs a risk-based approach to conducting monitoring and review of its Participants by using the CRRM to identify higher risk Participants. Once identified, DTC would place these Participants on the Watch List, which would result in more frequent review by DTC of these Participants than the other Participants. For Participants that are placed on the Watch List, DTC would conduct more thorough monitoring of these Participants' financial condition and/or operational capability, which could include, for example, on-site visits or additional due diligence information requests.
The enhanced CRRM would also expand the coverage of Participants by providing credit ratings for foreign banks and trust companies, which are not currently rated under the existing CRRM. The addition of these entities would allow DTC to employ its risk-based approach to identify those higher risk Participants for additional monitoring with more efficiency (by reducing the need for manual overrides) and effectiveness (by generating a more comprehensive and accurate credit rating after taking into account both quantitative and qualitative factors and adopting the absolute scoring approach).
Thus, the enhanced CRRM would help DTC to identify those Participants that could present credit risk to DTC, which then would allow DTC to better manage the potential risks from these Participants.
The proposed enhancements to the CRRM as described in detail above would be consistent with Section 805(b) of the Clearing Supervision Act.
By enhancing the CRRM to enable it to assign credit ratings to Participants that are foreign banks or trust companies and that have audited financial data that is publicly available, the proposed rule change would expand the CRRM's applicability to a wider group of Participants, which would improve DTC's membership monitoring process and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
Similarly, by enhancing the CRRM to enable it to incorporate qualitative factors when assigning a Participant's credit rating, the proposed change would enable DTC to take into account relevant qualitative factors in an automated and more effective manner when monitoring the credit risks presented by the Participants, which would improve DTC's membership monitoring process overall and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
Likewise, by enhancing the CRRM to shift from a relative scoring approach to an absolute scoring approach when assigning a Participant's credit rating, the proposed rule change would enable DTC to generate credit ratings for Participants that are more reflective of the Participants' default risk, which would improve DTC's membership monitoring process and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
The proposed enhancements to the CRRM are consistent with Rule 17Ad-22(e)(3)(i) under the Act, which was recently adopted by the Commission.
The proposed rule change to Section 1 of Rule 2 with respect to the scope of information that may be requested by DTC from its Participants has been designed to be consistent with Rule 17Ad-22(e)(19) under the Act, which was recently adopted by the Commission.
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. The clearing agency shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
The clearing agency shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the Advance Notice is consistent with the Clearing Supervision 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.
By the Commission.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
This Advance Notice consists of proposed modifications to FICC's Government Securities Division (“GSD”) Rulebook (“GSD Rules”) and Mortgage-Backed Securities Division (“MBSD”) Clearing Rules (“MBSD Rules,” and collectively with the GSD Rules, the “Rules”).
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the Advance Notice and discussed any comments it received on the Advance Notice. 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 and B below, of the most significant aspects of such statements.
Written comments relating to this proposal have not been solicited or received. FICC will notify the Commission of any written comments received by FICC.
The proposed rule change would, among other things, enhance the CRRM to enable it to rate FICC members that are foreign banks or trust companies and have audited financial data that is publicly available. It would also enhance the CRRM by allowing it to take into account qualitative factors when generating credit ratings for FICC members. In addition, it would enhance the CRRM by shifting it from a relative scoring approach to an absolute scoring approach.
This rule filing also contains proposed rule changes that are not related to the proposed CRRM enhancements but that provide specificity, clarity and additional transparency to the Rules related to FICC's current ongoing membership monitoring process.
FICC occupies an important role in the securities settlement system by interposing itself through each of GSD and MBSD as a central counterparty between members that are counterparties to transactions accepted for clearing by FICC, thereby reducing the risk faced by members. FICC uses the CRRM, the Watch List (as defined below) and the enhanced surveillance to manage and monitor default risks of its members on an ongoing basis, as discussed below. The level and frequency of such monitoring for a member is determined by the member's risk of default as assessed by FICC. Members that are deemed by FICC to pose a heightened risk to FICC and its members are subject to closer and more frequent monitoring.
In 2004, the Commission approved a proposed rule change filed by FICC (“Initial Filing”)
FICC proposed in the Initial Filing that all U.S. broker-dealers and U.S. banks that were GSD Netting Members and/or MBSD Clearing Members would be assigned a rating generated by entering financial data of those members into an internally generated credit rating scorecard,
Following the approval of the Initial Filing, the Commission approved a subsequent proposed rule change filed by FICC that provided interpretive guidance to the Initial Filing (“Interpretive Guidance Filing”).
The current CRRM is comprised of two credit rating models—one for the U.S. broker-dealers and one for the U.S. banks—and generates credit ratings for the relevant members based on a 7-point rating system, with “1” being the
Over time, the current CRRM has not kept pace with FICC's evolving membership base and heightened expectations from regulators and stakeholders for robustness of financial models. Specifically, the current CRRM only generates credit ratings for those GSD Netting Members and MBSD Clearing Members that are U.S. banks or U.S. broker-dealers that file standard reports with their regulators, which currently comprise 77% of GSD Netting Members and 85% of MBSD Clearing Members, respectively; foreign banks and trust companies currently account for 21% of GSD Netting Members and 1% of MBSD Clearing Members.
In addition, the current CRRM assigns each GSD Netting Member and MBSD Clearing Member that is a U.S. bank or U.S. broker-dealer and that files standard reports with its regulator(s) a credit rating based on inputting certain quantitative data relative to the applicable member into the CRRM. Accordingly, a member's credit rating is currently based solely upon quantitative factors. It is only after the CRRM has generated a credit rating with respect to a particular member that such member's credit rating may be downgraded manually by credit risk staff, after taking into consideration relevant qualitative factors. The inability of the current CRRM to take into account qualitative factors requires frequent and manual overrides by credit risk staff, which may result in inconsistent and/or incomplete credit ratings for members.
Furthermore, the current CRRM uses a relative scoring approach and relies on peer grouping of members to calculate the credit rating of a member. This approach is not ideal because a member's credit rating can be affected by changes in its peer group even if the member's financial condition is unchanged.
To improve the coverage and the effectiveness of the current CRRM, FICC is proposing three enhancements. The first proposed enhancement would expand the scope of CRRM coverage by enabling the CRRM to generate credit ratings for GSD Netting Members and MBSD Clearing Members that are foreign banks or trust companies and that have audited financial data that is publicly available. The second proposed enhancement would incorporate qualitative factors into the CRRM and therefore is expected to reduce the need and the frequency of manual overrides of member credit ratings. The third enhancement would replace the relative scoring approach currently used by CRRM with a statistical approach to estimate the absolute probability of default of each member.
The current CRRM is comprised of two credit rating models—one for the U.S. broker-dealers and one for the U.S. banks. FICC is proposing to enhance the CRRM by adding an additional credit rating model for the foreign banks and trust companies. The additional model would expand the membership classes to which the CRRM would apply to include foreign banks and trust companies that are GSD Netting Members and/or MBSD Clearing Members and that have audited financial data that is publicly available. The CRRM credit rating of a foreign bank or trust company that is a GSD Netting Member and/or MBSD Clearing Member would be based on quantitative factors, including size, capital, leverage, liquidity, profitability and growth, and qualitative factors, including market position and sustainability, information reporting and compliance, management quality, capital management and business/product diversity. By enabling the CRRM to generate credit ratings for these GSD Netting Members and MBSD Clearing Members, the enhanced CRRM would provide more comprehensive credit risk coverage of FICC's membership base.
With the proposed enhancement to the CRRM as described above, applicable foreign bank or trust company GSD Netting Members and MBSD Clearing Members would be included in the CRRM process and be evaluated more effectively and efficiently because financial data with respect to these foreign bank or trust company members could be extracted from data sources in an automated form.
After the proposed enhancement, CRRM would be able to generate credit ratings on an ongoing basis for all GSD Netting Members and MBSD Clearing Members that are U.S. banks, U.S. brokers-dealers and foreign banks and trust companies, which together represent approximately 99% of the GSD Netting Members and 86% of the MBSD Clearing Members, respectively.
In addition, as proposed, the enhanced CRRM would blend qualitative factors with quantitative factors to produce a credit rating for each applicable member in relation to the member's credit risk. For U.S. and foreign banks and trust companies, the enhanced CRRM would use a 70/30 weighted split between quantitative and qualitative factors to generate credit ratings. For U.S. broker-dealers, the weight split between quantitative and qualitative factors would be 60/40.
Although there are advantages to measuring credit risk quantitatively, quantitative evaluation models alone are incapable of fully capturing all credit risks. Certain qualitative factors may indicate that a member is or will soon be undergoing financial distress, which may in turn signal a higher default exposure to FICC and its other members. As such, a key enhancement being proposed to the CRRM is the incorporation of relevant qualitative factors into each of the three credit rating models mentioned above. By including qualitative factors in the three credit rating models, the enhanced CRRM would capture risks that would otherwise not be accounted for with quantitative factors alone.
As proposed, the enhanced CRRM would use an absolute scoring approach and rank each member based on its individual probability of default rather than the relative scoring approach that is currently in use. This proposed change is designed to have a member's CRRM-generated credit rating reflect an absolute measure of the member's default risk and eliminate any potential distortion of a member's credit rating from the member's peer group that may occur under the relative scoring approach used in the existing CRRM.
In addition to the Watch List, FICC also maintains an enhanced surveillance list (referenced herein and in the proposed rule text as “enhanced surveillance”) for membership monitoring. The enhanced surveillance list is generally used when members are undergoing drastic and unexpected changes in their financial conditions or operation capabilities and thus are deemed by FICC to be of the highest risk level and/or warrant additional scrutiny due to FICC's ongoing concerns about these members. Accordingly, members that are subject to enhanced surveillance are reported to FICC's management committees and are also regularly reviewed by a cross-functional team comprised of senior management of FICC. More often than not, members that are subject to enhanced surveillance are also on the Watch List. The group of members that is subject to enhanced surveillance is generally much smaller than the group on the Watch List. The enhanced surveillance list is an internal tool for FICC that triggers increased monitoring of a member above the monitoring that occurs when a member is on the Watch List.
A member could be placed on the Watch List either based on its credit rating of 5, 6 or 7, which can either be generated by the CRRM or from a manual downgrade, or when FICC deems such placement as necessary to protect FICC and its members. In contrast, a member would be subject to enhanced surveillance only when close monitoring of the member is deemed necessary to protect FICC and its members.
The Watch List and enhanced surveillance tools are not mutually exclusive; they may complement each other under certain circumstances. A key distinction between the Watch List and enhanced surveillance is that being placed on the Watch List may result in Clearing Fund related consequences under the Rules, whereas enhanced surveillance does not.
In connection with the proposed enhancements to the CRRM, FICC proposes to amend the GSD Rules and the MBSD Rules to (1) incorporate qualitative factors into CRRM and (2) add foreign banks and trust companies that are GSD Netting Members and MBSD Clearing Members to the categories of members that would be assigned credit ratings by FICC using the CRRM.
FICC is proposing to amend the “Credit Risk Rating Matrix” definition in GSD Rule 1 and MBSD Rule 1 to include qualitative factors, such as management quality, market position/environment and capital and liquidity risk management, because, as proposed, the enhanced CRRM would blend both qualitative factors and quantitative factors to produce a credit rating for each applicable FICC member.
FICC is proposing to amend Section 12(b)(i)(III) of GSD Rule 3 and Section 11(b)(i)(III) of MBSD Rule 3 to expand the membership types to which the CRRM would apply to include GSD Netting Members and MBSD Clearing Members, as applicable, that are foreign banks or trust companies and that have audited financial data that are publicly available.
The enhanced CRRM would assign credit ratings for each GSD Netting Member and/or MBSD Clearing Member that is a foreign bank or trust company based on its publicly available audited
This rule filing also contains proposed rule changes that are unrelated to the proposed enhancement of the CRRM. These proposed rule changes would provide specificity, clarity and additional transparency to the Rules with respect to FICC's current ongoing membership monitoring process, as described below.
FICC is proposing to amend the definition of “Credit Risk Rating Matrix” in GSD Rule 1 and MBSD Rule 1 to state that, in addition to the proposed qualitative factors described above, the CRRM is also based on quantitative factors, such as capital, assets, earnings and liquidity.
FICC is also proposing to amend the definition of “Watch List” in GSD Rule 1 and MBSD Rule 1 to state that the Watch List is comprised of members whose credit ratings derived from the CRRM are 5, 6 or 7 as well as members that are deemed by FICC to pose a heightened risk to FICC and its members based on FICC's consideration of relevant factors, including those set forth in Section 12(d) of GSD Rule 3 and Section 11(d) of MBSD Rule 3, as applicable.
FICC is proposing to amend Section 7 of GSD Rule 3 and Section 6 of MBSD Rule 3 to state that review of a GSD Member's or MBSD Member's financial or operational conditions may (1) include FICC requesting information regarding the businesses and operations of the member and its risk management practices with respect to FICC's services utilized by the member for another Person and (2) result in the member being placed on the Watch List and/or being subject to enhanced surveillance as determined by FICC.
FICC members are direct participants of GSD and/or MBSD, as applicable. However, there are firms that rely on the services provided by GSD Members or MBSD Members in order to have their activity cleared and settled through FICC's facilities (the “indirect participants”). These indirect participants pose certain risks to FICC that need to be identified and monitored as part of FICC's ongoing member due diligence process. In order for FICC to understand (1) the material dependencies between FICC members and the indirect participants that rely on the FICC members for the clearance and settlement of the indirect participants' transactions, (2) significant FICC member-indirect participant relationships and (3) the various risk controls and mitigants that these FICC members employ to manage their risks with respect to such relationships, FICC may request information from GSD Members or MBSD Members regarding the members' businesses and operations as well as their risk management practices with respect to services of FICC utilized by the FICC members for indirect participants. The information provided by FICC members would then be taken into consideration by FICC when determining whether a GSD Member or an MBSD Member, as applicable, may need to be placed on the Watch List, be subject to enhanced surveillance or both.
FICC is proposing to amend Section 12(a) of GSD Rule 3 and Section 11(a) of MBSD Rule 3 in order to specify the membership types that are currently subject to FICC's ongoing monitoring and review. FICC currently monitors and reviews all (a) GSD Netting Members, Sponsoring Members and Funds-Only Settling Bank Members and (b) MBSD Members on an ongoing and periodic basis, which may include monitoring news and market developments relating to these members and conducting reviews of financial reports and other public information of these members.
FICC is proposing to add Section 12(b)(i) of GSD Rule 3 and Section 11(b)(i) of MBSD Rule 3 to (1) clarify that FICC is currently using the CRRM to generate credit ratings for (A) GSD Members that are Bank Netting Members and MBSD Members that are Bank Clearing Members; provided that each such member files the Consolidated Report of Condition and Income (“Call Report”) and (B) GSD Members that are Dealer Netting Members or Inter-Dealer Broker Netting Members and MBSD Members that are Dealer Clearing Members or Inter-Dealer Broker Clearing Members; provided that each such member files the Financial and Operational Combined Uniform Single Report (“FOCUS Report”) or the equivalent with its regulator, (2) clarify that each CRRM-Rated Member's credit rating would be reassessed upon receipt of additional information from the member and (3) delete language that states members may be placed on the Watch List based on their ratings as determined by CRRM or based on their failure to comply with operational standards and requirements.
Currently, Section 11(a) of MBSD Rule 3 states that UIPs are rated by the CRRM. FICC proposes to delete this statement and amend it to state that FICC reviews and monitors UIPs (as with all MBSD Members).
FICC is proposing to add Section 12(b)(ii) of GSD Rule 3 and Section 11(b)(ii) of MBSD Rule 3 to provide that, because the factors used as part of the CRRM may not identify all risks that a member may pose to FICC, FICC may, in addition to other actions permitted by the Rules, downgrade the member's credit rating derived from the CRRM if FICC believes the CRRM-generated rating is insufficiently conservative or if it deems such downgrade as necessary to protect FICC and its members. Depending on the credit rating of the member, a downgrade may result in the member being placed on the Watch List and/or being subject to enhanced surveillance based on relevant factors.
FICC is proposing to re-number the existing Section 12(b) of GSD Rule 3 and Section 11(b) of MBSD Rule 3 to Section 12(c) and Section 11(c) of the respective Rules as well as to amend these sections to state that, other than those members specified in Section 12(b)(i) of GSD Rule 3 and Section 11(b)(i) of MBSD Rule 3, FICC may place (1) GSD Sponsoring Members, Funds-Only Settling Bank Members and Netting Members and (2) MBSD Members, on the Watch List and/
FICC is proposing to add Section 12(d) to GSD Rule 3 and Section 11(d) to MBSD Rule 3 to describe some of the factors that could be taken into consideration by FICC when downgrading a member's credit rating, placing a member on the Watch List and/or subjecting a member to enhanced surveillance. These factors include but are not limited to (i) news reports and/or regulatory observations that raise reasonable concerns relating to the member, (ii) reasonable concerns around the member's liquidity arrangements, (iii) material changes to the member's organizational structure, (iv) reasonable concerns of FICC about the member's financial stability due to particular facts and circumstances, such as material litigation or other legal and/or regulatory risks, (v) failure of the member to demonstrate satisfactory financial condition or operational capability or if FICC has a reasonable concern regarding the member's ability to maintain applicable membership standards and (vi) failure of the member to provide information required by FICC to assess risk exposures posed by the member's activity.
FICC is proposing to re-number the existing Section 12(c) of GSD Rule 3 and Section 11(c) of MBSD Rule 3 to Section 12(e) and Section 11(e) of the respective Rules and refer to FICC's ability to retain any Excess Clearing Fund Deposits of a GSD Netting Member or an MBSD Clearing Member, as applicable, that has been placed on the Watch List pursuant to Section 9 of GSD Rule 4 or Section 9 of MBSD Rule 4, as applicable. In addition, FICC is proposing technical modifications in these sections to correct grammatical errors and add a section reference.
FICC is proposing to re-number the existing Section 12(d) of GSD Rule 3 and Section 11(d) of MBSD Rule 3 to Section 12(f) and Section 11(f) of the respective Rules and provide that FICC would, in addition to other actions permitted by the Rules, conduct a more thorough monitoring of the financial condition and/or operational capability of, and require more frequent financial disclosures from, not only those members that are placed on the Watch List but also members subject to enhanced surveillance, including examples of how the monitoring could be conducted and the types of disclosures that may be required. In addition, members that are subject to enhanced surveillance would be reported to FICC's management committees and regularly reviewed by a cross-functional team comprised of senior management of FICC.
In addition to the proposed changes described above, FICC is proposing to delete the existing Section 12(e) of GSD Rule 3 and Section 11(e) of MBSD Rule 3 to eliminate FICC's right to place a member with an Excess Capital Ratio of 0.5 or greater on the Watch List because FICC has not used, nor does it plan to use, this threshold.
In addition, FICC is proposing to delete the existing Section 12(f) of GSD Rule 3 and Section 11(f) of MBSD Rule 3 to eliminate language that requires FICC to place a GSD Netting Member or an MBSD Clearing Member, as applicable, on the Watch List if FICC takes any action against the GSD Netting Member or the MBSD Clearing Member under GSD Rule 3, Section 7 (General Continuance Standards) and MBSD Rule 3, Section 6 (General Continuance Standards), respectively. FICC is proposing these deletions because placement of a member on the Watch List would be covered by the proposed changes to Sections 12(b), (c) and (d) of GSD Rule 3 and Sections 11(b), (c) and (d) of MBSD Rule 3. As such, the language being deleted by this proposed change would no longer be needed.
Similarly, FICC is proposing to delete language that requires a GSD Netting Member or an MBSD Clearing Member, as applicable, to remain on the Watch List until the condition(s) that resulted in its placement on the Watch List are no longer present or if close monitoring by FICC is no longer warranted. FICC is proposing this deletion because whether a member remains on the Watch List would be covered by the proposed changes to Sections 12(b), (c) and (d) of GSD Rule 3 and Sections 11(b), (c) and (d) of MBSD Rule 3. As such, the language being deleted by this proposed change would no longer be needed.
FICC is also proposing to amend GSD Rules 5 (Comparison System), 11 (Netting System) and 18 (Special Provisions for Repo Transactions) to clarify that FICC may subject (1) a Comparison-Only Member to enhanced surveillance if FICC has determined that the Comparison-Only Member has violated its obligations under Section 1 of GSD Rule 5 and (2) a Netting Member to enhanced surveillance if FICC has determined that the Netting Member has violated its obligations under Section 3 of GSD Rule 11 or Section 2 of GSD Rule 18. In addition, FICC is proposing to amend GSD Rule 11 to correct a typographical error.
Pending Commission approval, FICC expects to implement this proposal promptly. Members would be advised of the implementation date of this proposal through issuance of a FICC Important Notice.
The proposed rule changes would mitigate counterparty credit risk for FICC by allowing FICC to more accurately monitor the creditworthiness and risk profile of its members. The enhanced CRRM would provide a more robust credit rating methodology by incorporating qualitative factors and adopting an absolute scoring approach. Both of these enhancements would improve FICC's ability to monitor the credit risk of its members and are expected to lessen the frequency of manual overrides. The enhanced CRRM would also expand the coverage of FICC's membership by providing credit ratings for members that are foreign banks or trust companies, which are not covered under the existing CRRM.
By mitigating counterparty credit risk for FICC as described above, the enhanced CRRM would also mitigate risk for FICC members because lowering the risk profile for FICC would in turn lower the risk exposure that FICC members may have with respect to FICC in its role as a central counterparty.
The proposed rule changes are designed to mitigate counterparty credit risk for FICC and to provide greater clarity and transparency to FICC's members regarding the counterparty credit risk management approach used by FICC.
The enhanced CRRM would improve FICC's ability to monitor the probability of default for members that are rated by the CRRM and is expected to lessen the need and the frequency of manual downgrades due to the anticipated improvement in the accuracy of the credit ratings generated by the enhanced CRRM.
FICC employs a risk-based approach to conducting monitoring and review of its members by using the CRRM to identify higher risk members. Once identified, FICC would place these members on the Watch List, which would result in more frequent review by FICC of these members than the other members. For members that are placed on the Watch List, FICC would conduct more thorough monitoring of these members' financial condition and/or operational capability, which could include, for example, on-site visits or additional due diligence information requests.
FICC members that have been placed on the Watch List may also be required to maintain a higher deposit to the GSD Clearing Fund or MBSD Clearing Fund, as applicable, which would help offset potential risks to FICC and its members arising from activity submitted by these members.
The enhanced CRRM would also expand the coverage of FICC's membership by providing credit ratings for foreign banks and trust companies, which are not currently rated under the existing CRRM. The addition of these entities would allow FICC to employ its risk-based approach to identify those higher risk members for additional monitoring with more efficiency (by reducing the need for manual overrides) and effectiveness (by generating a more comprehensive and accurate credit rating after taking into account both quantitative and qualitative factors and adopting the absolute scoring approach).
Thus, the enhanced CRRM would help FICC to identify those members that could present credit risk to FICC, which then would allow FICC to better manage the potential risks from these members.
The proposed enhancements to the CRRM as described in detail above would be consistent with Section 805(b) of the Clearing Supervision Act.
By enhancing the CRRM to enable it to assign credit ratings to members that are foreign banks or trust companies and that have audited financial data that is publicly available, the proposed rule change would expand the CRRM's applicability to a wider group of members, which would improve FICC's membership monitoring process and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
Similarly, by enhancing the CRRM to enable it to incorporate qualitative factors when assigning a member's credit rating, the proposed change would enable FICC to take into account relevant qualitative factors in an automated and more effective manner when monitoring the credit risks presented by the GSD Netting Members and MBSD Clearing Members, which would improve FICC's membership monitoring process overall and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
Likewise, by enhancing the CRRM to shift from a relative scoring approach to an absolute scoring approach when assigning a member's credit rating, the proposed rule change would enable FICC to generate credit ratings for members that are more reflective of the members' default risk, which would improve FICC's membership monitoring process and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
The proposed enhancements to the CRRM are consistent with Rule 17Ad-22(e)(3)(i) under the Act, which was recently adopted by the Commission.
The proposed rule change to Section 7 of GSD Rule 3 and Section 6 of MBSD Rule 3 with respect to the scope of information that may be requested by FICC from its members has been designed to be consistent with Rule 17Ad-22(e)(19) under the Act, which was recently adopted by the Commission.
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
The clearing agency shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the Advance Notice is consistent with the Clearing Supervision 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.
By the Commission.
On January 31, 2017, Bats BZX Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the Shares under Exchange Rule 14.11(i), which governs the listing and trading of Managed Fund Shares on the Exchange. The Exchange 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.
The Shares will be offered by the Trust,
According to the Exchange, the investment objective of each Fund will be to maximize tax-free current income and terminate on or around December 2024, December 2025 or December 2026, as applicable.
Under normal circumstances,
In each Fund's last year of operation, as the bonds held by the Fund mature, the proceeds will not be reinvested in bonds but instead will be held in cash and cash equivalents, including, without limitation, shares of affiliated money market funds, AMT-free tax-exempt municipal notes, VRDOs, tender option bonds and municipal commercial paper. In or around December 2024, December 2025, or December 2026, as applicable, the Fund will wind up and terminate, and its net assets will be distributed to then current shareholders.
Under normal circumstances each Fund may also hold, to a limited extent (less than 20% of the Fund's net assets), interest rate futures, interest rate options, interest rate swaps, and swaps on Municipal Securities indexes.
A Fund may also enter into repurchase and reverse repurchase agreements for Municipal Securities. A Fund may also invest in short-term instruments, which includes exchange-traded and non-exchange-traded investment companies that invest in money market instruments.
Each Fund will hold a minimum of 40 different Municipal Securities diversified among issuers in at least 8 different states with no more than 30% of the Fund's assets comprised of Municipal Bonds that provide exposure to any single state (collectively, “Minimum Requirement 1”). Each Fund will hold a minimum of 75 different Municipal Securities when at least four creation units are outstanding (“Trigger Number 1A”). Each Fund will hold a minimum of 100 different Municipal Securities diversified among issuers in at least 20 different states when at least eight creation units are outstanding (“Trigger Number 1B”). No single Municipal Security held by any Fund will exceed 4% of the weight of the Fund's portfolio and no single issuer of Municipal Securities will account for more than 10% of the weight of any Fund's portfolio (collectively, “Minimum Requirement 2”). Each Fund will hold Municipal Securities of at least 20 non-affiliated issuers (“Minimum Requirement 3”). Each Fund will hold Municipal Securities of at least 30 non-affiliated issuers when at least four creation units are outstanding (“Trigger Number 2”).
Each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), as deemed illiquid by the Adviser. Each Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the
Each Fund may also invest up to 20% of its net assets in Municipal Securities that pay interest that is subject to the AMT.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act
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, each Fund's NAV will be determined as of the close of regular trading on the New York Stock Exchange (“NYSE”) (generally 4:00 p.m., E.T.) on each day the NYSE is open for trading. Information regarding market price and volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. The previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers.
The Exchange represents that intraday, executable price quotations on assets held by each Fund are available from major broker-dealer firms, and for exchange-traded assets such intraday information is available directly from the applicable listing exchange. All such intraday price information is available through subscription services, such as Bloomberg, Thomson Reuters and International Data Corporation, which can be accessed by authorized participants and other investors. Pricing information for repurchase agreements and securities not listed on an exchange or national securities market will be available from major broker-dealer firms and/or subscription services, such as Bloomberg, Thomson Reuters, and International Data Corporation. Price information relating to all other securities held by the Funds will be available from major market data vendors. The Funds' Web site, which will be publicly available prior to the public offering of Shares, will include a form of the prospectus for each Fund that may be downloaded. The Web site will also include additional quantitative information, updated on a daily basis, for each Fund.
The Commission 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 Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the identities and quantities of the portfolio of securities and other assets (the “Disclosed Portfolio”) held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the business day, will be made available to all market participants at the same time. Trading in Shares of a Fund will be halted under the conditions specified in Exchange Rule 11.18. Trading may also be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Finally, trading in the Shares will be subject to Exchange Rule 14.11(i)(4)(B)(iv), which sets forth circumstances under which trading in the Shares may be halted.
The Exchange states that it prohibits the distribution of material, non-public information by its employees. In addition, the Exchange represents that the Adviser is not registered as a broker-dealer; however, the Adviser is affiliated with multiple broker-dealers, and has implemented a fire wall with respect to its respective broker-dealer affiliates regarding access to information concerning the composition and/or changes to the portfolio.
The Exchange represents that trading in the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Managed Fund Shares. The Exchange may obtain information regarding trading in the Shares and the underlying shares in exchange traded equity securities via the Intermarket Surveillance Group (“ISG”), from other exchanges that are members or affiliates of the ISG, or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
The Exchange represents that all statements and representations made in the proposed rule change regarding (a) the description of the portfolio, (b)
The Exchange 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 representations, including the following:
(1) The Shares will be subject to Exchange Rule 14.11(i), which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange's surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws.
(3) The Exchange may obtain information regarding trading in the Shares and the underlying shares in exchange traded equity securities via the ISG, from other exchanges that are members or affiliates of the ISG, or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, the Exchange is able to access, as needed, trade information for certain fixed income instruments reported to TRACE.
(4) Structured securities, when combined with instruments held as part of the other portfolio holdings as described above, will not exceed 20% of each Fund's net assets.
(5) Each Fund will comply with Minimum Requirements 1, 2, and 3. If a Fund at any point has sufficient creation units outstanding necessary to trigger a diversity requirement and subsequently has fewer creation units outstanding than those applicable to the Trigger Number, the Fund will continue to comply with any diversity requirement for which the number of creation units outstanding continues to exceed the Trigger Number, as well as each of Minimum Requirements 1, 2 and 3.
(6) Each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), as deemed illiquid by the Adviser.
(7) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) Exchange Rule 3.7, which imposes suitability obligations on Exchange members with respect to recommending transactions in the Shares to customers; (3) how information regarding the Intraday Indicative Value is disseminated; (4) the risks involved in trading the Shares during the Pre-Opening
(8) For initial and/or continued listing, each Fund must be in compliance with Rule 10A-3 under the Act.
(9) A minimum of 100,000 Shares of each Fund will be outstanding at the commencement of trading on the Exchange.
(10) The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
This approval order is based on all of the Exchange's representations, including those set forth above and in Amendments No. 1 and No. 2.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendments No. 1 and No. 2, is consistent with Section 6(b)(5) of the Act
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, as amended (“Act”),
The proposed rule change would amend NSCC's Rules & Procedures (“Rules”) to broaden the scope of the Insurance & Retirement Processing Services (“I&RS”). The proposed rule change would enhance existing I&RS services to provide for a new data repository feature called “Insurance Profile” for transmission of data relating to fees, expenses, and Commissions (“Fee Data”) and implement fees associated with this proposed feature.
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.
NSCC is proposing to provide certain NSCC Members (as defined below) with a centralized, automated and standardized data repository to transmit and receive Fee Data relating to IPS Eligible Products.
On April 6, 2016, the U.S. Department of Labor (“DOL”) issued new regulations (collectively, “DOL Fiduciary Rule”) regarding conflicts of interest in retirement investment advice.
Although I&RS currently provides communication links that connect participating Carriers and Distributors, these existing links do not provide Carriers with an efficient and centralized method to transmit Fee Data to Distributors. Through the existing links, Distributors would need to search for and retrieve information from multiple Carriers, and Carriers would need to respond to information requests from multiple Distributors, regarding the same IPS Eligible Products. In addition, Carriers would need to use multiple I&RS links to transmit all of the Fee Data required by the DOL Fiduciary Rule. As a result, such Fee Data would be transferred in different formats, depending on the method used to transmit the Fee Data. Further, in order to retrieve the Fee Data, Distributors would need to extract the Fee Data from multiple file types for each IPS Eligible Product.
Therefore, NSCC developed the Insurance Profile functionality at the request of and in consultation with industry participants. The proposed Insurance Profile functionality would provide Carriers and Distributors with a secure, centralized portal to allow Carriers to place all of the requested Fee Data for each IPS Eligible Product into a new data repository in a standardized data format. In this regard, the Insurance Profile repository would enable Carriers to submit, and Distributors to retrieve, Fee Data relating to IPS Eligible Products in one centralized location. Having the Fee Data in a centralized repository would streamline the Fee Data transfer and retrieval process for Carriers and Distributors, and it would avoid the need to send and retrieve Fee Data to and from various sources and in different formats.
NSCC proposes to enhance existing I&RS services to create a new feature within I&RS, called Insurance Profile, that would enable Carriers to transmit Fee Data to Distributors, or to otherwise supply and provide access to Fee Data using a centralized repository.
NSCC Members would be provided with access to the repository based on their subscription type and in order to permit them to carry out their respective roles in the distribution of Fee Data. For example, Distributors subscribing to the User Web Interface Only subscription will only be able to download through web-based portal file downloads, while all other users would be able to download using mainframe-based file downloads. The file downloads would be functionally equivalent whether through mainframe-based file downloads or web-based portal file downloads, however, the mainframe-based file downloads would permit the downloading of more data at one time as compared to web-based portal file downloads.
NSCC also proposes to amend Addendum A of the Rules to include the fees for subscription to the Insurance Profile feature. The proposed fees would depend on whether the user has subscribed to a Full Data Subscription, a Limited Data Subscription, or a User Web Interface Only subscription. For a subscription that is not a User Web Interface Only Subscription, NSCC would charge (i) $3,000 per month for a Full Data Subscription; and (ii) $1,500 per month for a Limited Data Subscription. For a User Web Interface Only Subscription, NSCC would charge Distributors (i) $500 per month, plus a $1.25 per CUSIP download transaction charge for a Full Data Subscription; and (ii) $250 per month, plus a $1.25 per CUSIP download transaction charge for a Limited Data Subscription.
In addition, because the Fee Data being placed in Insurance Profile is intended to be used to satisfy disclosure requirements and is not intended to be used to commercialize the Fee Data retrieved therefrom, the proposed rule change would make it clear that users may not use, distribute, transmit, or otherwise make available Fee Data retrieved from Insurance Profile as the basis for or as a part of a data product or service offered for commercial gain to any other person without the prior written consent of NSCC.
Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(D) of the Act
NSCC does not believe that the proposed rule change would have any adverse impact, or impose any burden, on competition because the proposed rule change would add an optional function to NSCC's services that would provide a more efficient method by which subscribing Carriers and Distributors may transmit and receive Fee Data. Therefore, as an optional feature available for subscription, the proposed rule change would not disproportionally impact any NSCC Members.
Moreover, because the proposed rule change would improve the efficiency by which subscribing NSCC Members may transmit Fee Data and satisfy their disclosure requirements, the proposed rule change may have a positive effect on competition among Carriers and Distributors. The proposed feature would provide these firms with a faster, more streamlined method of transmitting and receiving Fee Data, and therefore would enable IPS Eligible Products to be marketed more quickly. Specifically, Distributors would have the ability to distribute IPS Eligible Products into the market to consumers more quickly because Distributors would have the ability to satisfy their Fee Data disclosure requirements with respect to such IPS Eligible Products on a timely basis using the proposed Insurance Profile.
NSCC has not received or solicited any written comments relating to this proposal. NSCC will notify the Commission of any written comments it receives.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
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)
The Exchange proposes to remove Section 204.25 (“Treasury Stock Changes”) from the NYSE Listed Company Manual (the “Manual”). 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 Exchange proposes to remove Section 204.25 (“Treasury Stock Changes”) from the Manual.
Section 204.25 provides that if issued and listed stock of a listed company is reacquired or disposed of, directly or indirectly, for the account of the company, the Exchange is required to receive notice of such transaction within ten days after the close of the fiscal quarter in which it occurs. This notice need state only the total number of shares reacquired (shares of a company's own stock acquired by the company and held for its own account are typically referred to as “treasury shares”) or disposed of during the quarter and the balance held by the company at the end of the quarter. If, during such quarter, there were both reacquisitions and dispositions, the total amount reacquired and the total amount disposed of should be stated. The only purposes for which the Exchange generally uses treasury share information is for determining compliance with its shareholder approval requirements in relation to share issuances and for calculating annual listing fees.
The Exchange believes it is unnecessary to require listed companies to submit this information on a quarterly basis as it has not regularly relied on this information for any regulatory purpose for many years.
Section 902.03 of the Manual provides that companies must pay annual listing fees on all shares outstanding, including treasury shares. The Exchange bills companies for annual fees each year based on the number of shares outstanding as of the previous December 31 (including treasury shares) as reported to the Exchange for that purpose by the company's transfer agent. As such, the information currently provided to the Exchange by companies pursuant to Section 204.25 with respect to changes in companies' treasury share positions is not needed in connection with the Exchange's billing procedures.
The Exchange notes that it does not rely on treasury share reporting under Section 204.25 in monitoring compliance with its continued listing standards with respect to market capitalization and publicly-held shares. Rather, the Exchange relies on the number of shares outstanding as reported on a quarterly basis [sic] on the cover of a company's annual report filed with the SEC and (where applicable) Form 10-Qs. We also check these requirements against information provided by the market data vendors.
The Exchange believes that the proposed rule change 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 that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to remove a treasury share reporting requirement imposed on all listed companies because the Exchange can obtain that information from public disclosures or from the applicable listed company or from its public filings on an as-needed basis. As such, the proposed amendment will not impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
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 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
This Advance Notice consists of proposed modifications to NSCC's Rules and Procedures (“Rules”).
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the Advance Notice and discussed any comments it received on the Advance Notice. 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 and B below, of the most significant aspects of such statements.
Written comments relating to this proposal have not been solicited or received. NSCC will notify the Commission of any written comments received by NSCC.
The proposed rule change would, among other things, enhance the CRRM to enable it to rate Members that are foreign banks or trust companies and have audited financial data that is publicly available. It would also enhance the CRRM by allowing it to take into account qualitative factors when generating credit ratings for Members. In addition, it would enhance the CRRM by shifting it from a relative scoring approach to an absolute scoring approach.
This rule filing also contains proposed rule changes that are not related to the proposed CRRM enhancements but that provide specificity, clarity and additional transparency to the Rules related to NSCC's current ongoing membership monitoring process.
NSCC occupies an important role in the securities settlement system by interposing itself as a central counterparty between Members that are counterparties to transactions accepted for clearing by NSCC, thereby reducing the risk faced by Members. NSCC uses the CRRM, the Watch List (as defined below) and the enhanced surveillance to manage and monitor default risks of Members on an ongoing basis, as discussed below. The level and frequency of such monitoring for a Member is determined by the Member's risk of default as assessed by NSCC. Members that are deemed by NSCC to pose a heightened risk to NSCC and its Members are subject to closer and more frequent monitoring.
In 2005, the Commission approved a proposed rule change filed by NSCC (“Initial Filing”)
NSCC proposed in the Initial Filing that all U.S. broker-dealers and U.S. banks that were Members would be assigned a rating generated by entering financial data of those Members into an internal risk assessment matrix,
Currently, Members that are U.S. broker-dealers and U.S. banks are assessed against the CRRM and assigned a credit rating based on certain quantitative factors.
The current CRRM is comprised of two credit rating models—one for the U.S. broker-dealers and one for the U.S. banks—and generates credit ratings for the relevant Members based on a 7-point rating system, with “1” being the strongest credit rating and “7” being the weakest credit rating.
Over time, the current CRRM has not kept pace with NSCC's evolving membership base and heightened expectations from regulators and stakeholders for robustness of financial models. Specifically, the current CRRM only generates credit ratings for those Members that are U.S. banks or U.S. broker-dealers that file standard reports with their regulators. Although these types of Members currently represent the vast majority (approximately 95%) of Members at NSCC,
In addition, the current CRRM assigns each Member that is a U.S. bank or U.S. broker-dealer and that files standard reports with its regulator(s) a credit rating based on inputting certain quantitative data relative to the applicable Member into the CRRM. Accordingly, a Member's credit rating is currently based solely upon quantitative factors. It is only after the CRRM has generated a credit rating with respect to a particular Member that such Member's credit rating may be downgraded manually by credit risk staff, after taking into consideration relevant qualitative factors. The inability of the current CRRM to take into account qualitative factors requires frequent and manual overrides by credit risk staff, which may result in inconsistent and/or incomplete credit ratings for Members.
Furthermore, the current CRRM uses a relative scoring approach and relies on peer grouping of Members to calculate the credit rating of a Member. This approach is not ideal because a Member's credit rating can be affected by changes in its peer group even if the Member's financial condition is unchanged.
To improve the coverage and the effectiveness of the current CRRM, NSCC is proposing three enhancements. The first proposed enhancement would expand the scope of CRRM coverage by enabling the CRRM to generate credit ratings for Members that are foreign banks or trust companies and that have audited financial data that is publicly available. The second proposed enhancement would incorporate qualitative factors into the CRRM and therefore is expected to reduce the need and the frequency of manual overrides of Member credit ratings. The third enhancement would replace the relative scoring approach currently used by CRRM with a statistical approach to estimate the absolute probability of default of each Member.
The current CRRM is comprised of two credit rating models—one for the U.S. broker-dealers and one for the U.S. banks. NSCC is proposing to enhance the CRRM by adding an additional credit rating model for the foreign banks and trust companies. The additional model would expand the membership classes to which the CRRM would apply to include Members that are foreign banks or trust companies and that have audited financial data that is publicly available. The CRRM credit rating of a Member that is a foreign bank or trust company would be based on quantitative factors, including size, capital, leverage, liquidity, profitability and growth, and qualitative factors, including market position and sustainability, information reporting and compliance, management quality, capital management and business/product diversity. By enabling the CRRM to generate credit ratings for these Members, the enhanced CRRM would provide more comprehensive credit risk coverage of NSCC's membership base.
With the proposed enhancement to the CRRM as described above, applicable foreign bank or trust company Members would be included in the CRRM process and be evaluated more effectively and efficiently because financial data with respect to these foreign bank or trust company Members could be extracted from data sources in an automated form.
After the proposed enhancement, CRRM would be able to generate credit ratings on an ongoing basis for all Members that are U.S. banks, U.S. brokers-dealers and foreign banks and trust companies, which together represent approximately 96% of the NSCC Members.
In addition, as proposed, the enhanced CRRM would blend qualitative factors with quantitative factors to produce a credit rating for each applicable Member in relation to
Although there are advantages to measuring credit risk quantitatively, quantitative evaluation models alone are incapable of fully capturing all credit risks. Certain qualitative factors may indicate that a Member is or will soon be undergoing financial distress, which may in turn signal a higher default exposure to NSCC and its other Members. As such, a key enhancement being proposed to the CRRM is the incorporation of relevant qualitative factors into each of the three credit rating models mentioned above. By including qualitative factors in the three credit rating models, the enhanced CRRM would capture risks that would otherwise not be accounted for with quantitative factors alone.
As proposed, the enhanced CRRM would use an absolute scoring approach and rank each Member based on its individual probability of default rather than the relative scoring approach that is currently in use. This proposed change is designed to have a Member's CRRM-generated credit rating reflect an absolute measure of the Member's default risk and eliminate any potential distortion of a Member's credit rating from the Member's peer group that may occur under the relative scoring approach used in the existing CRRM.
In addition to the Watch List, NSCC also maintains an enhanced surveillance list (referenced herein and in the proposed rule text as “enhanced surveillance”) for membership monitoring. The enhanced surveillance list is generally used when Members are undergoing drastic and unexpected changes in their financial conditions or operation capabilities and thus are deemed by NSCC to be of the highest risk level and/or warrant additional scrutiny due to NSCC's ongoing concerns about these Members. Accordingly, Members that are subject to enhanced surveillance are reported to NSCC's management committees and are also regularly reviewed by a cross-functional team comprised of senior management of NSCC. More often than not, Members that are subject to enhanced surveillance are also on the Watch List. The group of Members that is subject to enhanced surveillance is generally much smaller than the group on the Watch List. The enhanced surveillance list is an internal tool for NSCC that triggers increased monitoring of a Member above the monitoring that occurs when a Member is on the Watch List.
A Member could be placed on the Watch List either based on its credit rating of 5, 6 or 7, which can either be generated by the CRRM or from a manual downgrade, or when NSCC deems such placement as necessary to protect NSCC and its Members. In contrast, a Member would be subject to enhanced surveillance only when close monitoring of the Member is deemed necessary to protect NSCC and its Members.
The Watch List and enhanced surveillance tools are not mutually exclusive; they may complement each other under certain circumstances. A key distinction between the Watch List and enhanced surveillance is that being placed on the Watch List may result in Required Deposit
In connection with the proposed enhancements to the CRRM, NSCC proposes to amend the Rules to (1) incorporate qualitative factors into CRRM and (2) add Members that are foreign banks or trust companies to the categories of Members that would be assigned credit ratings by NSCC using the CRRM.
NSCC is proposing to include qualitative factors, such as management quality, market position/environment, and capital and liquidity risk management in the proposed new definition for “Credit Risk Rating Matrix” in Rule 1 because, as proposed, the enhanced CRRM would blend both qualitative factors and quantitative factors to produce a credit rating for each applicable Member.
NSCC is proposing to expand the membership types to which the CRRM would apply to include Members that are foreign banks or trust companies and that have audited financial data that is
The enhanced CRRM would assign credit ratings for each Member that is a foreign bank or trust company based on its publicly available audited financial data. The credit rating would be based on an 18-point scale, which is then mapped to the 7-point rating system currently in use today, with “1” being the strongest credit rating and “7” being the weakest credit rating.
This rule filing also contains proposed rule changes that are unrelated to the proposed enhancement of the CRRM. These proposed rule changes would provide specificity, clarity and additional transparency to the Rules with respect to NSCC's current ongoing membership monitoring process, as described below.
NSCC is proposing to amend Rule 1 to add definitions for the CRRM and the Watch List.
The proposed definition of the CRRM would provide that the term “Credit Risk Rating Matrix” means a matrix of credit ratings of Members as specified in Section 4 of Rule 2B. The definition would state that the CRRM is developed by NSCC to evaluate the credit risk such Members pose to NSCC and its Members and is based on factors determined to be relevant by NSCC from time to time, which factors are designed to collectively reflect the financial and operational condition of a Member. The proposed definition would state that, in addition to the proposed qualitative factors described above, these factors include quantitative factors, such as capital, assets, earnings and liquidity.
The proposed definition of the Watch List would provide that the term “Watch List” means, at any time and from time to time, the list of Members whose credit ratings derived from the CRRM are 5, 6 or 7, as well as Members and Limited Members that, based on NSCC's consideration of relevant factors, including those set forth in Section 4(d) of Rule 2B (described below), are deemed by NSCC to pose a heightened risk to NSCC and its Members.
NSCC is proposing to amend Section 2B of Rule 2B to state that NSCC may review the financial responsibility and operational capability of each Member and may otherwise require additional reporting from the Member regarding its financial or operational condition that may (1) include information regarding the businesses and operations of the Member and its risk management practices with respect to NSCC's services utilized by the Member for another Person and (2) result in the Member being placed on the Watch List and/or being subject to enhanced surveillance as determined by NSCC.
Members are direct participants of NSCC. However, there are firms that rely on the services provided by Members in order to have their activity cleared and settled through NSCC's facilities (the “indirect participants”). These indirect participants pose certain risks to NSCC that need to be identified and monitored as part of NSCC's ongoing member due diligence process. In order for NSCC to understand (1) the material dependencies between Members and the indirect participants that rely on the Members for the clearance and settlement of the indirect participants' transactions, (2) significant Member-indirect participant relationships and (3) the various risk controls and mitigants that these Members employ to manage their risks with respect to such relationships, NSCC may request information from Members regarding the Members' businesses and operations as well as their risk management practices with respect to services of NSCC utilized by the Members for indirect participants. The information provided by Members would then be taken into consideration by NSCC when determining whether a Member may need to be placed on the Watch List, be subject to enhanced surveillance or both.
NSCC is proposing to amend Section 4 of Rule 2B in order to (1) specify the membership types that are currently subject to NSCC's ongoing monitoring and review, (2) clarify which U.S. broker-dealers and U.S. banks will be assigned a credit rating by NSCC in accordance with the CRRM, (3) provide that NSCC may manually downgrade a CRRM-Rated Member's credit rating in certain instances, (4) provide that NSCC may place non-CRRM-Rated Members and certain Limited Members on the Watch List and/or subject them to enhanced surveillance, if necessary, (5) describe some of the factors that could be taken into consideration by NSCC when downgrading a Member's or Limited Member's credit rating, placing a Member or Limited Member on the Watch List and/or subjecting a Member or Limited Member to enhanced surveillance, (6) allow NSCC to collect additional deposits to the Clearing Fund and to retain deposits in excess of the Required Deposit from Members or Limited Members that are on the Watch List and (7) provide for enhanced monitoring of Members or Limited Members that are on the Watch List and/or are subject to enhanced surveillance.
In connection with the forgoing, NSCC proposes to delete the current first paragraph in Section 4 of NSCC Rule 2B and add the following:
1. Section 4(a), specifying that NSCC currently monitors and reviews all Members and certain Limited Members on an ongoing and periodic basis, which may include monitoring news and market developments relating to these Members and Limited Members and conducting reviews of financial reports and other public information of these Members and Limited Members.
2. Section 4(b)(i), clarifying that (1) Members that are (A) U.S. banks or trust companies that file the Consolidated Report of Condition and Income (“Call Report”) or (B) U.S. broker-dealers that file the Financial and Operational Combined Uniform Single Report (“FOCUS Report”) or the equivalent with their regulators, would be assigned a credit rating by NSCC in accordance with the CRRM and (2) each CRRM-Rated Member's credit rating would be reassessed upon receipt of additional information from the Member.
3. Section 4(b)(ii), providing that, because the factors used as part of the CRRM may not identify all risks that a Member may pose to NSCC, NSCC may, in addition to other actions permitted by the Rules, downgrade the Member's credit rating derived from the CRRM if NSCC believes the CRRM-generated rating is insufficiently conservative or if it deems such downgrade as necessary to protect NSCC and its Members. Depending on the credit rating of the Member, a downgrade may result in the Member being placed on the Watch List and/or being subject to enhanced surveillance based on relevant factors.
4. Section 4(c), specifying that, other than CRRM-Rated Members, NSCC may place Members and Limited Members that are monitored and reviewed by NSCC on the Watch List and/or subject them to enhanced surveillance even though they are not being assigned credit ratings by NSCC in accordance with the CRRM.
5. Section 4(d), describing some of the factors that could be taken into consideration by NSCC when downgrading a Member's credit rating, placing a Member or Limited Member on the Watch List and/or subjecting a
6. Section 4(e), allowing NSCC to (1) require a Member or Limited Member that has been placed on the Watch List to make and maintain additional deposits to the Clearing Fund and (2) withhold any deposit in excess of the Required Deposit of a Member or Limited Member that has been placed on the Watch List as provided in Section 9 of Rule 4.
7. Section 4(f), providing that NSCC would, in addition to other actions permitted by the Rules, conduct a more thorough monitoring of the financial condition and/or operational capability of, and require more frequent financial disclosures from, not only those Members and Limited Members that are placed on the Watch List but also Members and Limited Members subject to enhanced surveillance, including examples of how the monitoring could be conducted and the types of disclosures that may be required. In addition, Members and Limited Members that are subject to enhanced surveillance would be reported to NSCC's management committees and regularly reviewed by a cross-functional team comprised of senior management of NSCC.
In addition to the proposed changes described above, NSCC is proposing to make technical corrections to the second paragraph of Section 4 of Rule 2B to (1) renumber the paragraph as Section 4(g), (2) update an internal cross reference and (3) clarify that the references in the paragraph to Members under surveillance are referring to Members on the Watch List.
NSCC is proposing to amend Section 9 of Rule 4 to clarify that NSCC may, in its discretion, withhold all or part of any excess Clearing Fund deposit of Members that are on the Watch List.
NSCC is proposing to amend Section I(B)(1) of Procedure XV to clarify that Members or Limited Members that are placed on the Watch List would be required to make additional Clearing Fund deposits, as determined by NSCC.
In addition, NSCC is proposing to make the following technical corrections to Section I(B)(1) of Procedure XV, (i) renumber the final three paragraphs as Section I(B)(2) and title the new subsection “Family Issued Securities” to reflect the different subject matter of the new subsection, (ii) capitalize references to the Credit Risk Rating Matrix to reflect the proposed addition of the defined term to Rule 1 and (iii) make other grammatical corrections to the new Section I(B)(2).
Finally, NSCC is proposing to amend Section II(C) of Procedure XV to clarify that, although NSCC would not request additional Clearing Fund deposits from Members unless they exceed a predetermined threshold, such floor would not apply to Members or Limited Members that are on the Watch List.
NSCC is proposing to amend the definition of “Illiquid Position” in Rule 1 as well as Procedure XV Sections I(A)(1) and I(A)(2), each as proposed in connection with a separate proposed rule change filed with the Commission but not yet approved.
Pending Commission approval, NSCC expects to implement this proposal promptly. Members would be advised of the implementation date of this proposal through issuance of a NSCC Important Notice.
The proposed rule changes would mitigate counterparty credit risk for NSCC by allowing NSCC to more accurately monitor the creditworthiness and risk profile of its Members. The enhanced CRRM would provide a more robust credit rating methodology by incorporating qualitative factors and adopting an absolute scoring approach. Both of these enhancements would improve NSCC's ability to monitor the credit risk of its Members and are expected to lessen the frequency of manual overrides. The enhanced CRRM would also expand the coverage of NSCC's membership by providing credit ratings for Members that are foreign banks or trust companies, which are not covered under the existing CRRM.
By mitigating counterparty credit risk for NSCC as described above, the enhanced CRRM would also mitigate risk for Members because lowering the risk profile for NSCC would in turn lower the risk exposure that Members may have with respect to NSCC in its role as a central counterparty.
The proposed rule changes are designed to mitigate counterparty credit risk for NSCC and to provide greater clarity and transparency to Members regarding the counterparty credit risk management approach used by NSCC.
The enhanced CRRM would improve NSCC's ability to monitor the probability of default for Members that are rated by the CRRM and is expected to lessen the need and the frequency of manual downgrades due to the anticipated improvement in the accuracy of the credit ratings generated by the enhanced CRRM.
NSCC employs a risk-based approach to conducting monitoring and review of its Members by using the CRRM to identify higher risk Members. Once identified, NSCC would place these Members on the Watch List, which would result in more frequent review by NSCC of these Members than the other Members. For Members that are placed on the Watch List, NSCC would conduct more thorough monitoring of these Members' financial condition and/or operational capability, which could include, for example, on-site visits or additional due diligence information requests.
Members that have been placed on the Watch List may also be required to maintain a higher deposit to the Clearing Fund, which would help offset potential risks to NSCC and its Members arising from activity submitted by these Members.
The enhanced CRRM would also expand the coverage of NSCC's membership by providing credit ratings for foreign banks and trust companies, which are not currently rated under the existing CRRM. The addition of these entities would allow NSCC to employ its risk-based approach to identify those higher risk Members for additional monitoring with more efficiency (by reducing the need for manual overrides) and effectiveness (by generating a more comprehensive and accurate credit rating after taking into account both quantitative and qualitative factors and adopting the absolute scoring approach).
Thus, the enhanced CRRM would help NSCC to identify those Members that could present credit risk to NSCC, which then would allow NSCC to better manage the potential risks from these Members.
The proposed enhancements to the CRRM as described in detail above would be consistent with Section 805(b) of Clearing Supervision Act.
By enhancing the CRRM to enable it to assign credit ratings to Members that are foreign banks or trust companies and that have audited financial data that is publicly available, the proposed rule change would expand the CRRM's applicability to a wider group of Members, which would improve NSCC's membership monitoring process and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
Similarly, by enhancing the CRRM to enable it to incorporate qualitative factors when assigning a Member's credit rating, the proposed change would enable NSCC to take into account relevant qualitative factors in an automated and more effective manner when monitoring the credit risks presented by the Members, which would improve NSCC's membership monitoring process overall and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
Likewise, by enhancing the CRRM to shift from a relative scoring approach to an absolute scoring approach when assigning a Member's credit rating, the proposed rule change would enable NSCC to generate credit ratings for Members that are more reflective of the Members' default risk, which would improve NSCC's membership monitoring process and promote robust risk management, consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act cited above.
The proposed enhancements to the CRRM are consistent with Rule 17Ad-22(e)(3)(i) under the Act, which was recently adopted by the Commission.
The proposed rule change to Section 2B of Rule 2B with respect to the scope of information that may be requested by NSCC from its Members has been designed to be consistent with Rule 17Ad-22(e)(19) under the Act, which was recently adopted by the Commission.
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. The clearing agency shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
The clearing agency shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the Advance Notice is consistent with the Clearing Supervision 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.
By the Commission.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX PEARL Fee Schedule (the “Fee Schedule”) to waive transaction rebates/fees applicable to transactions executed during the opening and transactions that uncross the Away Best Bid or Offer (“ABBO”).
The Exchange initially filed the proposal on March 29, 2017 (SR-PEARL-2017-13). That filing has been withdrawn and replaced with the current filing (SR-PEARL-2017-17).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to waive transaction rebates/fees applicable to executions that occur as part of the Exchange's opening procedures as described in Rule 503 (“Openings on the Exchange”) or that uncross the ABBO,
Under the Openings on the Exchange Rule, the Exchange will accept orders for queuing in a series of options prior to the opening of trading in that series of options. As such and as further described in Rule 503, executions might occur in a series as part of the Exchange Opening as the series is being opened for trading. Pursuant to Section 1)a) of the Exchange's Fee Schedule, the Exchange currently assesses transaction rebates and fees for transactions that occur as part of the Exchange Opening. In order to determine the applicable transaction rebate and fee, the Exchange treats orders from Priority Customer
Further, pursuant to Section 1)a) of the Exchange's Fee Schedule, the Exchange currently assesses transaction rebates and fees for transactions that uncross the ABBO. In order to
The Exchange has determined to make these changes for competitive reasons in order to attract more order flow to the Exchange in these scenarios. The Exchange notes that other exchanges do not assess transaction rebates/fees in these scenarios, including Bats BZX Exchange.
The Exchange believes that its proposal to amend its fee schedule is consistent with Section 6(b) of the Act
The proposal provides that executions that occur as part of the Exchange Opening will not incur any fees or receive any rebates, regardless of origin type. The Exchange believes that its proposal to waive transaction rebates/fees that occur as part of the Exchange Opening is reasonable, fair and equitable because it will incentivize Members
The proposal further provides that executions that uncross the ABBO will not be assessed any fees or receive any rebates, regardless of origin type. The Exchange believes that its proposal to waive transaction rebates/fees that uncross the ABBO is reasonable, fair and equitable because it will incentivize Members to send greater order flow to the Exchange in this scenario, potentially providing greater liquidity on the Exchange. In addition, the Exchange believes that the foregoing is fair and equitable because it provides certainty for Members with respect to execution costs across all trades which uncross the ABBO. Lastly, the Exchange also believes that the proposed pricing for executions occurring in this scenario is nondiscriminatory because it will apply equally to all Members, regardless of origin type.
MIAX PEARL 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. To the contrary, the Exchange notes that this rule change is being proposed as a competitive offering at a time when other options exchanges are offering similar processes for opening their respective markets or managed interest processes. As a result of the competitive environment, Members will have various pricing and execution models to choose from in making determinations on where to enter orders prior to the opening of trading or which may potentially uncross the ABBO. The Exchange notes that it operates in a highly competitive market in which Members can readily direct order flow to competing venues if they deem fee levels to be excessive.
Written comments were neither solicited nor 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the pilot program for the listing and trading of options settling to the RealVol
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 purpose of the proposed rule change is to extend the pilot period for the listing and trading of options settling to the RealVol
In the initial proposal to list and trade this product, the Exchange stated that if it were to propose an extension, permanent approval or termination of the Pilot Program, the Exchange would submit a filing proposing such amendments to the program.
As proposed in the initial filing, the Exchange proposes to submit a Pilot Program Report to the Securities and Exchange Commission (the “Commission”) two months prior to the expiration date of the Pilot Program (the “annual report”).
The annual report would contain the following volume and open interest data:
(1) Monthly volume aggregated for all trades;
(2) monthly volume aggregated by expiration date;
(3) monthly volume for each individual series;
(4) month-end open interest aggregated for all series;
(5) month-end open interest for all series aggregated by expiration date; and
(6) month-end open interest for each individual series.
In addition to the annual report, the Exchange would provide the Commission with interim reports of the information listed in Items (1) through (6) above periodically as required by the Commission while the pilot is in effect. These interim reports would also be provided on a confidential basis.
In addition, the annual report would contain the following analysis of trading patterns in VOLS series in the pilot:
(1) A time series analysis of open interest; and
(2) an analysis of the distribution of trade sizes.
Also, for series that exceed certain minimum parameters, the annual report would contain the following analysis related to index price changes and SPY trading volume at the close on expiration Fridays:
(1) A comparison of index price changes at the close of trading on a given expiration Friday with comparable price changes from a control sample. The data would include a calculation of percentage price changes for various time intervals and compare that information to the respective control sample. Raw percentage price change data as well as percentage price change data normalized for prevailing market volatility, as measured by the Chicago Board Options Exchange, Incorporated (“CBOE”) Volatility Index (VIX), would be provided; and
(2) a calculation of trading volume for a sample set of SPY representing an upper limit on trading that could be attributable to expiring in-the-money series. The data would include a comparison of the calculated volume for SPY in the sample set to the average daily trading volumes of SPY over a sample period.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange believes that extending the RealVol
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 notes that the proposed extension will allow for the listing and trading of a novel index option product that will enhance competition among market participants, to the benefit of investors and the marketplace.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
The Exchange believes the proposed change is “non-controversial” because it will allow for the listing and trading of a previously approved novel index option product that will enhance competition among market participants, to the benefit of investors and the marketplace.
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.
I. Renewal of Advisory Committee. The Department of State has renewed the Charter of the U.S. National Commission for the United Nations Educational, Scientific, and Cultural Organization (UNESCO). The U.S. National Commission for UNESCO, which operates pursuant to 22 U.S. Code 287
The recommendations relate to the formulation and implementation of U.S. policy towards UNESCO on matters of education, science, communications, and culture. Also, the Commission functions as a liaison with organizations, institutions, and individuals in the United States interested in the work of UNESCO.
The Commission is comprised of representatives of American organizations and institutions having an interest in education, science, communications and culture, including professional associations, educational institutions, and non-governmental organizations (NGOs), as well as representatives of federal, state and local governments, and at-large individuals. The Commission meets to provide information on UNESCO related topics and make recommendations.
For further information, please call Paul Mungai, U.S. Department of State, (202) 663-2407.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice; correction.
The Department of Veterans Affairs (VA) published a collection of information notice in the
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at 202-461-5870.
In FR Doc. 2017-06687, published on Wednesday, April 5, 2017 at 82FR64, make the following corrections. On page 16664, in the heading “Agency Information Collection Activity: Compliance Inspection Report, and also under
By direction of the Secretary.
| 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 |