| Page Range | 32563-32758 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 32699 - Self-Regulatory Organizations; LCH SA; Notice of Filing of Proposed Rule Change Relating to Liquidity Risk Management | |
| 83 FR 32755 - Excepting Administrative Law Judges From the Competitive Service | |
| 83 FR 32753 - Establishing an Exception to Competitive Examining Rules for Appointment to Certain Positions in the United States Marshals Service, Department of Justice | |
| 83 FR 32627 - Sunshine Act Meeting Notice | |
| 83 FR 32687 - Government in the Sunshine Act Meeting Notice | |
| 83 FR 32644 - Applications for New Awards; Personnel Development To Improve Services and Results for Children With Disabilities-Associate Degree Preservice Program Improvement Grants To Support Personnel Working With Young Children With Disabilities | |
| 83 FR 32651 - Applications for New Awards; Technical Assistance and Dissemination To Improve Services and Results for Children With Disabilities-Model Demonstration Projects To Improve Academic Outcomes of Students With Intellectual Disabilities in Elementary and Middle School | |
| 83 FR 32689 - Millennium Challenge Corporation Advisory Council Notice of Open Meeting | |
| 83 FR 32582 - Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port, Lake Michigan Zone | |
| 83 FR 32582 - Safety Zones; Annual Events in the Captain of the Port Buffalo Zone-July Events | |
| 83 FR 32602 - Drawbridge Operation Regulation; Anacostia River, Washington, DC | |
| 83 FR 32579 - Delegation Concerning International Prisoner Transfer Program | |
| 83 FR 32671 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 83 FR 32671 - National Eye Institute; Notice of Closed Meeting | |
| 83 FR 32672 - National Cancer Institute Amended; Notice of Meeting | |
| 83 FR 32672 - Center for Scientific Review; Notice of Closed Meetings | |
| 83 FR 32671 - Center For Scientific Review; Notice of Closed Meetings | |
| 83 FR 32688 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved Collection; Claim for Damage, Injury, or Death | |
| 83 FR 32675 - 30-Day Notice of Proposed Information Collection: Manufactured Housing Installation Program Reporting Requirements | |
| 83 FR 32667 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 32690 - Proposed Revisions to Branch Technical Position 5-3; Fracture Toughness Requirements | |
| 83 FR 32637 - Procurement List; Additions and Deletion | |
| 83 FR 32638 - Procurement List; Proposed deletions | |
| 83 FR 32627 - Notice of Public Meeting of the Oregon Advisory Committee | |
| 83 FR 32626 - Notice of Public Meeting of the Idaho Advisory Committee | |
| 83 FR 32625 - Agenda and Notice of Public Meeting of the Connecticut Advisory Committee | |
| 83 FR 32675 - 30-Day Notice of Proposed Information Collection: Inspector Candidate Assessment Questionnaire | |
| 83 FR 32677 - 30-Day Notice of Proposed Information Collection: Management Reviews of Multifamily Housing Programs | |
| 83 FR 32709 - Decision That Certain Nonconforming Motor Vehicles Are Eligible for Importation | |
| 83 FR 32708 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2014 BMW X3 Multipurpose Passenger Vehicles Are Eligible for Importation | |
| 83 FR 32706 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: “Delacroix” Exhibition | |
| 83 FR 32706 - Data Collection Available for Public Comments | |
| 83 FR 32681 - Notice of Intent To Prepare an Environmental Impact Statement and Land Use Plan Amendment, and a Notice of Segregation for the Proposed Gemini Solar Project in Clark County, Nevada | |
| 83 FR 32634 - Steel Wire Garment Hangers From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 32629 - Certain Cut-to-Length Carbon-Quality Steel Plate Products From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 32665 - Environmental Impact Statements; Notice of Availability | |
| 83 FR 32681 - Notice of Termination of the San Rafael Swell Master Leasing Plan, Utah | |
| 83 FR 32618 - Notice of Request To Renew an Approved Information Collection (Petitions for Rulemaking) | |
| 83 FR 32632 - Certain Hot-Rolled Steel Flat Products From Brazil: Preliminary Results of the Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 32636 - Stainless Steel Butt-Weld Pipe Fittings From Italy: Final Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 32631 - Certain Steel Nails From the People's Republic of China: Notice of Court Decision Not in Harmony With the Final Results of Administrative Review and Notice of Amended Final Results of Antidumping Duty Administrative Review | |
| 83 FR 32678 - Privacy Act of 1974; System of Records | |
| 83 FR 32691 - Exelon Generation Company, LLC; James A. FitzPatrick Nuclear Power Plant | |
| 83 FR 32665 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 83 FR 32674 - Agency Information Collection Activities: Trusted Traveler Programs and U.S. APEC Business Travel Card | |
| 83 FR 32673 - Agency Information Collection Activities: Small Vessel Reporting System | |
| 83 FR 32697 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Plant Operations and Fire Protection; Notice of Meeting | |
| 83 FR 32665 - Availability of Draft Toxicological Profile: Perfluoroalkyls; Extension of Comment Period | |
| 83 FR 32710 - Pipeline Safety: Information Collection Activities, Revision of the Hazardous Liquid Annual Report | |
| 83 FR 32664 - Parker-Davis Project-Rate Order No. WAPA-184 | |
| 83 FR 32659 - Application To Export Electric Energy; Royal Bank of Canada | |
| 83 FR 32664 - Call for 2025 Resource Pool Applications, Sierra Nevada Region | |
| 83 FR 32619 - Notice of Intent To Extend and Revise a Currently Approved Information Collection | |
| 83 FR 32620 - Announcement of Requirements and Registration for U.S. Department of Agriculture (USDA) Innovations in Food and Agricultural Science and Technology (I-FAST) Prize Competition | |
| 83 FR 32624 - Notice To Implement a Guarantee Systems User Fee for Lender Use of the Single Family Housing Section 502 Guaranteed Loan Program Automated Systems | |
| 83 FR 32630 - Environmental Technologies Trade Advisory Committee (ETTAC) Public Meeting | |
| 83 FR 32604 - Safety Zone; Ski Show Sylvan Beach; Fish Creek, Oneida, NY | |
| 83 FR 32689 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension, Without Change, of a Currently Approved Collection-FBI Expungement Form (FD-1114) | |
| 83 FR 32687 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension With Change, of a Previously Approved Collection 2013 Private Industry Feedback Survey | |
| 83 FR 32640 - Privacy Act of 1974; System of Records | |
| 83 FR 32706 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: “Keir Collection of Art of the Islamic World” Exhibitions | |
| 83 FR 32698 - New Postal Products | |
| 83 FR 32591 - Safety Zone; Willamette River, Wilsonville, OR | |
| 83 FR 32627 - Proposed Information Collection; Comment Request; Annual Survey of Manufactures | |
| 83 FR 32663 - Notice of Institution of Section 206 Proceeding and Refund Effective Date: PSEG Energy Resources & Trade, LLC | |
| 83 FR 32663 - Notice of Applications: Maritimes & Northeast Pipeline, LLC | |
| 83 FR 32660 - Notice of Request Under Blanket Authorization: Columbia Gas Transmission, LLC | |
| 83 FR 32661 - Combined Notice of Filings | |
| 83 FR 32662 - Combined Notice of Filings #1 | |
| 83 FR 32660 - Combined Notice of Filings #1 | |
| 83 FR 32641 - Public Scoping Meetings for the Draft Supplemental Environmental Impact Statement for the Allatoona Lake Water Supply Storage Reallocation Study and Updates to Weiss and Logan Martin Reservoir Project Water Control Manuals in the Alabama-Coosa-Tallapoosa River Basin | |
| 83 FR 32580 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits | |
| 83 FR 32687 - Notice of Lodging of Proposed Consent Decree Under the Compresensive Environmental Response, Compensation, and Liability Act | |
| 83 FR 32642 - Notice of Intent To Prepare Supplement II to the Final Environmental Impact Statement, Mississippi River and Tributaries (MR&T) Project, Mississippi River Mainline Levees and Channel Improvement | |
| 83 FR 32669 - Q3D(R1) Elemental Impurities; International Council for Harmonisation; Draft Guidance for Industry; Availability | |
| 83 FR 32699 - Product Change-Priority Mail Negotiated Service Agreement | |
| 83 FR 32666 - Proposed Guidance Regarding Operational Control Range Around Optimal Fluoride Concentration in Community Water Systems That Adjust Fluoride | |
| 83 FR 32615 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar in the Western and Central North Pacific Ocean and Eastern Indian Ocean | |
| 83 FR 32626 - Agenda and Notice of Public Meeting of the Wyoming Advisory Committee | |
| 83 FR 32625 - Agenda and Notice of Public Meeting of the Colorado Advisory Committee | |
| 83 FR 32638 - Agency Information Collection Activities: Notice of Intent To Renew Collection 3038-0076, Risk Management Requirements for Derivatives Clearing Organizations | |
| 83 FR 32699 - AB Private Credit Investors Corp., et al. | |
| 83 FR 32704 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 16.160 To Remove Form 19b-4(e) Filing Requirement | |
| 83 FR 32676 - Order of Succession for the Office of Policy Development and Research | |
| 83 FR 32689 - Maritime Regulatory Reform | |
| 83 FR 32592 - Schedule for Rating Disabilities: Skin | |
| 83 FR 32686 - Certain Convertible Sofas and Components Thereof; Institution of Investigation | |
| 83 FR 32684 - Certain Two-Way Radio Equipment and Systems, Related Software and Components Thereof; Notice of Request for Statements on the Public Interest | |
| 83 FR 32685 - Certain Gas Spring Nailer Products and Components Thereof; Commission Decision Not To Review an Initial Determination Granting Complainant's Motion To Amend the Notice of Investigation To Add Claim 30 of U.S. Patent 8,267,297 | |
| 83 FR 32684 - Certain Amorphous Metal and Products Containing Same; Termination of Investigation | |
| 83 FR 32698 - New Postal Product | |
| 83 FR 32677 - Call for Nominations to the National Geospatial Advisory Committee | |
| 83 FR 32606 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Plan for the Indiana, Pennsylvania Nonattainment Area for the 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard | |
| 83 FR 32683 - Notice of Availability for the Alton Coal Tract Coal Lease by Application Final Environmental Impact Statement, Utah | |
| 83 FR 32566 - Safety Standard for Automatic Residential Garage Door Operators | |
| 83 FR 32716 - Fiduciary Activities | |
| 83 FR 32696 - Kennecott Uranium Company; Sweetwater Uranium Project | |
| 83 FR 32707 - Notice of Final Federal Agency Actions on Proposed Highway in North Carolina | |
| 83 FR 32563 - Airworthiness Directives; American Champion Aircraft Corp. | |
| 83 FR 32711 - Notice of Final Federal Agency Actions on Proposed Highway Projects in Texas |
Food Safety and Inspection Service
National Institute of Food and Agriculture
Rural Housing Service
Census Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Federal Energy Regulatory Commission
Western Area Power Administration
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Geological Survey
Land Management Bureau
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding Airworthiness Directive (AD) (AD) 2017-07-10 for certain American Champion Aircraft Corp. (ACAC) Model 8KCAB airplanes. AD 2017-07-10 required fabrication and installation of a placard to prohibit aerobatic flight, inspection of the aileron hinge rib and support, and a reporting requirement of the inspection results to the FAA. This AD requires repetitive inspections of the aileron hinge support, installation of the aileron hinge support reinforcement kit, and incorporation of revised pages into the service manual. This AD was prompted by a report of a cracked hinge support and cracked hinge ribs, which resulted in partial loss of control with the aileron binding against the cove. We are issuing this AD to address the unsafe condition on these products.
This AD is effective August 17, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 17, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of April 12, 2017 (82 FR 17542, April 12, 2017).
For service information identified in this final rule, contact American Champion Aircraft Corp., P.O. Box 37, 32032 Washington Ave., Rochester, Wisconsin 53167; telephone: (262) 534-6315; fax: (262) 534-2395; email:
You may examine the AD docket on the internet at
Wess Rouse, Small Airplane Program Manager, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone: (847) 294-8113; fax: (847) 294-7834; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2017-07-10, Amendment 39-18849 (82 FR 17542, April 12, 2017) (“AD 2017-07-10”), and add a new AD. AD 2017-07-10 applied to certain American Champion Aircraft Corp. (ACAC) Model 8KCAB airplanes. AD 2017-07-10 required fabricating and installing a placard to prohibit aerobatic flight, inspecting the aileron hinge rib and support, and reporting the inspection results to the FAA. We issued AD 2017-07-10 to prevent failure of the aileron support structure, which may lead to excessive deflection, binding of the control surface, and potential loss of control.
The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Scott Austin, Chris Murley, Moritz Bartsch, David Trost, and an anonymous individual requested the AD not require installation of the reinforcement kit. In support of this request, the commenters state the airplanes with failures that prompted the AD had different horsepower, different wingtips, and were used repeatedly in “hard” aerobatic operations. The commenters felt that airplanes with these design differences and those used in normal operations would be safely mitigated with repetitive inspections and installation of the reinforcement kit only if cracks are found.
We do not agree. The commenters did not provide data to support a position that the unsafe condition is affected by the differences in horsepower or wing design. Additionally, all Model 8KCAB airplanes are certificated to the same operational limits. We have no safety basis to only rely on 100-hour/annual inspections to mitigate the unsafe condition. We have not changed this AD based on this comment.
We have deleted paragraph (g)(1) of the NPRM and renumbered paragraphs (g)(2) and (g)(3) to (g)(1) and (g)(2) respectively in this AD. Paragraphs (g)(2) and (g)(3) of the NPRM basically presented the actions that were
We have also corrected minor typographical errors in paragraphs (h)(1), (h)(3), and (h)(4) in this AD.
Lastly, we have clarified the document title of the airworthiness limitations in paragraphs (h)(6) and (h)(7) in this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for the changes described previously. These changes are consistent with the intent of the proposals in the NPRM and will not increase the economic burden on any operator nor increase the scope of the AD.
We reviewed American Champion Aircraft Corp. Service Letter 442, Revision A, dated August 18, 2017 (ACAC SL No. 442); American Champion Aircraft Corp. Service Letter 444 Initial Revision, dated August 18, 2017 (ACAC SL No. 444); and page 4-1, Manual Revision B, of the Airworthiness Limitations section and page 5-9, Manual Revision B, of the Time and Maintenance Checks section, both dated October 3, 2017, and included in American Champion Aircraft Corporation SM-601 8KCAB Service Manual, Reissue B, dated October 3, 2017. ACAC SL No. 442 describes procedures and inspection intervals for inspection of the aileron hinge rib and hinge support. ACAC SL No. 444 provides instructions for the installation of the aileron hinge reinforcement kit. Page 4-1 and page 5-9 are revised pages that add a repetitive inspection to the 8KCAB Service Manual, SM-601, Reissue B, dated October 3, 2017. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 64 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective August 17, 2018.
This AD replaces AD 2017-07-10, Amendment 39-18849 (82 FR 17542, April 12, 2017) (“AD 2017-07-10”).
This AD applies to any American Champion Aircraft Corp. Model 8KCAB airplane, certificated in any category, that either has:
(1) A serial number in the range of 1116-2012 through 1120-2012 or 1122-2012 through 1170-2017; or
(2) Is equipped with part number 4-2142 exposed balance ailerons.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
AD 2017-07-10 was prompted by a report of a cracked hinge support and cracked hinge ribs, which resulted in partial loss of control with the aileron binding against the cove. This AD incorporates a newly designed aileron hinge support reinforcement kit. We are issuing this AD to prevent failure of the aileron support structure, which may lead to excessive deflection, binding of the control surface, and potential loss of control.
Comply with this AD within the compliance times specified, unless already done.
(1) Before further flight after April 12, 2017 (the effective date retained from AD 2017-07-10), fabricate a placard using at least
(2) This action may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.
(1) Within the next 10 hours time-in-service (TIS) after April 12, 2017 (the effective date retained from AD 2017-07-10), inspect the aileron hinge rib and support for cracks or other damage by following American Champion Aircraft Corporation Service Letter (SL) 442, dated February 16, 2017, or American Champion Aircraft Corp. Service Letter (SL) 442, Revision A, dated August 18, 2017 (ACAC SL No. 442, Revision A).
(2) If no cracks or other damage is found during the initial inspection required in paragraph (h)(1) of this AD, the placard prohibiting aerobatic flight required in paragraph (g)(1) of this AD can be removed.
(3) Within 100 hours TIS from the initial inspection required in paragraph (h)(1) of this AD or within 10 hours TIS after August 17, 2018 (the effective date of this AD), whichever occurs later, and repetitively thereafter at intervals not to exceed 100 hours TIS, inspect the aileron hinge rib and support for cracks or other damage following ACAC SL No. 442, Revision A.
(4) If cracks or other damage is found during any inspection required in paragraph (h)(1) or (3) of this AD, before further flight, replace any retained parts or structure that are cracked or damaged, and install the aileron hinge reinforcement kit by following American Champion Aircraft Corp. Service Letter 444, dated August 18, 2017 (ACAC SL No. 444). Unless already removed as specified in paragraph (h)(2) of this AD, after completing the corrective actions required by this paragraph, the placard prohibiting aerobatic flight required in paragraph (g)(1) of this AD can be removed.
(5) Within 400 hours after the initial inspection required in paragraph (h)(1) of this AD, if not already done as required in paragraph (h)(4) of this AD, install the aileron hinge reinforcement kit following the procedures in ACAC SL No. 444.
(6) After installation of the aileron hinge reinforcement kit required in paragraph (h)(4) or (5) of this AD, as applicable, insert page 4-1, Manual Revision B, of the Airworthiness Limitations section and page 5-9, Manual Revision B, of the Time and Maintenance Checks section, both dated October 3, 2017, from the American Champion Aircraft Corporation SM-601 8KCAB Service Manual, Reissue B, dated October 3, 2017, into the maintenance program (service manual).
(7) Installing the aileron hinge reinforcement kit as required in paragraph (h)(4) or (h)(5) of this AD and the insertion of page 4-1, Manual Revision B, of the Airworthiness Limitations section and page 5-9, Manual Revision B, of the Time and Maintenance Checks section, both dated October 3, 2017, of the American Champion Aircraft Corporation SM-601 8KCAB Service Manual, Reissue B, dated October 3, 2017, into the maintenance program (
Although ACAC SL No. 442, Revision A, and ACAC SL No. 444 specify submitting certain information to the manufacturer, this AD does not require that action.
No aerobatic flight permitted with a special flight permit.
(1) The Manager, Chicago ACO Branch, 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 (l) of this AD.
(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.
For more information about this AD, contact Wess Rouse, Small Airplane Program Manager, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone: (847) 294-8113; fax: (847) 294-7834; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) American Champion Aircraft Corp. Service Letter 442, Revision A, dated August 18, 2017.
(ii) American Champion Aircraft Corp. Service Letter 444, Initial Revision, dated August 18, 2017.
(iii) Page 4-1, Manual Revision B, of the Airworthiness Limitations section of American Champion Aircraft Corporation SM-601 8KCAB Service Manual, Reissue B, dated October 3, 2017;
(iv) Page 5-9, Manual Revision B, of the Time and Maintenance Checks section of American Champion Aircraft Corporation SM-601 8KCAB Service Manual, Reissue B, dated October 3, 2017.
(3) The following service information was approved for IBR on April 12, 2017 (82 FR 17542, April 12, 2017).
(i) American Champion Aircraft Corporation Service Letter 442, dated February 16, 2017.
(ii) Reserved.
(4) For service information identified in this AD, contact American Champion Aircraft Corp., P.O. Box 37, 32032 Washington Ave., Rochester, Wisconsin 53167; telephone: (262) 534-6315; fax: (262) 534-2395; email:
(5) You may view this referenced service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.
(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:
U.S. Consumer Product Safety Commission.
Direct final rule.
The Consumer Product Safety Commission (Commission, or CPSC) is amending its regulation,
The rule is effective on September 11, 2018, unless we receive significant adverse comment by August 13, 2018. If we receive timely significant adverse comments, we will publish notification in the
You may submit comments, identified by Docket No. CPSC-2015-0025, by any of the following methods:
Troy W. Whitfield, Lead Compliance Officer, Office of Compliance, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814-4408; Telephone (301) 504-7548 or email:
The Commission has regulations for residential garage door operators (GDOs) to protect consumers from the risk of entrapment. 16 CFR part 1211. The Commission first issued the GDO standard in 1991, as required by the Consumer Product Safety Improvement Act of 1990 (Improvement Act), Public Law 101-608. Section 203 of the Improvement Act mandated that the entrapment protection requirements of the 1988 version of UL's 325, Third Edition, “Door, Drapery, Louver and Window Operators and Systems,” be considered a consumer product safety rule under the Consumer Product Safety Act. Section 203(c) of the Improvement Act established procedures for the Commission to revise the Commission's GDO standard. When UL revises the entrapment protection requirements of UL 325, UL must notify the Commission of the revision, and that revision “shall be incorporated in the consumer product safety rule . . . unless, within 30 days of such notice, the Commission notifies [UL] that the Commission has determined that such revision does not carry out the purposes of subsection (b) [of section 203 of the Improvement Act, which mandated the UL 325 entrapment protection requirements initially]. As provided in the Improvement Act, the Commission has revised the GDO standard after UL has notified the Commission of changes to UL 325's entrapment protection requirements several times in the past.
The mandatory rule (16 CFR part 1211) primarily requires that all residential GDOs sold in the United States have an inherent reversing mechanism capable of reversing the motion of a moving garage door within 2 seconds, to reduce the risk of entrapment. This system is known as an “inherent system” because it is physically located within the housing of the GDO. In addition, the rule requires that the operator shall be provided with a means for connection of an external entrapment-sensing device. Most GDOs on the market today use an electric eye as the external entrapment-sensing device. The purpose of this device is to monitor the area under the garage door to detect people who might become entrapped by the garage door. The standard also allows a device, known as a “door edge sensor,” similar to the sensors used on elevator doors, or allows for any other device that provides equivalent protection. These devices are known as “external entrapment-sensing devices” because they are located outside the housing of the GDO.
In addition, the rule requires all GDOs to have a device referred to as a “30-second clock.” The 30-second clock is a back-up device that reopens the door if the door cannot close completely within 30 seconds, as would be the case when a person becomes entrapped by the door. The 30-second clock is a back-up to the primary, 2-second inherent entrapment system.
The rule also requires that every GDO be equipped with a “means to manually detach the door operator from the door.” This requirement enables a person to detach the operator from the door quickly if a person becomes entrapped under the door. For most garage doors, the means of detachment occurs by pulling on a red handle that hangs below the GDO.
The Commission last updated the mandatory rule in 2016, to reflect changes made to the entrapment protection provisions of UL 325 up to that time.
Since the last update of the mandatory rule in 2016, there have been three published revisions of the voluntary standard, UL 325, including publication of the Seventh Edition in May 2017.
On December 20, 2016, UL notified the CPSC that UL had revised the entrapment protection requirements of UL 325 and had published revisions to the Sixth Edition on December 15, 2016. On June 16, 2017, UL notified the Commission that UL published additional revisions to UL 325, Sixth Edition, on May 25, 2017, which became the Seventh Edition.
On January 11, 2017, and July 5, 2017, CPSC staff submitted briefing packages to the Commission, recommending that the Commission incorporate the applicable changes to UL 325, because
Consistent with the Commission's previous votes to include the revisions regarding the entrapment protection requirements for automatic residential GDOs, this rule revises the mandatory GDO rule at 16 CFR part 1211, to include the revisions regarding the entrapment protection requirements for automatic residential GDOs in UL 325, Seventh Edition.
The direct final rule amends 16 CFR part 1211, to include the revisions regarding the entrapment protection requirements for automatic residential GDOs in UL 325, Seventh Edition. All of the revisions in the direct final rule concerning the GDO standard are in subpart A and subpart D. The direct final rule does not change any of the certification (subpart B) or recordkeeping (subpart C) provisions of the GDO standard.
All of the revisions to the relevant provisions of 16 CFR part 1211 are described in the summary of changes below:
•
•
•
•
•
•
•
•
As noted, on January 18, 2017, and July 11, 2017, the Commission voted to include the revisions regarding the entrapment protection requirements for automatic residential GDOs in UL 325, Seventh Edition. In accordance with its previous vote, the Commission is issuing this direct final rule that amends the mandatory GDO rule at 16 CFR part 1211 to include the revisions to the entrapment protection requirements of UL 325.
The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).
Supplement SA of UL 325 provides an alternate test method for assessing the reliability of GDO electronic or solid-state circuits, including entrapment protection circuits, which perform back-up, limiting, or other functions intended to reduce the risk of fire, electric shock, or injury to persons. As noted, the direct final rule adds references to Supplement SA in §§ 1211.4, 1211.5, and a new paragraph § 1211.40(d)(1) in subpart D that incorporates by reference Supplement SA.
The UL standard listed above is copyrighted. The UL standard may be obtained from UL, 151 Eastern Avenue, Bensenville, IL 60106, Telephone: 1-888-853-3503 or online at:
The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA) generally requires notice and comment rulemaking, section 553 of the APA provides an exception when the agency, for good cause, finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite promulgating rules that are noncontroversial and that are not expected to generate significant adverse comment.
The Commission is taking the limited action of amending the GDO rule to conform the regulation to the changes to UL 325 that were previously accepted by the Commission in January and July 2017. Public comment will not impact the Commission's acceptance of the substantive changes to UL 325. Because this document merely updates the GDO rule, the Commission believes this rulemaking is a non-controversial matter that is not likely to generate comments. Therefore, the Commission concludes that the direct final rule process is appropriate.
Unless we receive a significant adverse comment within 30 days, the rule will become effective on September 11, 2018. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one in which the commenter explains why the rule did not accurately update the codified text in 16 CFR part 1211. We note that comments on the Commission's previous underlying acceptance of the revisions to UL 325 are not considered significant adverse comments because the only change this rule makes is to revise the GDO rule to conform to the revisions to UL 325 previously accepted by the Commission.
Should the Commission receive a significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.
Based on reports from industry representatives, all known manufacturers and importers currently conform to the UL 325, Seventh Edition revisions contained in the direct final rule. Therefore, the effective date of the direct final rule is September 11, 2018. This effective date would not adversely affect the cost or availability of conforming GDOs.
The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for the rules' potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. Staff researched the potential effects of the direct final rule on small entities, including small manufacturers, importers, and private labelers. Staff has identified 19 firms that market GDOs in the United States. Five of these are either large firms or subsidiaries of large foreign or domestic companies. The 14 remaining companies appear to be small firms under U.S. Small Business Administration (SBA) size standards (13 CFR part 121).
Staff estimates, based on industry sales data, that about 5 million to 7 million GDOs are installed annually. A review of company information and staff's contacts with industry representatives indicate that all known manufacturers and importers market only products that conform to UL 325. All of these firms' GDOs reportedly conform to the UL 325, Seventh Edition requirements that became effective in May 2017. These firms, including the small firms, have already incurred the design and testing costs associated with the minor changes in the UL 325 test procedures made since 2016. Therefore, the direct final rule would not impose any new costs on small producers or importers. Pursuant to section 605(b) of the RFA, because the existing level of conformance is virtually 100 percent, and no new compliance costs or other burdens would be associated with the direct final rule, the Commission certifies that this rule will not have a significant impact on a substantial number of small entities.
The Improvement Act contains a preemption provision which states: “those provisions of laws of States or political subdivisions which relate to the labeling of automatic residential garage door openers and those provisions which do not provide at least the equivalent degree of protection from the risk of injury associated with automatic residential garage door openers as the consumer product safety rule” are subject to preemption under 15 U.S.C. 2075. Public Law 101-608, section 203(f).
The Commission's regulations provide a categorical exclusion for Commission rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required. The Commission's regulations state that safety standards for products normally have little or no potential for affecting the human environment. 16 CFR 1021.5(c)(1). Nothing in this rule alters that expectation.
Consumer protection, Imports, Incorporation by reference, Labeling, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Commission amends 16 CFR part 1211 as follows:
Sec. 203 of Pub. L. 101-608, 104 Stat. 3110; 15 U.S.C. 2063 and 2065.
(c) An electronic or solid-state circuit that performs a back-up, limiting, or other function intended to reduce the risk of fire, electric shock, or injury to persons, including entrapment protection circuits, shall comply with the requirements in UL 991 (incorporated by reference, see § 1211.40), including environmental and stress tests appropriate to the intended usage of the end-product. Exception: A control or electronic circuit that complies with Supplement SA of UL 325-2017 (incorporated by reference, see § 1211.40) is considered to fulfill this requirement.
The revision and addition read as follows:
(a) The following test parameters are to be used in the investigation of the circuit covered by § 1211.4(c) for compliance with either, UL 991, or Supplement SA of UL 325-2017 (incorporated by reference, see § 1211.40):
(b) * * *
(4) During evaluation of the circuit to the requirements of Supplement SA of UL 325-2017 (incorporated by reference, see § 1211.40).
(b) * * *
(2) Shall be provided with a means for connection of an external secondary entrapment protection device as described in § 1211.8 (a) and (c) through (e), as applicable to vertically moving doors; or
(3)(i) Shall be provided with an inherent secondary entrapment protection device as described in §§ 1211.8(a) and (f), 1211.10, and 1211.12 and is:
(d) * * *
(2) Shall be provided with a means for connection of an external secondary entrapment protection device for each leading edge as described in § 1211.8(c) through (e), as applicable to horizontally moving doors.
(c) * * *
(1) * * *
(ii) The door operator is not required to open the door a minimum 2 inches (50.8 mm) when the operator senses a second obstruction during the reversing travel.
(iii) The door operator is not required to open the door a minimum 2 inches (50.8 mm) when a control is actuated to stop the door during movement towards the open position—but the door can not be moved towards the closed position until the operator reverses the door a minimum of 2 inches (50.8 mm).
(7)(i) An operator, employing an inherent entrapment protection control that measures or monitors the actual position of the door, shall initiate reversal of the door and shall return the door to, and stop the door at, the fully open position in the event the inherent door operation “profile” of the door differs from the originally set parameters. The system shall measure or monitor the position of the door at increments not greater than 1 inch (25.4 mm).
(a)(1) * * *
(ii) An external edge sensor installed on the edge of the door that, when activated as tested per § 1211.12(a)(4)(1) results in an operator that is closing a door to reverse direction of the door, returns the door to, and stops the door at the fully open position, and the sensor prevents an operator from closing an open door,
(b) * * *
(2) An external edge sensor installed on the edge of the door that, when activated as tested per § 1211.12 (a)(4)(2), results in an operator that is closing or opening a door to reverse direction of the door for a minimum of 2 inches (50.8 mm).
(b) * * *
(3) * * *
(ii) An edge sensor shall comply with the applicable Normal Operation test, per § 1211.12(a).
(c) * * *
(3) * * *
(ii) An edge sensor shall comply with the applicable Normal Operation Test, per § 1211.12(a).
(e) * * *
(1) * * *
(ii) The part shall operate as intended, per paragraph (e)(4) of this section at room temperature, or, if dislodged after the test, but not cracked or broken, is capable of being restored to its original condition. Exception: If a part is cracked or broken, as an alternative, it may be subjected to the Splash Tests, per paragraph (c) of this section, after the impact test. After the water exposure tests, the device shall either:
(A) Operate as intended per paragraph (e)(4) of this section; or
(B) Shut down safely (
(3) In lieu of conducting the room temperature test described in paragraph (e)(2) of this section, each of three samples of a device exposed to outdoor weather when the door is in the closed position are to be cooled to a temperature of minus 31.0 ±3.6 °F (minus 35.0 ±2.0 °C) and maintained at this temperature for 3 hours. Three samples of a device employed inside the garage are to be cooled to a temperature of 32.0 °F (0.0 °C) and maintained at this temperature for 3 hours. While the sample is still cold, the samples shall be subject to the test described in paragraph (e)(2) of this section, and shall comply with paragraph (e)(1)(i) of this section. After determining compliance with paragraph (e)(1)(i) of this section, the sample shall be allowed to return to room temperature, and then shall comply with paragraph (e)(1)(ii) of this section.
(4) * * *
(ii) An edge sensor shall comply with the applicable Normal Operation Test, per § 1211.12(a).
(a) * * *
(4)(i) An edge sensor, when installed on a representative door, shall actuate upon the application of a 15 lbf (66.7 N) or less force in the direction of the application when tested at room temperature 25 °C ±2 °C (77 °F ±3.6 °F) and, additionally, when intended for use with gate operators, shall actuate at 40 lbf (177.9 N) or less force when tested at −35 °C ±2 °C (−31 °F ±3.6 °F).
(A) For an edge sensor intended to be used on a sectional door, the force is to be applied by the longitudinal edge of a 1
(B) For an edge sensor intended to be used on a one piece door, swinging
(C) For an edge sensor that wraps around the leading edge of a swinging one-piece door, providing activation in both directions of travel, the force is to be applied so that the axis is at an angle 30 degrees from the direction perpendicular to both the closing direction and the opening direction. See Figure 6E to this subpart.
(ii) With respect to the Edge Sensor Test specified in paragraph (a)(4)(ii) of this section, the test is to be repeated at various representative points of the edge sensor across the length of the edge sensor. See Figures 6F and 6G to this subpart.
(5)
(ii) For horizontally moving residential garage door operators intended to be used with an external edge sensor, with reference to 32.3.2(b), a 1
(b)
(d) * * *
(2) For a vertically moving door, a sample of the edge sensor is to be installed in the intended manner on a representative door edge. The probe described in figure 7 to subpart A is to be applied with a 20 pound-force (89 N) to any point on the sensor that is 3 inches (76 mm) or less above the floor is to be applied in the direction specified in the Edge Sensor Normal Operation Test, Figure 6A or 6C to subpart A as applicable. The test is to be repeated on three locations on each surface of the sensor being tested.
(3) For horizontally sliding doors, sample of the edge sensor is to be installed in the intended manner on a representative door edge. The probe described in figure 7 to subpart A is to be applied with a 20 lbf (89 N) to any point on the sensor when the door is within 3 in (76 mm) of its fully open position and within 3 in (76 mm) of any stationary wall. For each type of door, the force is to be applied in the direction specified in the Edge Sensor Normal Operation Test, Figure 6B to subpart A. The test is to be repeated on three locations on each surface of the sensor being tested.
(a) * * *
(4) The test cylinder referred to in paragraph (b)(7) of this section shall be a 1
(c) * * *
(4) The visual alarm signal described in paragraph (c)(1) of this section shall be visible within the confines of a garage using a flashing light of at least 40 watt incandescent or 360 lumens. The flash rate shall be at least once per second, with a duration of 100 ms to 900 ms, for the duration of the alarm.
(f)
(i) The installation instructions of § 1211.16 (b)(1)(ii);
(ii) The markings of § 1211.17(h); and
(iii) the carton markings of § 1211.18(m).
(2)
(3)
(ii) The alarm shall signal for a minimum of 5 seconds before any unattended closing door movement, or before any door movement if the next direction of door travel cannot be determined.
(iii) The audible signal shall be heard within the confines of a garage. The audio alarm signals for the alarm specified in paragraph (f)(3)(i) of this section shall be generated by devices such as bells, horns, sirens, or buzzers. The signal shall have a frequency in the range of 700 to 3400 Hz, either a cycle of the sound level pulsations of 4 to 5 per second or one continuous tone, a sound level at least 45 dB 10 ft (305 cm) in front of the device over the voltage range of operation.
(iv) The visual alarm signal of paragraph (f)(3)(i) of this section shall be visible within the confines of a garage using a flashing light of at least 40 watt incandescent or 360 lumens.
(v) When the visual alarm or the audio alarm, or both, are external to the control accessory and are not part of main operator unit, the control accessory shall monitor for the connection of and proper operation of both the visual and audible alarms, prior to initiating door travel.
(4)
(ii) Upon activation of a user door control during unattended door movement:
(A) The operator shall function in the same manner as if the control accessory were not present;
(B) The control accessory shall not interfere with, override, or alter the normal operation of the operator; and
(C) The door shall stop, and may reverse the door on the closing cycle. On the opening cycle, activation of a user door control shall stop the door but not reverse it.
(iii) If an unattended door travelling in the closing direction is stopped and reversed by an entrapment protection device, the control accessory alone or in combination with the operator system shall be permitted one additional unattended operation attempt to close the door.
(iv) After two attempts per paragraph (d)(3) of this section, the control accessory alone or in combination with the operator system shall suspend unattended operation. The control accessory alone or in combination with the operator system shall require a renewed, intended input, via user door control (
(5)
(ii) A control accessory shall only be used with an operator when the combination of the operator and the control accessory comply with the applicable entrapment protection features including:
(A) Inherent Primary Entrapment Protection, in accordance with § 1211.7;
(B) Secondary Entrapment Protection, in accordance with § 1211.8.
(iii) A control accessory shall be marked to indicate “For use only with garage door operators complying with UL 325, manufactured after __,” or, “For use only with the following garage door operators:__.” The date (
(iv) To comply with paragraph (f)(5)(ii) of this section a control accessory shall comply with one or more of the following:
(A) Not be capable of operating when connected to an operator that is not compliant with paragraph (f)(5)(ii) of this section;
(B) Be restricted to function only with specific operators, such that the combination of the control and the operator are compliant with paragraph (f)(5)(ii) of this section;
(C) Provide additional functionality to an operator or system such that when operating via the control accessory, the combination of the control accessory and the operator complies with paragraph (f)(5)(ii) of this section;
(D) Be marked to indicate as indicated in paragraph (f)(5)(ii) of this section.
(6)
(A) Instructions per § 1211.16, as applicable.
(B) Instructions that repeat any warning or cautionary product markings and field labels required below.
(ii) The control accessory shall be provided with markings as follows:
(A) Markings on the product per § 1211.18, as applicable.
(B) In lieu of § 1211.18(m), the product package shall be marked with the following or equivalent:
(C) On the package or the product—any other markings related to use of the control with specific operators, per paragraph (f)(5)(iii) of this section.
(iii) The control accessory shall be provided with a label for field installation as required by § 1211.17(c) through (g), including but not limited to § 1211.17(g)(2)(v).
(d) * * *
(1) UL 325, Standard for Safety: Door, Drapery, Gate, Louver, and Window Operators and Systems, SUPPLEMENT SA—(Normative)—UL 60335-1/CAN/CSA-C22.2 No. 60335-1 Based Requirements for the Evaluation of Electronic Circuits, Seventh Edition, May 19, 2017, into §§ 1211.4 and 1211.5.
Department of Justice.
Final rule.
The Attorney General has delegated to the Assistant Attorney General for the Criminal Division certain authorities of the Attorney General concerning transfer of offenders to or from foreign countries, including the authority to find appropriate or inappropriate the transfer of offenders to or from a foreign country under certain treaties. The Assistant Attorney General for the Criminal Division is authorized to re-delegate this authority to the Deputy Assistant Attorneys General, the Director of the Office of Enforcement Operations, and the Senior Associate Director and Associate Directors of the Office of Enforcement Operations. The Department of Justice is moving the responsibility for handling international prisoner transfers from the Office of Enforcement Operations to the Office of International Affairs. Accordingly, this final rule amends the Code of Federal Regulations to authorize the Assistant Attorney General for the Criminal Division to re-delegate this authority within the Criminal Division to the Deputy Assistant Attorneys General in the Criminal Division, and to the Director, the Deputy Directors, and the Associate Director supervising the International Prisoner Transfer Unit of the Office of International Affairs.
This rule is effective July 13, 2018.
Vaughn Ary, Director, Office of International Affairs, Criminal Division, Department of Justice, Washington, DC 20005; 202-514-0000.
The Office of International Affairs (OIA) serves as the hub for international criminal law
This rule is a rule of agency organization and relates to a matter relating to agency management and is therefore exempt from the requirements of prior notice and comment and a 30-day delay in the effective date.
A Regulatory Flexibility Analysis is not required to be prepared for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter. 5 U.S.C. 604(a).
This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), The Principles of Regulation. This rule is limited to agency organization, management, and personnel as described in section 3(d)(3) of Executive Order 12866 and, therefore, is not a “regulation” or “rule” as defined by the order. Accordingly, this action has not been reviewed by the Office of Management and Budget.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This rule was drafted in accordance with the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This action pertains to agency management, personnel, and organizations and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act, 5 U.S.C. 804(3)(B). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Authority delegations (Government agencies), Crime, Government employees, Law enforcement, Organization and functions (Government agencies), Prisoners.
For the reasons stated in the preamble, title 28, part 0, of the Code of Federal Regulations is amended as follows:
5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
* * * The Assistant Attorney General, Criminal Division, is authorized to re-delegate this authority within the Criminal Division to the Deputy Assistant Attorneys General in the Criminal Division and to the Director, the Deputy Directors, and the Associate Director supervising the International Prisoner Transfer Unit of the Office of International Affairs.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in August 2018. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective August 1, 2018.
Hilary Duke (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminated single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974.
PBGC uses the interest assumptions in appendix B to part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for August 2018.
The August 2018 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for July 2018, these assumptions represent no change in the immediate rate and are otherwise unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during August 2018, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Issued in Washington, DC.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce certain safety zones located in federal regulations for recurring marine events. This action is necessary and intended for the safety of life and property on navigable waters during these events. During each enforcement period, no person or vessel may enter the respective safety zone without the permission of the Captain of the Port Buffalo.
The regulations in 33 CFR 165.939 will be enforced during the month of July as noted in the Supplementary Information section below.
If you have questions about this notice of enforcement, call or email LCDR Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email
The Coast Guard will enforce the Safety Zones; Annual Events in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939 for the following events:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within the safety zone during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or his designated representative. Those seeking permission to enter the safety zone may request permission from the Captain of Port Buffalo via channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zone shall obey the directions of the Captain of the Port Buffalo or his designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.
This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
Coast Guard, DHS.
Final rule.
The Coast Guard is amending its safety zones regulation for Annual Events in the Captain of the Port Lake Michigan Zone. This amendment updates two permanent safety zones, adds three new permanent safety zones, and removes one old permanent safety zone. These amendments, additions, and removals are necessary to protect spectators, participants, and vessels from the hazards associated with annual maritime events, including sailing races, boat parades, swim events and air shows.
This rule is effective without actual notice from July 13, 2018. For the purposes of enforcement, actual notice will be used from the date the rule was signed, June 20, 2018, until July 13, 2018.
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 If you have questions about this rule, call or email LT John Ramos, Marine Safety Unit (MSU) Chicago, U.S. Coast Guard; telephone (630) 986-2155, email
On April 19, 2018, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) titled Safety Zones; Annual Events Requiring Safety Zones
The Coast Guard is issuing this rule, and certain events are schedule to take place during the 30 day period post-publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The purpose of this rule is to update the safety zones in 33 CFR 165.929 to ensure that they match the times, dates, and dimensions for various marine and triggering events that are expected to be conducted within the Captain of the Port Lake Michigan Zone throughout the year. The purpose is also to ensure the safety of vessels, persons and the navigable waters before, during and after scheduled events. Specific hazards include obstructions to the waterway that may cause marine casualties, collisions among vessels, and collisions between vessels and people.
As noted above, one comment was received on the NPRM published April 19, 2018. The one comment was irrelevant to the topic discussed in the NPRM. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule amends two permanent safety zones found within Table 165.929 in 33 CFR 165.929. These two amendments involve updating the location, size, and/or enforcement times for: One air show in Milwaukee, WI and one sailing race in Chicago, Illinois.
Additionally, this rule adds three new safety zones to Table 165.929 within 33 CFR 165.929 for annually reoccurring events in the Captain of the Port Lake Michigan Zone. These three zones were added to protect the public from the safety hazards previously described. The three additions include two safety zones for boat parades in Milwaukee, WI, and one safety zone for a swim event in Milwaukee, WI. A list of specific changes and additions are available in the attachments within this Docket.
This rule also removes one permanent safety zone found within Table 165.929 in 33 CFR 165.929. The safety zone being removed is the Lubbers Cup Regatta listed as item (b)(2) in Table 165.929. This safety zone is being removed because the Lubbers Cup Regatta marine event was determined to no longer need a safety zone.
The Captain of the Port Lake Michigan has determined that the safety zones in this rule are necessary to ensure the safety of vessels and people during annual marine or triggering events in the Captain of the Port COTP Lake Michigan Zone. Although this rule will be effective year-round, the safety zones in this rule will be enforced only immediately before, during, and after events that pose a hazard to the public and only upon notice by the Captain of the Port Lake Michigan.
The Captain of the Port Lake Michigan will notify the public that the zones in this rule are or will be enforced by all appropriate means to the affected segments of the public, including publication in the
All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port COTP Lake Michigan or his or her designated representative. Entry into, transiting, or anchoring within the safety zones is prohibited unless authorized by the Captain of the Port or his or her designated representative. The Captain of the Port or his or her designated representative may be contacted via VHF-FM Channel 16 or at (414) 747-7182.
The Coast Guard 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 protesters.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on size, location, duration and time-of-day of the safety zones. The safety zones created by this rule will be relatively small, and effective only during the time necessary to ensure safety of spectator and participants for the listed events. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zones, and the rule allows vessels to seek permission to enter the zones.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, 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 the establishment of safety zones for yearly triggering and marine events on and around Lake Michigan. Normally such actions are categorically excluded from further review under paragraph L(60)(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
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(1) The general regulations in § 165.23.
(2) All vessels must obtain permission from the Captain of the Port (COTP) Lake Michigan or his or her designated representative to enter, move within, or exit a safety zone established in this section when the safety zone is enforced. Vessels and persons granted permission to enter one of the safety zones listed in this section must obey all lawful orders or directions of the COTP Lake Michigan or his or her designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel must proceed as directed.
(3) The enforcement dates and times for each of the safety zones listed in Table 165.929 are subject to change, but the duration of enforcement would remain the same, or nearly the same, total number of hours as stated in the table. In the event of a change, the COTP Lake Michigan will provide notice to the public by publishing a Notice of Enforcement in the
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Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters of the Willamette River within a designated area adjacent to the Wilsonville Wastewater Treatment Plant. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards while the plant outfall is being repaired. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Columbia River.
This rule is effective without actual notice from July 13, 2018 through August 31, 2018. For the purposes of enforcement, actual notice will be used from July 9, 2018 through July 13, 2018.
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 LCDR Laura Springer, Waterways Management Division, Marine Safety Unit Portland, Coast Guard; telephone 503-240-9319, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable to complete a notice-and-comment rulemaking by the start date of the construction project, July 9, 2018.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Columbia River (COTP) has determined that potential hazards associated with repair work to the Wilsonville Wastewater Treatment Plant outfall starting July 9, 2018, will be a safety concern for anyone within a designated area surrounding the outfall repair vessels and machinery. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the outfall is being repaired and maintained.
This rule establishes a safety zone from July 9, 2018 through August 31, 2018. If the construction project is completed before August 31, 2018, the Captain of the Port, Columbia River will issue a general permission to enter the zone and a separate rule to terminate the effective period of this rule. This safety zone covers all navigable waters of the Willamette River surrounding the outfall repair vessels and machinery located in Wilsonville, OR, approximately 250 feet upstream and downstream from the work area adjacent to the Wilsonville Wastewater Treatment Plant. Specific coordinates area listed in the regulatory text at the bottom of the document. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the outfall is being repaired. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Willamette River in Wilsonville, OR for less than two months. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone surrounding the vessels and machinery being used by personnel to repair the Wilsonville Wastewater Treatment Plant outfall. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
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Department of Veterans Affairs.
Final rule.
On August 12, 2016, VA published in the
This rule is effective on August 13, 2018.
Gary Reynolds, M.D., Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9700. (This is not a toll-free number.)
In reviewing the proposed rule to prepare for publication of the final rule, VA determined that the statements regarding the applicability date in the proposed rule should be revised in order to avoid potential misapplication of this final rule. In the proposed rule, VA stated that the provisions of the new regulations would apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after the effective date of the final rule. VA has indeed structured some regulations this way in the past, due to the dynamics of the regulation in question. See “Schedule for Rating Disabilities—Mental Disorders and Definition of Psychosis for Certain VA Purposes,” 80 FR 14308 (March 19, 2015). However, for this final rule, VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied.
Ten different commenters (including two Veterans Service Organizations) submitted comments in response to the proposed rule. VA will address their comments within the topics below.
VA has made five changes to the proposed rule based on comments received. First, two commenters noted that additional guidance regarding coexistent skin conditions and pyramiding might be helpful. VA agrees and has added a clarifying note at the start of § 4.118(b) which states: “Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used.”
Second, two commenters felt that the proposed language “per 12-month period” in multiple diagnostic codes (DCs) was unclear about which 12-month period would be used for evaluation purposes. VA concurs and has revised the criteria to specify that “over the past 12-month period” is the applicable time frame for these DCs.
Third, a commenter asserted that the evaluation criteria for eczema (DC 7806) should consider itching. Eczema (also known as atopic dermatitis) is often called “the itch that rashes.” The intense itching (without lesions at first) leads to the scratching, resulting in the characteristic lesions. See “Dermatology” 210 (Jean Bolognia et al. eds., 3d ed. 2012). Thus, itching is part of the pathology in all eczema ratings, even though only involved areas (lesions, scars) are considered for compensation purposes. Based on this comment, VA has clarified that it is the area of lesions, not the itching, that forms the basis of a rating, by revising in this final rule each criteria level in the General Rating Formula for the Skin to include the phrase “Characteristic lesions involving. . . .”
Fourth, a commenter expressed concern that a long-lasting urticarial attack with no breaks would qualify for a 10% rating, rather than a 60% rating under DC 7825 (Urticaria). VA understands this concern and has revised the criteria in this final rule to be based on the condition's response to required treatment. First, VA has retitled the diagnostic code, “Chronic urticaria” and added a definition for chronic urticaria, which is “continuous urticaria at least twice per week, off treatment, for a period of six weeks or more.” A subset of patients has chronic urticaria that is unresponsive to first line treatment (antihistamines). If a patient is also unresponsive to second line treatment (
Fifth, a commenter asked if active psoriatic arthritis would be entitled to a 60% evaluation under DC 7816 (Psoriasis) and a 100% evaluation under DC 5009 (Arthritis, other types), allowing for special monthly compensation at the “s” level,
Beyond the changes made in response to comments, this final rule contains several technical and non-substantive amendments to the proposed rule.
A total of six comments either disagreed with or questioned VA's proposal for defining topical and systemic therapy in light of the
Although VA's proposal for systemic and topical therapy was in part a reaction to the CAVC's now-reversed
As noted in the supplementary information to the proposed rule, however, it creates a dramatic disconnect to rate a medication applied to the skin—affecting only the localized area to which it is applied—as “systemic therapy” that affects the entire body. Rather, the prevailing medical understanding is that “topical” therapy “pertain[s] to a particular surface area . . . and affect[s] only the area to which it is applied,” while “systemic” therapy “pertain[s] to or affect[s] the body as a whole.”
VA also acknowledged in the supplementary information that some medications applied to the skin, if administered on a large enough scale, could have a systemic effect; but in those situations the veteran can obtain a higher rating due to the percentage of the body affected. For example, a veteran who is required to apply a cream on his entire body is not subject to a noncompensable rating; even though he is not taking systemic therapy, he would obtain a compensable rating under this final rule based on the percentage of his body affected by the condition.
Overall, the aim of this rule is to clarify the terms used in the rating schedule, in order to distinguish between a condition that affects a large portion of the body or requires therapy affecting the entire body, and a condition that is localized and involves localized treatment. The former generally impairs earning capacity more than the latter. To the extent that topically-applied medications might affect different people (such as the elderly) in different ways, the rating schedule is based on the average impairment in earning capacity. 38 U.S.C. 1155. If there is an exceptional or unusual effect of applying corticosteroid cream, a claimant can submit argument for an extraschedular rating. 38 CFR 3.321(b)(1). VA can also raise the issue of an extraschedular rating on its own when the evidence of record suggests such consideration is appropriate. This is why VA cannot provide more specific information on the potential systemic effects of topically-applied corticosteroids: the potency of the medication, the amount of skin affected, and the strength of the condition, will vary from veteran to veteran.
One comment on this topic advocated that VA should automatically assume that topical corticosteroids have systemic effects based on the benefit-of-the-doubt standard. The benefit-of-the-doubt rule, however, applies to the adjudication of claims, not formulation of the rating schedule. 38 U.S.C. 5107(b). This commenter further stated that certain skin conditions cannot be cured, but only treated, and that the burden of applying medication with little effect is not taken into consideration in the proposed rule. To the contrary, frequency in application is a factor in the schedule for rating systemic therapy, but it remains VA's assessment that applying cream on the skin of less than 5% of the body reflects a condition that does not impair earning capacity at a compensable level.
Two additional commenters viewed the proposed rule as an attempt to circumvent or undermine the CAVC's ruling. These comments are obviated by the fact that the CAVC's ruling has been reversed.
Another commenter questioned the consistency of the proposed definition for systemic therapy with DC 6602 and the overall rating schedule. This rule is consistent with DC 6602—which defines “systemic” corticosteroids as “oral or parenteral,”
Finally, two commenters asserted that VA is emphasizing topical treatment in order to save money at the expense of quality care. This rule, however, should not affect how doctors treat conditions; rather, its aim is to clarify terms for raters adjudicating claims. We are not aware of any VA instruction that its doctors prescribe topical treatment to save money when it is not best for the patient.
A number of comments recommended revisions to criteria within the proposed rule. VA received two comments regarding DC 7806, Dermatitis or eczema. One comment has been addressed above and prompted a revision to this final rule. The other comment requested that VA include biopsy results in the evaluation criteria, because eczema can occur sporadically over the year and a doctor might only take account of what is observable during the examination. VA declines to make changes based upon this comment. The General Rating Formula for the Skin employs two routes to compensation, based on either the extent of skin involvement or the intensity of treatment. If the condition requires constant or near-constant systemic therapy, then, regardless of the extent of skin involvement at the time of examination, the veteran would be entitled to the highest evaluation. It is unclear how criteria based on biopsy results would be more favorable to veterans than this scheme. Moreover, obtaining a biopsy for every ratable skin condition is not necessarily appropriate, and a service-connected veteran is free to request an additional examination if a skin disorder becomes more extensive than what was observed during a given examination. VA received two comments concerning DC 7817, Erythroderma. One comment asked why the “treatment failure” language was incorporated into the proposed criteria when the term “uncontrolled” in the evaluation criteria for diabetes (DC 7913) “was found to be problematic.” VA incorporated language regarding “treatment failure” here because it is easily measured and can be applied by rating officials with consistent results. Treatment failure is a common occurrence with erythroderma, and we see no connection to the term “uncontrolled” in a diagnostic code for
One comment addressed DC 7824, Diseases of keratinization. The commenter stated that we would be underrating diseases of keratinization by moving them to the General Rating Formula for the Skin, where it would not account for systemic manifestations. While VA concurs that the term “systemic manifestations” is not employed within the General Rating Formula for the Skin, this change does not adversely affect the veteran. Under the version of DC 7824 that is being revised by this final rule, a veteran needs both “systemic manifestations”
Three comments requested changes to DC 7825, Urticaria, and DC 7826, Vasculitis, primary cutaneous. One comment has been addressed above, resulting in a revision to the final rule. Another comment asserted that the term “documented” in DC 7826 should not require evidence of a visit to a physician, clinic, or hospital, because those already on medication may not seek medical attention if they are used to managing their condition. That commenter requested that VA clarify that lay evidence fulfills the “documented” standard.
VA understands that lay evidence must be considered when VA adjudicators evaluate a claim, and nothing in this final rule is meant to undercut that principle. On the other hand, virtually the entire VA ratings schedule requires some kind of documentation or objective testing in order to gauge the severity of a disability. In that vein, this final rule requires that vasculitic episodes be “documented” for a higher rating. Though the rule does not state that the only acceptable documentation is a doctor's contemporaneous confirmation, a veteran whose disease is not under control and continues to prompt episodes would most likely see a provider multiple times within a 12-month period.
The third commenter found it problematic that the criteria would allow mild, frequent attacks to be rated higher than more severe and longer attacks. This commenter also stated that a reliance on treatment modality is problematic, because biologics are impossible for veterans with weakened immune systems and others are prescribed unevenly.
VA's change to DC 7825 in this final rule obviates this comment, as the urticaria criteria are no longer reliant on the number of attacks. VA also disagrees that basing evaluation criteria on treatment modality is problematic. Each line of treatment for chronic urticaria (first line, second line, or third line) has more than one treatment option available, so the fact that one particular option is poorly tolerated does not imply that veterans will be inaccurately rated.
VA received three comments involving areas of affected skin, including requests to add forearms and lower legs as exposed areas. One of the commenters explained that, in summer temperatures, veterans cannot be expected to work with their forearms and lower legs covered. A second stated that there is no equitable definition of exposed skin, and doctors are commonly recommending more sunlight for psoriasis. The third suggested the work group identify which technique for measuring the area of involved skin would be best suited for evaluation purposes.
VA will not make any revisions to the final rule based on the above comments, as VA is unaware of any occupations that
VA received two comments about alopecia, specifically DC 7830, Scarring alopecia, and DC 7831, Alopecia areata. One comment asserted that DC 7831 should provide a compensable rating for loss of scalp hair, since it is an exposed area. The other comment recommended a higher evaluation under DC 7830 for women, because this condition is more socially debilitating for women and, as a result, women incur a higher financial responsibility to deal with the condition. VA is sympathetic to these issues and understands the social aspects of hair loss. Nevertheless, the rating schedule is based on the loss of wage-earning capacity and no reliable evidence establishes significant occupational impairment with loss of body hair, or that occupational impairment is greater in women than in men with scarring alopecia. As such, VA will not revise the final rule based on these two comments.
As to the final comments, one requested a note adding consideration of the effect of disfigurement on the veteran's mental health. VA acknowledges that secondary service connection under 38 CFR 3.310 may be possible for a mental health disability that is found to be causally related to a service-connected skin disability. However, we believe this is clear from 38 CFR 3.310, such that a note is not necessary here. The second questioned why evaluation criteria do not comment on conditions caused by the failure of the immune system, such as lymphedema, which affect the skin and may require compression therapy. Although lymphedema may be evaluated under diagnostic codes pertaining to the skin if it disfigures and/or scars the skin,
VA received a number of comments seeking clarification or guidance on the interplay between section 4.118 and other regulations.
Three comments implicated the relationship between part 3 regulations and section 4.118. One comment regarding multiple ratings for psoriatic arthritis has been addressed above, resulting in a revision in this final rule. Another comment asked if VA would service connect disabilities to other body systems resulting from the treatment of skin conditions. Generally, yes, VA may grant secondary service connection as long as the standards found in 38 CFR 3.310 are met.
A third comment questioned the consistency between the definition of chronic in 38 CFR 3.380 (diseases of allergic etiology) and the definition in DCs 7825 and 7826. No inconsistencies exist, as 38 CFR 3.380 addresses service connection, while DCs 7825 and 7826 address evaluation, and none of these provisions address the term “chronic.” This commenter continued by stating: “Confusion regarding `service connection' and evaluation criteria applies to the `continuous use' and `disabling effects of medication' to suggest that VA will concede secondary service connection [38 CFR 3.310] in cases with facts similar to those described (or are these functional impairments simply acute and transitory or will this be pyramiding?).” VA finds this portion of the comment unclear and is unable to respond.
The remaining comments covered the relationship between section 4.118 and other part 4 regulations. One commenter assumed that combined ratings would result from DCs 7801 and 7802. To the contrary, the General Rating Formula for the Skin instructs the rater to use the relevant criteria
Still another assertion involving DC 7829 and other part 4 regulations was that “[i]ntertriginous areas and limitation of function are problematic. The axilla of the arm and the range of motion of the shoulder are similar to the facts in [
VA received four comments recommending additional diagnostic codes: One comment recommending additional codes generally to reduce analogous coding, and three other comments recommending codes for lymphedema (and/or skin conditions caused by immune system failure), pressure ulcers, actinic keratoses, and rosacea. VA finds these additions unnecessary. As noted above, VA may evaluate lymphedema which disfigures and/or scars the skin under DCs 7801, 7802, 7804, or 7805. Furthermore, pressure ulcers normally are not considered a skin condition warranting compensation. Actinic keratoses and rosacea are not occupationally significant. VA is willing to consider adding diagnostic codes for skin conditions that are occupationally significant.
VA received a comment asking why the Food and Drug Administration could not find another manufacturer for EpiPen®. The EpiPen question is well outside the scope of this rule, so VA will not respond to it.
The last issue raised by a commenter dealt with public access to the materials developed by the Skin Disorders Work Group after a public forum in New York City in January 2012 but before the drafting of the proposed rule. Specifically, the commenter requested that the information developed and shared by the work group should be publicly available.
In the
VA emphasizes that this review of the VASRD was not an opportunity for work group members to participate in the deliberative rulemaking process; the work group discussed the general topic of the VASRD body system and provided feedback on the areas that were subject to advances since the last major revision of the body system. To this end, where changes to the scientific and/or medical nature of a given condition were made in the proposed rule, VA cited the published, publicly-available source for these changes. Not only did this provide the public with access to the source for a given proposed change, it also confirmed that VA relied upon peer-reviewed scientific and medical information to support a given change. While similar information may have been presented by a work group member, VA relied upon the published document(s) as the primary source for a change and included such sources in the administrative record for this rulemaking. VA did not propose scientific and/or medical changes to the VASRD in the absence of publicly available, peer-reviewed sources.
Accordingly, references in the proposed rule to the work group serve as an explanatory background and introduction to the VASRD rewrite project; the changes made by this rulemaking are not a reflection of the work group or any work group member. All changes based on scientific and/or medical information are a reflection of cited, published materials which are available to the public. VA has made deliberative materials available (via citation in the rulemaking) and is providing access to materials from the public forum available for public inspection at the Office of Regulation Policy and Management.
Veterans Benefits Administration personnel utilize the Veterans Benefits Management System for Rating (VBMS-R) to process disability compensation claims that involve disability evaluations made under the VASRD. In order to ensure that there is no delay in processing veterans' claims, VA must coordinate the effective date of this final rule with corresponding VBMS-R system updates. As such, this final rule will apply effective August 13, 2018, the date VBMS-R system updates related to this final rule will be complete.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
This final rule contains provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Specifically, this final rule is associated with information collections related to the application for disability benefits (VA Form 21-526EZ), as well as Disability Benefits Questionnaires (DBQs), which enable a claimant to gather the necessary information from his or her treating physician as to the current symptoms and severity of a disability (VA Forms 21-0960F-1, Scars/Disfigurement DBQ, and 21-0960F-2, Skin Diseases DBQ). These information collections are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 2900-0749 (for the application) and 2900-0776 (for the DBQs). VA has reviewed the impact of this final rule on these information collections and determined that the incremental information collection burden for the first year of this rule is $8,828.20.
The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.109, Veterans Compensation for Service-Connected Disability.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to submit it to the Office of the Federal Register for electronic publication as an official document of the Department of Veterans Affairs. Jacquelyn Hayes-Byrd, Acting Chief of Staff, Department of Veterans Affairs, approved this document on June 28, 2018, for publication.
Disability benefits, Pensions, Veterans.
For the reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 4, subpart B, as follows:
38 U.S.C. 1155, unless otherwise noted.
The revisions and additions read as follows:
(a) For the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.
(b) Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used.
The revisions and addition read as follows:
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the Frederick Douglass Memorial Bridge across the Anacostia River, mile 1.2, in Washington, DC. This proposal is to allow the existing drawbridge to remain closed-to-navigation. This proposal is necessary to accommodate the construction of a new fixed bridge on an alignment 18 feet south of the existing drawbridge and the removal of the existing drawbridge.
Comments and related material must reach the Coast Guard on or before August 13, 2018.
You may submit comments identified by docket number USCG 2018-0473 using Federal eRulemaking Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Martin A. Bridges, Fifth Coast Guard District (dpb), telephone (757) 398-6422, email
The District of Columbia Department of Transportation, who owns and operates the Frederick Douglass Memorial Bridge, has requested a rule to allow the existing drawbridge to remain in the closed-to-navigation position during the construction of a new fixed bridge on an alignment 18 feet south of the existing drawbridge and the removal of the existing drawbridge.
The existing Frederick Douglass Memorial Bridge across the Anacostia River, mile 1.2, in Washington, DC, has a vertical clearance of 40 feet above mean high water in the closed-to-navigation position. The current operating schedule for the existing drawbridge is published in 33 CFR 117.253 (a). The current rule will be replaced in its entirety.
On December 4, 2017, the Coast Guard signed Bridge Permit (2-17-5) authorizing the replacement of the existing drawbridge with a fixed bridge with a vertical clearance of 42 feet above mean high water on an alignment 18 feet south of the existing drawbridge. Issuance of the bridge permit followed a multi-year process involving completion of an environmental impact statement and Coast Guard Record of Decision; completion of a navigation impact report; public meetings held on March 4, 2008, April 28, 2011, July 30, 2013, May 5, 2014, and January 22, 2015, and publication of a preliminary public notice for navigation on November 4, 2013, and public notice for the bridge permit application on October 20, 2017.
On February 2, 2018, we published a notice of deviation from drawbridge regulation entitled “Drawbridge Operation Regulation; Anacostia River, Washington, DC” in the
This proposed modification of the operating schedule is designed to mitigate vehicular congestion and maintain public safety, and provide for safe, effective and efficient bridge construction and removal, while meeting the existing and future needs of navigation.
The proposed rule will allow the drawbridge to be placed in the closed-to-navigation position, while a fixed bridge with a navigational clearance of 42 feet above mean high water on an alignment 18 feet south of the existing drawbridge is constructed, and during the removal of the existing drawbridge. Given the small difference in vertical clearances above mean high water between the existing drawbridge at 40 feet and new fixed bridge at 42 feet, placing the existing drawbridge in the closed-to-navigation should not restrict present navigation from transiting through the bridge. There have been no requests for an opening of the existing drawbridge since the temporary deviation published on February 2, 2018, with the exception of vessels engaged in bridge construction and removal. There are no alternative routes and vessels able to transit under the existing drawbridge without an opening may do so.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB) and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This is not considered a significant regulatory action. This determination is based on the findings that: (1) The
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. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above, this rule will not have a significant economic impact on any vessel owner or operator. This rule is not expected to restrict present navigation from transiting through the bridge.
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 call 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 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 will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.1 (series), which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.
A preliminary Record of Environmental Consideration and a Memorandum for the Record are not required for this proposed rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
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 this docket and all public comments, will be in our online docket at
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(a) The draw of the Frederick Douglass Memorial (South Capitol Street) bridge, mile 1.2, need not be opened for the passage of vessels.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain waters of Fish Creek during the Ski Show Sylvan Beach. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Buffalo or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before August 2, 2018.
You may submit comments identified by docket number USCG-2018-0635 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LCDR Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email
On April 8, 2018, Mohawk Valley Ski Club Inc. notified the Coast Guard that it would be conducting a ski show from 12:00 p.m. to 8:00 p.m. on August 12, 2018. The show will take place on Fish Creek where the creek meets Oneida Lake starting at position 43°11′36.6″ N, 75°43′53.8″ W then South to 43°11′33.7″ N, 75°43′51.2″ W then East to 43°11′42.4″ N, 75°43′38.6″ W then North to 43°11′44.5″ N, 75°43′39.7″ W then returning to the point of origin. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with a Ski Show Sylvan Beach would be a safety concern for anyone within the aforementioned zone on Fish Creek.
The purpose of this rulemaking is to enhance the safety of vessels and racers on the navigable waters within the above stated points, before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a temporary safety zone enforced from 12:00 p.m. to 8:00 p.m. on August 12, 2018 with breaks every 30 minutes to allow traffic to pass. The safety zone will cover all navigable waters starting at position 43°11′36.6″ N, 75°43′53.8″ W then South to 43°11′33.7″ N, 75°43′51.2″ W then East to 43°11′42.4″ N, 75°43′38.6″ W then North to 43°11′44.5″ N, 75°43′39.7″ W then returning to the point of origin on Fish Creek, Oneida, NY. The duration of the zone is intended to enhance the safety of vessels and these navigable waters before, during, and after the scheduled 12:00 p.m. to 8:00 p.m. Ski Show. No vessel or person would be permitted to enter the safety zone 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.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would not be able to safely transit around this safety zone, which would impact a small designated area of Fish Creek. However, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this 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 proposed rule involves establishing a safety zone lasting 8 hours that would prohibit entry for certain waters of Fish Creek. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1, of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision, submitted by the Commonwealth of Pennsylvania through the Pennsylvania Department of Environmental Protection (PADEP), to EPA on October 11, 2017, for the purpose of providing for attainment of the 2010 sulfur dioxide (SO
Written comments must be received on or before August 13, 2018.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0615 at
Megan Goold, (215) 814-2027, or by email at
On June 2, 2010, the EPA Administrator signed a final rule establishing a new primary SO
Effective on October 4, 2013, the Indiana Area was designated as nonattainment for the 2010 SO
For a number of areas, including the Indiana Area, EPA published a notice on March 18, 2016, effective April 18, 2016, that Pennsylvania and other pertinent states had failed to submit the required SO
Attainment plans must meet the applicable requirements of the CAA, and specifically CAA sections 172, 191, and 192. The required components of an attainment plan submittal are listed in section 172(c) of Title 1, part D of the CAA. EPA's regulations governing nonattainment SIPs are set forth at 40 CFR part 51, with specific procedural requirements and control strategy requirements residing at subparts F and G, respectively. Soon after Congress enacted the 1990 Amendments to the CAA, EPA issued comprehensive guidance on SIPs, in a document entitled the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published at 57 FR 13498 (April 16, 1992) (General Preamble). Among other things, the General Preamble addressed SO
On April 23, 2014, EPA issued recommended guidance (hereafter 2014 SO
In order for the EPA to fully approve a SIP as meeting the requirements of CAA sections 110, 172 and 191-192 and EPA's regulations at 40 CFR part 51, the SIP for the affected area needs to demonstrate to EPA's satisfaction that each of the aforementioned requirements have been met. Under CAA sections 110(l) and 193, the EPA may not approve a SIP that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement, and no requirement in effect (or required to be adopted by an order, settlement, agreement, or plan in effect before November 15, 1990) in any area which is a nonattainment area for any air pollutant, may be modified in any manner unless it ensures equivalent or greater emission reductions of such air pollutant.
CAA section 172(c)(1) directs states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. 40 CFR part 51, subpart G further delineates the control strategy requirements that SIPs must meet, and EPA has long required that all SIPs and control strategies reflect four fundamental principles of quantification, enforceability, replicability, and accountability (General Preamble, at 13567-68). SO
EPA's 2014 SO
The 2014 SO
As specified in 40 CFR 50.17(b), the 1-hour primary SO
For SO
EPA recognizes that some sources have highly variable emissions, for example due to variations in fuel sulfur content and operating rate, that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the critical emission value. EPA also acknowledges the concern that longer term emission limits can allow short periods with emissions above the “critical emission value,” which, if coincident with meteorological conditions conducive to high SO
Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer term limit, as compared to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the critical emission level, and in the longer term average limit scenario, the source is presumed occasionally to emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,”
To illustrate this point, EPA conducted a statistical analysis using a range of scenarios using actual plant data. The analysis is described in Appendix B of EPA's 2014 SO
The question then becomes whether this approach, which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the critical emission value, meets the requirement in section 110(a)(1) and 172(c)(1) for SIPs to “provide for
The 2014 SO
The 2014 SO
Preferred air quality models for use in regulatory applications are described in Appendix A of the EPA's
As stated previously, attainment demonstrations for the 2010 1-hour primary SO
The meteorological data used in the analysis should generally be processed with the most recent version of AERMET. Estimated concentrations should include ambient background concentrations, should follow the form of the standard, and should be calculated as described in section 2.6.1.2 of the August 23, 2010 clarification memo on “Applicability of Appendix W Modeling Guidance for the 1-hr SO
In accordance with section 172(c) of the CAA, the Pennsylvania attainment plan for the Indiana Area includes: (1) An emissions inventory for SO
Consistent with CAA requirements (
Pennsylvania's SO
States are required under section 172(c)(3) of the CAA to develop comprehensive, accurate and current emissions inventories of all sources of the relevant pollutant or pollutants in the nonattainment area. These inventories provide detailed accounting of all emissions and emissions sources by precursor or pollutant. In addition, inventories are used in air quality modeling to demonstrate that attainment of the NAAQS is as expeditious as practicable. The SO
For the base year inventory of actual emissions, a “comprehensive, accurate and current” inventory can be represented by a year that contributed to the three-year design value used for the original nonattainment designation. The 2014 SO
Table 1 shows the level of emissions, expressed in tons per year (tpy), in the Indiana Area for the 2011 base year by emissions source category. The point source category includes all sources within the Area.
EPA has evaluated Pennsylvania's 2011 base year emissions inventory for the Indiana Area and has made the preliminary determination that this inventory was developed in a manner consistent with EPA's guidance. Therefore, pursuant to section 172(c)(3), EPA is proposing to approve Pennsylvania's 2011 base year emissions inventory for the Indiana Area as it meets CAA requirements.
The attainment demonstration also provides for a projected attainment year inventory that includes estimated emissions for all emission sources of SO
The SO
PADEP provided two sets of modeling analyses: One analysis was developed in accordance with EPA's Modeling Guidance and the 2014 SO
In addition to submitting the Indiana Area attainment plan to EPA on October 11, 2017, PADEP also submitted a request to EPA to review AERMOIST for use in the Indiana Area attainment plan. EPA has completed a review and determined that the AERMOIST procedure is not an appropriate option for use in the Indiana attainment plan for the following reasons: (1) There is no multi-monitor database of SO
EPA has reviewed the default AERMOD analysis without the AERMOIST module submitted for the Indiana Area. The Indiana Area was divided into two separate modeling domains. Refer to EPA's Modeling TSD for the Indiana Area under Docket ID EPA-R03-OAR-2017-0615, available at
AERMOD was used to determine the critical emission values (CEV) for Conemaugh, Keystone, and Seward where the modeled 1-hour emission rates demonstrate compliance with the 2010 1-hour SO
Using the EPA conversion factor for the SO
PADEP also provided air dispersion modeling with randomly reassigned emissions (RRE) to provide support for establishing longer term emission limits for Keystone and Seward that would provide for attainment of the NAAQS. EPA's 2014 SO
“[T]he EPA is not precluding states from using other approaches to determine appropriate longer term average limits. However, the EPA would recommend in all cases that the analysis begin with determination of the critical emission values. A comparison of the 1-hour limit and the proposed longer term limit, in particular an assessment of whether the longer term
As discussed in the RACM/RACT section below, a 24-hour block average SO
EPA has reviewed the modeling that Pennsylvania submitted to support the attainment demonstration for the Indiana Area and has determined that the default AERMOD modeling is consistent with CAA requirements, Appendix W to 40 CFR part 51, and EPA's 2014 SO
CAA section 172(c)(1) requires that each attainment plan provide for the implementation of all reasonably available control measures (
Pennsylvania's October 11, 2017, submittal discusses federal and state measures that Pennsylvania asserts will provide emission reductions leading to attainment and maintenance of the 2010 SO
Pennsylvania's submittal discusses that the main SO
With these controls installed, Pennsylvania's submittal discusses facility-specific control measures, namely SO
• Conemaugh's current SO
• Seward's current SO
• Homer City's current SO
• A new, more stringent combined SO
The emission limits for each of the SO
The emission limits for Conemaugh, Keystone and Seward have averaging times greater than 1-hour (ranging between three hours and 30 days). The default non-AERMOIST modeling analysis for the Indiana Area was used to establish CEVs for each facility. These (1-hour) CEVs were used for developing longer than 1-hour emission limits for Seward, Conemaugh, and Keystone. SO
The emission limits or compliance parameters, such as contingency measures, or both, were established through Consent Orders and Agreements (COAs) and Consent Orders (COs) between PADEP and the respective facility (
EPA is proposing to approve Pennsylvania's determination that the proposed SO
Furthermore, PADEP requests that the unredacted portions of the COAs, COs, Plan Approvals, and TVOP submitted by PADEP with the attainment plan be approved into the Pennsylvania SIP. Including the emission limits listed in the CO for Keystone, the Plan Approval for Homer City, and the TVOPs for Conemaugh and Seward (
Section 172(c)(2) of the CAA requires that an attainment plan includes a demonstration that shows reasonable further progress (
In accordance with section 172(c)(9) of the CAA, contingency measures are required as additional measures to be implemented in the event that an area fails to meet the RFP requirements or fails to attain the standard by its attainment date. These measures must be fully adopted rules or control measures that can be implemented quickly and without additional EPA or state action if the area fails to meet RFP requirements or fails to meet its attainment date, and should contain trigger mechanisms and an implementation schedule. However, SO
The COAs or COs for Conemaugh, Homer City, Keystone, and Seward (
Additionally, if PADEP identifies a daily maximum SO
EPA is proposing to find that Pennsylvania's October 11, 2017 submittal includes sufficient measures to expeditiously identify the source of any violation of the SO
Section 172(c)(5) of the CAA requires that an attainment plan require permits for the construction and operation of new or modified major stationary sources in a nonattainment area. Pennsylvania has a fully implemented Nonattainment New Source Review (NNSR) program for criteria pollutants in 25 Pennsylvania Code Chapter 127, Subchapter E, which was approved into the Pennsylvania SIP on December 9, 1997 (62 FR 64722). On May 14, 2012 (77 FR 28261), EPA approved a SIP revision pertaining to the pre-construction permitting requirements of Pennsylvania's NNSR program to update the regulations to meet EPA's 2002 NSR reform regulations. EPA then approved an update to Pennsylvania's NNSR regulations on July 13, 2012 (77 FR 41276). These rules provide for appropriate NSR as required by CAA sections 172(c)(5) and 173 and 40 CFR 51.165 for SO
EPA is proposing to approve Pennsylvania's SIP revision for the Indiana Area, as submitted through PADEP to EPA on October 11, 2017, for the purpose of demonstrating attainment of the 2010 1-hour SO
EPA has determined that Pennsylvania's SO
In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the portions of the COAs or COs entered between Pennsylvania and Conemaugh, Homer City, Keystone, and Seward that are not redacted, as well as the unredacted portions of the TVOPs or Plan Approval included in the October 11, 2017 submittal. These include emission limits and associated compliance parameters (
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, concerning the SO
Environmental protection, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Receipt of application for rulemaking and letter of authorization; request for comments and information.
NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the use of Surveillance Towed Array Sensor Systems Low Frequency Active (SURTASS LFA) sonar systems onboard U.S. Navy surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy in the western and central North Pacific and eastern Indian oceans beginning August 2019. Pursuant to the implementing regulations of the Marine Mammal Protection Act (MMPA), NMFS is announcing our receipt of the Navy's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the Navy's application and request.
Comments and information must be received no later than August 13, 2018.
Comments on the application 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 20910-3225 and electronic comments should be sent to
Dale Youngkin, Office of Protected Resources, NMFS; phone: (301) 427-8401. Electronic copies of the application 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.
The National Defense Authorization Act (NDAA) (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and defined “harassment” as it applies to a “military readiness activity” as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).
On June 4, 2018, NMFS received an application from the Navy requesting authorization to take individuals of 46 species of marine mammals (10 mysticete, 31 odontocete, and 5 pinniped species) representing 139 stocks, by harassment, incidental to training and testing activities conducted under the authority of the Secretary of the Navy (categorized as military readiness activities) using SURTASS LFA sonar beginning August 13, 2019.
The Navy states that these training and testing activities may expose some of the marine mammals present in the Study Area to sound from low-frequency active sonar sources, which may result in the disruption of behavioral patterns. The Navy requests authorization to take individuals of 46 species or stocks of marine mammals by Level B Harassment.
NMFS published the first incidental take rule for SURTASS LFA sonar, effective from August 2002 through August 2007, on July 16, 2002 (67 FR 46712); the second rule, effective from August 2007 through August 2012, on August 21, 2007 (72 FR 46846); and the third rule, effective from August 2012 through August 2012, on August 20, 2012 (77 FR 50290).
In 2016, the Navy submitted an application for a fourth incidental take regulation under the MMPA (DoN, 2016) for the taking of marine mammals by harassment incidental to the deployment of up to four SURTASS LFA sonar systems from August 15, 2017 through August 14, 2022. NMFS published a proposed rule on April 27, 2017 (82 FR 19460). On August 10, 2017, the Secretary of Defense, after conferring with the Secretary of Commerce, determined that it was necessary for the national defense to exempt all military readiness activities that use SURTASS LFA sonar from compliance with the requirements of the MMPA for two years from August 13, 2017 through August 12, 2019, or until such time when NMFS issues regulations and a LOA under Title 16, Section 1371 for military readiness activities associated with the use of SURTASS LFA sonar, whichever is earlier. During the exemption period, all military readiness activities that involve the use of SURTASS LFA sonar are required to comply with all mitigation, monitoring, and reporting measures set forth in the 2017 National Defense Exemption (NDE) for SURTASS LFA sonar. As a result of the NDE (available at
For this current requested rule making, the Navy is proposing to continue using SURTASS LFA sonar systems onboard USNS surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy within the western and central North Pacific, and eastern Indian oceans. The operating characteristics of the LFA sonar (inclusive of compact LFA sonar systems) have remained the same since 2001 and are consistent with the parameters described in previous rulemakings. For this rulemaking, the Navy scoped the geographic extent of the Study Area to better reflect the areas where the Navy anticipates conducting SURTASS LFA sonar training and testing activities for the requested rule/LOA. Under the proposed action, the Navy would transmit 496 LFA sonar transmission hours per year pooled across all SURTASS LFA sonar equipped vessels in the first four years of the authorization, with an increase in usage to 592 LFA transmission hours in year five and continuing into the foreseeable future, regardless of the number of vessels. This is a reduction from the current condition of 1,020 LFA transmission hours per year (255 hours of LFA sonar per vessel per year) under the NDE, and the previously authorized 1,728 LFA transmission hours per year (432 hours of LFA sonar per vessel per year) under the 2012—2017 Rule.
The Navy proposes to continue to use the system onboard USNS surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy in the western and central Pacific Ocean and eastern Indian Ocean. The U.S. Navy currently has four surveillance ships that utilize SURTASS LFA sonar systems: the USNS ABLE, the USNS EFFECTIVE, the USNS IMPECCABLE and the USNS VICTORIOUS. The Navy may develop and field additional SURTASS LFA equipped vessels, either to replace or complement the Navy's current SURTASS LFA capable fleet, and these vessels may be in use beginning in the fifth year of the time period covered by their latest application. Thus, the Navy's activity analysis included consideration of the sonar hours associated with future testing of new or updated LFA sonar system components and new ocean surveillance vessels. This resulted in two annual transmit hour scenarios: Years 1 to 4 would entail a maximum of 496 LFA transmission hours total per year across all SURTASS LFA vessels, while year 5 and beyond would include an increase in LFA sonar transmit hours to a maximum of 592 hours across all vessels to accommodate future testing of new ocean surveillance vessels and new or updated sonar system components. The number of transmission hours per year is pooled across all SURTASS LFA sonar equipped vessels, regardless of the number of ships. The SURTASS LFA sonar transmission hours represent a distribution across six activities that include:
• Contractor crew proficiency training (80 hours/year);
• Military crew (MILCREW) proficiency training (96 hours/year);
• Participation in, or support of, Navy exercises (96 hours/year);
• Vessel and equipment maintenance (64 hours/year);
• Acoustic research testing (160 hours/year); and
• New SURTASS LFA sonar system testing (96 hours/year, occurring in year 5 and beyond only).
The application describes the activity types, the equipment and platforms involved, and the duration and potential locations of the specified activities.
A suite of proposed mitigation measures have been included in the proposed action to minimize the potential effects to marine mammals that could potentially be affected during SURTASS LFA sonar activities. For training and testing activities of the proposed action, these mitigation measures include:
• Restricting the use of SURTASS LFA sonar such that it will not operate in Arctic and Antarctic waters;
• Restricting the use of SURTASS LFA sonar from within the foreign territorial seas of other nations;
• Ensuring sound pressure levels (SPL) will not exceed 180 decibels (dB) re 1 micro pascals (μPa) root mean square (rms) within 12 nautical miles of any emerged features of any coastline, or within designated offshore biologically important areas (OBIAs) for marine mammals; and
• Minimizing exposure of marine mammals to SURTASS LFA sonar signal received levels of 180 dB re 1 μPa (rms) or more by monitoring for their presence and suspending sonar transmission when animals enter the mitigation zone.
Interested persons may submit information, suggestions, and comments concerning the Navy's request (see
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to renew the approved information collection regarding petitions for rulemaking. The approval for this information collection will expire on November 30, 2018. FSIS is making no changes to the approved collection.
Submit comments on or before September 11, 2018.
FSIS invites interested persons to submit comments on this
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Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW, Room 6065, South Building, Washington, DC 20250-3700; (202) 720-5627.
The Administrative Procedure Act requires that Federal agencies give interested persons the right to petition for issuance, amendment, or repeal of a rule (5 U.S.C. 553(e)).
FSIS has regulations to govern the submission to the Agency of petitions for rulemaking (9 CFR part 392). These regulations are designed to encourage the filing of well-supported petitions that contain information that the Agency needs to evaluate a requested rulemaking in a timely manner. FSIS uses the information associated with a petition to assess the merits of the requested action and to determine whether to issue, amend, or repeal regulations in response to the petition. FSIS is requesting a renewal of the approved information collection addressing paperwork requirements regarding petitions submitted to the Agency. FSIS is making no changes to the approved collection.
FSIS has made the following estimates based upon an information collection assessment.
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
National Institute of Food and Agriculture, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the National Institute of Food and Agriculture's (NIFA) intention to extend and revise a currently approved information collection entitled, “Reporting Requirements for State Plans of Work for Agricultural Research and Extension Formula Funds.”
Written comments on this notice must be received by September 11, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email:
Robert Martin, eGovernment Program Leader; Email:
The formula funds are authorized under the Hatch Act for agricultural research activities at the 1862 land-grant institutions, under the Smith-Lever Act for the extension activities at the 1862 land-grant institutions, and under sections 1444 and 1445 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 for research and extension activities at the 1890 land-grant institutions. The plan of work must address critical agricultural issues in the State and describe the programs and projects targeted to address these issues using the NIFA formula funds. The plan of work also must describe the institution's multistate activities as well as their integrated research and extension activities.
This collection of information also includes the reporting requirements of section 102(c) of AREERA for the 1862 and 1890 land-grant institutions. This section requires the 1862, 1890, and 1994 land-grant institutions receiving agricultural research, education, and extension formula funds from NIFA of the Department of Agriculture (USDA) to establish and implement processes for obtaining input from persons who conduct or use agricultural research, extension, or education concerning the use of such funds effective October 1, 1999.
Section 102(c) further requires that the Secretary of Agriculture promulgate regulations that prescribe what the institutions must do to meet this requirement and the consequences of not complying with this requirement. The Stakeholder Input Requirements for Recipients of Agricultural Research, Education, and Extension Formula Funds (7 CFR part 3418) final rule (65 FR 5993, Feb. 8, 2000) applies not only to the land-grant institutions receiving formula funds but also to the veterinary and forestry schools that are not land-grant institutions but receive forestry research funds under the McIntire-Stennis Act of 1962 and animal health and disease research funds under section 1433 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA). Failure to comply with the requirements of this rule may result in the withholding of a recipient institution's formula funds and redistribution of its share of formula funds to other eligible institutions. The institutions are required to annually report to NIFA: (1) The actions taken to seek stakeholder input to encourage
Section 103(e) of AREERA requires that the 1862, 1890, and 1994 land-grant institutions establish a merit review process, prior to October 1, 1999, in order to obtain agricultural research and extension funds. Section 104 of AREERA also stipulated that a scientific peer review process be established for research programs funded under section 3(c)(3) of the Hatch Act (commonly referred to as Hatch Multistate Research Funds).
This notice also revises the Plan of Work to include Extension Program Initiations and Annual Reports in the REEport platform in place of the current Planned Programs and make the current REEport Hatch and Evans-Allen approved Research Project Initiations and Annual Progress Reports as a part of the Plan of Work and Annual Report of Accomplishments. This will reduce the overall burden for Hatch and Evans-Allen research grant recipients. The burden for Extension Grant recipients is estimated to remain the same.
The revised Plan of Work will have the following sections:
(1). Institutional Profile and Executive Summary
(2). Merit Review Process
(3). Stakeholder Input
(4). Multistate Extension and Integrated Research and Extension
(5). Critical Issues
(6). Extension Program Initiations and Research Project Initiations in the REEport Platform
All responses to this notice will be summarized and included in the request to OMB for approval. All comments will become a matter of public record.
National Institute of Food and Agriculture, USDA.
Notice.
The National Institute of Food and Agriculture (NIFA), USDA, is announcing the I-FAST prize competition (the “I-FAST Competition” or the “Competition”) to develop and implement the Innovations in Food and Agricultural Science and Technology (I-FAST) Program. NIFA will partner with the National Science Foundation (NSF) Innovation Corps (I-Corps) to provide entrepreneurship training to NIFA grantees under this I-FAST pilot program. The goals are to identify valuable product opportunities that can emerge from NIFA supported academic research. Selected NIFA I-FAST project teams will participate in the educational programs with NSF I-Corps Program. Over a period of six months the NIFA supported teams in the I-FAST program will learn what it will take to achieve an economic impact with their particular innovation. The final goal of the I-FAST Competition is to facilitate technology transfer of innovations that can make an impact in the marketplace and the global economy.
Competition Submission Period—Pre-Application and Evaluation Interviews:
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Fall 2018 COHORTS:
Fall Cohort #1: Location TBD (Likely Detroit, MI)
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Fall Cohort #2: Location TBD (Likely Los Angeles or San Diego, CA)
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The Pre-Application Phase Competition Submission Period begins July 10, 2018 at 10:00 a.m. ET and ends August 3, 2018 at 11:59 p.m. ET.
Pre-Application Interviews will take place August 6, 2018 to August 9, 2018.
The Full-Application Phase Competition Submission Period begins August 10, 2018 at 10:00 a.m. ET and ends August 17, 2018 at 11:59 p.m. ET.
Competition dates are subject to change. Entries submitted before or after the Competition Submission Period will not be reviewed or considered for award. For more details, visit the
Questions about the Competition can be directed to Scott Dockum at
The National Institute of Food and Agriculture (NIFA), USDA, mission is to invest in and advance agricultural research, education, and extension to solve societal challenges. As part of this mission NIFA is charged with providing grant funding for research, education, and extension that address key problems of national, regional, and multi-state importance in sustaining all components of agriculture. A majority of NIFA grant funding is provided to academic institutions to focus on developing research in the areas of farm efficiency and profitability, ranching, renewable energy, forestry (both urban and agroforestry), aquaculture, rural communities and entrepreneurship, human nutrition, food safety, biotechnology, and conventional breeding.
NIFA will partner with the NSF Innovation Corps (I-Corps) who will provide an Entrepreneurial Immersion course and training to NIFA grantees through this I-FAST Competition. The goals of this Competition are to spur translation of fundamental research to the market place, to encourage collaboration between academia and industry, and to train NIFA-funded faculty, students and other researchers to understand innovation and entrepreneurship.
The purpose of the I-FAST Competition is to identify NIFA-funded research teams (an I-FAST team includes the Principal Investigator (PI), the Entrepreneurial Lead, and the Mentor) who will receive additional support, in the form of mentoring, training, and funding to accelerate the translation of knowledge derived from fundamental research into emerging products and services that can attract subsequent third-party funding. NIFA-funded research teams will be required to participate in Entrepreneurial Immersion courses provided by the NSF I-Corps program. The NSF I-Corps is a program specifically designed to broaden the impact of select, basic research projects by preparing scientists and engineers to focus beyond the laboratory. Leveraging experience and guidance from established entrepreneurs and a targeted curriculum within the NSF I-Corp program, NIFA I-FAST teams will learn to identify valuable product opportunities that can emerge from NIFA supported academic research. The I-FAST Competition will help create a stronger national ecosystem for innovation that couples scientific discovery with technology development to address agricultural and societal needs.
Each team that receives an I-FAST award is required to participate in the following NSF I-Corps activities: (1) Attendance by the entire team at an on-site three-day NSF I-Corps Entrepreneurial Immersion course; (2) Mandatory participation in the I-Corps weekly Webinars following the in-person three day on-site meeting; (3) Completion of approximately 15 hours of preparation per week over the duration of the program; (4) Attendance of a two day lessons learned in-person meeting at the end of the training. During the training, teams are expected to engage in at least 100 contacts with potential customers and provide a 5-page summary report back to NIFA on the outcome of the training and milestones to be met by the team (
The I-FAST Competition is open to teams (“Teams” or “Participants”) that are made up of individuals from academic/university institutions that have received a prior NIFA award in a scientific or engineering field relevant to the proposed innovation that is currently active or that has been active within five years from the closing date of the Pre-Application Open Period. The prior award could range from a modest single-investigator award to a large, distributed center and also includes awards involving students. All individuals supported (
Makeup of I-FAST Competition Teams: Each Team shall consist of three members:
I-FAST teams are made up of individuals from an academic/university institution except for the Mentor who may reside with a non-academic institution as described below. Also described below, are the responsibilities of each team member should the Team be selected as a winner of the competition.
The Entrepreneurial Lead (EL) could be a postdoctoral scholar, graduate, or other student with relevant knowledge of the technology located at the academic/university institution and a deep commitment to investigate the commercial landscape surrounding the innovation. The EL should also be capable and have the will to support the transition of the technology to commercial viability. The EL will be responsible for: (1) Developing the team to include the mentor and PI, (2) leading the development of the pre-application, participating in the I-FAST interviews and developing the full application, if selected, (3) starting and completing all training activities in the Entrepreneurial Immersion course provided by the NSF I-Corps program, (4) communicating and coordinating with team members to achieve the goals of the team, (5)
Ideally, the I-FAST Teams Mentor will be an experienced or emerging entrepreneur with proximity to the academic/university institution and have prior experience developing and commercializing other products within the broader technology space related to the specific project under development. The Mentor should be selected as a third-party resource, or may be a person that has an established relationship with the team (
The PI is expected to have in-depth knowledge of the innovation developed under the prior NIFA Grant and, if selected, will be responsible for: (1) Coordinating with the university on the transfer of prize funds from NIFA, (2) tracking of the prize funding for team activities, (3) reporting to NIFA on disbursements and obligations of the prize funding, (4) guiding the EL and Mentor on technical aspects of the innovation, (5) communicating as needed with the NIFA I-FAST Competition Director and the NSF I-Corps Program Director, (6) ensuring the EL meets the required milestones for the NSF I-CORP training, and (7) participating as a team member. The Principal Investigator who received the earlier NIFA grant for the technology is allowed to participate on the team, but cannot be the Entrepreneurial Lead.
During the I-Corps course, each participating team, including all its team members, must:
• Attend, in person, an evening reception and 3-day kick-off Entrepreneurial Immersion course;
• Conduct approximately 100 customer interviews over the 6-week program, and submit interview summary reports. This process of customer discovery includes in-person face to face meetings with potential customers and requires the team to be “outside the building” for these activities. It is expected that the team will not use telephone or online conferencing during the customer discovery process. It is expected the team will require a minimum of 15 hours and a maximum of 40 hours per week for at least five weeks following the in person training;
• Participate in 5 weekly webinar sessions and submit regular updates to the team's business model canvas. In addition, it is expected that I-Corps teams will take advantage of instructor office hours; and
• Attend, in person, the final 2-day course close out/lessons learned session (to be held in the same region as the kick-off course).
Teams are strongly encouraged to consider the time commitments and requirements of the program before submitting an application. If one or more team members cannot meet these requirements, the team should not submit an application.
Selected I-FAST Teams that fail to meet the requirements of the program must provide NIFA documented justification for failing to meet the requirements. NIFA will determine based on the justification or no justification, whether the team is subject to reimbursing NIFA for any prize funding.
The NIFA I-FAST Competition Prize Purse will be a maximum of $250,000 which will be divided to provide $50,000 each to a maximum of five (5) teams. Prize Purse funds are required to be used by winning Teams to fully participate in the NSF I-Corps program curriculum.
NIFA reserves the right to award less than the maximum number of available prizes.
Prizes awarded under this Competition will be paid by electronic funds transfer to the academic/university institution the Team(s) represent(s). Once prize winners are selected, NIFA will provide the winners with the forms and financial documents that must be completed and returned to NIFA to set up the electronic transfer. All Federal, state and local taxes are the sole responsibility of the winner(s).
The Competition will have a three-phase selection process. Initially, Teams will submit a pre-application. From the pre-applications, NIFA will conduct phone interviews. Selected Teams will be invited to submit a full application. From the full applications, NIFA will select the winning Team(s).
Teams can enter the contest by submitting the pre-application through the “Enter a Submission” function on
Prepare a three-page Executive Summary that describes the following:
(1) Composition of the Team and roles (EL, Mentor, and PI) of the members proposing to undertake the commercialization feasibility research.
(2) Contact information for ALL of the members.
(3) Relevant current/previous NIFA award(s) including award number, Title of the Project, and the NIFA program the award was funded under.
(4) Brief description of the potential commercial impact.
(5) Brief description of the current commercialization plans for the innovation.
After the interviews, Teams that are selected to submit a full application will submit it via
1. I-Corps Team (one page limit).
a. Briefly describe the I-Corps team and provide rationale for its formation, focusing on members' entrepreneurial expertise, relevance to the innovation effort, and members' experience in collaborating on previous projects.
b. Include contact information for all team members.
2. Lineage of the Proposed Innovation (one page limit).
a. Provide the current/previous NIFA award(s) including award number, Title of Project and the NIFA program that funded the award.
b. Briefly describe how this research has led the Team to believe that a commercial opportunity exists for the effort moving forward.
3. Description of the Potential Commercial Impact (two page limit).
a. Provide a brief profile of a typical customer of the proposed innovation.
b. Describe how the proposed innovation will meet the customer's needs.
c. Describe how the customer currently meets those needs.
d. Your approach—What is the proposed innovation? How does it relate to the fundamental research already conducted under previous award(s)?
e. How much do you think a customer would pay for your solution?
4. Brief description of the project plan (one page limit).
a. Current Status—In what stage is the development: proof-of-principle, proof-of-concept, prototype (alpha, beta), etc.
b. Provide a brief description of the proof-of-concept or technology demonstration that will be provided at the end of the project.
The total page limit for the project description full application is five (5) pages.
From the Teams submitting full applications, a maximum of five Teams will be selected as winners to enter into the I-FAST Program.
The information on the Competition will be provided via
NIFA will screen all entries for eligibility and completeness. Entries from Teams that do not meet the eligibility requirements and/or that fail to include required submission elements will not be evaluated or considered for award. Eligible and complete entries will be judged by a fair and impartial panel of individuals from NIFA and NSF (the “Judging Panel”).
(1) Did the technology proposed receive past NIFA funding within the specified timeframe?
(2) Does the team have the required team members and are the roles of each team member clearly described and meet the noted responsibilities?
(3) Does the commercialization plan provide a good understanding of the team's knowledge of the current state of the art and how the technology could enter into a potential market?
(4) Were the page limits met?
Following the evaluation, the Judging Panel will conduct a phone interview with each selected team. This will emphasize the time commitment and availability of the entire team to complete the NSF I-CORPS program during one of the fall 2018 cohorts.
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By entering the Competition, each Team certifies that its entry complies with all applicable Federal and State laws and regulations.
Each Team warrants that its entry is free of viruses, spyware, malware, and any other malicious, harmful, or destructive device. Teams submitting entries containing any such device will be held liable and may be prosecuted to the fullest extent of the law.
Entries containing any matter which, in the sole discretion of NIFA, is indecent, defamatory, in obvious bad taste, demonstrates a lack of respect for public morals or conduct, promotes discrimination in any form, shows unlawful acts being performed, is slanderous or libelous, adversely affects the reputations of NIFA or NSF, is unacceptable as determined by NIFA, then such entry shall be deemed disqualified and will not be evaluated or, if evaluated, will not be considered for award.
The winning Team(s) must comply with all applicable laws and regulations regarding Prize Purse receipt and disbursement.
NIFA's failure to enforce any term of any applicable rule or condition shall not constitute a waiver of that term.
By entering the Competition, each Team agrees to:
(1) Comply with and be bound by all applicable rules and conditions, and the decisions of NIFA, which are binding and final in all matters relating to this Competition.
(2) Release and hold harmless NIFA and NSF and all their respective past and present officers, directors, employees, agents, and representatives (collectively the “Released Parties”) from and against any and all claims, expenses, and liability arising out of or relating to the Team's entry or participation in the Competition and/or the Team's acceptance, use, or misuse of the Prize Purse or recognition. Provided, however, that Participants are not required to waive claims arising out of the unauthorized use or disclosure by NIFA or NSF of the intellectual property, trade secrets, or confidential business information of the Participant.
The Released Parties are not responsible for: (1) Any incorrect or inaccurate information, whether caused by Teams, printing errors, or by any of the equipment or programming associated with or used in the Competition; (2) technical failures of any kind, including, but not limited to, malfunctions, interruptions, or disconnections in phone lines or network hardware or software; (3) unauthorized human intervention in any part of the entry process for the Competition; (4) technical or human error that may occur in the administration of the Competition or the processing of entries; or (5) any injury or damage to persons or property that may be caused, directly or indirectly, in whole or in part, from Team's participation in the Competition or receipt or use or misuse of the Prize Purse. If for any reason a Team's entry is confirmed to have been deleted erroneously, lost, or otherwise destroyed or corrupted, that Team's sole remedy is to submit another entry in the Competition.
NIFA reserves the authority to cancel, suspend, and/or modify the Competition, or any part of it, if any fraud, technical failures, or any other factor beyond NIFA's reasonable control impairs the integrity or proper functioning of the Competition, as determined by NIFA in its sole discretion.
NIFA reserves the right to disqualify any Team it believes to be tampering with the entry process or the operation of the Competition or to be acting in violation of any applicable rule or condition.
Any attempt by any person to undermine the legitimate operation of the Competition may be a violation of criminal and civil law, and, should such an attempt be made, NIFA reserves the authority to seek damages from any such person to the fullest extent permitted by law.
All potential Competition winners are subject to verification by NIFA whose decisions are final and binding in all matters related to the Competition.
Potential winner(s) must continue to comply with all terms and conditions of the Competition rules, and winning is contingent upon fulfilling all requirements. The potential winner(s) will be notified by email and/or telephone. If a potential winner cannot be contacted, or if the notification is returned as undeliverable, the potential winner forfeits. In the event that a potential winner, or an announced winner, is found to be ineligible or is disqualified for any reason, NIFA may make award, instead, to the next runner up, as previously determined by the Judging Panel.
Prior to awarding the Prize Purse, NIFA will verify that the potential winner(s) is/are not suspended, debarred, or otherwise excluded from doing business with the U.S. Federal Government. Suspended, debarred, or otherwise excluded parties are not eligible to win the Competition.
By entering the Competition, each Team certifies that it is the author and/or authorized owner of its entry, and that the entry is wholly original with the Team (or is an improved version of an existing project plan the Team is legally authorized to enter into the Competition), and that the submitted entry does not infringe on any copyright, patent, or any other rights of any third party. Each Team agrees to hold the Released Parties harmless for any infringement of copyright, trademark, patent, and/or other real or intellectual property right that may be caused, directly or indirectly, in whole or in part, from that Team's participation in the Competition.
All legal rights in any materials produced or submitted in entering the Competition are retained by the Team and/or the legal holder of those rights. Entry into the Competition constitutes express authorization for NIFA, NSF, and the Judging Panel to review and analyze any and all aspects of submitted entries, including any trade secret or proprietary information contained in or evident from review of the submitted entries.
Personal and contact information is not collected for commercial or marketing purposes. Information submitted throughout the Competition will be used only to communicate with Teams regarding entries and/or the Competition.
Teams' entries to the Competition may be subject to disclosure under the FOIA. If a Team believes that all or part of its Competition entry is protected from release under FOIA (
15 U.S.C. 3719.
Rural Housing Service, USDA.
Notice.
The Housing Opportunity Through Modernization Act of 2016 was signed into law on July 29, 2016. It created Section 502(i) in the Housing Act of 1949, later amended by Section 758 of the Consolidated Appropriations Act, 2018, which permits the Secretary to assess and collect a guarantee underwriting user fee (also known as a technology fee) from lenders for their use of the Rural Housing Service's (Agency's) automated guaranteed loan systems. The collection of the fee will enable the Agency to fund future information technology enhancements needed to improve program delivery and reduce burden to the public. The fee amount will be published in the Single Family Housing Guaranteed Loan Program (SFHGLP) Handbook HB-1-3555, available at
The fee will not exceed $50 per loan, and constitutes a reasonable and customary cost that is an authorized loan purpose in accordance with the Guaranteed Rural Housing Program. The primary method of collecting the fee will be through the Agency's Lender Loan Closing (LLC) system when a loan goes to closing.
Written or email comments on the proposed rule must be received on or before September 11, 2018 to be assured for consideration.
You may submit comments on this proposed rule by any one of the following methods:
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All written comments will be available for public inspection during regular work hours at 1400 Independence Ave. SW, Washington, DC 20250-0742.
Kate Jensen, Finance and Loan Analyst, Single Family Housing Guaranteed Loan Division, STOP 0784, Room 2250, USDA Rural Development, South Agriculture Building, 1400 Independence Avenue SW, Washington, DC 20250-0784, telephone: (503) 894-
The estimated time required for technological development and user acceptance testing is one year from the start of development. The Agency does not plan to collect a technology fee during the first year of the project, and technology fee collections are not expected prior to the first quarter of fiscal year 2019. Presently the estimated amount of the guarantee loan systems user fee is $25 with an expected implementation date of January 2, 2019. The Agency will advise lenders in advance of the implementation date of the actual amount of the guarantee loan systems user fee, along with all pertinent development and operational details.
The use of the LLC is currently voluntary and lenders submit more than 98 percent of loan closings through that channel. In order to effectively serve the public and keep pace with modern lending practices, the Agency must have ready access to funding for the maintenance and enhancement of automated systems required for the secure and efficient delivery of the single family housing loan programs. The system improvement will also enhance the Agency's ability to effectively monitor the processing, underwriting, and closing of all guaranteed loans and protect the investment of the public.
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a planning meeting of the Colorado Advisory Committee to the Commission will convene at 12:00 p.m. (MDT) on Wednesday, August 1, 2018, in the Board Room, Independence Institute, 727 East 16th Avenue, Denver, CO 80203. The purpose of the meeting is to review potential civil rights topics for future study in the state.
Wednesday, August 1, 2018, at 12:00 p.m. (MDT).
Mt. Evans Room, Byron Rogers Federal Office Building, 1961 Stout Street, Denver, CO 80294.
Evelyn Bohor at
Persons who plan to attend the meeting and who require other accommodations, please contact Evelyn Bohor at
Members of the public are invited to submit written comments; the comments must be received in the regional office by Tuesday, September 4, 2018. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at
The activities of this advisory committee, including records and documents discussed during the meeting, will be available for public viewing, as they become available at:
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a roundtable meeting of the Connecticut Advisory Committee to the Commission will convene at 10:00 a.m. (EDT) on Thursday, August 9, 2018, in the Legislative Office Building of the Capitol Building, 210 Capitol Avenue, Hartford, CT 06106. The
Thursday, August 9, 2018 (EDT) Time: 10:00 a.m.—Roundtable Meeting and Public Session.
Legislative Office Building, Room 2A, 300 Capitol Avenue, Hartford, CT 06106.
Barbara Delaviez at
The purpose of the roundtable meeting is to examine topical civil rights issues in Connecticut. The Committee will hear from elected officials, advocates and experts. The public is invited to the meeting and encouraged to address the committee following the presentations.
If other persons who plan to attend the meeting require other accommodations, please contact Evelyn Bohor at
Time will be set aside at the end of the briefing so that members of the public may address the Committee after the formal presentations have been completed. Persons interested in the issue are also invited to submit written comments; the comments must be received in the regional office by Monday, September 10, 2018. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Idaho Advisory Committee (Committee) to the Commission will be held at 12:00 p.m. (Mountain Time) Thursday, July 26, 2018, for the purpose of voting on a civil rights project topic.
The meeting will be held on Thursday, July 26, 2018, at 12:00 p.m. MT.
Public Call Information: Dial: 719-457-0349 Conference ID: 2195650.
Angelica Trevino at
This meeting is available to the public through the number listed above. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Angelica Trevino at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a planning meeting of the Wyoming Advisory Committee to the Commission will convene at 12:00 p.m. (MDT) on Saturday, July 28, 2018, in the Windflower Room, Library, Cheyenne. The purpose of the meeting is to review potential civil rights topics for future study in the state.
Saturday, July 28, 2018, at 12:00 p.m. (MDT).
Windflower Room, Public Library, Cheyenne.
Evelyn Bohor at
Persons who plan to attend the meeting and who require other accommodations, please contact Evelyn Bohor at
Members of the public are invited to submit written comments; the comments must be received in the regional office by Tuesday, August 28, 2018. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at
The activities of this advisory committee, including records and documents discussed during the meeting, will be available for public viewing, as they become available at:
United States Commission on Civil Rights.
Notice of Commission telephonic business meeting.
Wednesday, July 18, 2018, at 3:00 p.m. ET.
Meeting to take place by telephone.
Brian Walch, (202) 376-8371,
This business meeting is open to the public by telephone only.
Participant Access Instructions: Listen Only, Toll Free: 1-877-260-1479; Conference ID: 713-3156. Please dial in 5-10 minutes prior to the start time.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Oregon Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Pacific Time) Wednesday, August 1, 2018. The purpose of the meeting is for the Committee to discuss draft report on human trafficking in Oregon.
The meeting will be held on Wednesday, August 1, 2018, at 1:00 p.m. PT.
Public Call Information: Dial: 719-325-2100 Conference ID: 9213427.
Ana Victoria Fortes (DFO) at
This meeting is available to the public through the above toll-free call-in number. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and
To ensure consideration, written comments must be submitted on or before September 11, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Julius Smith, Jr., U.S. Census Bureau, Economy-Wide Statistics Division, Room 8K053, 4600 Silver Hill Road, Washington, DC 20233, (301) 763-7662 or via the internet at
The Census Bureau has conducted the Annual Survey of Manufactures (ASM) since 1949 to provide key measures of manufacturing activity during intercensal periods. In census years ending in “2” and “7”, the Census Bureau mails and collects the ASM as part of the Economic Census. In other years, the ASM is mailed and collected as a stand-alone survey. This survey is an integral part of the Federal Government's statistical data on U.S. manufacturers. The ASM furnishes up-to-date estimates of employment and payroll, hours and wages of production workers, value added by manufacture, cost of materials, value of shipments by product, inventories, and expenditures for both plant equipment and structures. The survey provides data at the two-through six-digit North American Industry Classification System (NAICS) levels. It also provides geographic data by state at a more aggregated industry level.
The survey provides valuable information to private companies, research organizations, and trade associations. Industry makes extensive use of the annual figures on product shipments at the U.S. level in its market analysis, product planning, and investment planning. The ASM data are used to benchmark and reconcile monthly and quarterly data on manufacturing production and inventories.
With the 2018 ASM, the Census Bureau plans to make the following changes to this data collection:
a. Special Inquiry: Add a new Special Inquiry on basic robotic use in manufacturing to gauge the prevalence of robotics use in the manufacturing sector across different geographies and by firm size.
b. Item 22 (Product Classification): Previously, Item 22, Details of Sales Shipments Receipts or Revenue was collected using the North American Industry Classification System (NAICS). Moving forward, the collection of Item 22 will be based on the North American Product Classification System (NAPCS). NAPCS is a comprehensive demand-based hierarchical classification system for products that is not industry-of-origin based, but can be linked to the NAICS industry structure, and is consistent across the three North American countries.
c. Item 22 (Miscellaneous Receipts): Due to the implementation of NAPCS, Miscellaneous Receipts will not be collected. In previous ASM years, products were collected by NAICS codes which were specific to manufacturing-only. Out of sector products, produced by manufacturing establishments were classified as Miscellaneous Receipts. Miscellaneous Receipts included contract work, resales, and other. NAPCS is an economy-wide solution, which will allow ASM respondents to classify out of sector products in valid NAPCS codes.
a. All respondents will complete the long form, MA-10000(L). The MA-10000(S), short form will be eliminated. Historically, all establishments of multiunit companies plus the large single-location companies in the sample were asked to report on the MA-10000(L). The remaining single-location companies in the sample were asked to report on the MA-10000(S). In 2014, approximately 3,000 out of 51,000 sampled establishments received the MA-10000(S). This change will impact less than 6% of respondents. The MA-10000(S) was an abbreviated version of the MA-10000(L), and collected significantly less detailed data. Data not collected on the MA-10000(S) were imputed. Imputation rates and estimates will improve by eliminating the MA-10000(S).
The ASM statistics are derived from a sample of manufacturing establishments. The 2012 Economic Census—Manufacturing contained approximately 294,600 active manufacturing establishments. For sample efficiency and cost considerations, the population was partitioned into two groups: Establishments eligible to be mailed a questionnaire (101,250 establishments) and establishments not eligible to be mailed a questionnaire (193,350 establishments). The group of establishments that is not eligible to be mailed a questionnaire still contributes to the ASM estimates. The group of establishments that is eligible to be mailed a questionnaire is defined as the mail stratum. It is comprised of larger single-location manufacturing companies and all manufacturing establishments of multi-location companies. Of the 101,250 establishments in the mail stratum, 47,800 establishments were selected for the ASM sample using methodology similar to what was used for previous ASM samples. The initial sample was supplemented with manufacturing establishments that were newly opened in 2013 (births) to yield a sample of 50,200 establishments for the 2014 ASM. Births added to the mail stratum are large, single-location companies and new manufacturing establishments of multi-location companies. Births are added annually to the mail sample, and the current sample size is approximately 55,000 establishments.
The initial mailing will include a letter instructing respondents to report online. Paper forms will not be available. The electronic reporting system provides a cost-effective and user-friendly method to collect data from companies. Companies will be supplied a unique authentication code for the electronic reporting tool. Respondents have the option of printing a worksheet that lists all of the questions. Respondents can print the worksheet to use as a guide to respond or can print the worksheet after completing the questionnaire as a record of their response. As in the previous section, all respondents will complete the long form.
The group of establishments that is not eligible to be mailed a questionnaire is defined as the nonmail stratum. The nonmail stratum contained the remaining 193,350 single-location companies. Although this group still contributes to the ASM estimates, no data are collected from companies in the nonmail stratum. Rather, data are imputed using administrative records of the Internal Revenue Service (IRS), the Social Security Administration (SSA), and the Bureau of Labor Statistics (BLS)
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that certain companies covered by this administrative review made sales of certain cut-to-length carbon-quality steel plate products (CTL plate) from the Republic of Korea (Korea) at less than normal value during the period of review (POR) February 1, 2016, through January 31, 2017.
Applicable July 13, 2018.
Yang Jin Chun or Thomas Schauer, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5760 or (202) 482-0410, respectively.
On March 12, 2018, Commerce published the
Commerce conducted this review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by the antidumping duty order are certain CTL plate. Imports of CTL plate are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7208.40.30.30, 7208.40.30.60, 7208.51.00.30, 7208.51.00.45, 7208.51.00.60, 7208.52.00.00, 7208.53.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.13.00.00, 7211.14.00.30, 7211.14.00.45, 7211.90.00.00, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00, 7225.40.30.50, 7225.40.70.00, 7225.50.60.00, 7225.99.00.90, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. While the HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive. A full description of the scope of the order is contained in the Issues and Decision Memorandum.
The sole issue raised by parties in this review, pertaining to the home market date of sale, is addressed in the Issues and Decision Memorandum, which is hereby adopted by this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our analysis of comments received, we made no changes to the margins for the final results of this review.
We determine that the following weighted-average dumping margins exist for the respondents for the period February 1, 2016, through January 31, 2017.
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1),
For DSM and Hyundai Steel, we calculated importer-specific assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for each importer's examined sales and the total entered value of the sales in accordance with 19 CFR 351.212(b)(1).
The following deposit requirements will be effective upon publication of this notice for all shipments of CTL plate from Korea entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the companies listed above will be equal to the weighted-average dumping margins established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior completed segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation but the producer has been covered in a prior complete segment of this proceeding, the cash deposit rate will be the rate established for the most recent period for the producer of the merchandise; (4) the cash deposit rate for all other manufacturers or exporters will continue to be 0.98 percent,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a 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 or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
International Trade Administration, DOC.
Notice of an open meeting of a Federal Advisory Committee.
This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The meeting is scheduled for Tuesday, July 24, 2018 from 9:00 a.m.-2:00 p.m. Eastern Daylight Time (EDT). The deadline for members of the public to register or to submit written comments for dissemination prior to the meeting is 5:00 p.m. EDT on Friday, July 13, 2018. The deadline for members of the public to request auxiliary aids is 5:00 p.m. EDT on Friday, July 13, 2018.
The meeting will take place at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230. The address to register and obtain call-in information; submit comments; or request auxiliary aids is: Ms. Amy Kreps, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 28018, 1401 Constitution Avenue NW, Washington, DC 20230 or email:
Ms. Amy Kreps, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 28018, 1401 Constitution Avenue, NW, Washington, DC 20230 (Phone: 202-482-3835; Fax: 202-482-5665; email:
The meeting will take place on July 24 from 9:30 a.m. to 2:00 p.m. EDT. The general meeting is open to the public and time will be permitted for public comment from 1:30-2:00 p.m. EDT. Members of the public seeking to attend the meeting are required to register in advance. Those interested in attending must provide notification by Friday, July 13, 2018 at 5:00 p.m. EDT, via the contact information provided above. This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to OEEI at (202) 482-3835 no less than one week prior to the meeting. Requests received after this date will be accepted, but it may not be possible to accommodate them.
Written comments concerning ETTAC affairs are welcome any time before or after the meeting. To be considered during the meeting, written comments must be received by Friday, July 13, 2018 at 5:00 p.m. EDT to ensure transmission to the members before the meeting. Minutes will be available within 30 days of this meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 19, 2018, the United States Court of International Trade (Court) issued its final judgment in
Applicable June 19, 2018.
Matthew Renkey, AD/CVD Operations Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2312.
On April 8, 2015, Commerce issued the
On December 21, 2017, Commerce filed the AR5 Remand Redetermination with the Court.
On June 19, 2018, the Court sustained the AR5 Remand Redetermination with respect to the correction of the transcription error in Stanley's FOP database.
In its decision in
Because there is now a final court decision, Commerce is amending the
Commerce will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. In the event the Court's ruling is not appealed or, if appealed, upheld by the CAFC, Commerce will instruct U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise exported by Xi'an Metals and Stanley using the appropriate assessment rates.
As stated in the AR5 Remand Redetermination, the cash deposit rate for Stanley has been superseded by cash deposit rates calculated in intervening administrative reviews of the antidumping duty order on certain steel nails from China.
This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the antidumping duty order on certain hot-rolled steel flat products from Brazil. The period of review (POR) is March 22, 2016, through Septemer 30, 2017. This review covers six producers/exporters of the subject merchandise. Commerce selected one mandatory respondent, Companhia Siderurgica Nacional (CSN), for individual examination. We preliminarily determine that sales of subject merchandise have been made below normal value (NV) during the POR. We invite interested parties to comment on these preliminary results.
Applicable July 13, 2018.
Peter Zukowski, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0189.
The products covered by this investigation are certain hot-rolled steel flat products from Brazil. For a complete description of the scope of this order, please see the accompanying Preliminary Decision Memorandum.
Commerce is conducting this review in accordance with sections 751(a) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our conclusions,
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Pursuant to section 776(a) and (b) of the Act, Commerce has preliminarily relied upon facts otherwise available with adverse inferences (AFA) for CSN because this respondent did not respond to Commerce's antidumping duty questionnaire. For a complete explanation of the methodology and analysis underlying the preliminary application of AFA,
In the original investigation, we subtracted from the final dumping margin of 33.14 percent the portion of CSN's countervailing duty rate attributable to export subsidies (4.07 percent) in order to calculate the cash-deposit rate of 29.07 percent.
In accordance with the U.S. Court of Appeals for the Federal Circuit's decision in
As a result of this review, Commerce preliminarily determines that for the period March 22, 2016, through Septemer 30, 2017, the following weighted-average dumping margins exist:
Normally, Commerce discloses to interested parties the calculations performed in connection with the preliminary results within five days of the date of publication of the notice of preliminary results in the
Interested parties may submit case briefs not later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of arguments raised in any written briefs, not later than 120 days after the publication of these preliminary results in the
Upon completion of the administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for previously investigated companies not participating in this review, the cash deposit will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the company participated; (3) if the exporter is not a firm covered in this review, or the original less-than-fair-value (LTFV)
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) 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 Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Shanghai Wells Hanger Co., Ltd., Hong Kong Wells Ltd., and Hong Kong Wells Ltd. (USA) (collectively, Shanghai Wells) sold subject merchandise in the United States at prices below normal value (NV) during the period of review (POR), October 1, 2016, through September 30, 2017. Interested parties are invited to comment on these preliminary results.
Applicable July 13, 2018.
Trenton Duncan or Ian Hamilton, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3539, or (202) 482-4798, respectively.
This administrative review is being conducted in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this administrative review on steel wire garment hangers from the People's Republic of China (China) on December 7, 2017.
The merchandise subject to the
Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review.
Commerce preliminarily determines that information placed on the record by Shanghai Wells demonstrates that this entity is entitled to separate rate status.
Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Act. We calculated constructed export prices and export prices in accordance with section 772 of the Act. Because China is a non-market economy
For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. A list of the topics included in the Preliminary Decision Memorandum is included as an appendix to this notice. The Preliminary Decision Memorandum is a public document and is made available to the public via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Commerce preliminarily determines that the following weighted-average dumping margin exists for the POR:
Commerce intends to disclose the calculations performed for these preliminary results to the parties no later than ten days after the date of the public announcement of this notice in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review. Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the case briefs are filed.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs.
All submissions, with limited exceptions, must be filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by 5 p.m. Eastern Time (ET) on the due date. Documents excepted from the electronic submission requirements must be filed manually (
Unless otherwise extended, Commerce intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
For entries that were not reported in the U.S. sales data submitted by companies individually examined during this review, Commerce will instruct CBP to liquidate such entries at the rate for the China-wide entity.
In accordance with section 751(a)(2)(C) of the Act, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated antidumping duties, where applicable.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that Filmag Italia Spa (Filmag) did not sell stainless steel butt-weld pipe fittings at prices below normal value during the period of review (POR) February 1, 2016, through January 31, 2017.
Applicable July 13, 2018.
John Drury or Kent Boydston, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0195 or (202) 482-5649, respectively.
On March 13, 2018, Commerce published in the
The merchandise covered by the order is certain stainless steel butt-weld pipe fittings from Italy.
The butt-weld fittings subject to the order is currently classifiable under subheading 7307.23.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive. A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, to Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, titled “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Stainless Steel Butt-Weld Pipe Fittings from Italy; 2016-2017” (Preliminary Decision Memorandum), which is issued concurrent with these results and hereby adopted by this notice.
Commerce conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). Export price was calculated in accordance with section 772(a) of the Act. Normal value was calculated in accordance with section 773(a)(1)(B) of the Act. For a full description of the methodology underlying our analysis,
In the
Commerce determines that the following weighted-average dumping margin exists for the period of review
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), Commerce has determined, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Filmag will be that established in the final results of this administrative review; (2) for previously reviewed or investigated companies, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or in the investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recent review period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be the all-others rate of 26.59 percent, the rate established in the investigation of this proceeding.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/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 of the final results of this administrative review is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5) and 19 CFR 351.213(h).
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletion from the Procurement List.
This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes a service from the Procurement List previously furnished by such agency.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
On 4/27/2018 (83 FR 82) and 6/4/2018 (83 FR 107); the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. The action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and service proposed for addition to the Procurement List.
Accordingly, the following products and service are added to the Procurement List:
On 6/15/2018 (83 FR 116), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletion from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the service listed below is no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing a small entity to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service deleted from the Procurement List.
Accordingly, the following service is deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed deletions from the Procurement List.
The Committee is proposing to delete products and services from the Procurement List that were previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: August 12, 2018.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following products and services are proposed for deletion from the Procurement List:
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“Commission”) is announcing an opportunity for public comment on the proposed collection of
Comments must be submitted on or before September 11, 2018.
You may submit comments, identified by “Risk Management Requirements for Derivatives Clearing Organizations,” by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Eileen Chotiner, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-5467; email:
Under the PRA, 44 U.S.C. 3501
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of 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;
You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Bureau of Consumer Financial Protection.
Notice of a Modified System of Records.
In accordance with the Privacy Act of 1974, as amended, the Bureau of Consumer Financial Protection (Bureau), gives notice of the establishment of a modified Privacy Act System of Records.
Comments must be received no later than August 13, 2018. The Modification will be effective on August 13, 2018 unless the comments received result in a contrary determination.
You may submit comments, identified by the title and docket number (see above), by any of the following methods:
•
•
•
All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.
Claire Stapleton, Chief Privacy Officer, at (202) 435-7220. If you require this document in an alternative electronic format, please contact
The Bureau revises its Privacy Act System of Records Notice (“SORN”) CFPB.005—Consumer Response System. In revising this SORN, the Bureau modifies the authorized purposes for this system, the categories of individuals covered by this system, and categories of records in this system, to reflect Bureau activities using personally identifiable information in this system of records relating to quality control and consumer education and engagement efforts. The Bureau also modifies the policies and practices for the retrieval of records in this system to reflect that records may be retrieved by an individual's email address in addition to the methods for retrieval previously listed.
The report of the modified systems of records has been submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to OMB Circular A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act” and the Privacy Act, 5 U.S.C. 552a(r).
CFPB.005—CFPB Consumer Response System.
This information system does not contain any classified information or data.
Bureau of Consumer Financial Protection, 1700 G Street NW, Washington, DC 20552.
Office of Consumer Response, Product Section Chief, Bureau of Consumer Financial Protection, Division of
The information in the system is being collected to enable the Bureau to receive, respond to, and refer complaints or inquiries regarding consumer financial products or services. The system serves as a record of the complaint or inquiry, and is used for collecting complaint or inquiry data; responding to or referring the complaint or inquiry; aggregating data that will be used to inform other functions of the Bureau and, as appropriate, other agencies and/or the public; providing related educational and informational content; and preparing reports as required by law. The information will also be used for administrative purposes to ensure quality control, performance, and improving management processes. This system consists of complaints or inquiries received by the Bureau or other entities and information concerning responses to or referrals of these complaints or inquiries, as appropriate.
Individuals covered by this system are individuals who submit complaints or inquiries to the Bureau (on their own or others' behalf), individuals on whose behalf complaints or inquiries are submitted by others (such as attorneys, members of Congress, third party advocates, and/or other governmental organizations); individuals who are the subjects of complaints by virtue of their engagement in business as a sole proprietor, and individuals from other Federal, State agencies, or the Bureau with whom the Bureau shares data. This includes complaints or inquiries received by prudential regulators, Federal Trade Commission, other Federal agencies, State agencies, or the Bureau. The term “prudential regulators” refers to any Federal banking agency, as that term is defined in section 3 of the Federal Deposit Insurance Act, and the National Credit Union Administration. Information collected regarding consumer products and services is subject to the Privacy Act only to the extent that it concerns individuals; information pertaining to corporations and other business entities and organizations is not subject to the Privacy Act. Other individuals covered by this system include employees, contractors, or others at the Bureau who work in or with the Office of Consumer Response.
Records in the system may contain: (1) Correspondence or other information received; (2) information from the entity or individual referring the inquiry or complaint; (3) records created of verbal communications by or with complainants or other individuals; (4) information regarding third party advocates or others who submit complaints or inquiries on another's behalf; (5) information identifying the entity that is the subject of the complaint or inquiry or its employees; (6) communication with or by the entity that is the subject of the complaint or inquiry or its employees; (7) unique identifiers, codes, and descriptors categorizing each complaint or inquiry file; (8) information about how complaints or inquiries were responded to or referred, including any resolution; (9) records used to respond to or refer complaints or inquiries, including information in the Bureau's other systems of records; (10) identifiable information regarding both the individual who is making the inquiry or complaint, and the individual on whose behalf such inquiry or complaint is made, and employees of the entity about which the complaint or inquiry was made, including name, Social Security number, account numbers, address, phone number, email address, date of birth; and (11) identifiable information regarding an employee, contractor, or others at the Bureau who access the system, including their name and any login information used to access the consumer response system.
Records are retrievable by a variety of fields including without limitation the individual's name, Social Security number, complaint/inquiry case number, address, account number, transaction number, phone number, email address, date of birth, or by some combination thereof.
79 FR 21440 (Apr. 16, 2014) (CFPB.005 CFPB Consumer Response System).
U.S. Army Corps of Engineers, DoD.
Supplement to Notice of Intent.
The U.S. Army Corps of Engineers (USACE), Mobile District, issued a Notice of Intent (NOI) in the
The meeting dates and times are:
1. Monday, July 30, 2018, 4-8 p.m. (EDT), Acworth, GA.
2. Tuesday, July 31, 2018, 4-8 p.m. (EDT), Rome, GA.
3. Wednesday, August 1, 2018, 4-8 p.m. (CDT), Gadsden, AL.
4. Thursday, August 2, 2018, 4-8 p.m. (CDT), Childersburg, AL.
5. Friday, August 3, 2018, 4-8 p.m. (CDT), Montgomery, AL.
The meeting locations are:
1. Acworth, GA—Cauble Park Beach House, 4425 Beach Street, Acworth, Georgia 30101, (770) 917-1234.
2. Rome, GA—Forum River Civic Center, Berry/Shorter Room, 301 Tribune Street, Rome, Georgia 30161, (706) 291-5281.
3. Gadsden, AL—The Pitman Theater, 629 Broad St., Gadsden, Alabama 35901, (256) 549-4740.
4. Childersburg, AL—Friends on Eighth, 109 8th Ave. SW, Childersburg, Alabama 35044, (205) 296-2397.
5. Montgomery, AL—AUM Center for Lifelong Learning, 75 TechnaCenter
Following the scoping meetings, individuals who have not already submitted their comments should submit them by August 15, 2018, by either:
* Email to
* Mail to Mr. Mike Malsom, Inland Environment Team, Environment and Resources Branch, Planning and Environmental Division, USACE-Mobile, Post Office Box 2288, Mobile, AL 36628-0001.
Direct questions about the NEPA process to Mr. Mike Malsom by mail at Inland Environment Team, Environment and Resources Branch, Planning and Environmental Division, USACE-Mobile, Post Office Box 2288, Mobile, AL 36628-0001; telephone at (251) 690-2023; electronic facsimile at (251) 694-3815; or email at
Additional information on the ACT River Basin study will be posted as it becomes available on the Mobile District website at
The USACE will hold five public scoping meetings during the months of July and August as part of its preparation to conduct the water supply storage reallocation study and update the WCMs for the Alabama Power Company's Weiss and Logan Martin reservoirs in the ACT River Basin. The public is invited to attend the scoping meetings, which will provide information on the study process and afford interested parties the opportunity to submit to USACE input about their issues and concerns regarding that process. Each of the public scoping meetings will be presented in an open house format, allowing time for participants to review specific information and to provide comments either on forms available at the meeting or to a court reporter on-site at the meeting.
Army Corps of Engineers, DoD.
Notice of Intent.
The U.S. Army Corps of Engineers (“USACE”), Memphis District, Vicksburg District, and the New Orleans District, is announcing its intent to prepare Supplement II (SEIS II) to the Final Environmental Impact Statement, Mississippi River and Tributaries (MR&T) Project, Mississippi River Mainline Levees and Channel Improvement of 1976 (1976 EIS), as updated and supplemented by Supplement No. 1, Mississippi River and Tributaries Project, Mississippi River Mainline Levee Enlargement and Seepage Control of 1998 (SEIS I) to the 1976 EIS, to cover construction of remaining authorized work on the Mississippi River mainline levees (MRL) feature. Over the past twenty years since the finalization of SEIS I, USACE has determined that various sections (reaches) of the mainline levee system are deficient in varying amounts, and that certain remedial measures need to be undertaken to control seepage and to raise and stabilize the deficient sections of the levee to protect the lower Mississippi River Valley against the Project Design Flood (PDF) and maintain the structural integrity of the MRL system. The Proposed Action of SEIS II is to supplement and, as necessary, augment the 1976 EIS and SEIS I using the primary MR&T goals of: (1) Providing flood protection from the PDF; and (2) developing an environmentally sustainable project; formulating alternatives; identifying significant resources; assessing the direct, indirect, and cumulative impacts to those resources; investigating and environmentally assessing potential borrow areas; developing mitigation measures; and evaluating and selecting a preferred method for the construction of necessary authorized MRL Project features, which may include but are not limited to, implementing seepage control measures and the construction of various remediation measures for deficient levee reaches to bring these reaches to the project design grade. SEIS II will evaluate the potential direct, indirect, and cumulative impacts for an array of alternatives, including a No Action alternative.
Comments and questions about SEIS II should be submitted to USACE by email to:
The MR&T Project is designed to manage flood risk damages in the alluvial valley between Cape Girardeau, Missouri and the Head of Passes, Louisiana. The goal of the MR&T Project is to provide an environmentally sustainable project for comprehensive flood damage control, protection, and risk reduction from the “Project Design Flood”, in the alluvial valley beginning at Cape Girardeau, Missouri to the Head of Passes, Louisiana, by means of levees, floodwalls, floodways, reservoirs, banks stabilization and channel improvements in and along the Mississippi River and its tributaries. The mainline levee system, comprised of levees, floodwalls, backwater areas, floodways, and various control structures, is approximately 1,610 miles long. The PDF is a hypothetical flood that was developed to determine the design flood to be used in designing the MR&T levee system in the lower Mississippi River Basin, and is defined as the “greatest flood having a reasonable probability of occurrence” when the operable features of the entire MR&T Project are considered. The PDF upon which the current design for the construction of the mainline levee system and remaining unconstructed levees is based, is the “Refined 1973
Through evaluation of information and data obtained from levee inspections, seepage analyses, research, studies, and engineering assessments, USACE has concluded that certain levee reaches are not at Project design grade due to effects from various changed conditions, including, but not limited to consolidation of levee materials, subsidence, and changes in river conditions and in survey datums over time. Additionally, advances in geotechnical mapping, data collected from recent high water events, and subsequent seepage analyses that have taken place since the finalization of SEIS I, have revealed the need for additional seepage control measures and the construction of other authorized Project features to facilitate structural integrity and stability of the MRL feature of the MR&T Project. As a result, in October of 2017, USACE completed an engineering risk assessment and programmatic review of the MRL based on the 1973 Refined MR&T Flowline Study. The assessment showed that the integrity of the MRL levee system was at risk because numerous levee reaches are not currently constructed to the pass the PDF due to either height or seepage deficiencies. Based on the results, USACE has determined that SEIS II is necessary to formulate alternatives, identify significant resources, assess the direct, indirect, and cumulative impacts to the significant resources, develop mitigation measures, and evaluate and select a recommended plan.
This Notice of Intent commences the formal public scoping comment period which shall continue through October 1, 2018. Scoping is the NEPA process utilized for seeking public involvement in determining the range of alternatives and significant issues to be addressed in SEIS II. USACE invites full public participation to promote open communication in the public scoping phase and invites interested parties to identify potential issues, concerns, and reasonable alternatives that should be considered in SEIS II.
In order for public comments to be recorded for inclusion in the Administrative Record and be considered in the SEIS II development process, members of the public, interested persons and entities must submit their comments to USACE by mail, email, or verbally at the Scoping Meeting(s). Written comments submitted for consideration are due no later than October 1, 2018. Written comments may be submitted: (1) To USACE at public scoping meetings; (2) by regular U.S. Mail mailed to: U.S. Army Corps of Engineers, ATTN: CEMVN-PDC-UDC, 167 North Main Street, Room B-202, Memphis, Tennessee 38103-1894; and (3) by email to:
All personally identifiable information (for example, name, address, etc.) voluntarily submitted by a commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. All timely received comment letters will be accessible on the Project website at
7.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for new awards for fiscal year (FY) 2018 for Personnel Development to Improve Services and Results for Children with Disabilities—Associate Degree Preservice Program Improvement Grants to Support Personnel Working with Young Children with Disabilities, Catalog of Federal Domestic Assistance (CFDA) number 84.325N.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Julia Martin Eile, U.S. Department of Education, 400 Maryland Avenue SW, Room 5175, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 245-7431. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
This priority is:
The mission of the Office of Special Education and Rehabilitative Services (OSERS) is to improve early childhood, educational, and employment outcomes and raise expectations for all people with disabilities, their families, their communities, and the Nation.
The purpose of this priority is to fund eight Associate Degree Preservice Improvement Grants and improve the quality of existing associate degree programs so that associate degree-level personnel are well prepared to work with infants, toddlers, preschool, and early elementary school children ages birth through 8 (young children) with disabilities and their families in inclusive early childhood programs and elementary schools. Associate degree-level personnel play critical roles in the development and learning of all young children, including young children with disabilities, as child care providers, preschool teachers, assistant teachers, and paraprofessionals. In these roles, associate degree-level personnel can use evidence-based (as defined in this notice) practices (EBPs) to meaningfully include young children with disabilities in early childhood programs and classrooms, individualize interventions and accommodations, collect data to monitor progress, and collaborate with other professionals. In elementary schools, paraprofessionals are often
The Office of Special Education Programs (OSEP) began to address the need for more qualified associate degree-level personnel in FYs 2010 and 2011 by funding projects to enhance and redesign community college programs. A number of those grantees were four-year institutions that partnered with community colleges and successfully redesigned their associate degree programs. They did this by incorporating content on serving children with disabilities and their families into courses and practicum experiences to increase the competencies of associate degree-level personel to work with children with disabilities and their families (Catlett, Maude, & Nollsch, 2014; Catlett, Maude, & Skinner, 2016).
OSEP will build on this work by funding four-year insitutions of higher education (IHEs) to partner with a minimum of three community colleges to enhance and redesign their associate degree programs to better prepare associate degree students to meet the needs of young children with disabilities and their families.
The purpose of this priority is to fund eight Associate Degree Preservice Program Improvement Grants to Support Personnel Working with Young Children with Disabilities to achieve, at a minimum, the following expected outcomes:
(a) Redesigned curricula and increased faculty knowledge and capacity to deliver new content in the curricula that better prepares associate degree students to work with young children with disabilities and their families and support their meaningful participation, development, and learning in early childhood programs and elementary schools;
(b) Increased competencies of associate degree students to work with young children with disabilities and their families and support their meaningful participation, development, and learning in early childhood programs and elementary schools;
(c) Increased numbers of associate degree-level personnel who have the competencies to work with young children with disabilies and their families and support their meaningful partication, development, and learning in early childhood programs and elementary schools; and
(d) Refinement and verification of a model to effectively enhance and redesign associate degree programs to prepare associate degree-level personnel to work with young children with disabilities and their families through partnerships with four-year IHEs.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance,” how the proposed project will—
(1) Address the need in the field for associate degree-level personnel with the competencies to serve young children with disabilities and their families and support their meaningful participation, development, and learning in early childhood programs and elementary schools. To meet this requirement, the applicant must—
(i) Present applicable national and State data demonstrating the need to improve the competencies of associate degree-level personnel to serve young children with disabilities and their families and support their meaningful participation, development, and learning in early childhood programs and elementary schools;
(ii) Demonstrate knowledge of the competencies that associate degree-level personnel need to effectively serve young children with disabilities and their families and support their meaningful participation, development, and learning in early childhood programs and elementary schools; and
(iii) Demonstrate knowledge of current educational issues and policy initiatives relating to the preparation of a competent early childhood workforce, especially associate degree-level personnel;
(2) Address the need for faculty to have the competencies to deliver content that will prepare associate degree students to serve young children with disabilities and their families and support their meaningful participation, development, and learning in early childhood programs and elementary schools. To meet this requirement, the applicant must—
(i) Present applicable national or State data demonstrating the need to improve preservice preparation at the associate degree-level to prepare students to serve young children with disabilities and their families; and
(ii) Present information about the current capacity of faculty preparing associate degree students to align the curriculm to State and national professional organization personnel standards, integrate content on serving young children with disabilities and their families, and design the curriculum utilizing adult learning principles.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the proposed project will—
(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measurable intended project outcomes; and
(ii) In Appendix A, the logic model (as defined in this notice) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;
(3) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;
The following websites provide more information on logic models and conceptual frameworks:
(4) Be based on current research and make use of EBPs. To meet this requirement, the applicant must describe—
(i) The current research on adult learning principles that will inform the proposed project; and
(ii) How the proposed project will incorporate current research and EBPs
(5) Develop or refine a process to effectively enhance and redesign associate degree programs to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) How it proposes to develop partnerships with a minimum of three community colleges in the State to enhance and revise the associate degree curricula within these community colleges to prepare early intervention, early childhood special education, and early childhood education personnel to serve children ages birth through age 8 with disabilities. (In States where the age range for certification of early childhood personnel is other than birth through age 8 (
(ii) Its proposed approach to partner with community colleges to enhance or redesign the associate degree programs' curricula by incorporating EBPs into courses and by providing at least one practicum experience in a setting that serves young children with disabilities and their families. The applicant must describe how the improved associate degree program will be—
(A) Aligned to State standards for associate degree-level personnel, or in States that do not have State standards, meet appropriate national professional organization standards for associate degree-level professions; and
(B) Designed to ensure that associate degree students receive training and develop competencies in the following areas:
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(iii) Its proposed approach to ensure that faculty in the community colleges have the necessary support, knowledge, skills, and competiences to enhance or redesign their associate degree program and implement the new content to prepare associate degree students to work with young children with disabilities and their families; and
(iv) Its proposed approach to using resources developed by other projects funded by the Department of Education and the Department of Health and Human Services when partnering with community colleges to redesign or enhance their associate degree programs.
(c) Demonstrate, in the narrative section of the application under “Quality of the project evaluation,” how—
(1) The applicant will use comprehensive and appropriate methodologies to evaluate how well the goals or objectives of the proposed project have been met, including the project processes and outcomes;
(2) The applicant will collect, analyze, and use data related to specific and measureable goals, objectives, and outcomes of the project. To address this requirement, the applicant must describe—
(i) How student competencies and other project processes and outcomes will be measured for formative purposes, including proposed instruments, data collection methods, and possible analysis;
(ii) How data on faculty competencies will be collected and analyzed; and
(iii) How data on the quality of the process used to enhance and redesign the associate degree program will be collected and analyzed;
(3) The methods of evaluation will produce quantitative and qualitative data for objective performance measurement that are related to the outcomes of the proposed project;
(4) The methods of evaluation will provide performance feedback and allow for periodic assessment of progress towards meeting the project outcomes. To address this requirement, the applicant must describe how—
(i) Results of the evaluation will be used as a basis for improving the proposed project to prepare associate degree-level personnel to provide evidence-based services to young children with disablities and their families;
(ii) Results of the evaluation will be used to refine the process for enhancing and redesigning associate degree programs; and
(iii) The grantee will report the evaluation results to OSEP in its annual and final performance reports.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources and quality of project personnel,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the project's products and services are of high quality, relevant, and useful to recipients; and
(4) The proposed project will benefit from a diversity of perspectives, including those of families, educators, faculty, doctoral-level students, technical assistance and professional development providers, researchers, and
(f) Address the following application requirements. The applicant must—
(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) If the project maintains a website, include relevant information about the revised program and documents in a form that meets government or industry recognized standards of accessibility;
(3) Include, in the budget, attendance at a two and one-half day project directors' conference in Washington, DC, during each year of the project period; and
(4) Provide an assurance that the project will submit the revised curriculum and syllabi for courses that are included in the improved associate degree programs to the OSEP project officer with the submission of the annual performance report during each year of the grant and make any necessary revisions required by OSEP.
This priority is:
Applicants that partner with one or multiple local or State entities, such as schools (including early childhood programs), local educational agencies (LEAs) or State educational agencies (SEAs), State lead agencies, businesses, or not-for-profit organizations, to help meet the goals of the project.
The Department is particularly interested in partnerships that are designed to identify and address local needs for personnel in special education, early intervention, related services, and regular education to work with children, including infants and toddlers, with disabilities; and partnerships designed to guarantee post-graduation employment opportunities for personnel who successfully complete a relevant training program with an associate degree from any partner community college.
The following definitions are from 34 CFR 77.1:
(i) A randomized controlled trial employs random assignment of, for example, students, teachers, classrooms, or schools to receive the project component being evaluated (the treatment group) or not to receive the project component (the control group).
(ii) A regression discontinuity design study assigns the project component being evaluated using a measured variable (
(iii) A single-case design study uses observations of a single case (
(i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” or “potentially positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study or quasi-experimental design study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—
(A) Meets WWC standards with or without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and
(D) Is based on a sample from more than one site (
(i) A practice guide prepared by WWC reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC reporting a “positive effect” or “potentially positive effect” on a relevant outcome with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single study assessed by the Department, as appropriate, that—
(A) Is an experimental study, a quasi-experimental design study, or a well-designed and well-implemented correlational study with statistical controls for selection bias (
(B) Includes at least one statistically significant and positive (
(i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—
(A) Meets WWC standards without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and
(D) Is based on a sample from more than one site (
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian Tribes.
The regulations in 34 CFR part 86 apply to IHEs only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2019 from the list of unfunded applications from this competition.
The Department is not bound by any estimates in this notice.
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(b) Applicants for, and recipients of, funding under this competition must
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is either 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
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(a)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The extent to which specific gaps or weaknesses in services, infrastructure, or opporutnities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses; and
(ii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.
(b)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable;
(ii) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice;
(iii) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services;
(iv) The extent to which the services to be provided by the proposed project involve the collaboration of appropriate partners for maximizing the effectiveness of project services; and
(v) The extent to which the proposed activities constitute a coherent, sustained program of training in the field.
(c)
(1) The Secretary considers the quality of the evaluation to be conducted by the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project;
(ii) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible; and
(iii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
(d)
(1) The Secretary considers the adequacy of resources and quality of project personnel for the proposed project.
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers one or more of the following factors:
(i) The qualifications, including relevant training and experience, of key project personnel;
(ii) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization; and
(iii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
(e)
(1) The Secretary considers the quality of the management plan for the proposed project.
(2) In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks;
(ii) The extent to which the time commitments of the project director and
(iii) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project; and
(iv) How the applicant will ensure that a diversity of perspectives are brought to bear in the operation of the proposed project, including those of parents, teachers, the business community, a variety of disciplinary and professional fields, recipients or beneficiaries of services, or others, as appropriate.
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(b) In addition, in making a competitive grant award, the Secretary also requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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In addition, the Department will gather information on the following outcome measures: (1) The percentage of scholars who completed the preparation program and are employed in high-need districts; (2) the percentage of scholars who completed the preparation program and are employed in the field of special education for at least two years; and (3) the percentage of scholars who completed the preparation program and who are rated effective by their employers.
Grantees may be asked to participate in assessing and providing information on these aspects of program quality.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for a new award for fiscal year (FY) 2018 for Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities—Model Demonstration Projects to Improve Academic Outcomes of Students with Intellectual Disabilities in Elementary and Middle School, Catalog of Federal Domestic Assistance (CFDA) number 84.326M.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Kristen Rhoads, U.S. Department of Education, 400 Maryland Avenue SW, Room 5142, Potomac Center Plaza, Washington, DC 20202-5108. Telephone: (202) 245-6715. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
This priority is:
Model demonstrations to improve early intervention, educational, or transitional results for students with disabilities have been authorized under the Individuals with Disabilities Education Act (IDEA) since the law's inception. For the purposes of this priority, a model is a set of existing evidence-based (as defined in this notice) interventions and implementation strategies (
The purpose of this priority is to fund three cooperative agreements to establish and operate model demonstration projects that will assess how models can:
(a) Improve outcomes in English Language Arts, including literacy, and other academic subjects for students with intellectual disabilities
(b) Align instruction to grade-level, State-adopted content standards and provide access to the general education curriculum;
(c) Provide students with intellectual disabilities the opportunity to meet challenging objectives and receive an individualized education program (IEP) that is both meaningful and appropriately ambitious in light of each student's circumstances; and
(d) Be implemented and sustained by educators in both general and special education settings.
On March 22, 2017, the U.S. Supreme Court (the Court) issued a unanimous opinion in
A growing research base indicates that students with intellectual disabilities demonstrate gains in reading at the same rate as their peers despite demonstrating significantly lower levels of overall performance (Schulte, Stevens, Elliott, Tindal, & Nese, 2016). Promising strategies, practices (
Instruction of students with intellectual disabilities, however, has not typically provided them with the chance to meet challenging objectives. Instead of teaching grade-level content that meets State standards, instruction for students with intellectual disabilities has been typically limited to non-academic functional life skills. For example, literacy instruction for students with intellectual disabilities has historically focused on only one component of literacy development—recognition of sight words considered important for daily living (Browder, Wakeman, Spooner, Ahlgrim-Delzell, & Algozzine, 2006).
Further, teachers have reported difficulties in aligning instruction to grade-level academic content standards for students with intellectual disabilities (Jimenez & Henderson, 2011). This is due, in part, to the reality that, when compared to their peers, these students may have greatly divergent levels of functional and academic skill attainment, may require significant modifications and individualization of the curriculum, need differing modes of access to content and instruction, or need additional time for learning (Allor, Mathes, Roberts, Cheatham, & Champlin, 2010).
To overcome this history and these challenges, to ensure that students with intellectual disabilities in elementary and middle schools receive appropriate access to challenging objectives and grade-level academic standards, and to ensure that these students progress in the general education curriculum, with accompanying services and supports as required under IDEA, educators must have access to evidence-based practices on instruction in academic subjects, particularly English Language Arts, including literacy. This competition, therefore, aims to fund model demonstration projects that will demonstrate and refine methods of professional development that result in educators successfully implementing appropriate, evidence-based practices in English Language Arts, including literacy, and other academic subjects. The model demonstration projects proposed under this priority must make use of evidence-based practices.
This priority is consistent with two priorities from the Supplemental Priorities and Definitions for Discretionary Grant Programs, published in the
(a) Improve outcomes in English Language Arts, including literacy, and other academic subjects for students
(b) Align instruction to grade-level, State-adopted content standards and provide access to the general education curriculum;
(c) Provide students with intellectual disabilities the opportunity to meet challenging objectives and receive an IEP that is both meaningful and appropriately ambitious in light of each student's circumstances; and
(d) Be implemented and sustained by educators in both general and special education settings. Applicants must propose models that meet the following requirements:
(a) The model's core intervention components must include:
(1) A framework that includes, at a minimum, assessment, incorporating approaches for measuring student progress, and the application of evidence-based core instructional practices;
(2) Evidence-based instructional practices for improving outcomes in English Language Arts, including literacy, or other academic subjects, as appropriate, for students with intellectual disabilities in elementary or middle school that are designed to—
(i) Help students meet challenging objectives; and
(ii) Support comprehensive, standards-aligned instruction in grade-level content.
(3) Valid and reliable measures of student-level, instructor-level, and system-level outcomes, using standardized measures when applicable;
(4) Procedures to refine the model based on the ongoing assessment of student-level, instructor-level, and system-level performance; and
(5) Measures of the model's social validity,
(b) The model's core implementation components must include:
(1) Criteria and strategies for selecting
(i) Each project must include at least three elementary or at least three middle schools; and
(ii) In each of the schools, all of the students participating in the model demonstration project must have an intellectual disability, as defined in this notice. Across all implementation sites, the project must serve no fewer than 50 students with intellectual disabilities;
(2) A lag site implementation design, which allows for model development and refinement at the first site in year one of the project period, with sites two and three implementing a revised model based on data from the first site beginning in subsequent project years.
When designing the project, applicants should consider project period length as well as relevant research indicating that learning may take longer for students with intellectual disabilities (Allor et al., 2010) and provide strong justification for timing of implementation for sites two and three.
(3) A professional development component that includes an evidence-based coaching strategy, to enable site-based staff to implement the interventions with fidelity; and
(4) Measures of the results of the professional development (
(c) The core strategies for sustaining the model must include:
(1) Documentation that permits current and future site-based staff to replicate or appropriately tailor and sustain the model at any site;
(2) Strategies for the grantee to disseminate or promote the use of the model, such as developing easily accessible online training materials, coordinating with TA providers who might serve as future trainers, or providing technical support (
To be considered for funding under this absolute priority, applicants must meet the application requirements contained in this priority. Each project funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
An applicant must include in its application—
(a) A detailed review of the literature addressing the proposed model or its intervention or implementation components and processes to improve access to challenging objectives and grade-level content, and improve outcomes, in English Language Arts, including literacy, and other academic subjects, as appropriate, for students with intellectual disabilities in elementary or middle school;
(b) A logic model (as defined in this notice) that depicts, at a minimum, the goals, activities, outputs, and outcomes (described in paragraph (a) under the heading
The following websites provide resources for constructing logic models:
(c) A description of the activities and measures to be incorporated into the proposed model demonstration project (
(1) All the intervention components, including, at a minimum, those listed under paragraph (a) under the heading
(2) The existing and proposed child, teacher, service provider, or system outcome measures and social validity measures. The measures should be described as completely as possible, referenced as appropriate, and included, when available, in Appendix A.
(3) All the implementation components, including, at a minimum, those listed under paragraph (b) under the heading
(i) Demographics, including, at a minimum, the number of students with intellectual disabilities, their ages, and their grade levels (while ensuring confidentiality of individual data), at all implementation sites that have been identified and successfully recruited for the purposes of this application using the selection and recruitment strategies described in paragraph (b)(1) under the heading
(ii) Whether the implementation sites are located in rural, urban, or suburban local educational agencies (LEAs) or are schools identified for comprehensive support and improvement
Applicants are encouraged to identify, to the extent possible, the sites willing to participate in the applicant's model demonstration. Final site selection will be determined in consultation with the Office of Special Education Programs (OSEP) project officer following the kick-off meeting described in paragraph (e)(1) of these application requirements.
(iii) The lag site implementation design for implementation consistent with the requirements in paragraph (b)(2) under the heading
(4) All the strategies to promote sustaining and replicating the model, including, at a minimum, those listed under paragraph (c) under the heading
(d) A description of the evaluation activities and measures to be incorporated into the proposed model demonstration project. A detailed and complete description must include:
(1) A formative evaluation plan, consistent with the project's logic model, that includes evaluation questions, source(s) of data, a timeline for data collection, and analysis plans. The plan must show how the outcome data (
(2) A summative evaluation plan, including a timeline, to collect and analyze data on positive changes to child, teacher, service provider, or system outcome measures over time or relative to comparison groups that can be reasonably attributable to project activities. The plan must show how the child, teacher, service provider, or system outcome and implementation data collected by the project will be used separately or in combination to demonstrate the promise of the model.
(e) A budget for attendance at the following:
(1) A one and one half-day kick-off meeting to be held in Washington, DC, after receipt of the award;
(2) A three-day Project Directors' Conference in Washington, DC, occurring twice during the project performance period; and
(3) Four travel days spread across years two through four of the project period to attend planning meetings, Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP, to be held in Washington, DC.
(a) Communicate and collaborate on an ongoing basis with other Department-funded projects, including, at minimum, OSEP-funded TA centers that might disseminate information on the model or support the scale-up efforts of a promising model;
(b) Maintain ongoing telephone and email communication with the OSEP project officer and the other model demonstration projects funded under this priority; and
(c) If the project maintains a website, include relevant information about the model, the intervention, and the demonstration activities that meets government- or industry-recognized standards for accessibility.
The priority is:
Projects that are supported by evidence that meets the conditions set out in the definition of “promising evidence” (as defined in this notice). The application must include:
A literature review, as required under paragraph (a) under the heading
An applicant addressing this competitive preference priority must identify at least one, but no more than two, study citations that meet this standard and must clearly mark them in the reference list of the proposal.
The following definitions are from 34 CFR 77.1 or 34 CFR 300.8(c)(6):
(i) A randomized controlled trial employs random assignment of, for example, students, teachers, classrooms, or schools to receive the project component being evaluated (the treatment group) or not to receive the project component (the control group).
(ii) A regression discontinuity design study assigns the project component being evaluated using a measured variable (
(iii) A single-case design study uses observations of a single case (
(i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” or “potentially positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study or quasi-experimental design study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—
(A) Meets WWC standards with or without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and
(D) Is based on a sample from more than one site (
(i) A practice guide prepared by WWC reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC reporting a “positive effect” or “potentially positive effect” on a relevant outcome with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single study assessed by the Department, as appropriate, that—
(A) Is an experimental study, a quasi-experimental design study, or a well-designed and well-implemented correlational study with statistical controls for selection bias (
(B) Includes at least one statistically significant and positive (
(i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—
(A) Meets WWC standards without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and
(D) Is based on a sample from more than one site (
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian Tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2019 from the list of unfunded applications from this competition.
The Department is not bound by any estimates in this notice.
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(a) Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).
(b) Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
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(a)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The potential contribution of the proposed project to increased knowledge or understanding of educational problems, issues, or effective strategies.
(ii) The extent to which the proposed project is likely to build local capacity to provide, improve, or expand services that address the needs of the target population.
(iii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.
(iv) The likely utility of the products (such as information, materials, processes, or techniques) that will result from the proposed project, including the potential for their being used effectively in a variety of other settings.
(b)
(1) The Secretary considers the quality of the design of the proposed project.
(2) In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(ii) The extent to which the design of the proposed project includes a thorough, high-quality review of the relevant literature, a high-quality plan for project implementation, and the use of appropriate methodological tools to ensure successful achievement of project objectives.
(iii) The quality of the proposed demonstration design and procedures for documenting project activities and results.
(iv) The extent to which the design for implementing and evaluating the proposed project will result in information to guide possible replication of project activities or strategies, including information about the effectiveness of the approach or strategies employed by the project.
(v) The extent to which performance feedback and continuous improvement are integral to the design of the proposed project.
(c)
(1) The Secretary considers the adequacy of resources and the quality of the management plan for the proposed project.
(2) In determining the adequacy of resources and the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization.
(ii) The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project.
(iii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(iv) How the applicant will ensure that a diversity of perspectives are brought to bear in the operation of the proposed project, including those of parents, teachers, the business community, a variety of disciplinary and professional fields, recipients or beneficiaries of services, or others, as appropriate.
(v) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(vi) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project.
(d)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
(iii) The extent to which the methods of evaluation provide for examining the effectiveness of project implementation strategies.
(iv) The extent to which the evaluation will provide guidance about effective strategies suitable for replication or testing in other settings.
(v) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible.
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
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• Current Program Performance Measure: The percentage of effective evidence-based program models developed by model demonstration projects that are promoted to States and their partners through the Technical Assistance and Dissemination Network.
• Pilot Program Performance Measure: The percentage of effective program models developed by model demonstration projects that are sustained beyond the life of the model demonstration project.
The current program performance measure and the pilot program performance measure apply to projects
Grantees will be required to report information on their project's performance in annual and final performance reports to the Department (34 CFR 75.590).
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Electricity, Department of Energy.
Notice of application.
Royal Bank of Canada (Applicant or RBC) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before August 13, 2018.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
The Department of Energy (DOE) regulates exports of electricity from the United States to a foreign country, pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. §§ 7151(b) and 7172(f)). Such exports require authorization under section 202(e) of the Federal Power Act (16 U.S.C. § 824a(e)).
On September 10, 2013, DOE issued Order No. EA-342-A to RBC, which authorized the Applicant to transmit electric energy from the United States to Canada, effective September 4, 2013, as a power marketer for a five-year term using existing international transmission facilities. That authority expires on September 4, 2018. On February 28, 2018, RBC filed an application with DOE for renewal of the export authority contained in Order No. EA-342-A for an additional five-year term.
RBC's application states that “[n]either RBC nor any of its affiliates (collectively, the `RBC Companies') owns, operates or controls any electric power transmission or distribution facilities in the United States,” and that “[t]he RBC Companies also do not own, operate or control any electric generation assets.” Further, “[n]either RBC nor any of its affiliates holds a franchise or service territory for the transmission, distribution or sale of electric power.” The electric energy that RBC proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by RBC have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning RBC's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-342-B. An additional copy is to be provided directly to both Chantal Marchese, Royal Bank of Canada, 200 Bay Street, 10th Floor, North Tower, Toronto, Ontario, Canada M5J 2J5, and Marcus Chun, RBC Capital Markets, 200 Bay Street, 9th Floor, South Tower, Toronto, Ontario, Canada M5J 2J2.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE determines that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program website at
Take notice that on June 29, 2018, Columbia Gas Transmission, LLC (Columbia), 700 Louisiana Street, Houston, Texas 77002-2700, filed a prior notice request pursuant to Sections 157.205 and 157.216 of the Commission's regulations, for authorization to abandon two injection/withdrawal (I/W) wells at its Brinker Storage Field, located in Columbiana County, Ohio, one I/W well at its Victory B Storage Field, located in Marshall County, West Virginia, and associated pipelines and appurtenances. Columbia proposes to abandon these facilities under authorities granted by its blanket certificate issued in Docket No. CP83-76, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions concerning this application should be directed to Linda Farquhar, Manager, Project Determinations & Regulatory Administration, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 700, Houston, Texas, 77002-2700, at (832) 320-5685 or fax (832) 320-6685 or
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's website (
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Description: Tariff Amendment: Delmarva submits response to Commission's 4/24/18. Deficiency Letter in ER18-903 to be effective 4/24/2018.
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests,
Take notice that on June 29, 2018, Maritimes & Northeast Pipeline, L.L.C. (Maritimes), 5400 Westheimer Court, Houston, Texas 77056-5310, filed an application under section 7(b) of the Natural Gas Act (NGA) and Part 157 of the Commission's rules and regulations to abandon by lease 7,214 dekatherms per day of capacity on its jointly-owned pipeline facilities to Portland Natural Gas Transmission System (Portland Natural Gas), all as more fully described in the application which is on file with the Commission and open to public inspection. Specifically, Maritimes states that the lease agreement's primary term begins on the later of November 1, 2019 or the date on which Portland Natural Gas places Phase II of its Portland Natural Gas XPress Project into service and ends on a date not to extend beyond November 1, 2045. The lease will continue from month to month thereafter unless terminated by a party pursuant to the terms of the lease agreement. The filing may also be viewed on the web at
Any questions regarding this application should be directed to Lisa A. Connolly, Director, Rates and Certificates, Maritimes & Northeast Management Company, LLC, 5400 Westheimer Court, Houston, Texas 77056-5310, or call (713) 627-4102, or email:
Pursuant to section 157.9 of the Commission's rules (18 CFR 157.9), within 90 days of this Notice, the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at
On July 9, 2018, the Commission issued an order in Docket No. EL18-149-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether PSEG Energy Resources & Trade, LLC's rates for Reactive Service may be unjust and unreasonable.
The refund effective date in Docket No. EL18-149-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL18-149-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory
Western Area Power Administration, DOE.
Notice of proposed extension of formula rates for Parker-Davis Project Firm Electric and Transmission Service.
Western Area Power Administration (WAPA) proposes to extend the existing formula rates for Parker-Davis Project (P-DP) firm electric and transmission service through September 30, 2023. The existing Rate Schedules PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 expire September 30, 2018.
A consultation and comment period starts with the publication of this notice and will end on August 13, 2018. WAPA will accept written comments during the consultation and comment period.
Send written comments to: Mr. Ronald E. Moulton, Regional Manager, Desert Southwest Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, or email
Ms. Tina Ramsey, Rates Manager, Desert Southwest Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, (602) 605-2565, or email
Rate Schedules PD-F7, PD-FT7, PD-FCT7 and PD-NFT7 for Rate Order No. WAPA-162
By Delegation Order No. 00-037.00B, effective November 19, 2016, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to WAPA's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand or to disapprove such rates to FERC.
In accordance with 10 CFR 903.23(a)(2), WAPA determined it is not necessary to hold a public information or public comment forum but is initiating a 30-day consultation and comment period. Written comments must be received by the end of the consultation and comment period to be considered by WAPA in its decision process. WAPA will post comments received to its website at:
Western Area Power Administration, DOE.
Notice of extension.
The Western Area Power Administration (WAPA), a Federal power marketing administration of the Department of Energy (DOE), published the Call for 2025 Resource Pool Applications (Call for 2025 Applications), on March 8, 2018, in the
WAPA must receive applications by 4 p.m., PDT, on August 13, 2018. WAPA will accept applications sent through the U.S. Postal Service, if postmarked at least 3 days before August 13, 2018, and received no later than August 15, 2018. WAPA will not consider applications received after the prescribed date.
Ms. Sandee Peebles, Public Utilities Specialist, Sierra Nevada Customer Service Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630, (916) 353-4454, or by electronic mail at
On March 8, 2018, WAPA published the Call for 2025 Applications in the
This notice only reopens the period to submit applications. Applicants must follow the instructions, provide necessary information and comply with
WAPA will accept completed applications, which includes signatures, received by the date and time in the
Pursuant to 40 CFR 1506.9.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
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 August 7, 2018.
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Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).
Notice of availability; request for comments; extension of comment period.
The Agency for Toxic Substances and Disease Registry (ATSDR), within the Department of Health and Human Services (HHS) announces the extension of the comment period for the Draft Toxicological Profile for Perfluoroalkyls. ATSDR is seeking public comments and additional information, reports, and studies about the health effects of these substances.
Comments must be submitted by August 20, 2018.
You may submit comments, identified by docket number ATSDR-2015-0004, by any of the following methods:
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Agency for Toxic Substances and Disease Registry, Division of Toxicology and Human Health Sciences, 1600 Clifton Rd. NE, MS F-57, Atlanta, GA, 30329,
There have been two previous Public Comment periods for the Perfluoroalkyls toxicological profile, one in 2009 (74 FR 36492) and 2015 (80 FR 53157). Due to the public comments
The Draft Toxicological Profiles are available online at
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice; request for comment.
The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) announces in this
Written comments must be received on or before October 11, 2018.
You may submit comments, identified by Docket No. CDC-2018-0064 by any of the following methods:
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Valerie Robison, D.D.S., M.P.H., Ph.D., Dental Officer, Division of Oral Health, Centers for Disease Control and Prevention, 4770 Buford Highway, MS S107-8, Atlanta, GA 30341. Email:
In 2015, the U.S. Public Health Service (PHS) recommended that community water systems maintain a concentration of 0.7 mg/L to achieve a beneficial fluoride level.
After the 2015 PHS recommendation was issued, several state water fluoridation and drinking water programs contacted the Centers for Disease Control and Prevention (CDC) to request development of revised operational control range guidance around the 0.7 mg/L target level. As part of the range-setting process, these programs requested that CDC consider how consistently water treatment systems can stay within an operational control range on a daily basis. A detailed summary of the information CDC considered in developing a proposed operational control range recommendation is available in the Background document found in the Supplement Material tab of the docket.
Since water systems tend to favor an operating strategy that has a lower feed rate, or the rate at which product is added, CDC recommends an asymmetrical operational control range of 0.6 mg/L to 1.0 mg/L in order for public water systems to consistently meet the recommended concentration of 0.7 mg/L.
The lowest concentration of 0.6 mg/L (−0.1 mg/L below the target level of 0.7 mg/L) will allow public water systems to maintain the oral health benefits of water fluoridation. A lowest concentration of 0.6 mg/L in an operational control range has been in effect since 1962 and water systems have demonstrated experience in meeting it in normal operations.
The highest concentration of 1.0 mg/L (+0.3 mg/L above the target level of 0.7 mg/L) will reduce the possibility of dental fluorosis.
An operational control range of 0.4 mg/L (−0.1 mg/L to +0.3 mg/L) [actual values (0.6 mg/L to 1.0 mg/l)] will provide operational flexibility. This is based on data demonstrating the ability of water systems to stay successfully within a particular operational control range.
CDC has received requests for criteria that demonstrate compliance with the operational control range. Published studies have shown that water systems are able to maintain at least 80% of daily measurements during the month within the proposed operational control range.
In this docket, we are only concerned with the operational control range for water systems that adjust the fluoride level in the water. This request does not apply to water systems that have natural fluoride levels that exceed this
Note: Public water systems must continue to comply with Environmental Protection Agency (EPA) requirements for a special notice for exceedance of the secondary standard of 2 mg/L (40 CFR 141.208) (
CDC is seeking public comment on the following:
1. Are there any evidence-based concerns about the appropriateness of the proposed operational control range and criteria for adherence based on measurement capacity or feasibility of maintaining the target level?
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by August 13, 2018.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions:
OMB, Office of Information and Regulatory Affairs
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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We find that the Society of Thoracic Surgery/American College of Cardiology Transcatheter Valve Therapy (STS/ACC TVT) Registry, one registry overseen by the National Cardiovascular Data Registry, meets the requirements specified in the NCD on TMVR. The TVT Registry will support a national surveillance system to monitor the safety and efficacy of the TMVR technologies for the treatment of mitral regurgitation (MR).
The data collected and analyzed in the TVT Registry will be used by CMS to determine if the TMVR is reasonable and necessary (
The conduct of the STS/ACC TVT Registry and the KCCQ-10 is pursuant to Section 1142 of the Social Security Act (the ACT) that describes the authority of the Agency for Healthcare Research and Quality (AHRQ). Under section 1142, research may be conducted and supported on the outcomes, effectiveness, and appropriateness of health care services and procedures to identify the manner in which disease, disorders, and other health conditions can be prevented, diagnosed, treated, and managed clinically. Section 1862(a)(1)(E) of the Act allows Medicare to cover under coverage with evidence development (CED) certain items or services for which the evidence is not adequate to support coverage under section 1862(a)(1)(A) and where additional data gathered in the context of a clinical setting would further clarify the impact of these items and services on the health of beneficiaries.
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Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Q3D(R1) Elemental Impurities.” The draft guidance was prepared under the auspices of the International Council for Harmonisation (ICH), formerly the International Conference on Harmonisation. The draft guidance revises the existing ICH guidance for industry “Q3D Elemental Impurities” and provides an updated permitted daily exposure (PDE) for the cadmium inhalation route of exposure. The updated PDE of 3 micrograms (µg)/day is based on a modifying factor approach like that used for calculating the PDEs for the cadmium oral and parenteral routes of exposure. The draft guidance is intended to correct a calculation error in the PDE for cadmium by the inhalation route of exposure. Following deliberations within the Q3D Expert Working Group, the revised calculation is based on a modifying factor approach that is consistent with the oral and parenteral PDE calculations.
Submit either electronic or written comments on the draft guidance by August 13, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
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• 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:
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• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002, or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
In recent years, regulatory authorities and industry associations from around the world have participated in many important initiatives to promote international harmonization of regulatory requirements under the ICH. FDA has participated in several ICH meetings designed to enhance harmonization and FDA is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and reduce differences in technical requirements for drug development among regulatory agencies.
ICH was established to provide an opportunity for harmonization initiatives to be developed with input from both regulatory and industry representatives. FDA also seeks input from consumer representatives and others. ICH is concerned with harmonization of technical requirements for the registration of pharmaceutical products for human use among regulators around the world. The six founding members of the ICH are the European Commission; the European Federation of Pharmaceutical Industries Associations; FDA; the Japanese Ministry of Health, Labour, and Welfare; the Japanese Pharmaceutical Manufacturers Association; and the Pharmaceutical Research and Manufacturers of America. The Standing Members of the ICH Association include Health Canada and Swissmedic. Any party eligible as a Member in accordance with the ICH Articles of Association can apply for membership in writing to the ICH Secretariat. The ICH Secretariat, which coordinates the preparation of documentation, operates as an international nonprofit organization and is funded by the Members of the ICH Association.
The ICH Assembly is the overarching body of the Association and includes representatives from each of the ICH members and observers. The Assembly is responsible for the endorsement of draft guidelines and adoption of final guidelines. FDA publishes ICH guidelines as FDA guidance.
In May 2018, the ICH Assembly endorsed the draft guideline entitled “Q3D(R1) Elemental Impurities” and agreed that the guideline should be made available for public comment. The draft guideline is the product of the Quality Expert Working Group of the ICH. Comments about this draft will be considered by FDA and the Quality Expert Working Group.
The draft guidance revises the existing guidance for industry “Q3D Elemental Impurities” and provides an updated permitted daily exposure (PDE) for the cadmium inhalation route of exposure. The revision was initiated following identification of a calculation error in the original text. The updated PDE of 3 µg/day is based on a modifying factor approach that is consistent with the method used for calculating the PDEs for the oral and parenteral routes of exposure.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Q3D(R1) Elemental Impurities.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
Persons with access to the internet may obtain the document at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following 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.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, August 6, 2018, 10:00 a.m. to August 6, 2018, 05:00 p.m., National Cancer Institute Shady Grove, 9609 Medical Center Drive, 7W102, Rockville, MD 20850 which was published in the
This meeting notice is amended to change the contact person from Dr. Shakeel Ahmad to Dr. Jun Fang. The meeting date has changed from August 6, 2018 to August 16, 2018. The meeting room has changed from 7W102 to 7W246. The meeting times are the same. The meeting is closed to the public.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number (202) 325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
In order to register for the SVRS pilot program, participants enter data via the SVRS website, which collects information such as biographical information and vessel information. Participants will go through the in person CBP inspection process during SVRS registration, and in some cases, upon arrival in the United States.
For each voyage, SVRS participants will be required to submit a float plan about their voyage via the SVRS website in advance of arrival in the United States. The float plan includes vessel information, a listing of all persons on board, estimated dates and times of departure and return, and information on the locations to be visited on the trip. Participants in SVRS can create a float plan for an individual voyage or a template for a float plan that can be used multiple times.
SVRS is in accordance with 8 U.S.C. 1225, 8 CFR 235.1, 19 U.S.C. 1433, and 19 CFR 4.2. The SVRS website is accessible at:
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number (202) 325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The purpose of all of these programs is to provide prescreened travelers expedited entry into the United States. The benefit to the traveler is less time spent in line waiting to be processed. These Trusted Traveler Programs are provided for in 8 CFR 235.7, 235.12, and 8 CFR 103.7(b)(1)(ii)(G) and (M).
This information collection also includes the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card (ABTC) Program, which is a voluntary program that allows qualified U.S. business travelers engaged in business in the APEC region, or U.S. Government officials actively engaged in APEC business, the ability to access fast-track immigration lanes at participating airports in the 20 other APEC member countries. This program is authorized by the Asia-Pacific Economic Cooperation Business Travel Cards Act of 2011, Public Law 112-54, and provided for by 8 CFR 235.13 and 8 CFR 103.7(b)(1)(ii)(N). Pursuant to these laws and regulations, CBP can issues ABTCs through September 30, 2018. On November 2, 2017, the President signed into law the Asia-Pacific Economic Corporation Business Travel Cards Act of 2017, Public Law 115-79, which makes the ABTC Program permanent. CBP is in the process of updating 8 CFR 235.13 to conform to the new law.
The data is collected on the applications and kiosks for the Trusted Traveler Programs. Applicants may apply to participate in these programs by using the Trusted Traveler Program Systems (TTP Systems) at
After arriving at the Federal Inspection Services area of the airport, participants in Global Entry can undergo a self-service inspection process using a Global Entry kiosk. During the self-service inspection, participants have their photograph and fingerprints taken, submit identifying information, and answer several questions about items they are bringing into the United States. When using the Global Entry kiosks, participants are required to declare all articles being brought into the United States pursuant to 19 CFR 148.11.
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
This is not a toll-free number. Person with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) 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) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond: Including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street, SW, Washington, DC 20410; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) 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) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond: Including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice of Order of Succession.
In this notice, the Deputy Secretary of the Department of Housing and Urban Development designates the Order of Succession for the Office of the Assistant Secretary for Policy Development and Research. This Order of Succession supersedes all prior Orders of Succession for the Office of Policy Development and Research, including the Order of Succession published in the
July 9, 2018.
Todd M. Richardson, General Deputy Assistant Secretary, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street SW, Room 8101, Washington, DC 20410-6000, telephone (202) 402-5706. (This is not a toll-free number.) Persons with hearing- or speech-impairments may access this number through TTY by calling the tollfree Federal Relay Service at 1-800-877-8339.
The Deputy Secretary of the Department of Housing and Urban Development is issuing this Order of Succession of officials authorized to perform the duties and functions of the Office of the Assistant Secretary for Policy Development and Research when, by reason of absence, disability, or vacancy in office, the Assistant Secretary for Policy Development and Research is not available to exercise the powers or perform the duties of the Office. This Order of Succession is subject to the provisions of the Vacancy Reform Act of 1998 (5 U.S.C. 3345-3349d). This publication supersedes all prior Orders of Succession for the Office of Policy Development and Research, including the Order of Succession published on October 3, 2016 (81 FR 68025).
Accordingly, the Deputy Secretary of HUD designates the following Order of Succession:
Subject to the provision of the Federal Vacancies Reform Act of 1998, during any period when, by reason of absence, disability, or vacancy in office, the Assistant Secretary for Policy Development and Research is not available to exercise the powers or perform the duties of the Office of the Assistant Secretary for Policy Development and Research, the following officials within the Office of Policy Development and Research are hereby designated to exercise the powers and perform the duties of the Office, including the authority to waive regulations:
(1) General Deputy Assistant Secretary;
(2) Deputy Assistant Secretary for Economic Affairs;
(3) Deputy Assistant Secretary for Research, Evaluation, and Monitoring; and
(4) Deputy Assistant Secretary for Policy Development.
These officials shall perform the functions and duties of the Office in the order specified herein, and no official shall serve unless all the other officials, whose position titles precede his or hers in this order, are unable to act by reason of absence, disability, or vacancy in office. No individual who is serving in an office listed in an acting capacity shall, by virtue of so acting, act as Assistant Secretary for Policy Development and Research pursuant to this Order.
This Order of Succession supersedes any prior Orders of Succession for the Office of Policy Development and Research, including the Order of Succession published on October 3, 2016 (81 FR 68025).
Section 7(d) of the Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Inez C. Downs, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
“HUD is currently engaged in rule making that would reduce the frequency of MORs for high-performing properties and consequently reduce the estimated total burden hours for this Collection. Changes to required frequencies for regularly-scheduled MORs are anticipated to be completed with publication of a final rule in 2018.”
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) 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) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond: including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
U.S. Geological Survey, Interior.
Call for nominations.
The Department of the Interior is seeking nominations to serve on the National Geospatial Advisory Committee (NGAC). The NGAC is a Federal Advisory Committee established under the authority of the Federal Advisory Committee Act (FACA). The NGAC provides advice and recommendations to the Secretary of the Interior through the Federal Geographic Data Committee (FGDC) related to management of Federal geospatial programs, development of the National Spatial Data Infrastructure, and the implementation of Office of Management and Budget Circular A-16 and Executive Order 12906. The NGAC reviews and comments on geospatial policy and management issues and provides a forum for views of non-Federal stakeholders in the geospatial community.
Nominations to participate on the NGAC must be received by August 27, 2018.
Send nominations electronically to
John Mahoney, USGS (206-220-4621). Additional information about the NGAC and the nomination process is posted on the NGAC web page at
The NGAC conducts its operations in accordance with the provisions of FACA. It reports to the Secretary of the Interior through the FGDC and functions solely as an advisory body. The NGAC provides recommendations and advice to the Department and the FGDC on policy and management issues related to the effective operation of Federal geospatial programs.
The NGAC includes up to 30 members, selected to generally achieve a balanced representation of the viewpoints of the various stakeholders involved in national geospatial activities. NGAC members are appointed for staggered terms, and nominations received through this call for nominations may be used to fill vacancies on the NGAC that will become available in 2018 and 2019. Nominations will be reviewed by the FGDC and additional information may be requested from nominees. Final selection and appointment of NGAC members will be made by the Secretary of the Interior. Individuals who are Federally registered lobbyists are ineligible to serve on all FACA and non-FACA boards, committees, or councils in an individual capacity. The term “individual capacity” refers to individuals who are appointed to exercise their own individual best judgment on behalf of the Government, such as when they are designated Special Government Employees, rather than being appointed to represent a particular interest.
The NGAC meets approximately 3-4 times per year. NGAC members will serve without compensation, but travel and per diem costs will be provided by the USGS. The USGS will also provide necessary support services to the NGAC. NGAC meetings are open to the public. Notice of NGAC meetings are published in the
Nominations may come from employers, associations, professional organizations, or other geospatial organizations. Nominations should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the NGAC and permit the Department of the Interior to contact a potential member. Nominees are strongly encouraged to include supporting letters from employers, associations, professional organizations, and/or other organizations that indicate support by a meaningful constituency for the nominee.
Before including your address, phone number, email address, or other personal identifying information in your nomination, you should be aware that your entire nomination—including your personal identifying information—may be made publicly available at any time. While you may ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Office of the Secretary, Interior.
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing a public notice of its intent to modify the Department of the Interior Privacy Act system of records, DOI-12, Donations Program Files, to update section titles, add a purpose section, reorganize the sections of the system notice into the government-wide approved format, add new proposed routine uses, and update content in applicable sections of the notice. Updated sections include, system location, system manager, categories of individuals, categories of records, authorities, routine uses, storage, retrieval, retention and disposal, safeguards, notification procedures, and record access and contesting record procedures sections.
This modified system will be effective upon publication. New or modified routine uses will be effective August 13, 2018. Submit comments on or before August 13, 2018.
You may submit comments, identified by docket number DOI-2018-0003, by any of the following methods:
•
•
• Hand-delivering comments to Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240.
•
All submissions received must include the agency name and docket number. All comments received will be posted without change to
Paul Batlan, Financial Analyst, Conservation Partnerships, Office of Financial Management, U.S. Department of the Interior, 1849 C Street NW, Mail Stop 5530 MIB, Washington, DC 20240; email at
The Department of the Interior (DOI) Office of Financial Management maintains the DOI-12, Donations Program Files, system of records. This system assists DOI in managing the Donations Program and facilitating the evaluation, acceptance, and solicitation of donations of money, real property, personal property, services, or other gifts by members of the public and organizations to the Department of the Interior and its officials.
DOI is publishing this revised notice to make administrative updates to the following sections: System location; system manager; authorities; categories of individuals; categories of records; storage; retrieval; retention and disposal; safeguards; and the procedures on record access, contesting record and notification. This revised notice is organized to reflect the government-wide format established by the Office of Management and Budget (OMB), which includes new sections on the purpose and history of the system of records. Additionally, DOI is proposing to modify routine use “A” to clarify authorized disclosures to the Department of Justice; modify routine
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' personal information. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a United States citizen or lawful permanent resident. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DOI by complying with DOI Privacy Act regulations at 43 CFR part 2, subpart K, and following the procedures outlined in the Records Access, Contesting Record, and Notification Procedures sections of this notice.
The Privacy Act requires each agency to publish in the
You should be aware your entire comment including your personal identifying information, such as your address, phone number, email address, or any other personal identifying information in your comment, may be made publicly available at any time. While you may request to withhold your personal identifying information from public review, we cannot guarantee we will be able to do so.
INTERIOR/DOI-12, Donations Program Files.
Unclassified.
Records in this system are maintained by the Office of Financial Management, U.S. Department of the Interior, 1849 C Street NW, Mail Stop 5530 MIB, Washington, DC 20240; and Bureaus and Offices that manage Donations Programs.
Director and Senior Manager for Donations, Office of Financial Management, U.S. Department of the Interior, 1849 C Street NW, Mail Stop 5530 MIB, Washington, DC 20240. A list of bureau and office level senior managers may be obtained by contacting the Office of Financial Management at 202-208-4826.
5 U.S.C. 301, Departmental Regulations; 43 U.S.C. 1737, Federal Land Policy and Management Act, Implementation provisions; 54 U.S.C. 101101, Authority to accept land, rights-of-way, buildings, other property, and money; 43 U.S.C. 36c, Acceptance of contributions from public and private sources; cooperation with other agencies in prosecution of projects; 16 U.S.C. 742f, Powers of Secretaries of the Interior and Commerce.
The purpose of this system is to assist the Department of the Interior (DOI) in managing the Donations Program and facilitating the evaluation, acceptance, and solicitation of donations of money, real property, personal property, services, or other gifts by members of the public and organizations.
Individuals who donate money, real property, personal property, services, or other gifts to the DOI and its officials, prospective donors, and other individuals who contact or correspond with the DOI officials on matters related to the Donations Program. This system may also include information on current and former Federal government employees, contractors, and volunteers who support or are involved in the management of the Donations Program. This system contains records concerning corporations and other business entities, which are not subject to the Privacy Act. However, records pertaining to individuals acting on behalf of corporations and other business entities may reflect personal information that may be maintained in the Donations Program system of records.
This system contains information provided by individuals or organizations who propose to donate money, real property, personal property, services, or other gifts to the DOI or its officials, and may include names; home or work addresses; phone numbers; email addresses; other contact information; financial data such as the amount of the donation and method of remittance; biographical information; descriptions or other information regarding type of donations made; and miscellaneous information about gifts donated in the past. This system also contains background data and affiliations related to eligibility determinations for proposed donations; correspondence or other data related to the acceptance of proposed donations; and correspondence and data related to the management of the Donations Program.
Records in the system are obtained from individual members of the public, organizations, DOI officials, employees, contractors, volunteers, and may be obtained from other Federal officials, state, territorial and local government officials, and non-governmental organizations, in the course of daily business activities and communications related to the management of the Donations Program.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information maintained in this system may be disclosed to authorized entities outside DOI for purposes determined to be relevant and necessary as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or other Federal agency conducting litigation, or in proceedings before any court, adjudicative, or administrative
(1) DOI or any component of DOI;
(2) Any other Federal agency appearing before the Office of Hearings and Appeals;
(3) Any DOI employee or former employee acting in his or her official capacity;
(4) Any DOI employee or former employee acting in his or her individual capacity when DOI or DOJ has agreed to represent that employee or pay for private representation of the employee; or
(5) The United States Government or any agency thereof, when DOJ determines that DOI is likely to be affected by the proceeding.
B. To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if the covered individual is deceased, has made to the office.
C. To the Executive Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf, or for a purpose compatible with the reason for which the records are collected or maintained.
D. To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
E. To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
F. To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
G. To representatives of the National Archives and Records Administration (NARA) to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
H. To state, territorial and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
I. To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
J. To appropriate agencies, entities, and persons when:
(1) DOI suspects or has confirmed that there has been a breach of the system of
records;
(2) DOI has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DOI (including its information systems, programs, and operations), the Federal Government, or national security; and
(3) the disclosure made to such agencies, entities and persons is reasonably necessary to assist in connection with DOI's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
K. To another Federal agency or Federal entity, when DOI determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in:
(1) Responding to a suspected or confirmed breach; or
(2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
L. To the Office of Management and Budget (OMB) during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
M. To the Department of the Treasury to recover debts owed to the United States.
N. To the news media and the public, with the approval of the Public Affairs Officer in consultation with counsel and the Senior Agency Official for Privacy, when a matter has become public knowledge; when it is necessary to preserve the confidence in the integrity of DOI or is necessary to demonstrate the accountability of its officers, employees, or individuals covered in the system; or where there exists a legitimate public interest in the disclosure of the information, such as circumstances where providing information supports a legitimate law enforcement or public safety function, or protects the public from imminent threat of life or property; except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
O. To an official of another Federal, state, territorial, local, tribal, or foreign agency to provide information needed in the performance of official duties related to the verification, authorization, or processing of money, real property, personal property, services, or other gift donations by individuals or organizations, or any issue otherwise related to the purpose for which the records were compiled.
Records are maintained in both paper and electronic form. Paper records are maintained in file folders stored in file cabinets. Electronic records are maintained as files in computers, computer databases, email, and on encrypted removable drives and agency servers.
Information within this system may be retrieved by the DOI office or bureau receiving the donation, the benefitting program or activity, nature of the gift, size of the donation, the identity of the donor by individual or organization name, and may also be retrieved by keyword search.
Records are maintained under Departmental Records Schedule (DRS)-3.1.0001, Program Monitoring and Policy Development (DAA-0048-2013-0008-0001), which has been approved by the National Archives and Records Administration (NARA). DRS-3.1.0001 is a Department-wide records schedule that covers records involved in the regular monitoring and oversight of Federal programs. The disposition for these records is temporary. These records will be destroyed five years after cut-off, which is at the end of the fiscal year in which the final document is superseded or obsolete, or upon determination that a final document will not be produced. Records not used to support the program are cut off at the end of the fiscal year when the document was created as these records support the creation of permanent policy records that are not authorized for destruction and must be transferred to the National Archives in accordance with other records retention schedules. Paper records are disposed of by shredding or pulping, and records
The records contained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security and privacy rules and policies. During normal hours of operation, paper records are maintained in locked file cabinets under the control of authorized personnel. Electronic records are safeguarded by permissions set to “Authenticated Users” which require password login. Computer servers on which electronic records are stored are located in secured DOI controlled facilities with physical, technical and administrative levels of security to prevent unauthorized access to the DOI network and information assets. The computer servers in which electronic records are stored are located in DOI facilities that are secured by security guards, alarm systems and off-master key access. Access to servers containing records in this system is limited to DOI personnel and other authorized parties who have a need to know the information for the performance of their official duties. Data exchanged between the servers and the system is encrypted. Backup tapes are encrypted and stored in a locked and controlled room in a secure, off-site location.
Computerized records systems follow the National Institute of Standards and Technology privacy and security standards as developed to comply with the Privacy Act of 1974, 5 U.S.C. 552a; Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521; Federal Information Security Modernization Act of 2014, 44 U.S.C. 3551-3558; and the Federal Information Processing Standards 199: Standards for Security Categorization of Federal Information and Information Systems. Security controls include user identification, passwords, database permissions, encryption, firewalls, audit logs, and network system security monitoring, and software controls. Access to records in the system is limited to authorized personnel who have a need to access the records in the performance of their official duties, and each user's access is restricted to only the functions and data necessary to perform that person's job responsibilities. System administrators and authorized users are trained and required to follow established internal security protocols and must complete all security, privacy, and records management training and sign the DOI Rules of Behavior.
An individual requesting records on himself or herself should send a signed, written inquiry to the applicable System Manager identified above. The request must include the specific bureau or office that maintains the record to facilitate location of the applicable records. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the applicable System Manager as identified above. The request must include the specific bureau or office that maintains the record to facilitate location of the applicable records. A request for corrections or removal must meet the requirements of 43 CFR 2.246.
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the applicable System Manager as identified above. The request must include the specific bureau or office that maintains the record to facilitate location of the applicable records. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY.” A request for notification must meet the requirements of 43 CFR 2.235.
None.
77 FR 66628 (November 6, 2012).
Bureau of Land Management, Interior.
Notice of termination.
The preparation of an Environmental Assessment associated with the San Rafael Swell Master Leasing Plan Amendment is no longer required, and the process is hereby terminated. Pursuant to Section 102(2)(c) of the National Environmental Policy Act of 1969, as implemented by the Council on Environmental Quality regulations, the Bureau of Land Management (BLM) announced its intent to prepare an EA. The Notice of Intent (NOI) was published in the
Termination of the planning process for Rafael Swell Master Leasing Plan Amendment takes effect immediately.
Chris Conrad, Price Field Manager, 125 South 600 West, Price, Utah 84501, telephone (435) 636-3600, email
Since the publication of the NOI, the BLM issued Washington Office Instruction Memo 2018-034, which terminates the Master Leasing Process.
40 CFR 1506.6, 40 CFR 1506.10.
Bureau of Land Management, Interior.
Notice of intent.
As requested by Solar Partners XI, LLC, and in compliance with the National Environmental Policy Act of 1969, as amended (NEPA), the Bureau of Land Management (BLM) Las Vegas Field Office intends to prepare an
Written comments must be received by the BLM no later than August 27, 2018. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local news media and the BLM website at:
Comments must be received prior to the close of the scoping period or 15 days after the last public meeting, whichever is later, to be included in the Draft EIS. The BLM will provide additional opportunities for public participation upon publication of the Draft EIS.
You may submit comments by any of the following methods:
•
•
•
•
For further information, and/or to have your name added to the mailing list, send requests to: Herman Pinales, Energy & Infrastructure Project Manager, at telephone 702-515-5284; address 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130-2301; or email
In 2017, Solar Partners XI, LLC filed an application with the BLM requesting authorization to construct, operate, maintain, and decommission a 690-megawatt-per-year photovoltaic (PV) solar electric generating facility and associated generation tie-line and access road facilities. The expected life of the project is 30 years. The Solar Partners XI, LLC acquired the original 44,000-acre APEX Solar Thermal Power Generation Facility right-of-way application filed in 2008 by BrightSource Energy, LLC.
The proposed Gemini Solar Project would be located approximately 25 miles northeast of Las Vegas and south of the Moapa River Indian Reservation in Clark County, Nevada.
The proposed Gemini Solar Project includes 7,115 acres of federal lands administered by the BLM. The Visual Resource Management (VRM) class in the Application Area is mostly III and some II (due to proximity to Muddy Mountain Wilderness Area and Bitter Springs Back Country Byway), which will require a land use plan amendment to a class IV in order for the project to be consistent with the land use plan. A VRM class 2 allows for activities with a low level of landscape change; a class III allows a moderate level of change that would not dominate the landscape; and a class IV allows a high level of change that would dominate the landscape.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and to guide the process for developing the EIS. At present, the BLM has identified the following preliminary issues: Threatened and endangered species, biological resources, visual resources, cultural resources, tribal interests, recreation, and cumulative impacts. The Congressionally-designated Old Spanish National Historic Trail crosses the area. Habitat for the federally listed desert tortoise is also in this proposed area.
The BLM will consult with Native American tribes on a government-to-government basis in accordance with applicable laws, regulations, Executive Order 13175, and other policies. Tribal concerns will be given due consideration, including impacts on Indian Trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decision on this project, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
In 2013, the BLM published a Final Rule, Segregation of Lands—Renewable Energy (78 FR 25204), that amended the regulations found in 43 CFR 2090 and 2800. The provisions of the Final Rule allow the BLM to temporarily segregate public lands within a solar or wind application area from the operation of the public land laws, including the Mining Law, by publication of a
The areas described contain 45,165.48 acres, according to the official plats of the surveys and protraction diagrams of the lands on file with the BLM.
As provided in the Final Rule, the segregation of lands in this Notice will not exceed 2 years from the date of publication unless extended for up to 2 additional years through publication of a new notice in the
Upon termination of segregation of these lands, all lands subject to this segregation would automatically reopen to appropriation under the public land laws.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7, 43 CFR 1610.2, 43 CFR 1610.5, 43 CFR 2091.3-1(e), and 43 CFR 2804.25(f)
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), the Federal Land Policy and Management Act of 1976, and the Mineral Leasing Act of 1920 as amended (MLA), the Bureau of Land Management (BLM) prepared a Final Environmental Impact Statement (EIS) for the Alton Coal Tract Lease by Application (LBA), case number UTU-081895.
The BLM will not issue a final decision on the proposal for a minimum of 30 days after the date that the Environmental Protection Agency publishes its Notice of Availability in the
The public may review the Final EIS at the Kanab Field Office, 669 South Highway 89 A, Kanab, Utah 84741, and the BLM Utah State Office Public Room, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101; during business hours, 8 a.m. to 4:30 p.m. (unless otherwise posted), Monday through Friday, except Federal holidays. The Final EIS is available online at:
Keith Rigtrup, Planner, telephone: 1-435-865-3000; email:
Persons who use a telecommunications device for the deaf may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
In accordance with 43 CFR 3425, Alton Coal Development, LLC (ACD) submitted an application on November 12, 2004, with the BLM to lease Federal coal near the town of Alton, Utah. The tract identified in the application lies immediately adjacent to an active coal mine operated by ACD on private land.
The BLM provided a 90-day public scoping period at the beginning of the EIS process to identify potential issues and concerns associated with the Proposed Action. The BLM evaluated the scoping comments and used them to develop alternatives to the Proposed Action, to guide the analysis of potential effects from leasing and mining the tract, and to identify potential mitigations for inclusion in the Draft EIS. On November 4, 2011, the BLM published in the
The Final EIS analyzes and discloses to the public the direct, indirect, and cumulative environmental impacts of issuing a Federal coal lease on the Alton Coal Tract, including mining and transportation of coal to a railhead near Cedar City, Utah, and to the Intermountain Power Plant near Delta, Utah. It includes the BLM's responses to comments received during the extended 90-day public comment period, from June to September 2015, for the Supplemental Draft EIS. It also includes all alternatives considered in the Supplemental Draft EIS, including Alternative K1, the BLM's preferred alternative for this LBA, based on the analysis of the potential impacts of issuing a lease for the Alton Coal Tract.
The Final EIS analyzes three action alternatives: (1) Alternative B: 3,581 acres, 44.9 million short tons (the Proposed Action), (2) Alternative C: 3,178 acres, 39.2 million short tons (wetlands reduction), and (3) Alternative K1: 2,114 acres, 30.8 million short tons. Alternative K1 was developed in response to the pending wetland and sage-grouse issues raised during the public comment period for the Draft EIS. A No Action Alternative is also included in the Final EIS which, if selected, would preclude offering of the lease tract. All action alternatives included a detailed Greater Sage-Grouse Mitigation Plan. The Final EIS also analyzed the No-Action Alternative (Alternative A) that would reject the application to lease Federal coal. Preparation of the Final EIS included Office of Surface Mining Reclamation and Enforcement, National Park Service and Environmental Protection Agency as cooperating agencies.
The Alton Coal Tract includes approximately 44.9 million recoverable tons of in-place bituminous coal underlying the following lands in Kane County, Utah:
The area described, including both public and non-public surface lands, aggregate 3,581.27 Federal mineral acres according to the official plats of the surveys on file with the BLM.
Consistent with NEPA and its implementing regulations and the MLA and its implementing regulations, the BLM must prepare an environmental analysis prior to holding a competitive Federal coal lease sale. An EIS has been prepared for this particular sale. All alternatives have been analyzed and could be offered for sale. If an action alternative is selected in the subsequent ROD, that tract would be offered in a competitive lease sale, and a lease for Federal coal would be issued if the bid
The alternatives considered in the Final EIS are in conformance with the Kanab Field Office Record of Decision and Approved Resource Management Plan as amended (2015).
Anyone wanting to be added to the mailing list for this project must send their request by mail, facsimile, or electronically to the addresses listed in the
40 CFR 1506.6, 40 CFR 1506.10.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 14), which terminated the investigation on the basis of withdrawal of the complaint.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2532. 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 October 30, 2017, based on a complaint filed by Metglas, Inc. of Conway, South Carolina and Hitachi Metals, Ltd. of Tokyo, Japan. 82 FR 50156 (Oct. 30, 2017). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, by reason of misappropriation of trade secrets.
On June 8, 2018, the complainants moved to terminate the investigation based upon withdrawal of the complaint.
No petitions for review of the ID were filed. The Commission has determined not to review the ID.
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge (“ALJ”) has issued a Final Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bonding in the above-captioned investigation. The Commission is soliciting comments on public interest issues raised by the recommended relief should the Commission find a violation of section 337. The ALJ recommended, should the Commission find a violation, that the Commission issue a limited exclusion order directed to two-way radio equipment and systems, related software and components thereof that infringe the asserted patents, and recommended cease and desist orders directed against those respondents found to infringe. This notice is soliciting public interest comments from the public only. Parties are to file public interest submissions pursuant to Commission rules.
Clint A. Gerdine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2310. 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
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
The Commission is interested in further development of the record on the public interest in its investigations.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended order are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the recommended orders;
(iv) indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and
(v) explain how the recommended order would impact consumers in the United States.
Written submissions must be filed by the close of business on August 10, 2018.
Persons filing written submissions must file the original document electronically on or before the deadline stated above and submit eight true paper copies to the Office of the Secretary pursuant to Commission Rule 210.4(f), CFR part 210.4(f). Submissions should refer to the investigation number (“Inv. No. 337-TA-1053”) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under authority of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 15) of the Chief Administrative Law Judge (“CALJ”) granting Complainant's motion to amend the Notice of Investigation (“NOI”) to add claim 30 of U.S. Patent No. 8,267,297 (“the '297 patent”).
Houda Morad, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-4716. 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
On November 20, 2017, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based on an amended and supplemented complaint filed by Complainant Kyocera Senco Brands Inc. (“Kyocera”) of Cincinnati, Ohio.
On June 4, 2018, Complainant Kyocera filed a motion (
No petition for review of the subject ID was filed. The Commission has determined not to review the ID.
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on June 7, 2018, under section 337 of the Tariff Act of 1930, as amended, on behalf of Sauder Manufacturing Company of Archbold, Ohio. A supplement to the complaint was filed on June 14, 2018. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain convertible sofas and components thereof by reason of infringement of U.S. Design Patent No. 716,576 (“the '576 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute.
The complainant requests that the Commission institute an investigation and, after the investigation, issue limited exclusion order and a cease and desist order.
The complaint, except for any confidential information contained therein, is 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, Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Katherine M. Hiner, The Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of products identified in paragraph (2) by reason of infringement of the claim of the '576 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “convertible sofas that include the unitary combination of two upholstered seating areas, each bordered on the lateral end with a vertical armrest, such areas being separated by a flat table member that can be placed substantially level with the seating areas as well as raised above the level of the seating areas to various degrees to provide an open space beneath the table and for the full width of the table. In addition, the sofa includes a full width, integral backrest that can be folded down on top of the seats and table to provide a sleep/rest surface”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Sauder Manufacturing Company, 930 West Barre Road, Archbold, OH 43502.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served: Krug, Inc., 111 Ahrens Street, Kitchener, Ontario, Canada N2C 1L5
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge;
(5) The Office of Unfair Import Investigations will not be named as a party to this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
July 19, 2018 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote on Inv. Nos. 731-TA-1378 and 1379 (Final) (Low Melt Polyester Staple Fiber from Korea and Taiwan). The Commission is currently scheduled to complete and file its determinations and views of the Commission by August 1, 2018.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
On July 9, 2018, a proposed Consent Decree in
The proposed Consent Decree has been signed by the United States of America, the State of Rhode Island, Emhart Industries, Inc., and Black & Decker Inc. It will resolve the claims between the parties relating to the cleanup of the Centredale Manor Superfund Site in North Providence, Rhode Island under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to:
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $183.75 (25 cents per page reproduction cost) payable to the United States Treasury. For a copy of the consent decree without appendices, send a check for $12.00.
Cyber Division, Federal Bureau of Investigation, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Cyber Division (CyD) has submitted the following Information Collection Request to the Office of Management and Budget (OMB) for review and clearance in accordance with the established review procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for an additional days until August 13, 2018.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Stacy Stevens, Unit Chief, FBI, Cyber Division, 935 Pennsylvania Ave. NW, Washington, DC 20535 (facsimile: 703-633-5797; email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
1.
2.
3.
4.
5.
6.
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Civil Division, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Civil Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until August 13, 2018.
Comments are encouraged and all comments should reference the 8 digit OMB number for the collection or the title of the collection. If you have questions concerning the collection, please contact James G. Touhey, Jr., Director, Torts Branch, Civil Division, U.S. Department of Justice, P.O. Box 888, Benjamin Franklin Station, Washington, DC 20044, Telephone: (202) 616-4400.Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Room 10235, 725 17th Street NW, Washington, DC 20503 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
1.
2.
3.
4.
5.
6.
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Criminal Justice Information Services Division, Federal Bureau of Investigation, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for an additional days until August 13, 2018.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306 (facsimile: 304-625-5093) or email
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, Suite 3E.405B, Washington, DC 20530.
Office of Information and Regulatory Affairs, Office of Management and Budget.
Extension of comment period.
The Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget is extending the comment period for its Maritime Deregulatory request for information (RFI), by 45 days until August 30, 2018. Please note, OIRA intends to make all submissions publicly available on
Written comments should be submitted by August 30, 2018. Late comments will be considered to the extent possible.
Interested persons are encouraged to submit comments, identified by “Maritime Regulatory Reform RFI,” by any of the following methods: Federal Rulemaking Portal:
This extension of comment period pertains to the RFI published in 83 FR 22993 pertaining to maritime regulatory reform, docket number 2018-10539. For more information, please see
Millennium Challenge Corporation.
Renewal of the MCC Advisory Council and Call for Nominations for 2018-2020 Term.
In accordance with the requirements of the Federal Advisory Committee Act, MCC has refiled the charter for the MCC Advisory Council (“Advisory Council”), is hereby soliciting representative nominations for the 2018-2020 term. The Council serves MCC in a solely advisory capacity and provides insight regarding innovations in relevant sectors including technology, infrastructure and blended
The Advisory Council is seeking members representing a diverse group of private sector organizations with expertise in infrastructure, business and finance and technology, particularly in the countries and regions where MCC operates. Additional information about MCC and its portfolio can be found at
Nominations for Advisory Council members must be received on or before 5 p.m. EDT on August 10, 2018. Further information about the nomination process is included below. MCC plans to host the first meeting of the 2018-2020 term of the MCC Advisory Council in Fall 2018. The Council will meet at least two times a year in Washington, DC or via video/teleconferencing.
All nomination materials or requests for additional information should be emailed to
The Advisory Council shall consist of not more than twenty-five (25) individuals who are recognized thought leaders, business leaders and experts representing US companies, the business community, advocacy organizations, non-profit organizations, foundations, and sectors including infrastructure, information and communications technology (ICT), and finance, as well as the environment and sustainable development. Qualified individuals may self-nominate or be nominated by any individual or organization. To be considered for the Advisory Council, nominators should submit the following information:
• Name, title, organization and relevant contact information (including phone and email address) of the individual under consideration;
• A letter, on organization letterhead, containing a brief description of why the nominee should be considered for membership;
• Short biography of nominee including professional and academic credentials.
Please do not send company, trade association, or organization brochures or any other information. Materials submitted should total two pages or less. Should more information be needed, MCC staff will contact the nominee, obtain information from the nominee's past affiliations, or obtain information from publicly available sources.
All members of the Advisory Council will be independent of the agency, representing the views and interests of their respective industry or area of expertise, and not as Special Government employees. All Members shall serve without compensation.
Nominees selected for appointment to the Advisory Council will be notified by return email and receive a letter of appointment. A selection team comprised of representatives from several MCC departments will review the nomination packages. The selection team will make recommendations regarding membership to the Vice President for Compact Operations based on criteria including: (1) Professional or academic expertise, experience, and knowledge; (2) stakeholder representation; (3) availability and willingness to serve; and (4) skills working collaboratively on committees and advisory panels. Based upon the selection team's recommendations, the Vice President for Compact Operations will select representatives. In the selection of members for the Advisory Council, MCC will seek to ensure a balanced representation and consider a cross-section of those directly affected, interested, and qualified, as appropriate to the nature and functions of the Advisory Council.
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical disability, marital status, or sexual orientation.
Nuclear Regulatory Commission.
Standard review plan-draft section revision; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on draft NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition,” Section BTP 5-3, “Fracture Toughness Requirements.” The NRC seeks comments on the proposed draft section revision of the Standard Review Plan (SRP) concerning guidance for the review of early site permits, combined construction and operating license and operating license applications and amendments for fracture toughness requirements.
Comments must be filed no later than September 11, 2018. 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:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Mark D. Notich, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-3053; email:
Please refer to Docket ID NRC-2018-0145 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-2018-0145 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 seeks public comment on the proposed draft section revision of SRP Section BTP 5-3. The changes include incorporation of text describing NRC review of potential non-conservatisms in BTP 5-3, Revision 2, Subsection B1.1; a reference to a memorandum describing the results of the NRC review of the potential non-conservatisms; and numerous textual updates to incorporate pressure-temperature limit reports, 10 CFR 50.61a, 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” clearer citations, and nozzle language.
Following NRC staff evaluation of public comments, the NRC intends to finalize SRP Section BTP 5-3 in ADAMS and post it on the NRC's public website at
Issuance of this draft SRP section, if finalized, would not constitute backfitting as defined in 10 CFR 50.109, (the Backfit Rule) or otherwise be inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations.
1. The draft SRP positions, if finalized, would not constitute backfitting, inasmuch as the SRP is internal guidance to NRC staff directed at the NRC staff with respect to their regulatory responsibilities.
The SRP provides internal guidance to the NRC staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
2. The NRC staff has no intention to impose the SRP positions on current licensees or already-issued regulatory approvals either now or in the future.
The NRC staff does not intend to impose or apply the positions described in the draft SRP to existing (already issued) licenses and regulatory approvals. Hence, the issuance of a final SRP, even if considered guidance within the purview of the issue finality provisions in 10 CFR part 52, would not need to be evaluated as if it were a backfit or as being inconsistent with issue finality provisions. If, in the future, the NRC staff seeks to impose a position in the SRP on holders of already issued licenses in a manner that does not provide issue finality as described in the applicable issue finality provision, then the staff must make the showing as set forth in the Backfit Rule or address the criteria for avoiding issue finality as described in the applicable issue finality provision.
3. Backfitting and issue finality do not—with limited exceptions not applicable here—protect current or future applicants.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed below—were intended to apply to every NRC action that substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and to petition for leave to intervene; order imposing procedures.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Renewed Facility Operating License No. DPR-59, issued to Exelon Generation Company, LLC, for operation of the James A. FitzPatrick Nuclear Power Plant (JAFNPP). The proposed amendment would revise Technical Specification (TS), TS 2.1.1, “Reactor Core SLs [Safety Limits].” For this amendment request, the NRC proposes to determine that it involves no significant hazards consideration. Because this amendment request contains sensitive unclassified non-safeguards information (SUNSI), an order imposes procedures to obtain access to SUNSI for contention preparation.
Submit comments by August 13, 2018. Requests for a hearing or petition for leave to intervene must be filed by September 11, 2018. Any potential party as defined in § 2.4 of title 10 of the
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
Tanya E. Hood, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1387, email:
Please refer to Docket ID NRC-2018-0143 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2018-0143 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 considering issuance of an amendment to Renewed Facility Operating License No. DPR-59, issued to Exelon Generation Company, LLC, for operation of JAFNPP, located in Oswego, New York.
The proposed amendment would revise TS 2.1.1, “Reactor Core SLs [Safety Limits]” to change Cycle 24 Safety Limit Minimum Critical Power Ratio (SLMCPR) numeric values resulting from SLMCPR analyses performed.
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The NRC has made a proposed determination that the license amendment request involves no significant hazards consideration. Under the NRC's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The derivation of the cycle specific Safety Limit Minimum Critical Power Ratios (SLMCPRs) for incorporation into the Technical Specifications (TS), and their use to determine cycle specific thermal limits, has been performed using the methodology discussed in NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel,” Revision 26.
The basis of the SLMCPR calculation is to ensure that during normal operation and during abnormal operational transients, at least 99.9% of all fuel rods in the core do not experience transition boiling if the limit is not violated. The new SLMCPRs preserve the existing margin to transition boiling.
The MCPR safety limit is reevaluated for each reload using NRC-approved methodologies. The analyses for JAFNPP, Cycle 24, have concluded that a tworecirculation loop MCPR safety limit of ≥1.07, based on the application of Global Nuclear Fuel's NRC-approved MCPR safety limit methodology, will ensure that this acceptance criterion is met. For single recirculation loop operation, a MCPR safety limit of ≥ 1.09 also ensures that this acceptance criterion is met. The MCPR operating limits are presented and controlled in accordance with the JAFNPP Core Operating Limits Report (COLR).
The requested TS changes do not involve any plant modifications or operational changes that could affect system reliability or
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The SLMCPR is a TS numerical value, calculated to ensure that during normal operation and during abnormal operational transients, at least 99.9% of all fuel rods in the core do not experience transition boiling if the limit is not violated. The new SLMCPRs are calculated using NRC-approved methodology discussed in NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel,” Revision 26. The proposed changes do not involve any new modes of operation, any changes to setpoints, or any plant modifications. The proposed revised MCPR safety limits have been shown to be acceptable for Cycle 24 operation. The core operating limits will continue to be developed using NRC-approved methods. The proposed MCPR safety limits or methods for establishing the core operating limits do not result in the creation of any new precursors to an accident. Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
There is no significant reduction in the margin of safety previously approved by the NRC as a result of the proposed change to the SLMCPRs. The new SLMCPRs are calculated using methodology discussed in NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel,” Revision 26. The SLMCPRs ensure that during normal operation and during abnormal operational transients, at least 99.9% of all fuel rods in the core do not experience transition boiling if the limit is not violated, thereby preserving the fuel cladding integrity. Therefore, the proposed TS changes do not involve a significant reduction in the margin of safety previously approved by the NRC.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves a no significant hazards consideration.
The NRC is seeking public comments on this proposed determination that the license amendment request involves no significant hazards consideration. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day notice period if the Commission concludes the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated May 17, 2018.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request access to SUNSI. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after receipt of (or access to) that information. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and requisite need, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
(3) Further appeals of decisions under this paragraph must be made pursuant to 10 CFR 2.311.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed within 5 days of the notification by the NRC staff of its grant of access and must be filed with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another Administrative Judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. The attachment to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License renewal; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a renewed license to Kennecott Uranium Company (KUC) for its Sweetwater Uranium Project (SUP), located in Sweetwater County, Wyoming, for Materials License SUA-1350. The license authorizes KUC to possess uranium source and byproduct material at the SUP. In addition, the license authorizes KUC to operate its facilities as proposed in its license renewal application, as amended, and as prescribed in the license, after a pre-operational inspection has been completed at the SUP and any safety issues resolved. The renewed license expires on November 9, 2024.
The license referenced in this document is available on July 6, 2018.
Please refer to Docket ID NRC-2018-0141 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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James Webb, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6252; email:
Based upon the application dated July 24, 2014 (ADAMS Package Accession No. ML14251A115), as supplemented on October 31, 2015 (ADAMS Accession No. ML15300A336), June 2, 2016 (ADAMS Accession No. ML16160A410), October 18, 2016 (ADAMS Accession No. ML16298A147), November 14, 2016 (ADAMS Accession No. ML16335A183), September 28, 2017 (ADAMS Accession No. ML17277A074), and January 12, 2018 (ADAMS Accession No. ML18043A034), the NRC has issued a renewed license (ADAMS Accession No. ML18102B175) to KUC, located in Sweetwater County, Wyoming. The renewed license authorizes KUC to possess uranium source and byproduct material at the SUP. In addition, the license authorizes KUC to operate its facilities as proposed in its license renewal application, as amended, and as prescribed in its amended license, after a pre-operational inspection has been completed at the SUP and any safety issues resolved. The renewed license will expire on November 9, 2024.
The licensee's application for a renewed license complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the NRC's rules and regulations. The NRC has made appropriate findings as required by the Act, part 20 of title 10 of the
The NRC staff prepared a safety evaluation report (ADAMS Accession No. ML18052B381) for the renewal of the license and concluded, based on that evaluation, that KUC will continue to meet the regulations in the Act, 10 CFR part 20, and 10 CFR part 40. The NRC staff also prepared an environmental assessment (ADAMS Accession No. ML18135A206) and finding of no significant impact for the renewal of this license, which were published in the
The following table includes the ADAMS accession numbers for the documents referenced in this notice. For additional information on accessing ADAMS, see the
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Plant Operations and Fire Protection will hold a meeting on July 26, 2018 at U.S. Nuclear Regulatory Commission, Region I, 2100 Renaissance Blvd., Suite 100, King of Prussia, PA 19406-2713.
The entire meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will hear presentations by and hold discussions with NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kent Howard (Telephone 301-415-2989 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC website at
If attending this meeting, please enter through the Main Entrance, 2100 Renaissance Blvd., Suite 100, King of Prussia, PA 19406-2713. After registering with Security, please contact Ms. Ann De Francisco (Telephone 601-337-5078) to be escorted to the meeting room.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
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 Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
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.
2.
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.
Maria W. Votsch, 202-268-6525.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 9, 2018, it filed with the Postal Regulatory Commission a
In notice document 2018-13378 beginning on page 29146 in the issue of Friday, June 22, 2018, make the following change:
On page 29148, in the second column, in line 43, “July 12, 2018” should read “July 13, 2018”.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit business development companies (“BDCs”) to co-invest in portfolio companies with each other and with certain affiliated investment funds and accounts.
AB Private Credit Investors Corporation (“AB BDC I”); AB Private Credit Investors Middle Market Direct Lending Fund, L.P. (“AB PCI Fund I”); AB Energy Opportunity Fund, L.P. (“AB Energy Fund,” and together with AB PCI Fund I, the “Existing Affiliated Funds”); AB Private Credit Investors, LLC (“AB-PCI”) on behalf of itself and
The application was filed on June 28, 2018. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on August 3, 2018, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE, Washington, DC 20549-1090. Applicants: J. Brent Humphries, AB Private Credit Investors LLC, 1345 Avenue of the Americas, New York, NY 10105.
Stephan N. Packs, Senior Counsel, at (202) 551-6853 or David J. Marcinkus, Branch Chief, at (202) 551-6821 (Chief Counsel's Office, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. AB BDC I, a Maryland corporation, is organized as a closed-end management investment company that has elected to be regulated as a BDC under section 54(a) of the Act.
2. The board of directors of AB BDC I is comprised of five directors. The AB BDC I Board and any board of directors of a Future Regulated Fund (each a “Board”) will be comprised of directors, a majority of whom will not be “interested persons” within the meaning of Section 2(a)(19) of the Act (the “Non-Interested Directors”), of AB BDC I or any Future Regulated Fund, as applicable.
3. AB PCI Fund I is a Delaware limited partnership that is exempt from registration pursuant to section 3(c)(7) of the Act. AB PCI Fund I's investment objective and strategies are to generate both current income and long-term capital appreciation through debt and equity investments.
4. AB Energy Fund is a Delaware limited partnership that is exempt from registration pursuant to section 3(c)(7) of the Act. AB Energy Fund's investment objective and strategies are to generate attractive risk-adjusted returns, through current income and capital gains, by capitalizing on private and public debt and equity investment opportunities in North American oil and gas producers.
5. AB-PCI, a Delaware limited liability company, is registered with the Commission as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”). AB-PCI is a wholly-owned subsidiary of AllianceBernstein L.P., a New York based global asset management firm. AB-PCI is the investment adviser to each of AB BDC I and the Existing Affiliated Funds. AB-PCI also advises certain Affiliated Managed Accounts that may participate in the Co-Investment Program, including the Existing Affiliated Managed Accounts.
“Affiliated Managed Account” means: (i) The Existing Affiliated Managed Accounts; and (ii) any Future Affiliated Managed Account. “Future Affiliated Managed Account” means an account: (i) For which an AB-PCI Adviser is acting as investment adviser or sub-adviser; (b) of a person who is a Section 57(b) affiliate of a Regulated Fund and who would not be able to rely on Section 3(c)(1) or 3(c)(7) of the Act; and (c) that intends to participate in the Co-Investment Program.
6. AXA Equitable is a stock life insurance corporation organized under the laws of New York, and is the indirect parent company of AB-PCI.
7. Applicants seek an order (“Order”) to permit a Regulated Fund
8. The Order would amend the Prior Order to extend the relief granted under the Prior Order to certain Existing Affiliated Managed Accounts and Future Affiliated Managed Accounts whose investment adviser is an AB-PCI Adviser.
9. For purposes of the requested Order, “Co-Investment Transaction” means any transaction in which a Regulated Fund (or its Wholly-Owned Investment Sub, as defined below) participated together with one or more
10. Applicants state that a Regulated Fund may, from time to time, form one or more Wholly-Owned Investment Subs.
11. When considering Potential Co-Investment Transactions for any Regulated Fund, the AB-PCI Adviser will consider only the Objectives and Strategies, Board-Established Criteria,
12. Other than pro rata dispositions and Follow-On Investments as provided in Conditions 7 and 8, and after making the determinations required in Conditions 1 and 2(a), the Advisers will present each Potential Co-Investment Transaction and the proposed allocation to the directors of the Board eligible to vote under section 57(o) of the Act (“Eligible Directors”), and the “required majority,” as defined in section 57(o) of the Act (“Required Majority”)
13. AXA Equitable may decline the opportunity for its Affiliated Managed Accounts to participate in whole or in part in a Potential Co-Investment Transaction pursuant to AXA Equitable's arrangement with AB-PCI with respect to its Affiliated Managed Accounts. AXA Equitable does not have the ability to cause AB-PCI to change the allocations of any Potential Co-Investment Transaction.
14. With respect to the pro rata dispositions and Follow-On Investments provided in Conditions 7 and 8, a Regulated Fund may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of each Regulated Fund and Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board of the Regulated Fund has approved that Regulated Fund's participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Regulated Fund. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Regulated Fund's Eligible Directors. The Board of any Regulated Fund may at any time rescind, suspend or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On Investments must be submitted to the Eligible Directors.
15. No Non-Interested Director of a Regulated Fund will have a financial interest in any Co-Investment Transaction, other than through share ownership in one of the Regulated Funds.
1. Section 57(a)(4) of the Act prohibits certain affiliated persons of a BDC from participating in joint transactions with the BDC or a company controlled by a BDC in contravention of rules as prescribed by the Commission. Under section 57(b)(2) of the Act, any person who is directly or indirectly controlling, controlled by, or under common control with a BDC is subject to section 57(a)(4). Applicants submit that each of the Regulated Funds and Affiliated Funds be deemed to be a person related to each Regulated Fund in a manner described by section 57(b) by virtue of being under common control. In addition, section 57(b) applies to any investment adviser to a Regulated Fund that is a BDC and to any section 2(a)(3)(C) affiliates of the investment adviser, including AXA Equitable and the Affiliated Managed Accounts. Section 57(i) of the Act provides that, until the Commission prescribes rules under section 57(a)(4), the Commission's rules under section 17(d) of the Act applicable to registered closed-end investment companies will be deemed to apply to transactions subject to section 57(a)(4). Because the Commission has not adopted any rules under section 57(a)(4), rule 17d-1 also applies to joint transactions with Regulated Funds that are BDCs. Section 17(d) of the Act and rule 17d-1 under the Act are applicable to Regulated Funds that are registered closed-end investment companies.
2. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated persons of a registered investment company from participating in joint transactions with the company unless the Commission has granted an order permitting such transactions. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
3. Applicants state that in the absence of the requested relief, the Regulated Funds would be, in some circumstances, limited in their ability to participate in attractive and appropriate investment opportunities. Applicants believe that the proposed terms and conditions will ensure that the Co-Investment Transactions are consistent with the protection of each Regulated Fund's shareholders and with the
4. Applicants also represent that if the AB-PCI Adviser or its principals, or any person controlling, controlled by, or under common control with an AB-PCI Adviser or its principals, and the Affiliated Funds (collectively, the “Holders”) own in the aggregate more than 25 percent of the outstanding voting securities of a Regulated Fund (“Shares”), then the Holders will vote such Shares as required under Condition 14. Applicants believe that this Condition will ensure that the Non-Interested Directors will act independently in evaluating the Co-Investment Program, because the ability of an AB-PCI Adviser or its principals to influence the Non-Interested Directors by a suggestion, explicit or implied, that the Non-Interested Directors can be removed will be limited significantly. Applicants represent that the Non-Interested Directors will evaluate and approve any such independent party, taking into account its qualifications, reputation for independence, cost to the shareholders, and other factors that they deem relevant.
Applicants agree that the Order will be subject to the following Conditions:
1. Each time an AB-PCI Adviser considers a Potential Co-Investment Transaction for an Affiliated Fund or another Regulated Fund that falls within a Regulated Fund's then-current Objectives and Strategies and Board-Established Criteria, the Regulated Fund's AB-PCI Adviser will make an independent determination of the appropriateness of the investment for such Regulated Fund in light of the Regulated Fund's then-current circumstances.
2. (a) If the AB-PCI Adviser deems the Regulated Fund's participation in any Potential Co-Investment Transaction to be appropriate for the Regulated Fund, the AB-PCI Adviser will then determine an appropriate level of investment for the Regulated Fund.
(b) If the aggregate amount recommended by the applicable AB-PCI Adviser to be invested by the applicable Regulated Fund in the Potential Co-Investment Transaction, together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the investment opportunity will be allocated among the Regulated Funds and Affiliated Funds pro rata based on each participant's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each. The applicable AB-PCI Adviser to a Regulated Fund will provide the Eligible Directors of each participating Regulated Fund with information concerning each participating party's available capital to assist the Eligible Directors with their review of the Regulated Fund's investments for compliance with these allocation procedures.
(c) After making the determinations required in Conditions 1 and 2(a), the AB-PCI Adviser will distribute written information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each participating Regulated Fund and Affiliated Fund) to the Eligible Directors for their consideration. A Regulated Fund will co-invest with one or more other Regulated Funds and/or one or more Affiliated Funds only if, prior to the Regulated Funds' and Affiliated Funds' participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i) The terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its shareholders and do not involve overreaching in respect of the Regulated Fund or its shareholders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction is consistent with:
(A) The interests of the Regulated Fund's shareholders; and
(B) the Regulated Fund's then-current Objectives and Strategies and Board-Established Criteria;
(iii) the investment by any other Regulated Funds or Affiliated Funds would not disadvantage the Regulated Fund, and participation by the Regulated Fund would not be on a basis different from or less advantageous than that of any other Regulated Fund or Affiliated Fund; provided that, if any other Regulated Fund or Affiliated Fund, but not the Regulated Fund itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this Condition 2(c)(iii), if:
(A) The Eligible Directors will have the right to ratify the selection of such director or board observer, if any;
(B) the applicable AB-PCI Adviser agrees to, and does, provide periodic reports to the Regulated Fund's Board with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and
(C) any fees or other compensation that any Affiliated Fund or any Regulated Fund or any affiliated person of any Affiliated Fund or any Regulated Fund receives in connection with the right of an Affiliated Fund or a Regulated Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Affiliated Funds (who each may, in turn, share its portion with its affiliated persons) and the participating Regulated Funds in accordance with the amount of each party's investment; and
(iv) the proposed investment by the Regulated Fund will not benefit the AB-PCI Advisers, the Affiliated Funds or the other Regulated Funds or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by Condition 13, (B) to the extent permitted by sections 17(e) or 57(k) of the Act, as applicable, (C) indirectly, as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction, or (D) in the case of fees or other compensation described in Condition 2(c)(iii)(C).
3. Each Regulated Fund has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable AB-PCI Adviser will present to the Board of each Regulated Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated Funds or Affiliated Funds during the preceding quarter that fell within the Regulated Fund's then-current Objectives and Strategies and Board-Established Criteria that were not made available to the Regulated Fund, and an explanation of why the investment opportunities were not offered to the Regulated Fund. All information presented to the Board pursuant to this Condition will be kept for the life of the Regulated Fund and at least two years thereafter, and will be
5. Except for Follow-On Investments made in accordance with Condition 8,
6. A Regulated Fund will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Regulated Fund and Affiliated Fund. The grant to an Affiliated Fund or another Regulated Fund, but not the Regulated Fund, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this Condition 6, if Conditions 2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Affiliated Fund or any Regulated Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired by one or more Regulated Funds and/or Affiliated Funds in a Co-Investment Transaction, the applicable AB-PCI Advisers will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as to participation by the Regulated Fund in the disposition.
(b) Each Regulated Fund will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Affiliated Funds and any other Regulated Fund.
(c) A Regulated Fund may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition; (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) the Board of the Regulated Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this Condition. In all other cases, the AB-PCI Adviser will provide its written recommendation as to the Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such disposition solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(d) Each Affiliated Fund and each Regulated Fund will bear its own expenses in connection with any such disposition.
8. (a) If any Affiliated Fund or any Regulated Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired by the Regulated Fund and the Affiliated Fund in a Co-Investment Transaction, the applicable AB-PCI Advisers will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Fund.
(b) A Regulated Fund may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the AB-PCI Adviser will provide its written recommendation as to such Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that the Required Majority determines that it is in such Regulated Fund's best interests.
(c) If, with respect to any Follow-On Investment:
(i) The amount of the opportunity is not based on the Regulated Funds' and the Affiliated Funds' outstanding investments immediately preceding the Follow-On Investment; and
(ii) the aggregate amount recommended by the AB-PCI Adviser to be invested by each Regulated Fund in the Follow-On Investment, together with the amount proposed to be invested by the other participating Regulated Funds and the Affiliated Funds in the same transaction, exceeds the amount of the opportunity; then the amount invested by each such party will be allocated among them pro rata based on each participant's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each.
(d) The acquisition of Follow-On Investments as permitted by this Condition will be considered a Co-Investment Transaction for all purposes and subject to the other Conditions set forth in the application.
9. The Non-Interested Directors of each Regulated Fund will be provided quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including investments made by other Regulated Funds or Affiliated Funds that a Regulated Fund considered but declined to participate in, so that the Non-Interested Directors may determine whether all investments made during the preceding quarter, including those investments that the Regulated Fund considered but declined to participate in, comply with the Conditions of the Order. In addition, the Non-Interested Directors will consider at least annually: (i) The continued appropriateness for such Regulated Fund of participating in new and existing Co-Investment Transactions; and (ii) the continued appropriateness of any Board-Established Criteria.
10. Each Regulated Fund will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Funds were a BDC and each of the investments permitted under these Conditions were approved by the Required Majority under section 57(f) of the Act.
11. No Non-Interested Director of a Regulated Fund will also be a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the Act), of any Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the AB-PCI Advisers under their respective investment advisory agreements with the Affiliated Funds and the Regulated Funds, be shared by the Regulated Funds and the Affiliated Funds in proportion to the relative amounts of the securities held or to be
13. Any transaction fee
14. If the Holders own in the aggregate more than 25 percent of the Shares of a Regulated Fund, then the Holders will vote such Shares as directed by an independent third party when voting on: (1) The election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable State law affecting the Board's composition, size or manner of election.
15. Each Regulated Fund's chief compliance officer, as defined in rule 38a-1(a)(4), will prepare an annual report for its Board each year that evaluates (and documents the basis of that evaluation) the Regulated Fund's compliance with the terms and conditions of the application and the procedures established to achieve such compliance.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
Pursuant to the provisions of Section 19(b)(1) under the Securities Exchange Act of 1934 (“Act”),
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 statement [sic] 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 amend Rule 16.160 related to derivative securities traded under UTP by removing the requirement in Rule 16.160(a)(1) for the Exchange to file with the Commission a Form 19b-4(e) for each Derivative Security, and renumbering the remaining rules of Rule 16.160(a) to maintain an organized rule structure, as described below.
Rule 16.160(a)(1) sets forth the requirement for IEX to file with the Commission a Form 19b-4(e) with respect to each Derivative Security that is traded under UTP. However, IEX believes that it should not be necessary to file a Form 19b-4(e) with the Commission if it begins trading a Derivative Security on a UTP basis, because Rule 19b-4(e)(1) under the Act refers to the “listing and trading” of a “new derivative securities product.” The Exchange believes that the requirements of that rule refers [sic] to when an exchange lists and trades a Derivative Security, and not when an exchange seeks only to trade such product on a UTP basis pursuant to Rule 12f-2 under the Act.
IEX believes that the proposed rule change is consistent with the provisions of Section 6(b)
In addition, the Exchange notes that a substantially identical proposed rule change by NYSE National, Inc. (“NYSE National”) was recently approved by the Commission.
With respect to the renumbering of current Rules 16.160(a)(2)-(6) as Rule 11.160(a)(1)-(5), the Exchange believes that these changes are consistent with the Act because they will allow the Exchange to maintain a clear and organized rule structure, thus preventing investor confusion.
IEX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, removing the requirement to file a Form 19b-4(e) will serve to enhance competition by providing for the efficient addition of Derivative Securities for trading under UTP on IEX. To the extent that a competitor marketplace believes that the proposed rule change places it at a competitive disadvantage, it may file with the Commission a proposed rule change to adopt the same or similar rule.
In addition, the proposal to renumber the current Rules 16.160(a)(2)-(6) as Rules 16.160(a)(1)-(5) does not impact competition in any respect since it merely maintains a clear and organized rule structure.
Written comments were neither solicited nor received.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A)
The Exchange has requested a waiver of the 30-day operative delay so that the Exchange can begin trading Derivative Securities on a UTP basis without filing a Form 19b-4(e) with the Commission prior to the end of the 30-day operative delay. Because the proposed rule change is based on a rule change previously approved by the Commission
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 under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal 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.
60-Day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995, requires federal agencies to publish a notice in the
Submit comments on or before September 11, 2018.
Send all comments to Stephen Morris, Director, Office of Strategic Alliances, Small Business Administration, 409 3rd Street, Washington, DC 20416.
Stephen Morris, 202-205-7422,
This form is a three-page questionnaire, principally in checklist form, designed to give SBA feedback from those who attend events which SBA cosponsors with other organizations. The form does not ask respondents to identify themselves except by NAICS Code. The form asks whether the event provided practical information which allowed them to manage their businesses more effectively and efficiently and gave them a good working knowledge of the subject. It asks whether the program was sufficient. It asks whether each speaker was well-organized, interesting, presented information at the appropriate level, and communicated well. It asks for suggestions for improvement, and for ideas for new topics.
The form asks some demographic information so that SBA can better understand the community which these events serve. Where the event relates to government contracting, it asks whether the respondent has taken advantage of various government contracting programs which SBA offers.
SBA may also use this form to help evaluate programs which it conducts by itself. Responding to the questionnaire is entirely voluntary.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Delacroix,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at The Metropolitan Museum of Art, New York, New York, from on or about September 17, 2018, until on or about January 6, 2019, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that two objects to be included in exhibitions of the Keir Collection of Art of the Islamic World, re-imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are re-imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the first object at the Dallas Museum of Art, in Dallas, Texas, and at possible additional
Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Federal Highway Administration (FHWA), DOT.
Notice of limitations on claims for judicial review of actions by FHWA, and other federal agencies.
This notice announces action taken by the FHWA and other Federal agencies that are final. This final agency action relates to a proposed highway project, improvements to I-440 (Raleigh Beltline), from Walnut Street in Cary to Wade Avenue in Raleigh, Wake County, State of North Carolina. The FHWA's Finding of No Significant Impact (FONSI) provides details on the Selected Alternative for the proposed improvements.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(
For FHWA: Clarence W. Coleman, P. E., Director of Preconstruction and Environment, Federal Highway Administration, North Carolina Division, 310 New Bern Avenue, Suite 410, Raleigh, North Carolina, 27601-1418; Telephone: (919) 747-7014; email:
Notice is hereby given that FHWA has taken a final agency action by issuing a Finding of No Significant Impact (FONSI) for the following highway project in the State of North Carolina: Improvements to I-440 (Raleigh Beltline), from Walnut Street in the Town of Cary to Wade Avenue in the City of Raleigh, Wake County. The length of the project is approximately 6.0 miles.
The project proposes to widen I-440/US 1-64 from four lanes to six lanes, reconstruct interchanges, replace structures, and repair pavement conditions. The project is included in NCDOT's adopted 2018-2027 State Transportation Improvement Plan (STIP) as project number U-2719 and is scheduled for right of way acquisition and construction to begin in fiscal year 2019, being let as a design-build contract. The project is also included in the Capital Area Metropolitan Planning Organization Organization's (CAMPO)
The FHWA's action, related actions by other Federal agencies and the laws under which such actions were taken, are described in the Environmental Assessment (EA) approved on June 23, 2017, and the Finding of No Significant Impact (FONSI) approved on May 24, 2018, and other documents in the project file. The EA and FONSI are available for review by contacting FHWA or NCDOT at the addresses provided above. In addition, these documents can be viewed and downloaded from the project website at
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23 U.S.C. 139(
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that model year (MY) 2014 BMW X3 multipurpose passenger vehicles (MPVs) that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), are eligible for importation into the United States because they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards (the U.S.-certified version of the 2014 BMW X3 MPV) and they are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is August 13, 2018.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
•
•
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• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
George Stevens, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
The petitioner claims that it compared non-U.S.-certified MY 2014 BMW X3 MPVs to their U.S.-certified
WETL submitted information with its petition intended to demonstrate that non-U.S.-certified MY 2014 BMW X3 MPVs, as originally manufactured, conform to many applicable FMVSS in the same manner as their U.S.-certified counterparts, or are capable of being readily altered to conform to those standards.
Specifically, the petitioner claims that the non U.S.-certified MY 2014 BMW X3 MPVs, as originally manufactured, conform to: Standard Nos. 102
The petitioner also contends that the subject non-U.S.-certified vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 101
Standard No. 108
Standard No. 110
Standard No. 111
Standard No. 114
Standard No. 208
Standard No. 209
Standard No. 301
The petitioner additionally states that a vehicle identification plate must be affixed to the vehicle near the left windshield pillar to meet the requirements of 49 CFR part 565.
49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petitions.
This document announces decisions by NHTSA that certain motor vehicles not originally manufactured to comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS) are eligible for importation into the United States because they are substantially similar to vehicles originally manufactured for sale in the United States and certified by their manufacturers as complying with the safety standards, and they are capable of being readily altered to conform to the standards or because they have safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS.
These decisions became effective on the dates specified in Annex A.
Mr. George Stevens, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and/or sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle to be admitted into the United States if its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test data or such other evidence as NHTSA decides to be adequate.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR part 593.7, NHTSA publishes notice in the
NHTSA received petitions from registered importers to decide whether the vehicles listed in Annex A to this
49 U.S.C. 30141(a)(1)(A), (a)(1)(B) and (b)(1); 49 CFR 593.7; delegations of authority at 49 CFR 1.95 and 501.8.
Because there is no substantially similar U.S.-certified version, the petitioner sought import eligibility under 49 U.S.C. 30141(a)(1)(B).
Because there is no substantially similar U.S.-certified version, the petitioner sought import eligibility under 49 U.S.C. 30141(a)(1)(B).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Pipeline and Hazardous Materials Safety Administration (PHMSA) invites comments on its intent to request from the Office of Management and Budget (OMB) a revision to form PHMSA F 7000-1.1—Annual Report for Hazardous Liquid Pipeline Systems, which is currently collected under OMB Control number 2137-0614.
Interested parties are invited to submit comments on or before September 11, 2018.
Comments may be submitted in the following ways:
Angela Dow by telephone at 202-366-1246, by fax at 202-366-4566, or by mail at DOT, PHMSA, 1200 New Jersey Avenue SE, PHP-30, Washington, DC 20590-0001.
The following information is provided for each information collection:
(1) Abstract for the affected annual report form; (2) Title of the information collection; (3) OMB control number; (4) Affected annual report form; (5) Description of affected public; (6) Estimate of total annual reporting and recordkeeping burden; and (7) Frequency of collection. PHMSA will request a three-year term of approval for each information collection activity and, when approved by OMB, publish notice of the approval in the
PHMSA Form F 7000-1.1 is used to report both hazardous liquid and carbon dioxide pipeline systems. PHMSA proposes adding “carbon dioxide” to the form name.
In Part J, PHMSA proposes removing the column for “Rural Low-Stress Pipeline Segments Subject ONLY to Subpart B of 49 CFR 195” because this type of pipeline does not exist.
PHMSA requests comments on the following information collection:
Comments are invited on:
(a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Texas Department of Transportation (TxDOT), Federal Highway Administration (FHWA), U.S. Department of Transportation.
Notice of limitation on claims for judicial review of actions by TxDOT and Federal agencies.
This notice announces actions taken by TxDOT and Federal agencies that are final. The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried-out by TxDOT and a Memorandum of Understanding dated December 16, 2014, and executed by FHWA and TxDOT. The actions relate to various proposed highway projects in the State of Texas. Those actions grant licenses, permits, and approvals for the projects.
By this notice, TxDOT is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of TxDOT and Federal agency actions on the highway project will be barred unless the claim is filed on or before December 10, 2018. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such a claim, then that shorter time period still applies.
Carlos Swonke, Environmental Affairs Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701; telephone: (512) 416-2734; email:
Notice is hereby given that TxDOT and Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of Texas that are listed below.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion (CE) or Environmental Assessment (EA) issued in connection with the projects and in other key project documents. The CE or EA, and other key documents for the listed projects are available by contacting TxDOT at the address provided above.
This notice applies to all TxDOT and Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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The projects subject to this notice are:
1. I-610 West Loop Dedicated Bus Lane from I-10 (Northwest Transit Center) to Post Oak Boulevard, Harris County. The project will consist of a two-lane structure over the southbound frontage road of I-610, ultimately crossing to the center of I-610. The total project length is approximately 1.5 miles with typical 12-foot lanes and 4-foot shoulders. The project will not require any additional right of way or displacements. The purpose of the project is to remove bus traffic from the I-610 West Loop and allow buses to move more efficiently and predictably between the Northwest Transit Center and the planned Bellaire/Uptown Transit Center. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion (CE) Determination approved on October 12, 2017, and other documents in the TxDOT project file. The CE Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas, 77007, (713) 802-5000.
2. Airport Boulevard, from Hiram Clarke Road to FM 521 (Almeda Road), Harris County. This project will construct a roadway facility approximately 2.5 miles in length which will connect existing fragmented segments of Airport Boulevard through undeveloped/new location areas to complete a four-lane divided boulevard between Hiram Clarke Road and FM 521. A four-lane divided roadway with a raised center median will be constructed to match the first existing boulevard section of Airport Boulevard from Hiram Clarke Road to Harris County Flood Control District (HCFCD) Channel No. C146-00-00. Airport Boulevard will be constructed on new location from HCFCD Channel No. C146-00-00 through to the intersection with Buffalo Speedway and then to the intersection with Townwood Drive. The second existing segment of Airport Boulevard will be widened from a two-lane roadway to a four-lane boulevard from Townwood Drive to the Waterloo Drive intersection. East of the Waterloo Drive intersection, Airport Boulevard will traverse the following residential streets in a northwest-southeast direction: Woodkerr Street, Lightstar Drive and Ambrose Street. East of Ambrose Street, Airport Boulevard sill continue to the southeast, on new location, crossing HCFCD Channel No. C161-00-00 and a wooded undeveloped area, curve to the northeast through a grassy area between two existing ponds, and extend through to the intersection with Clover Lane. From Clover Lane, Airport Boulevard will curve eastward and continue through an undeveloped wooded area and end at FM 521 (eastern project terminus). There are also two detention areas proposed for this project. The purpose of the Airport Boulevard roadway improvement project is to connect the existing fragmented sections of Airport Boulevard through undeveloped/new location areas to complete a four-lane divided boulevard between Hiram Clarke Road and FM 521. The proposed Airport Boulevard project will offer the traveling public a west-east alternative to the limited existing west-east travel corridors in southwest Houston. The area of southwest Houston between US 90A, Beltway 8 and SH 288 lacks roadway connectivity; the proposed Airport Boulevard will improve traffic movement and safety in this area of southwest Houston.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on July 11, 2017, the Finding of No Significant Impact (FONSI) issued on July 11, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas, 77007, (713) 802-5000.
3. FM 521, from Beltway 8 to FM 2234 (McHard Road), Fort Bend and Harris Counties. The project widens FM 521 to a typical four-lane divided curb and gutter section with a 16-foot raised median from Riley Road to FM 2234 and ties to the existing seven-lane section north of Riley Road, a distance of roughly 0.9 mile. Improvements to the intersection at FM 521 and FM 2234 provide for a “jug-handle” option that creates two offset “T” intersections (one along FM 521 and one along FM 2234). This eliminates both at-grade railroad crossings with railroad overpasses on FM 521 and FM 2234 and eliminates the four-legged intersection at FM 521 and FM 2234. The distance of the improvements on FM 2234, including the grade separation, extend approximately 0.8 mile. Improvements also include a mix of 15-foot outside lanes, six-foot shoulders, and five to six-foot sidewalks to accommodate bicyclists and pedestrians. The purpose of the project is to expand capacity to enhance mobility, improve safety, improve railroad/local traffic crossings, and accommodate population and economic growth, while minimizing impacts to the natural and social environment.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 22, 2017, the Finding of No Significant Impact (FONSI) issued on March 22, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas, 77007, (713) 802-5000.
4. FM 1960, from BF 1960-A to Atascocita Shores Drive, Harris County. Although the eastern logical terminus of the project is Atascocita Shores Drive, the project extends approximately 0.10 mile further and ties into the western end of the Lake Houston Bridge. The improved roadway from BF 1960-A to Atascocita Road and from Pinehurst Trail to Lake Houston will consist of six travel lanes (two 12-foot lanes, and one 15-foot shared lane in each direction) with one-foot curb offsets. An 18-foot raised median and two 5-foot sidewalks are also included. The improved roadway from Woodland Hills Drive to Atascocita Road will consist of a grade
5. FM 2100, from FM 1960 to South Diamondhead Boulevard, Harris County. The project will widen the existing two-lane, undivided facility to a four-lane, divided facility. North of Hare Cook Road, the improved roadway will have 12-foot travel lanes, two in each direction, separated by an 18-foot-wide median, and 12-foot outside shoulders. Five-foot sidewalks will be constructed on both sides of the roadway. South of Hare Cook Road, the roadway will also have two travel lanes in each direction; the outer lane will be a 15-foot shared use lane, along with a 12-foot-wide inner lane. This section of the roadway will also have a raised median and five-foot sidewalks.
Detention ponds will also be constructed as part of the project. The project is approximately eight miles long. The purpose of the project is to facilitate multi-modal mobility in eastern Harris County by adding additional capacity to FM 2100, as well as sidewalks and bicycle accommodations. The proposed project will also improve safety for the travelling public by constructing a raised median.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on January 20, 2017, the Finding of No Significant Impact (FONSI) issued on January 20, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas, 77007, (713) 802-5000.
23 U.S.C. 139(l)(1).
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) amends its fiduciary program regulations, which govern the oversight of beneficiaries, who because of injury, disease, or age, are unable to manage their VA benefits, and the appointment and oversight of fiduciaries for these vulnerable beneficiaries. The amendments will update and reorganize regulations consistent with current law, VA policies and procedures, and VA's reorganization of its fiduciary activities. They will also clarify the rights of beneficiaries in the program, and the roles of VA and fiduciaries in ensuring that VA benefits are managed in the best interest of beneficiaries and their dependents. The amendments to this rulemaking are mostly mandatory to comply with the law. They are also in line with the law's goals to streamline and modernize the fiduciary program and process. These amendments by Congress, reduce unnecessary regulations, streamline and modernize processes, and improve services for Veterans. Furthermore, VA is unable to alter proposed amendments that directly implement mandatory statutory provisions.
Ms. Savitri Persaud, Analyst, Pension and Fiduciary Service, Department of Veterans Affairs, 810 Vermont Ave., NW, Washington, DC 20420; (202) 632-8863 (this is not a toll-free number).
In a document published in the
This regulation will provide general notice regarding the statutory authority for and purpose of VA's fiduciary program. It will also distinguish fiduciary matters from benefit claims and clarify that the VA regulations in 38 CFR part 3 are not for application in fiduciary matters, unless VA has prescribed applicability in its part 13 fiduciary regulations. We did not receive any comments on this section, but in order to clarify the scope of these regulations and the fact that they pertain to the oversight of VA-derived monetary benefits by persons who previously have been adjudicated incompetent to manage their VA-derived funds, we have revised the text of the regulation by adding the word “monetary” between the words “VA” and “benefits” in the first sentence of § 13.10(b).
We received one comment regarding the definitions in proposed § 13.20. The commenter recommended that VA recognize all legal marriages, domestic partnerships and civil unions for the purposes of fiduciary activities, thereby adding a definition of “domestic partner” to proposed § 13.20. The commenter noted that the broad authority granted by Congress in 38 U.S.C. 5502 allows VA to add classes of appropriate fiduciaries, to include legally married partners and domestic partners to serve as fiduciaries. The commenter noted that a place-of-celebration rule would be consistent with other definitions adopted by other agencies following the Supreme Court's decision in
On June 26, 2015, the U.S. Supreme Court held that the Fourteenth Amendment of the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. See
The separate question of how to address domestic partnerships and civil unions (which are not considered legal marriages), within the scope of VA's fiduciary program, is a policy matter that was not considered during the development of the proposed regulation. As a result, expanding the definition of spouse, for purposes of VA's fiduciary program, to include domestic partners and/or civil union partners or defining those terms in this final rule would be premature. VA is sensitive to this issue and plans to consider whether to expand the “beneficiary's spouse” class of fiduciaries listed in § 13.20(e)(2) to explicitly include domestic partners and civil union partners. If VA decides to make changes, VA will promulgate a separate rulemaking to addresss this issue.
We made non-substantive changes to the proposed definitions for “Hub Manager” and “spouse” and added a definition for “written notice,” which we discuss below.
We received two comments regarding proposed § 13.30, “Beneficiary rights.” The first commenter stated that the proposed rule imposed “unnecessary restrictions” on the rights of beneficiaries. The commenter stated, “We see no reason or legal requirement that beneficiaries under this program should have fewer rights or protections than any other VA beneficiary.” The commenter questions whether “the fundamental right to control one's own property” should be based on the view of a single examiner and makes other general assertions that VA's procedures are insufficient.
We do not agree that we proposed “unnecessary restrictions” on the rights of beneficiaries, or that these procedures violate a beneficiary's rights. Our intention in drafting the NPRM was to ensure that VA benefits are managed in
In drafting the rules on beneficiary rights, we focused on our general policy that a beneficiary in the fiduciary program has the same rights as any other VA beneficiary. We specifically stated in proposed § 13.30, “The rights of beneficiaries in the fiduciary program include, but are not limited to” those listed in the regulation text. Thus, we did not propose to prescribe all of the rights of beneficiaries in the fiduciary program. We prescribed that a beneficiary has the right to written notice of appealable fiduciary decisions. However, in responding to the foregoing comment, we discovered that, although we prescribed that a beneficiary is entitled to written notice on such matters, we did not prescribe rules for the Hub Manager as to what such notice should include. As such, we revised § 13.20 to include a definition of written notice.
We prescribed the right to be informed of a fiduciary's name, telephone number, mailing address, and email address. We prescribed the right to obtain from the fiduciary a copy of the fiduciary's VA-approved annual accounting, and other rights that we believe are basic to a fiduciary-beneficiary relationship and are necessary to define a fiduciary's role in such a relationship. See 79 FR 432. We prescribed rights to clarify that VA is not the beneficiary's fiduciary and that VA's role is limited to oversight. See 79 FR 432. In that regard, in § 13.140(a), our core requirement for fiduciaries is to ensure that a beneficiary's benefits are managed in that beneficiary's interest. We do not agree that our proposed regulations limit the rights of beneficiaries and make no changes based upon the comment.
The commenter also stated that the proposed regulation on beneficiary rights is incomplete and it should prescribe a statement regarding the reasons and bases for determining that the appointment of a fiduciary is in the beneficiary's interest. We did not intend that we would make a decision on a fiduciary matter without providing adequate notice to a beneficiary regarding the reasons and bases for such a decision. However, as stated above, we revised the proposed rule to include a definition of “written notice” and to specifically prescribe such notice for certain decisions.
We proposed that every beneficiary in the fiduciary program has the right to notice regarding VA's appointment of a fiduciary or any other decision on a fiduciary matter that affects VA's provision of benefits to the beneficiary. We explained that VA would provide written notice of such decisions to the beneficiary or the beneficiary's legal guardian, and the beneficiary's accredited veterans service organization representative, attorney, or claims agent. See 79 FR 432. We explained that this notice is essential because beneficiaries would have the right to appeal these determinations. See 79 FR 432. Furthermore, we specifically proposed that a beneficiary in the fiduciary program has the right to appeal to the Board of Veterans' Appeals (Board) a VA decision on a fiduciary matter that affects VA's provision of benefits to the beneficiary, such as VA's appointment of a fiduciary and its determination regarding its own negligence in misuse and reissuance of benefits matters. To assist the beneficiary in making a decision related to appealing a decision, and to facilitate review by the Board in the event of an appeal, any decision that affects the provision of benefits must be supported by reasons for our decision, as required under the new definition for “written notice.” We revised proposed § 13.30(b)(2) to clarify that every beneficiary in the fiduciary program has the right to “written notice” regarding VA's appointment of a fiduciary or any other decision on a fiduciary matter that affects VA's provision of benefits to the beneficiary.
In responding to the foregoing comment, we noticed that a provision in proposed § 13.30 needed clarification. Specifically in proposed § 13.30(b)(10)(i)(B), we prescribed that a beneficiary has the right to be removed from the fiduciary program if a court of jurisdiction determines the beneficiary is able to manage his or her financial affairs. There are beneficiaries in the fiduciary program who are determined to be unable to manage their financial affairs by a court and without any rating decision by VA. It is our intent that these beneficiaries will have the right to be removed from the fiduciary program if the court makes a determination that the beneficiary is able to manage his or her financial affairs. Accordingly, we have revised proposed § 13.30(b)(10)(i)(B) to clarify that a beneficiary who is in the fiduciary program based upon a court determination that he or she cannot manage financial affairs may be removed from the fiduciary program if the court later determines that the beneficiary can manage his or her financial affairs. Other beneficiaries, who are in the fiduciary program as a result of a VA rating decision, may also submit evidence from a court regarding their ability to manage VA benefits. However, such evidence will be forwarded to a VA rating authority for a decision regarding whether the beneficiary is able to manage his or her VA benefits, as the rating authority has sole responsibility for making such determinations. See 38 CFR 3.353.
The same commenter also stated, “The Secretary's position that the VA fiduciary program regulations pre-empt state laws in this area deserves specific rebuttal,” adding that “the NPRM failed to establish an adequate legal basis for the disruption of a traditional area of state authority.” The commenter then went on to urge that VA recognize state fiduciary laws, which “offer a broad array of [ ] rules establishing fiduciary responsibilities.” In the proposed rule, we stated that, “in creating the fiduciary program, Congress intended to preempt State law regarding guardianships and other matters to the extent necessary to ensure a national standard of practice for payment of benefits to or on behalf of VA beneficiaries who cannot manage their benefits.” See 79 FR 430. We stand by that interpretation and make no changes based on this comment.
While state law provides some guidance concerning fiduciary matters, those laws vary significantly from state to state and do not pertain to VA's fiduciary program. Further, VA does rely on state laws in cases where a state court has appointed a fiduciary for oversight of the veteran's assets and where there is no conflict between state and Federal law, and/or when the court-appointed fiduciary is the same as the VA-appointed fiduciary. State laws often provide helpful guidance; however, under the Supremacy Clause of the Constitution, Federal law is controlling. See U.S. Const. art. VI, cl 2;
The second commenter favorably mentioned the beneficiary rights section described in the proposed rule, stating: “Overall, we believe that VA's proposed fiduciary program regulations reflect an acknowledgement of the rights of veterans and other beneficiaries who are under the jurisdiction of the program. For example, § 13.30 enumerates the rights and benefits of veterans and other beneficiaries in the program.” We make no changes based upon the comment.
We received two comments from the same commenter regarding § 13.40. First, the commenter quoted from the NPRM, which distinguished fiduciary matters from decisions on claims for benefits and noted that, at the time of a fiduciary appointment, “VA has already awarded benefits to the beneficiary, and any representation provided by an accredited attorney or claims agent would relate only to the fiduciary appointment decision or decision to pay benefits directly with VA supervision.” See 79 FR 432-33. This distinction will be the same for all fiduciary matters. Nonetheless, the commenter read this portion of the preamble to mean that VA had proposed to limit attorney fees to appointment decisions.
We intended that the portion of the preamble quoted immediately above would explain applicability of the proposed fee provisions in the context of a fiduciary appointment. We did not intend that commenters would read the preamble as a general limitation on fees, such that beneficiaries could not pay attorneys for assistance in other fiduciary matters. In fact, the introductory text to proposed § 13.40 was clear that the proposed fee provisions were applicable to representation of beneficiaries before VA “in fiduciary matters governed by [38 CFR part 13].” Proposed paragraph (c) was also clear that a VA-accredited attorney or claims agent could charge a reasonable fixed or hourly fee for representation of a beneficiary “in a fiduciary matter,” provided that the fee meets the requirements of 38 CFR 14.636. We intended that beneficiaries would have the choice of hiring an attorney or claims agent and paying the attorney or claims agent a reasonable fixed or hourly fee for assistance with any fiduciary matter. As proposed, § 13.40(c) reflected this intent and addressed the commenter's concerns. We will not make any changes based upon the comment.
Second, the commenter suggested that VA should allow contingent fees on recouped past-due benefits, to include funds recovered from a prior fiduciary or placed under control of a successor fiduciary. However, as we explained in the preamble to the proposed rule, “the provisions of 38 CFR 14.636 that reference past-due benefits, use the amount of past-due benefits to calculate a permissible fee, or authorize the direct payment of fees by VA out of withheld past-due benefits are not applicable in fiduciary matters.” See 79 FR 432. We based this statement on the fact that fiduciary matters do not concern the award of past-due benefits. At the time of a fiduciary appointment and all other fiduciary program matters, VA has already awarded benefits to the beneficiary, and any representation provided by an accredited attorney or claims agent could relate only to the fiduciary matter. Even in the case of a retroactive benefit payment, see § 13.100(c), VA has already awarded the benefit pursuant to a decision on a benefit claim and withheld it for payment to a qualified fiduciary on behalf of the beneficiary. An attorney representing a beneficiary in the fiduciary appointment could not claim that his or her legal services resulted in VA's prior award of the retroactive benefit.
The commenter also appears to assert that, independent of any payment of past-due benefits, a contingent fee could be calculated based upon the amount of funds being placed under the control of a fiduciary who is “acceptable to the client,” and that “this methodology has been submitted for review to fiduciary program managers and was found to be compliant with regulations.” The method proposed by the commenter would require a finding on the amount of the funds placed under the control of the successor fiduciary and a conclusion that the successor fiduciary was “acceptable to the client.” As mentioned above, the amount of VA benefits due to the beneficiary would not change. The commenter's suggested revision would add unnecessary complexity to fee determinations in fiduciary cases, and would risk creating a conflict of interest for the representative by increasing the chances that fees charged based upon representation on benefit claims are duplicated by fees charged for representation on fiduciary matters. As a result, we have concluded that it would not be a prudent revision and make no change based on this comment.
We received one comment regarding proposed § 13.50. The commenter read the proposed provisions to mean that a Hub Manager may suspend and “hold” payment of benefits, and generally commented that VA must ensure that beneficiaries have access to their benefits when VA implements a suspension for the reasons prescribed in the proposed rule in which we agree.
VA occasionally encounters situations in which it must suspend payment of benefits to a fiduciary and take appropriate action to ensure continuity of benefits. In the rare case where VA suspends benefits under proposed § 13.50, the VA Regional Office Director who has jurisdiction over the fiduciary hub would have authority to ensure that the beneficiary's needs are being met through the appropriate coordination with the beneficiary and disbursement of the beneficiary's funds. We emphasized that proposed § 13.50 would be reserved for those rare cases in which VA has no option but to take appropriate, temporary steps to suspend and separately manage disbursement of benefits on behalf of a beneficiary. To further limit any adverse impact that might result from such a suspension, we proposed to limit the Hub Manager's discretion to cases where the beneficiary or the beneficiary's representative withholds cooperation in any fiduciary matter or where VA must immediately remove the fiduciary for cause and is unable to appoint a successor fiduciary before the beneficiary has an immediate need for disbursement of funds. Under these two situations only, VA will be forced to take appropriate action and disburse funds in the beneficiary's and the beneficiary's dependents' interests so that the beneficiary has access to the funds while VA takes steps to remediate the problem. We will not make any changes based upon the comment because we believe that controls prescribed in § 13.50 address the commenter's concerns.
We received several comments regarding proposed § 13.100. One commenter suggested that VA establish a maximum time period for appointing a fiduciary once a beneficiary has been rated as being unable to manage his or
VA makes every effort to appoint fiduciaries in accordance with internal performance goals. Furthermore, VA's appointment process ensures that the appointment reflects the beneficiary's current capacity to manage his or her funds. In our experience in administering the fiduciary program, each fiduciary appointment is unique. The time it takes to appoint a fiduciary varies depending upon the facts of individual cases, workload, program growth, and available resources. Because of the foregoing factors, we cannot create a bright-line rule for the completion of the investigation process or the appointment of a fiduciary that would be enforceable. While we will not change § 13.100 to establish a timeliness rule, VA takes seriously its responsibility to protect beneficiaries who are unable to manage their benefits and will make every effort to improve the timeliness of fiduciary appointments.
Regarding concerns that long delays in appointments should require reconsideration of medical evidence as to the beneficiary's ability to manage his or her VA benefits, we agree that medical evidence plays an important role in the determination of one's ability to manage his or her VA benefits and a beneficiary should have an opportunity to present such evidence. According to 38 CFR 3.353(c), “[u]nless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities.” At the time a fiduciary is appointed, a field examiner performs a face-to-face interview with the beneficiary for the purpose of assessing the beneficiary's ability to manage his or her VA benefits and to afford the beneficiary the opportunity to submit evidence regarding his or her ability to manage VA benefits. Any information gathered at that face-to-face interview is forwarded to the rating agency for consideration as to whether the beneficiary has the ability to manage his or her VA benefits. This is consistent with a pertinent regulation that provides that if evidence is developed that a person is capable of managing his or her VA funds, that evidence is forwarded to the rating agency for a determination as to whether any prior decision of incompetency should remain in effect. See 38 CFR 3.353(b)(3). Therefore, if a beneficiary believes he or she is able to manage his or her VA benefits, including at the time of a fiduciary appointment, the beneficiary may request a review of his or her incompetency rating.
Regarding the commenter's concern that delayed fiduciary appointments could replace “well-functioning caregiving structures with adversarial relationships,” we did not intend to disturb well-functioning relationships with those that are adversarial. In fact, we did not propose to appoint a particular fiduciary if we believed such an appointment would create an adversarial relationship. Instead, we proposed to make every effort to appoint a fiduciary that would best serve the interest of a beneficiary, provided that the proposed fiduciary is qualified and willing to serve. In § 13.100(e), we proposed to establish an order of preference for the appointment of fiduciaries. We proposed to first appoint the beneficiary's preference if the beneficiary has the capacity to state such a preference. In these cases, a beneficiary could request appointment of a person with whom he or she has a well-functioning relationship. We then proposed to appoint the beneficiary's spouse or other individuals or entities as set forth in proposed § 13.100(e) that we believed would result in an effective beneficiary-fiduciary relationship. Furthermore, pursuant to § 13.600, a beneficiary may appeal VA's appointment of a fiduciary if the beneficiary believes that the appointment is not in his or her best interest. When VA receives such an appeal, it will try to resolve the disagreement by again requesting the beneficiary's preference. For the foregoing reasons, we make no change based on this comment.
The same commenter stated that VA should revise proposed § 13.100 to require a credit and criminal history check at each reappointment of a fiduciary and conduct periodic, routine credit and criminal history checks on fiduciaries thereafter. The commenter noted that such requirement would be cost-effective and identify suspicious financial activities.
In § 13.100, we proposed to implement 38 U.S.C. 5507 regarding the investigation VA must conduct of a prospective fiduciary. We proposed to perform a face-to-face interview, when practicable, and obtain and review a credit report on the proposed fiduciary that was issued by a credit reporting agency no more than 30 days prior to the date of the proposed appointment. We also proposed to conduct a criminal background check for the purposes of determining whether a proposed fiduciary was convicted of any offense that would be a bar to serving as a fiduciary under proposed § 13.130 or that we could consider and weigh under the totality of the circumstances regarding the proposed fiduciary's qualifications.
Regarding this investigation, we agree with the commenter and revised § 13.100(f) to add paragraph (3), which requires the Hub Manager to conduct the investigation, specifically the requirements of paragraph (f)(1)(i) through (iii), for every subsequent appointment of the fiduciary for a beneficiary. These requirements must be met without regard to the proposed fiduciary's service to any other beneficiary. Regarding the commenter's suggestion that we conduct periodic, routine credit and criminal history checks of fiduciaries, in proposed § 13.100(f)(2), we prescribed that, at any time after the initial appointment of the fiduciary, the Hub Manager may repeat all or part of the investigation to ensure that a fiduciary continues to meet the qualifications for service. Although we understand the commenter's concern, our program administration experience suggests that periodic, routine checks in all fiduciary appointments would not be an efficient use of program resources. Instead, we have determined that the matter should be left to the Hub Manager's discretion on a case-by-case basis. In addition, we have other controls in place that will alert us regarding the need for a review of a fiduciary's qualifications or to remove him or her from service as fiduciary. For example, if a fiduciary is not meeting his or her accounting requirements under § 13.280, or any of his financial responsibilities under § 13.140, based on the circumstances, we will conduct a review of his or her qualifications or remove him or her from service as a fiduciary. Although we currently do not have information to support prescribing mandatory periodic, routine credit and criminal history checks of VA-appointed fiduciaries, we will continue to monitor the activities of fiduciaries and may address the matter in a future rulemaking. To this end, we added the phrase “or reappointment” after initial appointment in § 13.100(f)(2) to clarify
In a separate comment on proposed § 13.100, the same commenter stated that face-to-face beneficiary interviews should be limited to situations where the information sought cannot be obtained by other means. The commenter was not aware of any statutory requirement for this type of beneficiary interview. The commenter suggested that beneficiary interviews do not provide new information and VA could substitute information obtained from caregivers, medical providers or other third parties. The commenter believed that beneficiary interviews are for the purpose of establishing the “financial needs of the beneficiary and set[ting] the budget for the fiduciary to implement.” Thus, the commenter suggested we revise proposed § 13.100 to limit beneficiary interviews to situations where the beneficiary is the only source for the information we are seeking.
Under current law, “[w]here it appears to the Secretary that the interest of the beneficiary would be served thereby, payment of benefits under any law administered by the Secretary [of Veterans Affairs] may be made directly to the beneficiary or to a relative or some other fiduciary for the use and benefit of the beneficiary, regardless of any legal disability on the part of the beneficiary.” See 38 U.S.C. 5502(a)(1). Our longstanding interpretation of this broad authority is that VA may establish a fiduciary program, under which it oversees beneficiaries who cannot manage their own VA benefits. Congress generally deferred to VA to determine the appropriate program requirements. With respect to specific statutory requirements for fiduciary appointments, VA must conduct the investigation prescribed in 38 U.S.C. 5507 and then conduct sufficient oversight to determine whether fiduciaries are properly providing services for beneficiaries. While Congress specifically mandated the foregoing provisions, Congress did not address how VA should conduct the various activities required for proper administration of the fiduciary program, to include aspects of oversight to ensure that a beneficiary's benefits are used for the “benefit of the beneficiary.” However, in 38 U.S.C. 5711(a)(5), Congress authorized VA to, among other things, “make investigations and examine witnesses upon any matter within the jurisdiction of the Department.” Under the authority in sections 5502 and 5711, we conduct face-to-face visits with beneficiaries to assess their well-being and oversee the fiduciaries we appoint to ensure they are meeting the beneficiaries' needs.
Contrary to the commenter's reading of our proposed rule, VA conducts face-to-face beneficiary visits for a much broader purpose. It is VA's statutory obligation to ensure that the fiduciaries it appoints on behalf of beneficiaries are fulfilling their core requirement of monitoring the well-being of the beneficiaries they serve and are disbursing funds according to the beneficiaries' needs. Speaking with the beneficiary and viewing that beneficiary's environment allows VA to confirm that the fiduciary is monitoring the beneficiary and fulfilling his or her responsibilities under § 13.140 as the beneficiary's fiduciary. In addition, VA assesses the beneficiary's ability to manage his or her VA funds during the face-to-face visit. Thus, speaking to a beneficiary is crucial for obtaining information about the welfare and financial abilities of the beneficiary and adequacy of the fiduciary's services. For these reasons, we will not revise § 13.100 to limit face-to-face visits with beneficiaries.
One commenter noted 38 U.S.C. 5507(d), which states that temporary fiduciary appointments may not exceed 120 days in cases where a beneficiary is appealing an incompetency rating decision, and inquired about our policy regarding appeals of incompetency rating decisions that may take more than 120 days.
Regarding the commenter's concern that a beneficiary may be without a fiduciary at the end of the 120-day period, we note that VA does not appoint a temporary fiduciary in lieu of a permanent fiduciary when the beneficiary is appealing an incompetency rating. Under section 5507(d), “[w]hen in the opinion of [VA], a temporary fiduciary is needed in order to protect the assets of the beneficiary while a determination of incompetency is being made or appealed. . . , [VA] may appoint one or more temporary fiduciaries for a period not to exceed 120 days.” We interpret this statute to mean that VA does not have to appoint a temporary fiduciary in these cases, but if it does, the appointment(s) cannot exceed a total of 120 days. Under VA's current administration of the program, when a beneficiary is appealing an incompetency decision, the beneficiary is already rated as being unable to manage his or her VA benefits and is in the fiduciary program. The decision is based on medical evidence or a legal determination of incompetency. As a general rule, VA makes permanent fiduciary appointments pending a decision on the appeal of the incompetency decision, which may take one or more years. We have found that this policy best protects beneficiaries and is the least disruptive procedure for them. In fact, we intended that our proposed rules on temporary fiduciary appointments would be reserved for situations where VA has removed a fiduciary for the reasons prescribed in proposed § 13.500, cannot expedite a successor fiduciary appointment, and the beneficiary has an immediate need for fiduciary services. We revised proposed § 13.100 by removing paragraph (h)(1)(i) requiring appointment of a temporary fiduciary when a beneficiary is appealing an incompetency decision.
In § 13.100(h)(2), we proposed to limit appointment of temporary fiduciaries to individuals and entities that already meet the qualification criteria for appointment and are performing satisfactorily as a fiduciary for at least one other VA beneficiary for whom the fiduciary has submitted an annual accounting that VA has audited and approved. A commenter disagreed with the proposed limitation on temporary appointments and suggested that our proposed rule would exclude family members, including spouses and other caregivers, from serving as temporary fiduciaries. The commenter stated that we did not provide a sufficient basis for not considering the usual order of preference, as proposed in our regulations, in temporary fiduciary appointments.
In prescribing the rules on temporary fiduciary appointments, our intention is to expeditiously appoint a qualified, well-performing fiduciary, who can temporarily meet the beneficiary's immediate needs in rare circumstances. In that regard, we intend to ensure that the entity or individual we appoint as temporary fiduciary not only meets the qualification requirements under section 5507, but is also performing satisfactorily as a fiduciary for at least one other VA beneficiary for whom the fiduciary has submitted an annual accounting that VA has approved. Both requirements are crucial in our decision to appoint a temporary fiduciary.
VA needs to appoint temporary fiduciaries promptly in rare cases where VA has removed a fiduciary for the reasons prescribed in proposed § 13.500, VA cannot expedite the appointment of a successor fiduciary, or the beneficiary has an immediate need for fiduciary services, and in other cases in which VA determines that it is necessary to protect
Under proposed § 13.100(c), “[t]he Hub Manager will withhold any retroactive, one-time, or other lump-sum benefit payment awarded to a beneficiary . . . until the Hub Manager has appointed a fiduciary for the beneficiary and, if applicable, the fiduciary has obtained a surety bond under § 13.230.” A commenter stated that VA should not withhold a beneficiary's entire retroactive benefit but should consider the size of the award before we make a decision to withhold. The commenter believed that VA should release any amount that is not larger than a beneficiary's monthly recurring benefits and a percentage of larger retroactive benefits, or provide a method for a beneficiary to access his or her retroactive benefits in order to ensure that his or her needs are being met.
Our policy for withholding a beneficiary's retroactive benefits is to protect benefits that the beneficiary may need for future care and services and that VA would not be able to reissue under 38 U.S.C. 6107 if they were paid directly to the beneficiary prior to a fiduciary appointment. Under sections 6107(a) through (c), VA has authority to reissue misused benefits when VA is negligent in administering aspects of the fiduciary program or, without regard to negligence, when the fiduciary is an entity that provides fiduciary services for one or more beneficiaries or an individual who provides fiduciary services for 10 or more beneficiaries. VA has determined that it is not prudent to release retroactive benefits to a beneficiary prior to a fiduciary appointment because, at that point in the process, VA has already determined that the beneficiary cannot manage his or her VA benefits. Moreover, VA's authority to reissue benefits is limited to cases of fiduciary misuse. If VA released a beneficiary's retroactive award prior to a fiduciary appointment and a family member, care provider, or other person assisting the beneficiary misappropriated the funds, VA would be unable to reissue benefits to the beneficiary because there would not have been misuse by an appointed fiduciary. For this reason, we proposed § 13.100(c) with the intent of preserving vulnerable beneficiaries' VA benefits for their future needs.
Regarding the commenter's suggestion that we release smaller amounts of retroactive benefits and portions of larger retroactive benefits to the beneficiary prior to a fiduciary appointment, or add provisions to ensure the beneficiary's needs are being met, we have determined that current fiduciary program policy, under which VA initiates and continues payment of monthly benefits to the beneficiary while a fiduciary appointment is pending, strikes the proper balance between ensuring that beneficiaries' current needs are met with protection of lump-sum benefit payments for future needs. For the foregoing reasons we will not make any changes based on this comment.
One commenter, a corporate fiduciary, suggested that proposed paragraph (d)(3) would not adequately restrict a Hub Manager's discretion in fiduciary appointments. In proposed § 13.100(d) regarding initial fiduciary appointments, we did not propose to prescribe a specific limit on the number of beneficiaries a single fiduciary could serve. We had no data to support proposing a bright-line rule for discontinuing further appointments to a fiduciary and determined that each Hub Manager should have discretion to determine whether it is in a beneficiary's interest to appoint a particular fiduciary. However, to avoid default appointments to certain paid fiduciaries in lieu of the best interest determination required by 38 U.S.C. 5507(a)(2), we did not propose to give the Hub Managers unfettered discretion in such matters. First, under proposed paragraph (d)(3), a Hub Manager would consider whether the fiduciary could handle an additional appointment without degrading the service that the fiduciary provides to any other beneficiary who has funds under management with the fiduciary. Second, under proposed paragraph (e), we would establish an order of preference for appointing fiduciaries, with the result being that beneficiaries generally have a one-on-one relationship with a volunteer family member, friend, or caregiver fiduciary. In our view this placed an adequate check on the Hub Manager's discretion in these situations. On a case-by-case basis, a Hub Manager may consider appointment of a single fiduciary with multiple appointments if it is in the best interest of the beneficiary.
This commenter clarified that it was not seeking a higher order of preference in the appointment process or a bright-line rule for the maximum number of beneficiaries that a fiduciary may serve, and understood that VA might have a valid business reason to restrict further appointments of a fiduciary in some cases. However, the commenter expressed concern that certain paid fiduciaries would not have an equal opportunity to compete for appointments in those cases where VA cannot appoint a qualified volunteer fiduciary. Although we considered the commenter's concerns, we believe VA's primary obligation is to act in the best interest of its beneficiaries and will allow Hub Manager discretion in the appointment process in the event a paid fiduciary is required. Accordingly, other than a technical change to § 13.100(e), we are not making any changes to § 13.100 based upon the commenter's suggestion.
Finally, one commenter suggested that VA's fiduciary regulations accommodate durable power of attorneys (POAs). We interpret this to mean that VA should give appointment preference to the person who holds the beneficiary's POA.
Based upon VA's experience, it would not be good policy to give a person holding a beneficiary's POA priority based only upon the existence of a POA. Veterans and other beneficiaries in the fiduciary program can be extremely vulnerable and easily coerced into signing documents. Additionally, a POA can be executed and revoked by the beneficiary at any time. If an individual is holding a POA, VA would have no
In § 13.120(b), we proposed to prescribe the scope of field examinations, which could include, but would not be limited to, “[a]ssessing a beneficiary's and the beneficiary's dependents' welfare and physical and mental well-being, environmental and social conditions, and overall financial situation, based upon visiting the beneficiary's current residence and conducting a face-to-face interview of the beneficiary and the beneficiary's dependents, when practicable.” We also proposed that, among other things, VA would conduct a field examination for the purpose of making appropriate referrals in cases of actual or suspected physical or mental abuse, neglect, or other harm to a beneficiary, as well as when investigating allegations that a fiduciary has misused funds or failed to comply with the responsibilities of a fiduciary under § 13.140.
We received two comments regarding this proposed regulation. One commenter shared his story of his mother leaving her home to care for him after he was injured in combat. The commenter's mother participates in the VA caregiver support program administered by the Veterans Health Administration (VHA). The commenter recommended that VA exempt beneficiaries who have VHA-approved caregivers from the home visit component of a field examination because VHA is already monitoring the well-being of these beneficiaries. Another commenter had the same concerns. We agree that beneficiaries whose family members are actively participating in the VA caregiver support program, and who remain eligible to participate in this program, should generally be exempted from the home visit component of the fiduciary field examination because VHA is already assessing their physical well-being.
In 2010, the President signed into law the Caregivers and Veterans Omnibus Health Services Act of 2010. Section 101(a)(1) of that law added a new 38 U.S.C. 1720G to title 38, U.S.C., which required VA to establish a program of comprehensive assistance for family caregivers of eligible veterans and a program of support services for caregivers of covered veterans, which are collectively referred to as the Caregiver Support Program. Congress mandated, among other things, that as part of the program of comprehensive assistance for family caregivers, “[t]he Secretary shall monitor the well-being of each eligible veteran receiving personal care services under the program [and] . . . ensure appropriate follow-up regarding findings [by] . . . [v]isiting an eligible veteran in the eligible veteran's home to review directly the quality of personal care services provided to the eligible veteran.” See 38 U.S.C. 1720G(a)(9)(A), (C). The statute further prescribes that VHA may take corrective action, including providing additional training or suspending or revoking the caregiver's approval or designation. See 38 U.S.C. 1720G(a)(9)(C)(ii). The implementing regulations provide: “The primary care team will maintain the eligible veteran's treatment plan and collaborate with clinical staff making home visits to monitor the eligible veteran's well-being, adequacy of care and supervision being provided. This monitoring will occur no less often than every 90 days, unless otherwise clinically indicated, and will include an evaluation of the overall health and well-being of the eligible veteran.” See 38 CFR 71.40(b)(2).
Based on the foregoing oversight mandated by Congress and provided by VHA, we have decided to generally exempt beneficiaries who have a VHA-approved and monitored family caregiver from the home visit component of field examinations because VHA already assesses their physical well-being and environment. In these cases, VHA's oversight overlaps with the fiduciary program's oversight that we proposed. We do not intend to intrude on these beneficiaries, as we believe VHA provides ample oversight. In fact, we respect the relationship of veterans and their family members, and appreciate the ability to revise our rules to limit any unnecessary or duplicative oversight. In that regard, we will revise § 13.120 to reflect that VA will generally exempt beneficiaries who have a family member participating in the VA caregiver support program from face-to-face visits in the home to assess their physical well-being and environment. Specifically, we revise § 13.120 to add paragraph (b)(1)(i) and prescribe that the Hub Manager will waive the requirements of paragraph (b)(1) of this section if the beneficiary has a VHA-approved family caregiver and VHA reports that the veteran is in an excellent situation. However, we prescribe an exception in new paragraph (b)(1)(ii), which states that the provisions of paragraph (b)(1)(i) do not apply in cases where the Hub Manager has information concerning the beneficiary's unmet needs or welfare or information that the fiduciary has violated his or her responsibilities under § 13.140. This exception allows VA to ensure that a fiduciary is meeting his or her obligations to the beneficiary based upon current information that the Hub Manager obtains in the course of overseeing fiduciary services. In the event there is an allegation of misuse of a veteran's VA funds under management or an allegation that a fiduciary is neglecting a beneficiary or there is insufficient evidence to determine the veteran's well-being, this exception will allow the Hub Manager to provide appropriate oversight.
However, VA will still conduct a face-to-face visit, any necessary investigations, or other inquiries to confirm the qualifications of a family caregiver seeking to provide fiduciary services for a veteran prior to appointment. VA must conduct the investigation prescribed by Congress in 38 U.S.C. 5507, which includes conducting a face-to-face interview with the proposed fiduciary to the extent practicable, before appointing a person as fiduciary.
We received two comments regarding § 13.130. One commenter stated that his comment is specifically geared towards VA's need to coordinate with state courts with jurisdiction over adult guardianship and conservatorship. The commenter cited two U.S. Government Accountability Office reports—“Guardianships: Collaboration Needed to Protect Incapacitated Elderly People” (2004) and “Incapacitated Adult: Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement” (2011). Both reports discussed the lack of coordination in sharing information between the state courts handling guardianships, the VA fiduciary program, and the Social
The topic of coordinating with guardianship courts and other governmental agencies is beyond the scope of this rulemaking. However, it is our current practice to coordinate with courts and other agencies and share information when it is appropriate or necessary. We will continue to work on any necessary protocols for coordinating and information sharing between courts, VA and other agencies. Nonetheless, we agree with the commenter's suggestion that VA revise § 13.130 to bar a fiduciary from service if he or she has been removed as legal guardian by a court for misconduct. At this time, we decline to bar service as a fiduciary based solely upon a court sanction or other discipline short of removal. We anticipate situations where it is in the best interest of a particular beneficiary for VA to appoint a guardian, such as a family member or care provider, who has been disciplined by a court but not removed from service as a beneficiary's guardian.
There are various reasons a court-appointed guardian may be sanctioned by a court and his or her appointment may not pose a risk to the beneficiary or still be in best interest of the beneficiary. We believe it is best to retain the ability to assess these situations on a case-by-case basis. We intend to weigh the totality of the circumstances regarding the proposed fiduciary's qualifications and other factors, including any court discipline while serving as a guardian, in determining whether the appointment is in the beneficiary's best interest.
Also, to mitigate the risk of appointing as fiduciary a legal guardian who has been disciplined by a court, we proposed under § 13.140(d)(1) that a fiduciary who is also appointed by a court must annually provide to VA a certified copy of the accounting provided to the court or facilitate VA's receipt of such an accounting. In addition, in § 13.500(a)(2)(ii), we proposed to remove a fiduciary if he or she fails to maintain his or her qualifications or does not adequately perform the responsibilities of a fiduciary prescribed in § 13.140. Thus, a fiduciary will be removed if the continuation of his or her appointment poses a risk to the beneficiary.
Accordingly, we will revise this section to add paragraph (b)(6) regarding a bar to service as a fiduciary if a guardian has been removed from service by a court for misconduct but do not make any additional changes based on these two comments.
Another commenter recommended that VA expand the 10-year period in proposed § 13.130(a)(2)(i) to 20 years following the conviction of a felony as a bar to appointment or continuation of service as fiduciary. The commenter submitted two papers in support of the recommendation and claimed that both support the conclusion that a person who is crime free for 20 years is “less likely” to commit a crime than a person who has been crime free for 10 years. However, the research presented does not support the recommendation that there is value in waiting an additional 10 years,
One of the papers submitted by the commenter cites to a 1994 Bureau of Justice Statistics (BJS) study, “Recidivism of Prisoners Released in 1994” (June 2002), which tracked 272,111 former inmates for 3 years after their release from prison in 1994. The study found that 30 percent of the 272,111 were rearrested for a new crime within the first 6 months of their release; 44 percent were rearrested within the first year; 59 percent were rearrested within the first 2 years; 68 percent were rearrested within 3 years.
The BJS collects criminal history data from the Federal Bureau of Investigation and state record repositories to study the recidivism patterns of various offenders, including persons on probation or discharged from prison. Its latest study, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010” (April 2014), tracked the recidivism patterns of about 400,000 persons released from state prisons in 2005. The study found that 28 percent of the 400,000 were rearrested for a new crime within the first 6 months of their release; 44 percent were rearrested within the first year; 60 percent were rearrested within 2 years; 68 percent were rearrested within 3 years; and 77 percent were rearrested within 5 years. See
Another report, “State of Recidivism—The Revolving Door of America's Prisons” (April 2011), prepared by the Pew Center on the States (Pew) in collaboration with the Association of State Correctional Administrators was based on a survey of state corrections departments. This report noted that 41 states provided recidivism data on prisoners released in 2004, and 33 states provided data on prisoners released in 1999. The responding states represented 87 percent of all releases from state prisons in 1999 and 91 percent of all releases in 2004. “In the first ever state-by-state survey of recidivism rates, state corrections data show that nearly 43 percent of prisoners released in 2004, and 45 percent of those released in 1999, were reincarcerated within three years, either for committing a new crime or violating the terms of their supervised release.” See
In further consideration of the comment to expand the 10-year period to 20 years, we looked at industry standards for guidance. There are no bright-line rules used by states or SSA for the appointment of convicted felons. Although all fifty states and the District of Columbia have enacted guardianship statutes, there is a lack of statutory consistency among the states regarding the appointment of a guardian who was convicted of a felony, and how long after a conviction one should be barred from serving. Research revealed three distinct categories of state laws concerning the eligibility of guardianship candidates with past felony convictions. Some states' statutes prescribed a complete disqualification of a past felon as guardian. See,
SSA obtains information on whether a prospective representative payee was convicted of any offense under Federal or state law and sentenced to a period of imprisonment for more than 1 year before appointment. As a general rule, SSA will not appoint a convicted felon as a representative payee unless it cannot identify a suitable payee, there is no risk to the beneficiary, and the appointment is in the best interest of the beneficiary. Thus, although SSA considers certain crimes an absolute bar to service as a representative payee, it may still appoint a convicted felon if it determines that the appointment is in the best interest of the beneficiary. See 20 CFR 416.622, 416.624.
We proposed a general rule that a felony conviction is a bar to appointment or continuation of service as a fiduciary for the 10-year period following the conviction, provided that the conviction is not for fraud, financial crimes, or the abuse or neglect of another person, all of which would be a permanent bar to serving as a fiduciary. See 79 FR 437. The commenter's suggestion that we should revise the rule by lengthening the look-back period “to a period longer than ten years” because a research study on the usefulness of criminal background checks stated that a violent offender is “less likely” to commit a crime if he or she has been crime free for 20 years does not mean that it would be good policy to wait longer than 10 years to appoint a person VA finds appropriate to act as fiduciary for the beneficiary, particularly when the person is the beneficiary's choice, it is the least restrictive option, and in most cases is the beneficiary's family member.
We proposed that we could appoint a convicted felon after 10 years only if we determine that there is no other person or entity willing and qualified to serve, there is no risk to the beneficiary, and such appointment is in the beneficiary's interest. See 79 FR 437. We intend with the foregoing criteria in place, we will not appoint a person that may pose a risk to the beneficiary. In addition, in § 13.500, we proposed to promptly remove a fiduciary if he or she poses a risk to a beneficiary after appointment. We believe that the measures we have in place will allow us to carefully consider a prospective fiduciary, who was convicted of a felony more than 10 years prior to consideration for appointment, to determine whether it is in the beneficiary's best interest to have such person serve as fiduciary. Therefore, we make no change based on this comment.
In § 13.130, we proposed that an individual or entity may not serve as a fiduciary for a VA beneficiary if the individual or entity was convicted of a financial crime,
The nature of specific offenses included within the phrase dishonesty and deception as expressed in Federal regulations and state rules varies. For example, banking regulations define dishonesty as the following: “[D]irectly or indirectly to cheat or defraud, to cheat or defraud for monetary gain or its equivalent, or to wrongfully take property belonging to another in violation of any criminal statute. Dishonesty includes acts involving a want of integrity, lack of probity, or a disposition to distort, cheat, or act deceitfully or fraudulently, and may include crimes which federal, state or local laws define as dishonest.” See 12 CFR 585.40. Department of Labor regulations define “fraud or dishonesty” as encompassing “all those risks of loss that might arise through dishonest or fraudulent acts in handling of funds” and note that, under state law, “the term `fraud or dishonesty' encompasses such matters as larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, wrongful conversion, willful misapplication or any other fraudulent or dishonest acts resulting in financial loss.” See 29 CFR 453.12.
Furthermore, crimes of dishonesty and deception can be either a felony or misdemeanor offense, depending on the jurisdiction and crime. In addition, sentences for such crimes may differ widely. As a result, not all crimes of dishonesty and deception will be a bar to service as fiduciary. For purposes of our proposed regulations, we defined a felony offense to mean a criminal offense for which the minimum period of imprisonment is 1 year or more, regardless of the actual sentence imposed or the actual time served. We further explained that such a conviction is not a bar to serving as a fiduciary if the conviction occurred more than 10 years preceding the proposed date of appointment and the crime is not one of the crimes listed in proposed § 13.130(a)(2)(ii). We believe our proposed rules on bars to service provide the correct level of detail to effectively consider a potential fiduciary's criminal background and the best interests of beneficiaries. Therefore, we will monitor the implementation of this rule to ensure that it adequately protects beneficiaries but will not make any changes at this time based on this comment.
We received several comments regarding proposed § 13.140. In paragraph (c) we proposed that a fiduciary's non-financial responsibilities, among other things, will include contacting social workers or mental health professionals regarding the beneficiary, when necessary. One commenter recommended we include as a part of this responsibility that a fiduciary also contact a court-appointed guardian or conservator regarding the beneficiary when necessary. We agree. Without such contact, a fiduciary might not be able to determine whether a beneficiary's needs are being met by the fiduciary's disbursement of funds. In proposing paragraph (c), we intended that fiduciary responsibilities would include an obligation to monitor the beneficiary's well-being and report any concerns to appropriate authorities, or anyone legally tasked with ensuring the beneficiary's well-being. Amending this rule to include contact with a legal guardian or conservator is consistent with our intent. We therefore revise paragraph (c)(1) to state, “The fiduciary's primary non-financial responsibilities include, but are not limited to . . . Contacting social workers, mental health professionals, or the beneficiary's legal guardian regarding the beneficiary, when necessary.”
One commenter, citing 38 U.S.C. 5507, noted that our “principal responsibility in appointing a fiduciary is to determine [his or her] fitness to serve as a fiduciary.” The commenter noted that we nonetheless tasked a fiduciary with financial and non-financial responsibilities, that proposed § 13.140(a) calls for a fiduciary to monitor the beneficiary's well-being, and that proposed § 13.140(c) states that a fiduciary has non-financial responsibilities that “include but are not limited to[,]” seven specific enumerated responsibilities. The commenter stated that the proposed “not limited to” language is vague, particularly when the
The commenter is correct that under section 5507 VA has authority to ensure that a person or entity appointed as fiduciary for a beneficiary is fit to serve. However, under 38 U.S.C. 5502(a)(1) Congress also authorized VA to make benefit payments to a fiduciary on behalf of a beneficiary if it appears to VA that such payment will serve the interest of the beneficiary. Under this authority, it is VA's obligation to oversee the fiduciaries it appoints to manage VA benefits on behalf of beneficiaries, and this oversight includes prescribing fiduciary responsibilities. While we may appoint a fiduciary pursuant to the requirements in section 5507, and remove them pursuant to our oversight authority under section 5502(a)(1) and (b), prior to this rulemaking, we provided no binding notice to beneficiaries and fiduciaries regarding the responsibilities of fiduciaries in VA's program. For this reason, we proposed to prescribe the core requirements for all fiduciaries, which are to monitor the well-being of the beneficiaries they are appointed to serve and to disburse funds according to beneficiary needs. Prescribing these requirements is consistent with Congress' intent when it authorized VA to create the fiduciary program. As we explained in the proposed rule, our intention is to change the culture in the fiduciary program to ensure that the fiduciary we appoint determines the beneficiary's needs and disburses funds to address those needs in the beneficiary's interest. See 79 FR 438. We explained that VA is not the fiduciary for the beneficiary and must defer to the fiduciary consistent with VA regulations. See 79 FR 438.
We also proposed to prescribe fiduciaries' specific non-financial responsibilities. These responsibilities generally concern a fiduciary's obligation to monitor the beneficiary's well-being and report any concerns to appropriate authorities, including any legal guardian for the beneficiary. These responsibilities, among other things, reinforce VA's view that a fiduciary must maintain regular contact with a beneficiary and be responsive to beneficiary requests.
Furthermore, we used the “include, but are not limited to” language in paragraph (c) to clarify that the relationship between the beneficiary and fiduciary must be defined by each beneficiary's needs. This rulemaking provides the minimum expectations for the fiduciaries whom VA appoints but recognizes that fiduciaries may have additional responsibilities to particular beneficiaries depending upon the fiduciary-beneficiary relationship and the beneficiary's individual needs.
Regarding the commenter's concern that a fiduciary could be removed for any unknown reasons as a result of the “include, but are not limited to” language, the alternative is to list all possible non-financial responsibilities of a fiduciary, which is impossible because of all the unique circumstances specific to individual beneficiaries. Rather, consistent with VA's intent to emphasize the fiduciary's responsibility for not only managing the beneficiary's VA funds, but also monitoring the beneficiary's general well-being, we believe § 13.140 provides sufficient guidance regarding our expectations for a fiduciary. Moreover, a fiduciary may always consult with a Fiduciary Hub regarding the scope of his or her duties and responsibilities relating to a particular beneficiary. Prior to initiating removal action, VA will thoroughly investigate any alleged misconduct or failure to satisfy responsibilities by a fiduciary and assess whether to pursue removal action. Furthermore, we explained in the preamble to proposed § 13.600 that, although the Court of Appeals for Veterans Claims' holding in
One commenter cited to the preamble of the proposed rule on accountings, which stated that “[c]urrent policy also recognizes, based upon VA's experience in administering the program, that the burden of preparing, submitting, and auditing accountings outweighs any oversight benefit for many beneficiaries and VA.” See 79 FR 444. The commenter interpreted this statement as VA's acknowledgement that certain fiduciary responsibilities are burdensome. The commenter suggested that a fiduciary's financial responsibilities are burdensome and technical, and complained that VA would require family member fiduciaries to be fiscal managers, prudent investors and financial planners. The commenter suggested that VA instead promulgate rules regarding VA's responsibilities to fiduciaries, to include providing family member fiduciaries with technical support and software to carry out their financial responsibilities and protection of private information.
VA's fiduciary program policies have long recognized that service as a fiduciary for a beneficiary includes financial and other obligations that may at times be burdensome, particularly for fiduciaries that are family members. For this reason, VA's policies attempt to strike the appropriate balance between oversight and fiduciary burden. VA must protect beneficiaries from fiduciary misuse of their benefits, while also promoting service by family members and other volunteers. We do not agree with the commenter's assertion that the proposed responsibilities of a fiduciary in § 13.140 impose an unwarranted burden on family members. In our proposed rules on accountings we explained that we would continue to require accountings only when the amount of VA benefit funds under management by the fiduciary exceeds $10,000, the fiduciary receives a fee deducted from the beneficiary's account under proposed § 13.220, or the beneficiary is being paid monthly benefits in an amount equal to or greater than the rate for service-connected disability rated totally disabling. See 79 FR 444. As a general rule, no other fiduciaries will be required to submit an annual accounting. Regarding this rule, we stated, “[c]urrent policy also recognizes, based upon VA's experience in administering the program, that the burden of preparing, submitting, and auditing accountings outweighs any oversight benefit for many beneficiaries and VA.” See 79 FR 444. Thus, contrary to the commenter's interpretation, we did not intend the quoted portion of the preamble to mean that our proposed rules of fiduciary responsibilities are burdensome.
Furthermore, we did publish proposed rules that impose obligations comparable to financial management and planning. In fact, we proposed separate rules for fiduciary accounts
We also explained our intent to change the culture of the program to ensure that fiduciaries do not unnecessarily conserve beneficiary funds. We explained, “[w]e are concerned that some elderly beneficiaries are dying with a large amount of funds under management by a fiduciary that could have been used during the beneficiary's life to improve his or her standard of living.” See 79 FR 438. We intend that fiduciaries will conserve or invest funds under management that the beneficiary or the beneficiary's dependents do not immediately need for maintenance, reasonably foreseeable expenses, or reasonable improvements in the beneficiary's and the beneficiary's dependents' standard of living. In our view, these basic responsibilities are consistent with industry standards and the fiduciary-beneficiary relationship, protect beneficiaries while limiting the burden on family member and other volunteer fiduciaries, and promote policies intended to improve beneficiaries' standard of living.
Regarding the responsibility of protecting a beneficiary's financial information, we prescribed the basic precautions, which if not taken, might put the beneficiary at risk of identity theft, misappropriation of funds, or other harm. In that regard, we prescribed the minimum requirements for protection of beneficiaries' private information. We intend that fiduciaries will take the reasonable precautions that every person should take when maintaining his or her private information in paper or electronic records to prevent identity theft and unauthorized access. In proposing these requirements, we did not intend to supersede state law or other professional industry standards, under which a fiduciary may have additional requirements that exceed the minimum standard proposed by VA. We therefore make no change based on this comment.
Section 13.140(a)(2)(iv) requires a fiduciary to maintain financial records for a minimum of 2 years from the date VA removes the fiduciary under § 13.500, and § 13.500(a)(1)(iv) provides that VA may remove a fiduciary if “[t]he beneficiary dies.” Therefore, we note that § 13.140(a)(2)(iv) includes the requirement that a fiduciary must maintain financial records for a minimum of 2 years after a fiduciary is removed following a beneficiary's death. This requirement facilitates any inquiry into the fiduciary program and allows VA to address questions regarding the fiduciary's past services to the beneficiary. We also made a few nonsubstantive changes to § 13.140.
We made a minor revision to § 13.210 by substituting “Fiduciaries should not conserve VA benefit funds under management for a beneficiary based primarily upon the interests of the beneficiary's heirs or according to the fiduciary's own values, preferences, and interests” for “Fiduciaries will not conserve VA benefit funds under management for a beneficiary based upon the interests of the beneficiary's heirs or according to the fiduciary's own beliefs, values, preferences, and interests.” This change is necessary to provide fiduciaries with some flexibility and to avoid the perception that belief systems are an element of VA's oversight.
We received three comments regarding proposed § 13.220. One commenter agreed with our proposal to bar fiduciary fees on retroactive benefits payments, but suggested we explicitly preempt state laws that allow a higher than 4 percent fee for fiduciary services. The commenter stated that while we proposed that our regulations would preempt state laws, we failed to invoke this preemption for fiduciary fees. The commenter read our proposed rules on fiduciary fees to mean that a fiduciary can receive a higher than 4 percent fee for his or her services, if state laws allow such higher fees.
The commenter may have overlooked our explicit language to preempt state law in fiduciary matters. We specifically stated that we interpret 38 U.S.C. 5502(a)(1) to mean, “in creating the fiduciary program, Congress intended to preempt State law regarding guardianships and other matters to the extent necessary to ensure a national standard of practice for payment of benefits to or on behalf of VA beneficiaries who cannot manage their benefits.” See 79 FR 430. We further explained that we intended to apply this approach to all fiduciary matters on the effective date of the final rule. See 79 FR 430. We did not propose to authorize a higher than 4 percent fee for services performed by a fiduciary even if a state authorizes a higher fee. In the preamble to proposed § 13.220, we made it clear that when we determine that a fee is necessary to obtain a fiduciary in the best interests of a beneficiary, Congress authorized a reasonable fee to be paid from the beneficiary's VA funds, but such fee for any year may not exceed 4 percent of the beneficiary's monetary VA benefits paid to the fiduciary during any month in which the fiduciary serves. See 79 FR 440. We will not make any changes based on this comment because § 13.220 clearly prescribes that a fiduciary fee cannot exceed 4 percent of a beneficiary's monetary VA benefits paid to the beneficiary during any month in which the fiduciary serves.
Another commenter cited to proposed § 13.140(d)(1), where we prescribed that “[i]f the fiduciary is also appointed by a court, [the fiduciary must] annually provide to [VA] a certified copy of the accounting provided to the court or facilitate [VA's] receipt of such an accounting,” and proposed § 13.30(a), which prescribed the circumstances in which we would appoint a fiduciary on behalf of a beneficiary, to include when “a court with jurisdiction might determine that a beneficiary is unable to manage his or her financial affairs.” The commenter appears to have read our references to “court” in these sections to mean that VA would continue to recognize court-appointed guardians as fiduciaries, which would grant them certain exemptions from our proposed rules.
It is our intent to continue to appoint a beneficiary's court-appointed guardian to serve as VA fiduciary if we determine that no other appropriate person or entity is willing to serve without a fee and such an appointment will be in the beneficiary's interest. For existing court-appointed guardians who are serving satisfactorily as fiduciaries, we will continue their appointments as fiduciaries. However, in such appointments, only VA's regulations will prescribe the fiduciary's
In proposed § 13.140(d)(1), we prescribed that a court-appointed guardian who is also a VA fiduciary should annually provide us with a certified copy of the accounting he or she provides to the court. We did not propose that this will be in lieu of submitting an accounting to VA pursuant to proposed § 13.280. Fiduciaries who are also court-appointed guardians are required to provide VA with an annual accounting as prescribed in § 13.280. Pursuant to our oversight authority, we must ensure consistency in reporting to the court and VA, and ensure that funds are used in the interest of beneficiaries.
Furthermore, proposed § 13.30(a) stated that our authority to appoint a fiduciary on behalf of a beneficiary includes cases in which “a court with jurisdiction . . . determine[s] that a beneficiary is unable to manage his or her financial affairs.” This language does not mean that VA will continue to recognize court-appointed guardians without subjecting them to our rules. If VA appoints or continues the appointment of a court-appointed guardian as fiduciary, that fiduciary will be subject to VA rules only for purposes of managing the beneficiary's VA benefits. For the foregoing reasons, we do not make any changes to § 13.220 based upon the commenter's inquiry.
In proposed § 13.220(b)(4), we prescribed that VA will not authorize fiduciary fees for any month a court with jurisdiction or VA determines that a fiduciary misused or misappropriated benefits. A commenter suggested that VA would need to coordinate with courts to obtain information on misuse. The commenter further stated that there is also a need for coordination regarding fiduciary fees, as a fiduciary could receive fees from both the court and VA.
We agree with the commenter that coordination with courts is important to curtail misuse. It is our current practice to coordinate with courts and other agencies and share information when it is appropriate or necessary. We will continue to work on any necessary protocols for coordinating and information sharing between courts, VA and other agencies. However, the topic of coordinating with guardianship courts and other governmental agencies is beyond the scope of this rulemaking. With regard to fees, we clarify that a fiduciary, who is also acting as a state-appointed guardian for the beneficiary, may receive a fee not to exceed 4 percent of the monthly VA benefit for the fiduciary responsibilities but may additionally receive a fee for his or her responsibilities as a state-appointed guardian.
We received three comments regarding proposed § 13.230. A commenter suggested that we not only exempt spouses from the surety bond requirements, but also exempt all family members who are fiduciaries. The commenter stated that requiring family members to obtain surety bonds to protect beneficiaries' funds is a waste of the beneficiary's VA funds.
Under current law, “[a]ny certification of a person for payment of benefits of a beneficiary to that person as such beneficiary's fiduciary . . . shall be made on the basis of,” among other things, “the furnishing of any bond that may be required by [VA].” See 38 U.S.C. 5507(a)(3). We interpret this requirement to mean that, where VA has imposed a bond requirement, the certification of any person as a fiduciary must be based in part upon the proposed fiduciary's ability to qualify for and purchase such bond. As such, this requirement is a screening tool for VA to use in confirming qualification for appointment before releasing any large retroactive payment to a fiduciary. If a fiduciary cannot obtain a bond because the bonding company considers the risk of fund exploitation too high, VA will not appoint the prospective fiduciary and appoint an individual or entity who can obtain the necessary fund protection. In addition, requiring a prospective fiduciary to secure a surety bond is consistent with our oversight obligations, which among other things, include deterring fiduciary misuse of benefits. VA's surety bond requirements put a fiduciary on notice that he or she is liable to a third party for any payment on the bond, and in the event a fiduciary misuses a beneficiary's VA benefits, the bonding requirements protect the beneficiary's funds.
For the foregoing reasons, we proposed that all fiduciaries with the general exception of spouses must, within 60 days of appointment, furnish to the fiduciary hub of jurisdiction a surety bond conditioned upon faithful discharge of all of the responsibilities of a fiduciary if the VA benefit funds that are due and to be paid will exceed $25,000. We also proposed to apply this rule to a fiduciary who is not initially required to obtain a bond but later over time accumulates funds on behalf of a beneficiary that exceed the $25,000 threshold. Based on our experience in administering the program, the risks of not requiring all fiduciaries, with the exception of spouses, to furnish a surety bond significantly outweigh any burden on a prospective fiduciary.
We have exempted spouses who are fiduciaries from the surety bond requirements consistent with our long-standing policy of requiring less intrusive oversight of spouse fiduciaries. It has always been our policy to minimize the Government's intrusion into the marital relationship and to avoid dictating requirements for property that is jointly owned by a beneficiary and his or her spouse. We therefore make no changes based on this comment.
One commenter suggested that VA should require a court-appointed guardian who was previously sanctioned, disciplined, or removed by a court to furnish a surety bond as an additional screening tool, if VA is considering the appointment of that guardian as a fiduciary. In 38 U.S.C. 5502, Congress authorized VA to appoint a fiduciary for a beneficiary only if it appears to VA that it would serve the beneficiary's interest. Depending on the sanction, discipline or removal a guardian received from a court, VA may appoint or continue the appointment of that fiduciary only if VA determines that there is no other person or entity willing and qualified to serve, there is no risk to the beneficiary, and the appointment is in the beneficiary's interest. VA will consider the totality of the circumstances before the
One commenter stated that family caregivers who are also fiduciaries should be exempted from the surety bond requirements. Another commenter generally stated that family caregivers who are fiduciaries should also be exempted from the surety bond requirements because they are approved and monitored by VHA.
We note that VHA does not monitor caregivers' management of veterans' VA benefits. Under 38 U.S.C. 1720G(a)(1)(A), VA “establish[ed] a program of comprehensive assistance for family caregivers of eligible veterans.” As part of this program, VA has authority to provide family caregivers with “instruction, preparation and training” appropriate to provide services as caregivers, and to monitor the well-being of each eligible veteran receiving personal care services under the program. See 38 U.S.C. 1720G(a)(3)(A)(i)(I), (a)(9)(A).
VHA's monitoring consists of maintaining a “veteran's treatment plan and collaborat[ing] with clinical staff making home visits to monitor the eligible veteran's well-being, adequacy of care and supervision being provided.” See 38 CFR 71.40(b)(2). Thus, while VHA provides monitoring of the adequacy of care as it pertains to the veteran's health and well-being, it does not provide any training or oversight as it pertains to the ability of a family caregiver to manage the veteran's VA benefits. See 38 U.S.C. 1720G(a)(9)(C); 38 CFR 71.15, 71.25(c) and (d). The fiduciary program appoints fiduciaries on behalf of beneficiaries who are unable to manage their VA benefits and provides oversight to these fiduciaries. VA-appointed fiduciaries are tasked with, among other things, managing a beneficiary's monetary VA benefits, while family caregivers are tasked with supporting the veteran's health and well-being. We note further that requirements for caregivers are distinguishable in many ways from the requirements of fiduciaries. In this regard, the fact that someone may qualify as a family caregiver does not mean that they also would be able to serve as a fiduciary and/or obtain a surety bond.
Under 38 U.S.C. 5507, VA must conduct an investigation regarding a proposed fiduciary before appointing the individual to serve as a fiduciary. This investigation must include an inquiry regarding the proposed fiduciary's criminal and credit history.
See 38 U.S.C. 5507(a)(1)(C) and (b). Furthermore, under 38 U.S.C. 5507(a), “[a]ny certification of a person for payment of benefits of a beneficiary to that person as such beneficiary's fiduciary . . . shall be made on the basis of,” among other things, “the furnishing of any bond that may be required by [VA].” In order to meet our oversight responsibilities and ensure that only the most qualified individuals are appointed as fiduciary to serve our vulnerable beneficiaries, we require prospective fiduciaries to furnish a surety bond consistent with proposed § 13.230. We cannot exempt a family caregiver from the surety bond requirements because the VHA caregiver program does not provide oversight as it pertains to a beneficiary's VA benefits. We therefore do not make any changes based on this comment.
One commenter did not agree with VA's proposal to generally eliminate the use of restricted withdrawal agreements. The commenter believes the process of converting restricted withdrawal agreements into surety bonds would result in a cost to VA by generating more work for VA's field fiduciary employees, to include scheduling new field examinations to replace fiduciaries who cannot obtain surety bonds.
It has been VA's practice to occasionally allow a fiduciary, generally a family member or other close acquaintance of the beneficiary, to enter into a restricted withdrawal agreement with the beneficiary and VA regarding management of accumulated funds under management in lieu of obtaining a surety bond. We proposed to eliminate the use of withdrawal agreements in proposed § 13.230, except for fiduciaries residing in the Commonwealth of Puerto Rico, Guam, or another territory of the United States, or in the Republic of the Philippines, where surety bonds may not be available. We have determined that withdrawal agreements are generally inconsistent with VA policy regarding the role of VA and fiduciaries in the fiduciary program. See 79 FR 441.
One of the overall goals of our rewrite of VA's fiduciary regulations was to change the program's culture to ensure that it is the fiduciary, and not VA, that determines the beneficiary's needs and disburses funds to address those needs in the beneficiary's interest. In our view, it is the fiduciary's obligation to make best-interest determinations regarding beneficiary funds under management. The use of a restricted withdrawal agreement may improperly insert VA into matters reserved for fiduciaries. In that regard, we proposed the core requirements for all fiduciaries, which are to monitor the well-being of the beneficiaries they serve and to disburse funds according to beneficiary needs. VA is not the fiduciary for the beneficiary and must defer to the fiduciary consistent with VA regulations.
We do not anticipate a change in workload or any budget increases with the implementation of this rule. Currently, less than 1/8th of 1 percent of our fiduciaries have withdrawal agreements. This is a result of our current policy to require surety bonds in lieu of withdrawal agreements. For the few fiduciaries that still have withdrawal agreements, effective with our final rule, we will require them to obtain surety bonds. It will be incumbent upon the fiduciary to obtain a surety bond and provide VA with proof of the surety bond. If a fiduciary cannot obtain a surety bond because the bonding company considers the risk of fund exploitation too high, VA will not continue the appointment of the fiduciary and will instead appoint an individual or entity that can obtain the necessary fund protection. To the extent this will require additional field examinations, we expect any additional costs for this activity to be marginal. Consistent with Congress' intent, VA makes every effort to ensure that only qualified individuals and entities provide fiduciary services for beneficiaries. As such, this requirement is a screening tool for VA to use in confirming an appointment decision before releasing any large retroactive payment to a fiduciary. We make no change based on this comment.
We did not receive any comments on this regulation; however, we made a technical change consistent with governing authority. Under 38 U.S.C. 5502(e), when a beneficiary who has a fiduciary dies without leaving a valid
We did not receive any comments on this rule; however, we made a couple of nonsubstantive changes to § 13.260.
In proposed § 13.280(b), we defined “accounting” to mean “the fiduciary's written report regarding the income and funds under management by the fiduciary for the beneficiary during the accounting period prescribed by the Hub Manager.” The proposed rule further states that, “[t]he accounting prescribed by this section pertains to all activity in the beneficiary's accounts, regardless of the source of funds maintained in those accounts.” One commenter questioned VA's authority to require accountings regarding non-VA funds that are under management by a VA-appointed fiduciary. The commenter also believed that it is VA policy to require fiduciaries to disburse non-VA funds before VA funds, and again questioned our authority for such actions.
Under 38 U.S.C. 5509(a), VA has authority to require fiduciaries to file accountings regarding funds under management. Pursuant to 38 U.S.C. 5502(b), such accountings may include disclosure of “any additional financial information concerning the beneficiary (except for information that is not available to the fiduciary).” For accounting purposes, VA has authority to request information regarding all activity in a beneficiary's account. It would be very difficult to detect misuse of benefits if VA were required to limit its audit to activity related only to income and expenditures actually derived from VA benefits. Therefore, we prescribed, consistent with our statutory authority, that an accounting pertains to all activity in the beneficiary's accounts, regardless of the source of income.
It is not VA's policy to require fiduciaries to disburse a beneficiary's non-VA funds before his or her VA funds. In fact, it is our policy as clarified in this rulemaking that it is the fiduciary who determines the beneficiary's needs and disburses funds to address those needs in the beneficiary's interest. In that regard, we specifically prescribed in § 13.140(a) that a fiduciary must disburse or otherwise manage funds, which would include all non-VA funds of the beneficiary under the fiduciary's control, according to the best interests of the beneficiary and the beneficiary's dependents and “in light of the beneficiary's unique circumstances, needs, desires, beliefs, and values.” We did not propose to require fiduciaries to disburse funds under management in any specific order. Accordingly, we make no change based upon these comments.
In § 13.280, we proposed that a fiduciary would be required to provide VA an annual accounting regarding funds under management for a beneficiary when the amount of VA benefit funds under management by the fiduciary exceeds $10,000, the fiduciary receives a fee deducted from the beneficiary's account under proposed § 13.220, or the beneficiary is being paid monthly benefits in an amount equal to or greater than the rate for a service-connected disability rated totally disabling. We received several comments that generally suggested that we should exempt fiduciaries who are VHA-approved family caregivers from our accounting requirements because they receive ample oversight from the VA Caregiver Support Program. One commenter specifically stated that the VA Caregiver Handbook states that joint checking, investment, and other accounts are allowed between veterans and their caregivers.
Congress granted VA the authority to “establish a program of comprehensive assistance for family caregivers of eligible veterans,” as well as a program of general support services for caregivers of “veterans who are enrolled in the health care system established under [38 U.S.C. 1705(a)] (including caregivers who do not reside with such veterans).” See 38 U.S.C. 1720G(a), (b). VHA has since established a Caregiver Support Program, which provides certain medical, travel, training, and financial benefits to caregivers of certain veterans and service members who were seriously injured in the line of duty on or after September 11, 2001. As discussed above, neither the statute and implementing regulations nor the VA Caregiver Support Program provides for any oversight as it pertains to a veteran's VA benefits.
For fiduciaries in the fiduciary program, VA must conduct the investigation prescribed in 38 U.S.C. 5507, and thereafter conduct sufficient oversight for the purpose of, among other things, monitoring a fiduciary regarding misappropriation or misuse of benefits and reissuance of benefits under 38 U.S.C. chapter 61. Under 38 U.S.C. 5509(a), VA has authority to require fiduciaries to file accountings regarding funds under management, and it is the responsibility of the fiduciary program to oversee the actions of fiduciaries as it relates to the use of VA benefits. Accordingly, we propose to continue to require accountings only when the amount of VA benefit funds under management by the fiduciary exceeds $10,000, the fiduciary receives a fee deducted from the beneficiary's account, or the beneficiary is being paid monthly benefits in an amount equal to or greater than the rate for service-connected disability rated totally disabling. At this time, we will not exempt VHA-approved caregivers from the fiduciary accounting requirement because the caregiver program does not include alternative oversight of the caregiver's fiduciary obligations.
While a commenter cited page 157 of the “VA Caregiver Handbook” and stated that the Caregiver Support Program allows joint accounts between veterans and family caregivers, a review of both the VA Caregiver Support Program Guidebook, which is no longer in use following the issuance of VHA Directive 1152, Caregiver Support Program (June 14, 2017), and the National Caregiver Training Program Caregiver Workbook did not confirm the commenter's assertion. In the “Resources” module of the National Caregiver Training Program Caregiver Workbook, pages 153 through 168, VA outlines the resources that are available to family caregivers and mentions joint accounts, but it does not state that caregivers can open joint accounts with veterans. Because the VA Caregiver Support Program does not provide oversight of a caregiver-fiduciary's management of a veteran's VA benefits, we make no change based on these comments.
Two commenters suggested that we should require accountings from all fiduciaries, to include spouses. The commenters generally stated that some family members exploit the beneficiaries they are appointed to serve, and requiring accountings would serve as an additional deterrent to the misuse of benefits. Another commenter stated that a spouse caregiver who is also a fiduciary should be exempted from the accounting requirement. As stated previously, VA proposed only to require accountings when the amount of VA benefit funds under management by the fiduciary exceeds $10,000, the fiduciary receives a fee deducted from
We prescribed exceptions to the general accounting rules. First, no spouse will be required to submit an annual accounting. As we explained above, it is VA's long-standing policy to avoid undue intrusion into the relationship between a beneficiary and the beneficiary's spouse. It is our policy to minimize the Government's intrusion into the marital relationship and avoid dictating requirements for property that is jointly owned by a beneficiary and his or her spouse. Second, we will not require the chief officer of a Federal institution to submit an annual accounting because such officers generally do not disburse funds, disburse only small fund amounts for the beneficiary's personal use, or disburse funds according to the discretion delegated to the Secretary of Veterans Affairs by law. Third, we will not require an annual accounting from the chief officer of a non-VA facility receiving benefits for a beneficiary institutionalized in the facility when the cost of the monthly care and maintenance and personal cost expenses of the beneficiary in the institution equals or exceeds the beneficiary's monthly benefit and the beneficiary's funds under management by the fiduciary do not exceed $10,000. However, VA will continue to require accountings from all family members who serve as fiduciaries with the exceptions noted above. We make no change based on these comments but will continue to monitor the accounting requirements to ensure that we have the proper balance between oversight and fiduciary burden. We have, however, added new language in paragraph (a)(4) stating that accounting is required if the Hub Manager determines that it is necessary to ensure the fiduciary has properly managed the beneficiary's funds. This will allow the Hub Manager, on a case-by-case basis, to determine when an annual accounting is required to protect the beneficiary.
We received three comments regarding proposed § 13.400. One commenter suggested our definition of misuse should include the failure of a fiduciary to distribute funds to fulfill a beneficiary's needs. However, VA cannot conclude, without a clear evidentiary basis, that a fiduciary is misusing a beneficiary's VA benefits if that fiduciary is not distributing funds to fulfill a beneficiary's needs. A fiduciary, for example, could be conserving a beneficiary's funds instead of distributing funds to fulfill the beneficiary's needs, or be unable to perform his or her duties as fiduciary for a number of reasons, which would not equate to misuse but might justify removing the fiduciary. Our definition of misuse restates the statutory definition, and consistent with current VA policy, will facilitate VA's identification of possible misuse. Nonetheless, in the event a fiduciary is not distributing funds to fulfill a beneficiary's needs in accordance with proposed § 13.140, which would prescribe that a fiduciary must monitor the well-being of the beneficiary the fiduciary serves and disburse funds according to beneficiary's needs, the fiduciary will be removed under § 13.500. We therefore make no changes based on the comment.
Another commenter suggested that when we make a misuse determination on reconsideration, the decision should identify whether a fiduciary is a court-appointed guardian or conservator. We agree. We have amended paragraph (d)(4) to reflect that we would identify in our final misuse determination whether the fiduciary is a court-appointed guardian or conservator.
The same commenter also suggested that VA develop protocols and notify the court, in addition to the beneficiary and legal guardian, of our misuse determinations when the fiduciary is also a court-appointed guardian. We agree. In cases where a fiduciary, who is also the beneficiary's legal guardian, misappropriates or misuses a beneficiary's VA benefits and there is a bond in place payable to the court, VA will contact the court to make it aware of the situation and facilitate recovery of any misappropriated or misused funds from the surety company. In addition, VA will put the court on notice that the continuation of the appointment of the legal guardian may no longer be in the beneficiary's interest. Accordingly, in response to this comment, we have revised § 13.400(c) and (e)(1) by requiring the Director of the VA Regional Office of jurisdiction to also report misuse cases to “the court of jurisdiction if the fiduciary is also the beneficiary's court-appointed legal guardian and/or conservator.”
We have amended proposed § 13.400(b) to clarify the discretionary authority of the Hub Manager to investigate or not investigate an allegation of misuse. The Hub Manager's decision is discretionary because it involves the complicated balancing of a number of factors, including whether the misuse allegation is likely to lead to a finding of misuse and whether to expend limited funds and staffing resources in an investigation and issuance of a formal decision in response to such allegation. The revised language provides that “[u]pon receipt of information from any source regarding possible misuse of VA benefits by a fiduciary, the Hub Manager may, upon his or her discretion, investigate the matter and issue a misuse determination in writing.”
Section 6107(a)(2) provides that VA negligence causes misuse when the Hub Manager fails to properly investigate or monitor the fiduciary, such as when the Hub Manager fails to timely review the fiduciary's accounting or receives notice of an allegation of misuse but fails to act within 60 days of the date of notification of the alleged misuse to terminate the fiduciary. We made a technical change to proposed § 13.410(b)(1) through (b)(3) to more accurately reflect 38 U.S.C. 6107(a)(2).
In reviewing proposed § 13.410, we noticed that we failed to list one criterion in section 6107(a) for the reissuance of benefits based upon a determination that VA negligence resulted in misuse of benefits. As such, we are adding a new paragraph (b)(1)(iii) to make clear that negligence includes situations where VA received an allegation of misuse, decided to investigate after exercising its discretion, and found misuse, but failed to initiate action within 60 days of receipt of the misuse allegation to terminate the fiduciary. We are also clarifying paragraph (b)(1)(ii) to state, “The Hub Manager did not decide whether to investigate an allegation of misuse within 60 days of receipt of the allegation,” which more accurately reflects the responsibility of the Hub Manager to exercise his or her discretionary authority to investigate a misuse allegation in a timely manner.
In proposed § 13.600, we proposed to close the evidentiary record on an appealable fiduciary matter once we reviewed the evidence relating to the fiduciary matter and made a decision. See 79 FR 449. We explained that our intent was to expeditiously process appeals in fiduciary matters to avoid delaying VA's effort to resolve the beneficiary's disagreement with a decision or issuing a statement of the case or certifying an appeal to the
We received several comments regarding proposed § 13.600 as it pertains to closing the record. One commenter is concerned that closing the record on the date our decision is made to remove a fiduciary would prevent a beneficiary from submitting new information about “the continuation of misfeasance or malfeasance by the fiduciary.” The commenter is concerned that if a fiduciary retaliates against the beneficiary during the appeals process, VA could be negligent for not having such information, as the record would be closed. The commenter further believes that the closing of the record would prevent a beneficiary from submitting additional evidence for reconsideration or additional misuse.
Another commenter stated that closing the evidentiary record will obstruct compliance with the duty-to-assist statute, which provides that VA has an affirmative duty to assist a claimant in obtaining evidence to substantiate the claimant's claim for VA benefits, which may include obtaining relevant private or Government records or providing a medical examination or obtaining a medical opinion when necessary to decide the claim. See 38 U.S.C. 5103A.
In light of the foregoing comments, we reexamined proposed § 13.600 and agreed with the commenters that closing the record could prevent an appellant from submitting additional evidence that could impact a final decision under current regulations. A reexamination of this regulation also led us to conclude that closing of the evidentiary record would interfere with the general appellate process. Under 38 CFR 20.800, an appellant may submit additional evidence after initiating an appeal. Under 38 U.S.C. 7105(e), if an appellant submits additional evidence to the agency of original jurisdiction or the Board after the filing of a substantive appeal, the Board may review it for the first time on appeal unless the appellant specifically requests the agency of original jurisdiction to review it first; under 38 CFR 20.1304(a), an appellant may submit additional evidence within 90 days after an appeal is certified to the Board or before the Board issues a decision, whichever comes first; under § 20.1304(b), an appellant may submit additional evidence after the 90-day period upon a showing of good cause. Accordingly, we have revised § 13.600(b) to remove reference to closing the record, thus permitting the potential submission of additional evidence to the extent allowed by statutes and regulations generally governing appeals.
Regarding the commenter's concerns that the duty to assist should apply to all stages of the appeal, we stated in the preamble to proposed § 13.600 that, although decisions on fiduciary matters are made under laws that affect the provision of benefits and, therefore, fall within the scope of 38 U.S.C. 511(a) (Decisions of the Secretary; finality), fiduciary matters are not decisions on claims for benefits and would not be afforded the same procedures as prescribed by VA for benefit claims under 38 CFR part 3.
Another commenter suggested that we include incompetency rating decisions in our list of appealable decisions. The commenter stated that it is unclear whether we intend to include incompetency rating decisions as an appealable decision in our part 13 fiduciary regulations or leave such decisions in VA's 38 CFR part 3 adjudication regulations.
We did not propose to include incompetency rating decisions in our fiduciary regulations because VA determinations of incompetency are the subject of the adjudication regulations in part 3, see 38 CFR 3.353(e), which precede the appointment of a fiduciary in cases where a beneficiary is determined unable to manage his or her VA-derived monetary benefits. Beneficiaries rated by VA as being unable to manage their VA benefits are afforded the right of appeal regarding that rating through VA's regulations in 38 CFR parts 3, 19, and 20. A beneficiary enters the fiduciary program after he or she is rated unable to manage his or her VA benefits. VA's rating agencies are authorized to find beneficiaries incompetent for the purpose of disbursement of benefits, see 38 CFR 3.353(b), (c), (d), and the rules that govern these determinations are contained in VA's part 3 regulations. While VA adjudication regulations trigger entry into VA's fiduciary program, these regulations have aspects that operate independently from VA's fiduciary program. Finally, we have found that the process described above works effectively. For the foregoing reasons, we did not propose to consolidate the rules applicable to incompetency rating decisions in our proposed part 13 regulations.
The same commenter stated that VA did not provide any reasons for closing the record after we make a final decision on an appealable fiduciary matter. The commenter stated that because fiduciary appeals involve “mentally challenged and impaired beneficiaries, the record is highly likely to be incomplete or otherwise in need of enhancement to ensure a fair and well-founded decision of appeal.” Citing to 38 CFR 3.103 and
As previously explained, we are amending § 13.600 to remove reference to closing the evidentiary record.
Regarding an appellant's right to due process in fiduciary matters, VA's fiduciary regulations will afford beneficiaries all of the process that is due to them under the law through specific notice and opportunity-to-be-heard provisions. After the appointment of a fiduciary, we will afford due process in VA decisions regarding fiduciary matters as prescribed in the part 13 regulations. For instance, VA will provide to the beneficiary a written decision and notice of appellate rights in a fiduciary matter that is appealable under § 13.600. See 38 CFR 13.30(b). Regarding misuse, VA will issue a decision and provide the parties an opportunity to request reconsideration and submit any additional information, see § 13.400(c), (d), and will provide to the beneficiary a written decision and notice of appellate rights following reconsideration, see §§ 13.400(d), 13.600(a)(4).
For the foregoing reasons, we have changed our position regarding the evidentiary record on appeal. To reflect these changes, in § 13.600(b), we have removed language as it pertains to the closing of the record.
In 38 U.S.C. 5502(a)(1), Congress authorized VA to appoint a fiduciary for the purpose of receiving and disbursing VA benefits on behalf of a beneficiary: “Where it appears to the Secretary that the interest of the beneficiary would be served thereby, payment of benefits
One commenter disagreed with our interpretation that Congress intended VA to preempt state law. The commenter stated that Congress intended VA to utilize “well-developed state law in this area to aid in the appointment, regulation, and oversight of its fiduciaries.” Citing to various Supreme Court cases, the commenter generally stated that there is no reasonable basis for our interpretation of section 5502(a)(1) and we did not address well-established legal tests for whether Congress intended a Federal statute to preempt state laws.
Matters regarding the governance of guardianships for persons with legal disabilities have their jurisdiction in state courts. See
We do not disagree with the commenter that there are well-developed laws in matters of guardianship. We did not propose to preempt these state laws regarding the administration of state guardianship matters. When Congress enacted section 5502, it did not intend a sweeping preemption of state laws that govern guardianship activities. As we discuss further below, we believe Congress only intended for VA to preempt state law in guardianship matters as they relate to VA benefits. Under the authority granted by current law, we proposed to promulgate uniform rules for all fiduciaries appointed by VA to manage VA benefit payments on behalf of beneficiaries. As such, if we appoint a state-appointed guardian to serve as a fiduciary on behalf of a beneficiary who is receiving VA benefits, our regulations, not state law, are applicable to the appointment and oversight of the fiduciary and the fiduciary's management of VA benefits for the beneficiary, as Congress intended.
In establishing the fiduciary program, Congress did not intend for VA to refer to various state laws for the administration of the fiduciary program. For example, Congress did not intend for VA to utilize state laws regarding fiduciary fees that are paid from a beneficiary's VA benefits and subject beneficiaries to the various fee schedules prescribed by states, such that beneficiaries will be treated differently depending upon state of residence. Under section 5502(a)(2), Congress specifically mandated “a reasonable commission for fiduciary services rendered” to be paid from the beneficiary's VA funds, “but the commission for any year may not exceed 4 percent of the monetary benefits.” Furthermore, among other things, Congress authorized VA to remove any fiduciary who is not meeting the fiduciary's responsibilities to a beneficiary or who is not acting in the beneficiary's interest. See 38 U.S.C. 5502. VA's authority also extends to appointment of a temporary fiduciary in certain circumstances, suspending payments to any fiduciary who fails to properly submit an accounting to VA, and, with respect to the appointment of a fiduciary, conducting investigations of prospective fiduciaries. See 38 U.S.C. 5502, 5507. The foregoing statutory obligations demonstrate Congress' intent to create a uniform system of fiduciary services for VA beneficiaries, irrespective of inconsistent state laws.
The commenter relied on
VA's longstanding interpretation of 38 U.S.C. 5502 is that VA may establish a fiduciary program, under which it oversees beneficiaries who cannot manage their own VA benefits, and preempt state law regarding guardianships and other matters to the extent necessary to ensure a national standard of practice for payment of benefits to or on behalf of VA beneficiaries who cannot manage their benefits. It is reasonable to conclude that Congress had knowledge of state laws and
The commenter cited various Supreme Court cases that discuss the methods by which the Court may discern whether Congress intended to preempt state law when it enacted certain Federal legislation, and the commenter stated that VA did not address any of the tests for preemption as established by the Court. There is no dispute that the Supreme Court has established various tests on the issue of whether a Federal statute preempts state laws and has discussed the various tests in numerous cases. The commenter cited
The above-quoted statement in
As an initial matter, we emphasize that VA did not propose to intrude on state authority over a particular activity, specifically its governance of guardianship matters. In that regard, if a state appoints a person or entity to serve as legal guardian for an individual, the state law of jurisdiction would apply to that matter, and VA has no authority to interfere. VA did not propose to regulate state guardianships or to invalidate state laws as they apply to guardianship matters. However, if VA determines that it will be in a VA beneficiary's interest to appoint the beneficiary's state-appointed guardian as fiduciary over the beneficiary's VA monetary benefits, VA's regulations will apply to VA's appointment of that fiduciary and VA's oversight of the fiduciary's management of VA funds.
The doctrine of preemption has its roots in the Supremacy Clause, U.S. Const., art. VI, cl. 2, and requires courts to examine congressional intent.
In deciding questions of preemption, courts follow two guiding principles: “First, the purpose of Congress is the ultimate touchstone in every pre-emption case. Second, in all preemption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . [courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” See
Here, upon a plain reading of section 5502(a)(2) and a review of its legislative history, Congress intended VA to preempt state law regarding guardianships and other matters to the extent necessary to ensure a national standard of practice for payment of benefits to or on behalf of VA beneficiaries who cannot manage their benefits. As noted above, it is well established in guardianship statutes that guardianship matters relating to legal disability have their jurisdiction in state courts. State courts ultimately determine the necessity of a legal guardian based on the individual's legal disability. As such, Congress would have excluded the specific language “regardless of any legal disability” in section 5502 had it intended for state laws to apply to matters of payment of VA benefits to fiduciaries on behalf of VA beneficiaries who cannot manage their VA benefits. Instead, Congress provided for VA to appoint a fiduciary irrespective to any legal disability of the beneficiary and for Federal laws, rather than state laws, to govern the fiduciary program. See 38 U.S.C. 5502(a)(2) (“a fiduciary appointed by the Secretary”). More fundamentally, by vesting VA with statutory authority over the appointment, supervision, payment, and removal VA fiduciaries, Congress has made clear its intent that Federal law will govern those matters. Thus, VA proposed rules that are uniform to all fiduciaries that it appoints to manage VA benefits on behalf of beneficiaries.
In 1974, Congress amended then 38 U.S.C. 3202 and authorized VA to make payments to a fiduciary other than a state-appointed guardian. See Public Law 93-295, sec. 301, 88 Stat. 180, 183-84 (1974). Furthermore, 38 U.S.C. 5502(b), among other things, authorizes VA to suspend benefits to a fiduciary, regardless of whether he or she is appointed as guardian by the state court, if that fiduciary refuses to render an account to VA, or if he or she neglects to administer a beneficiary's estate according to law. Our conclusions regarding the plain language and the structure and purpose of section 5502 are bolstered by its legislative history. The language and available legislative history of the statute reflect Congress' intent to create a uniform fiduciary program for all VA beneficiaries who are unable to manage their VA benefits.
In support of the commenter's assertion that Congress intended VA to defer to the various state laws in its administration of the fiduciary program, the commenter noted that Congress did not prescribe any specific duty of trust for fiduciaries or administrative provisions, and generally stated that section 5502 contains language establishing Congress' intent to have VA defer to state law. We do not agree.
As the commenter stated, there are well-established legal tests for whether Congress intended to have a Federal statute preempt state laws, and the absence of language in a Federal statute does not itself mean that Congress intended that VA will defer to state law, particularly when Congress routinely delegates broad authority to Federal agencies to determine how to best administer Federal programs. Section 5502 is this type of broad authority. Nonetheless, in light of this comment, we revised § 13.140(a)(1) to include that fiduciaries in the fiduciary program owe VA and beneficiaries the duties of good
Furthermore, pursuant to 38 U.S.C. 501(a), VA may promulgate regulations that are “necessary or appropriate to carry out the laws administered by the Department and are consistent with [38 U.S.C. 5502].” We therefore determined that the foregoing change to § 13.140(a)(1) is appropriate and consistent with Congress' intent.
The commenter's reliance on the language in section 5502(b) that states that “[VA] may appear or intervene . . . in any court as an interested party in any litigation . . . affecting money paid to such fiduciary” to argue that Congress intended VA to utilize state law in administrating the fiduciary program is misplaced. The intent of the 1935 amendment to add this language to the statute was to clarify and expand the authority of the Veterans Administration to supervise court-appointed fiduciaries and to participate in litigation. See H.R. Rep. No. 74-16, at 1-2 (1935) (“[T]here is also a need for amendment to more clearly define and extend the authority of the Administrator of Veterans' Affairs to appear in courts or intervene as an interested party in litigation directly affecting money paid to fiduciaries of beneficiaries under this section.”). This language, however, does not require in any way for VA to use state laws to administer its fiduciary program. Where Congress has intended to require VA to follow state law on a particular matter relevant to VA benefits, it has done so expressly. See 38 U.S.C. 103(c). In contrast, section 5502 vests VA with authority to establish uniform Federal standards governing the appointment, supervision, payment, and removal of VA fiduciaries. VA has implemented that authority by establishing such uniform Federal standard, rather than relying upon state law, in view of the complexity, inconsistency and confusion that could result from administering a Federal program by following myriad state laws.
Furthermore, the commenter's belief that the language in section 5502(e) regarding escheat of funds held by a fiduciary demonstrates Congress' intent regarding state law is contrary to the plain text of the statute. Section 5502(e) in its entirety provides that “[a]ny funds in the hands of a fiduciary appointed by a State court or the Secretary derived from benefits payable under laws administered by the Secretary, which under the law of the State wherein the beneficiary had last legal residence would escheat to the State, shall escheat to the United States and shall be returned by such fiduciary, or by the personal representative of the deceased beneficiary, less legal expenses of any administration necessary to determine that an escheat is in order, to the Department, and shall be deposited to the credit of the applicable revolving fund, trust fund, or appropriation.” It does not provide that any escheat of VA funds with a fiduciary should be administered pursuant to state laws.
Based on the foregoing, we find that Congress clearly intended in section 5502 that VA would be responsible for prescribing and enforcing Federal standards governing the appointment, supervision, payment, and removal of VA fiduciaries and that those Federal standards would preempt any conflicting state laws on such matters. Consistent with that intent and authority, VA has established national standards for all vulnerable VA beneficiaries, regardless of their state of residence. As such, we make no changes based on the comment.
The same commenter stated that our proposed regulations should establish clear evidentiary standards upon which VA bases its decision that a beneficiary is unable to manage his or her VA benefits; however, this matter is beyond the scope of this rulemaking. The commenter noted that such standards are necessary to ensure that a beneficiary is not arbitrarily and capriciously deprived of the right to control his or her own property.
While our proposed fiduciary regulations do not contain the evidentiary standards for determining when a beneficiary is unable to manage his or her VA benefits, the regulations in 38 CFR part 3 prescribe such standards. Therefore, there are measures in place to ensure that a beneficiary is not arbitrarily or capriciously deprived of his or her right to control his or her VA benefits. A VA regulation provides that, for purposes of payment of VA benefits, VA's rating agencies have the authority to make determinations of competency and incompetency. See 38 CFR 3.353(b)(1). “Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, [VA] will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities.” See 38 CFR 3.353(c). Such determinations must be “based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency.” See Id. The regulation further provides that there is a presumption in favor of competency. See 38 CFR 3.353(d). “Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency.” See Id. In addition, VA regulations provide for notice and an opportunity to be heard regarding the determination of incompetency. See 38 CFR 3.103(c), 3.353(e).
Moreover, not only is a beneficiary who is deemed unable to manage his or her VA benefits entitled to all of the appellate procedures associated with other VA decisions that affect the provision of his or her VA benefits, as noted above, he or she is also entitled to a pre-determination hearing if he or she so requests. In addition, even after the beneficiary is found to be unable to manage his or her VA benefits, current part 13 regulations, in appropriate circumstances, allow a beneficiary to manage his or her own VA benefits by placing him or her in a supervised direct pay program. This option provides an additional layer of protection against the erroneous deprivation of a beneficiary to control his or her own VA benefits. Finally, a beneficiary who believes that VA did not follow all applicable procedures in selecting a fiduciary may appeal this determination to the Board. Collectively, these standards provide protection against any arbitrary and capricious determinations relating to the beneficiary's ability to control his or her own VA benefits. We therefore make no change based on this comment.
A commenter stated that our proposed rules should contain qualifications and training requirements for field examiners because, among other things, field examiners are required to make decisions regarding budgets and living conditions for beneficiaries. However, the qualifications of and training for VA field examiners is an administrative matter that is outside the scope of this rulemaking. VA makes every effort to hire the most qualified field examiners and provide any training VA deems necessary, but such matters generally
One commenter stated that fiduciaries are tasked with many responsibilities and noted that our rulemaking cannot address training for fiduciaries but asked that we provide services or training for fiduciaries. VA makes every effort to provide training and services to fiduciaries we appoint to serve our beneficiaries. Currently, there is a handbook titled, “A Guide for VA Fiduciaries,” which we provide to fiduciaries. In addition, VA has an internet website that provides training and other resources to fiduciaries. The link to the website is:
In proposed § 13.140, regarding the responsibilities of fiduciaries, we prescribed financial and nonfinancial responsibilities for fiduciaries. We believe that such responsibilities are consistent with industry standards for fiduciaries. We prescribed that fiduciaries will be required to use funds in the interest of beneficiaries and their dependents, protect funds from loss, maintain separate accounts, determine and pay just debts, provide the beneficiary information regarding VA benefit funds under management, protect funds from the claims of creditors, and provide beneficiaries a copy of any VA-approved annual accounting. In addition, we prescribed a fiduciary's non-financial responsibilities to generally include a fiduciary's obligation to monitor the beneficiary's well-being and report any concerns to appropriate authorities, including any legal guardian for the beneficiary, and that a fiduciary must maintain regular contact with a beneficiary and be responsive to beneficiary requests. We believe such responsibilities are the basic responsibilities of any fiduciary-beneficiary relationship. We do not believe that such responsibilities are burdensome. Nonetheless, we strive to provide fiduciaries with any information that could be useful in the performance of their duties as fiduciaries.
One commenter inquired about VA's approach regarding court-appointed guardianships and the cost associated with such guardianships. The commenter noted that state courts have primary oversight of court-appointed guardians and fees associated with such guardianships. The commenter inquired about VA's approach to legal guardianships, as state courts have jurisdiction over such matters.
VA's fiduciary regulations will result in a gradual discontinuance of the current practice of recognizing a court-appointed guardian or fiduciary for purposes of receiving VA benefits on behalf of a VA beneficiary. Instead, VA will establish a national standard for appointing and overseeing fiduciaries. In certain cases, VA may appoint a beneficiary's court-appointed guardian or fiduciary to serve as VA fiduciary if we determine that such an appointment will be in the beneficiary's interest. In that regard, if VA appoints a court-appointed guardian or fiduciary to also serve as VA fiduciary, VA's rules will apply as it pertains to the management of VA funds. This final rule will, over time, result in uniformity for all fiduciaries appointed by VA to manage VA benefit payments on behalf of a beneficiary and significantly reduce costs associated with court-appointed guardians or fiduciaries. Congress enacted 38 U.S.C. 5502, under which it gave VA the authority to administer the fiduciary program. VA's longstanding interpretation of this authority is that VA may establish a fiduciary program that is governed by federal laws and not various state laws. In this regard, federal laws (and not competing state laws) apply to the appointment of a VA fiduciary and VA's oversight of the fiduciary's management of a beneficiary's VA benefits.
For example, all prospective fiduciaries who will receive VA benefit payments on behalf of a beneficiary will undergo a VA investigation mandated by 38 U.S.C. 5507, regardless of if that potential fiduciary serves as a court-appointed guardian and underwent a qualification process prescribed by state law, which may vary from state to state. Also, all VA fiduciaries will have the same accounting requirements regarding a beneficiary's VA funds under management, to include the frequency of submitting an accounting, irrespective of state courts requirements. In addition, VA will not rely on state laws that subject beneficiaries to varying fee schedules depending upon the beneficiaries' state of residence. In cases in which VA determines that a fee or commission is necessary to obtain a fiduciary, Congress authorized “a reasonable commission for fiduciary services rendered” to be paid from the beneficiary's VA funds. See 38 U.S.C. 5502(a)(2). However, section 5502(a)(2) limits such commissions for any year to 4 percent of the beneficiary's VA monetary benefits paid to the fiduciary during the year. VA's regulations will consistently implement this authority and limit fees to 4 percent to any fiduciary we appoint. This will diminish the potential for adverse impacts on beneficiaries caused by orders issued in state courts approving fiduciary commissions that exceed the 4 percent Federal cap and make clear that a VA fiduciary's fees are limited to a statutory cap of 4 percent of the beneficiary's VA funds.
VA makes a distinction between commissions charged by the guardian related to the services of a fiduciary and expenses incurred by a beneficiary for administrative items. This final rule does not prohibit a fiduciary appointed by VA from disbursing funds to meet the expenses associated with a beneficiary's court-appointed guardianship, if such expenses are deemed reasonable. Duplication of work performed by VA-appointed and state-court-appointed fiduciaries is highly discouraged as it unnecessarily diminishes beneficiary assets.
One commenter recommended that we inform all probate courts in the nation that VA intends to appoint court-appointed fiduciaries as VA fiduciaries as a last resort. We agree and intend to notify certain interested parties, to include courts and guardians, of the important changes in this final rule.
We have made a few non-substantive edits to the proposed regulations: We changed references to “18 years of age” to “age of majority,” changed a reference to “Regional Counsel” to “District Counsel” to reflect current terminology, changed a reference to “Assistant General Counsel” to “Chief Counsel” for the same reason, and replaced “State” with “state.”
This final rule at §§ 13.30, 13.140, 13.230, 13.280, and 13.600 contains new and revised collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). On January 3, 2014, in the proposed rule published in the
In accordance with 44 U.S.C. 3507(d), VA submitted a copy of the proposed rule to OMB for review and they assigned OMB control Number 2900-0815 for a new information collection contained in section 13.140(a)(2)(iv) of the proposed rule. However, the proposed rule did not explicitly solicit comments on the new information collection contained in section 13.140(a)(2)(iv). Therefore, VA requests comments by the public on the new collection of information contained in section 13.140(a)(2)(iv) in—
• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of VA, including whether the information will have practical utility;
• Evaluating the accuracy of VA's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other form of information technology,
The details of the new collection of information contained in 38 CFR 13.140(a)(2)(iv) that were omitted from the comment solicitation in the proposed rule and that we seek comments through this final rule are described as follows:
VA welcomes comments on this new information collection. Comments on the collections of information contained in this final rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to: Director, Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1063B, Washington, DC 20420; fax to (202) 273-9026 (this is not a toll-free number); or email comments through
We are providing a 30 day comment period on this new information collection. Comments are due to OMB by August 13, 2018. We will consider all comments on the above described information collection.
The information collection provisions in this final rule subject to the PRA will not become effective until OMB approves the collections.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The final rule will primarily affect individual beneficiaries and fiduciaries. It will not cause a significant economic impact on fiduciaries since VA generally appoints individual family members, friends, or caretakers to provide fiduciary services for beneficiaries. These services are, in most instances, provided without charge. While some business entities provide fiduciary services to VA beneficiaries for a fee, those fees, which are capped at 4 percent of monetary benefits paid, are not sufficient to result in a significant economic impact. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
A rule has federalism implications 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. Under the Order, if a rule has federalism implications and preempts state law, to the extent practicable and permitted by law, an agency must consult with state officials concerning the rule. We have analyzed this rule under that Order and have determined that this rule does not have any new federalism implications but merely clarifies existing regulations that govern the VA fiduciary program and implements existing statutory authority provided by Congress for VA to establish and administer a fiduciary program relating to VA benefits on behalf of beneficiaries. VA does not intend to act through this rule to preempt state law but relies on authority provided by Congress. Accordingly, we do not believe this final rule requires VA to consult with state officials prior to its publication.
In 38 U.S.C. 5502(a)(1), Congress authorized VA to appoint a fiduciary for the purpose of receiving and disbursing VA benefits on behalf of a beneficiary: “Where it appears to the Secretary that the interest of the beneficiary would be served thereby, payment of benefits under any law administered by [VA] may be made directly to the beneficiary or to a relative or some other fiduciary for the use and benefit of the beneficiary, regardless of any legal disability on the part of the beneficiary.” In the preamble to the proposed rule, we explained that VA interprets “regardless of any legal disability” in section 5502(a)(1) to mean that, in creating the fiduciary program, Congress intended VA to preempt state laws regarding guardianships and other matters to the extent necessary to ensure a national standard of practice for payment of benefits to or on behalf of VA beneficiaries who cannot manage their benefits. See 79 FR 430.
Matters regarding the governance of guardianships for persons with legal disabilities have their jurisdiction in state courts. See
We realize that there are well-developed state laws in matters of guardianship. When Congress enacted section 5502, it did not intend a sweeping preemption of state laws that govern guardianship activities. Rather, we believe Congress only intended for VA to preempt state law in guardianship matters as they relate to VA benefits. Under the authority granted by current law, the purpose for this final rule is to promulgate uniform rules for all fiduciaries appointed by VA to manage VA benefit payments on behalf of beneficiaries. As such, if we appoint a state-appointed guardian to serve as a fiduciary on behalf of a beneficiary who is receiving VA benefits, our regulations, not state law, are applicable to the appointment and oversight of the fiduciary and the fiduciary's management of VA benefits for the beneficiary, as Congress intended.
For instance, Congress did not intend for VA to utilize state laws regarding fiduciary fees that are paid from a beneficiary's VA benefits and subject beneficiaries to the various fee schedules prescribed by states, such that beneficiaries will be treated differently depending upon state of residence. Under section 5502(a)(2), Congress specifically mandated “a reasonable commission for fiduciary services rendered” to be paid from the beneficiary's VA funds, “but the commission for any year may not exceed 4 percent of the monetary benefits.” Furthermore, among other things, Congress authorized VA to remove any fiduciary who is not meeting the fiduciary's responsibilities to a beneficiary or who is not acting in the beneficiary's interest. See 38 U.S.C. 5502. VA's authority also extends to appointment of a temporary fiduciary in certain circumstances and suspending payments to any fiduciary who fails to properly submit an accounting to VA. See 38 U.S.C. 5502.
Current 38 CFR part 13 has not been updated since 1975. Congress has since amended 38 U.S.C. chapters 55 and 61 to add new provisions, which, among other things, authorize VA to conduct specific investigations regarding the fitness of individuals to serve as fiduciaries, conduct onsite reviews of fiduciaries who serve more than 20 beneficiaries, require fiduciaries to file reports or accountings, and reissue certain benefits that are misused by fiduciaries. See 38 U.S.C. 5507-5510, 6106-6107. The foregoing statutory obligations demonstrate Congress' intent to create a uniform system of fiduciary services for VA beneficiaries, irrespective of inconsistent state laws.
Congress' intent to have Federal laws governing VA's fiduciary program preempt any conflicting state laws is clear in the chapter 55 and 61 provisions. While state law provides some guidance concerning fiduciary matters, those laws vary significantly from state to state and do not pertain to VA's fiduciary program. Further, VA does rely on state laws in cases where a state court has appointed a fiduciary for oversight of the veteran's assets and where there is no conflict between state and Federal law, and/or when the court-appointed fiduciary is the same as the VA-appointed fiduciary. State laws often provide helpful guidance; however, under the Supremacy Clause of the Constitution, Federal law is controlling. See U.S. Const. art. VI, cl 2;
Again, because this rule does not have any new federalism implications but merely clarifies existing regulations that govern the VA fiduciary program and implements existing statutory authority provided by Congress for VA to establish and administer a fiduciary program relating to VA benefits on behalf of beneficiaries, we do not believe this final rule requires VA to consult with state officials prior to its publication and believe that this rule is in compliance with Executive Order 13132.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
VA has examined the economic, interagency, budgetary, legal, and policy implications of this final rule, and it has been determined to be a significant regulatory action under Executive Order 12866, because it raises novel legal or policy issues arising out of legal mandates.
This final rule is considered an E.O. 13771 regulatory action. Details on the estimated costs of this final rule can be found in the rule's economic analysis.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for this final rule are as follows: 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
Administrative practice and procedure, Claims, Disability benefits,
Surety bonds, Trusts and trustees, and Veterans.
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. Jacquelyn Hayes-Byrd, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on March 20, 2018, for publication.
For the reasons stated in the preamble, VA amends 38 CFR parts 3 and 13 as follows:
38 U.S.C. 501(a), unless otherwise noted.
(a) * * *
(2)
CROSS REFERENCES: Disappearance of veteran.
38 U.S.C. 501, 5502, 5506-5510, 6101, 6106-6108, and as noted in specific sections.
(a)
(b)
The following definitions apply to this part:
(1) Has been rated by VA as incapable of managing his or her own VA benefits as a result of injury, disease, or the infirmities of advanced age;
(2) Has been determined by a court with jurisdiction as being unable to manage his or her own financial affairs; or
(3) Is less than the age of majority.
(1) A clear statement of the decision,
(2) The reason(s) for the decision,
(3) A summary of the evidence considered in reaching the decision, and
(4) The necessary procedures and time limits to initiate an appeal of the decision.
Except as prescribed in this part, a beneficiary in the fiduciary program is entitled to the same rights afforded any other VA beneficiary.
(a)
(b)
(1) Receive direct payment of recurring monthly benefits until VA appoints a fiduciary if the beneficiary reaches the age of majority or older;
(2) Receive written notice regarding VA's appointment of a fiduciary or any other decision on a fiduciary matter that affects VA's provision of benefits to the beneficiary;
(3) Appeal to the Board of Veterans' Appeals VA's appointment of a fiduciary;
(4) Be informed of the fiduciary's name, telephone number, mailing address, and email address;
(5) Contact his or her fiduciary and request a disbursement of funds for current or foreseeable needs or consideration for payment of previously incurred expenses, account balance information, or other information or assistance consistent with the responsibilities of the fiduciary prescribed in § 13.140;
(6) Obtain from his or her fiduciary a copy of the fiduciary's VA-approved annual accounting;
(7) Have VA reissue benefits misused by a fiduciary if VA is negligent in appointing or overseeing the fiduciary or if the fiduciary who misused the benefits meets the criteria prescribed in § 13.410;
(8) Appeal to the Board of Veterans' Appeals VA's determination regarding its own negligence in misuse and reissuance of benefits matters;
(9) Submit to VA a reasonable request for appointment of a successor fiduciary. For purposes of this paragraph,
(i) The beneficiary's current fiduciary receives a fee deducted from the beneficiary's account under § 13.220 and the beneficiary requests an unpaid volunteer fiduciary who ranks higher in the order of preference under § 13.100(e);
(ii) The beneficiary requests removal of his or her fiduciary under § 13.500(a)(1)(iii) and supervised direct payment of benefits under § 13.110; or
(iii) The beneficiary provides credible information that the current fiduciary is not acting in the beneficiary's interest or is unable to effectively serve the beneficiary due to a personality conflict or disagreement and VA is not able to obtain resolution;
(10)(i) Be removed from the fiduciary program and receive direct payment of benefits without VA supervision provided that the beneficiary:
(A) Is rated by VA as able to manage his or her own benefits; or
(B) Is determined by a court with jurisdiction as able to manage his or her financial affairs if the beneficiary is in the fiduciary program as a result of a court order and not a decision by VA's rating agency; or
(C) Attains the age of majority;
(ii) Have a fiduciary removed and receive direct payment of benefits with VA supervision as prescribed in § 13.110 regarding supervised direct payment and § 13.500 regarding removal of fiduciaries generally, provided that the beneficiary establishes the ability to manage his or her own benefits with limited and temporary VA supervision; and
(11) Be represented by a VA-accredited attorney, claims agent, or representative of a VA-recognized veterans service organization. This includes the right to have a representative present during a field examination and the right to be represented in the appeal of a fiduciary matter under § 13.600.
The provisions of 38 CFR 14.626 through 14.629 and 14.631 through 14.637 regarding accreditation and representation of VA claimants and beneficiaries in proceedings before VA are applicable to representation of beneficiaries before VA in fiduciary matters governed by this part.
(a)
(b)
(1) A fiduciary matter is not a claim for VA benefits. However, the term
(2) The provisions of § 14.632(c)(7) through (9) of this chapter mean that an accredited individual representing a beneficiary in a fiduciary matter may not:
(i) Delay or refuse to cooperate in the processing of a fiduciary appointment or any other fiduciary matter, including but not limited to a field examination prescribed by § 13.120 and the investigation of a proposed fiduciary prescribed by § 13.100;
(ii) Mislead, threaten, coerce, or deceive a beneficiary in the fiduciary program or a proposed or current fiduciary regarding payment of benefits or the rights of beneficiaries in the fiduciary program; or
(iii) Engage in, or counsel or advise a beneficiary or proposed or current fiduciary to engage in, acts or behavior prejudicial to the fair and orderly
(3) The Hub Manager will submit a written report regarding an alleged violation of the standards of conduct prescribed in this section to the VA Chief Counsel who administers the accreditation program for a determination regarding further action, including suspension or cancellation of accreditation under § 14.633 of this chapter, and notification to any agency, court, or bar to which the attorney, agent, or representative is admitted to practice.
(c)
(1) The following provisions of § 14.636 of this chapter do not apply in fiduciary matters:
(i) Fees under § 14.636(e) of this chapter, to the extent that the regulation authorizes a fee based on a percentage of benefits recovered;
(ii) The presumptions prescribed by § 14.636(f) of this chapter based upon a percentage of a past-due benefit amount. In fiduciary matters, the reasonableness of a fixed or hourly-rate fee will be determined based upon application of the reasonableness factors prescribed in § 14.636(e); and
(iii) Direct payment of fees by VA out of past-due benefits under § 14.636(g)(2) and (h) of this chapter.
(2) An accredited attorney or claims agent who wishes to charge a fee for representing a beneficiary in a fiduciary matter must comply with the fee agreement filing requirement prescribed in § 14.636(g)(3) of this chapter.
(3) VA, the beneficiary, or the beneficiary's fiduciary may challenge the reasonableness of a fee charged by an accredited attorney or claims agent using the procedures prescribed in § 14.636(i) of this chapter.
(a) Notwithstanding the beneficiary rights prescribed in § 13.30, the Hub Manager will temporarily suspend payment of benefits and hold such benefits in the U.S. Treasury to the credit of the beneficiary or take other action that the Hub Manager deems appropriate to prevent exploitation of VA benefit funds or to ensure that the beneficiary's needs are being met, if:
(1) The beneficiary or the beneficiary's attorney, claims agent, or representative withholds cooperation in any of the appointment and oversight procedures prescribed in this part; or
(2) VA removes the beneficiary's fiduciary for any reason prescribed in § 13.500(b) and is unable to appoint a successor fiduciary before the beneficiary has an immediate need for disbursement of funds.
(b) All or any part of the funds held in the U.S. Treasury to the beneficiary's credit under paragraph (a) of this section will be disbursed under the order and in the discretion of the VA Regional Office Director who has jurisdiction over the fiduciary hub or regional office for the benefit of the beneficiary or the beneficiary's dependents.
(a)
(1) Has been rated by VA as being unable to manage his or her VA benefits,
(2) Has been determined by a court with jurisdiction as being unable to manage his or her financial affairs, or
(3) Has not reached age of majority.
(b)
(1) Is eligible for supervised direct payment under § 13.110, or
(2) Is not a beneficiary described in paragraph (a)(1) or (a)(2) of this section and has not reached age of majority, but
(i) Is serving in the Armed Forces of the United States, or
(ii) Has been discharged from service in the Armed Forces of the United States, or
(iii) Qualifies for survivors' benefits as a surviving spouse.
(c)
(d)
(1) VA benefits can be paid directly to the beneficiary with limited and temporary supervision by VA, as prescribed in § 13.110;
(2) The circumstances require appointment of a temporary fiduciary under paragraph (h) of this section; and
(3) The proposed fiduciary is complying with the responsibilities of a fiduciary prescribed in § 13.140 with respect to all beneficiaries in the fiduciary program currently being served by the proposed fiduciary and whether the proposed fiduciary can handle an additional appointment without degrading service for any other beneficiary.
(e)
(1) The preference stated by the beneficiary in the fiduciary program, if the beneficiary has the capacity to state such a preference. If the beneficiary has a legal guardian appointed to handle his or her affairs, the Hub Manager will presume that the beneficiary does not have the capacity to state a preference and will consider individuals and entities in the order of preference prescribed in paragraphs (e)(2) through (10) of this section;
(2) The beneficiary's spouse;
(3) A relative who has care or custody of the beneficiary or his or her funds;
(4) Any other relative of the beneficiary;
(5) Any friend, acquaintance, or other person who is willing to serve as fiduciary for the beneficiary without a fee;
(6) The chief officer of a public or private institution in which the beneficiary receives care or which has custody of the beneficiary;
(7) The bonded officer of an Indian reservation, if applicable;
(8) An individual or entity who has been appointed by a court with jurisdiction to handle the beneficiary's affairs;
(9) An individual or entity who is not willing to serve without a fee; or
(10) A temporary fiduciary, if necessary.
(f)
(1) The investigation will include:
(i) To the extent practicable, a face-to-face interview of the proposed fiduciary;
(ii) A review of a credit report on the proposed fiduciary issued by a credit reporting agency no more than 30 days prior to the date of the proposed appointment;
(iii) A criminal background check to determine whether the proposed fiduciary has been convicted of any offense which would be a bar to serving as a fiduciary under § 13.130 or which the Hub Manager may consider and weigh under the totality of the circumstances regarding the proposed fiduciary's qualifications;
(iv) Obtaining proof of the proposed fiduciary's identity and relationship to the beneficiary, if any; and
(v) A determination regarding the need for surety bond under § 13.230 and the proposed fiduciary's ability to obtain such a bond.
(2) The Hub Manager may, at any time after the initial appointment or reappointment of the fiduciary for a beneficiary, repeat all or part of the investigation prescribed by paragraph (f)(1) of this section to ensure that the fiduciary continues to meet the qualifications for service and there is no current bar to service under § 13.130.
(3) The Hub Manager must conduct the requirements of paragraphs (f)(1)(i),(ii) and (iii) for every subsequent appointment of the fiduciary for each beneficiary.
(4) VA will not conduct the investigation prescribed by paragraph (f) of this section if the proposed fiduciary is an entity, such as the trust department of a bank that provides fiduciary services.
(g)
(1) The proposed fiduciary is:
(i) The beneficiary's parent (natural, adopted, or step-parent) and the beneficiary is less than the age of majority, or
(ii) The beneficiary's spouse; or
(2) The annual amount of VA benefits the proposed fiduciary would manage for the beneficiary does not exceed the amount specified in 38 U.S.C. 5507(c)(2)(D), as adjusted by VA pursuant to 38 U.S.C. 5312.
(h)
(i) VA has removed a fiduciary for cause under § 13.500 and cannot expedite the appointment of a successor fiduciary, and the beneficiary has an immediate need for fiduciary services; or
(ii) The Hub Manager determines that the beneficiary has an immediate need for fiduciary services and it would not be in the beneficiary's or the beneficiary's dependents' interest to pay benefits to the beneficiary until a fiduciary is appointed.
(2) Any temporary fiduciary appointed under this paragraph (h) must be:
(i) An individual or entity that has already been subject to the procedures for appointment in paragraphs (d) and (f) of this section, and
(ii) Performing satisfactorily as a fiduciary for at least one other VA beneficiary for whom the fiduciary has submitted an annual accounting that VA has approved.
(i)
(1) Obtain from every proposed fiduciary who is an individual a written authorization for VA to disclose to the beneficiary information regarding any fiduciary matter that may be appealed under § 13.600, including but not limited to the fiduciary's qualifications for appointment under § 13.100 or misuse of benefits under § 13.400. Such disclosures may occur in VA's correspondence with the beneficiary, in a VA fiduciary appointment or misuse of benefits decision, in a statement of the case for purposes of appeal under § 13.600, or upon request by the beneficiary, the beneficiary's guardian, or the beneficiary's accredited attorney, claims agent, or representative;
(2) Notify the proposed fiduciary that the disclosed information may be used by the beneficiary in appealing a VA appointment or misuse decision to the Board of Veterans' Appeals under § 13.600; and
(3) Terminate consideration of a proposed fiduciary if the individual refuses to provide the authorization prescribed in paragraph (i)(1) of this section. Such refusal is a bar to serving as a fiduciary for a beneficiary under § 13.130(b).
(a)
(1) Whether the beneficiary is aware of his or her monthly income;
(2) Whether the beneficiary is aware of his or her fixed monthly expenses such as rent, mortgage, utilities, clothing, food, and medical bills;
(3) The beneficiary's ability to:
(i) Allocate appropriate funds to fixed monthly expenses and discretionary items;
(ii) Pay monthly bills in a timely manner; and
(iii) Conserve excess funds; and
(4) Any other information that demonstrates the beneficiary's actual ability to manage his or her VA benefits with limited VA supervision.
(b)
(1) Assistance in the development of a budget regarding the beneficiary's income and expenses,
(2) Assistance with creating a fund usage report to aid the beneficiary in tracking his or her income and expenses, and
(3) Periodic reviews of the beneficiary's fund usage report, as required by the Hub Manager.
(c)
(1) If the beneficiary demonstrates the ability to manage his or her VA benefits without supervision, the Hub Manager will prepare a report that summarizes the findings and refer the matter with a recommendation and supporting evidence to the rating authority for application of § 3.353(b)(3) of this chapter regarding reevaluation of ability to manage VA benefits and § 3.353(d) of this chapter regarding the presumption of ability to manage VA benefits without restriction.
(2) If the beneficiary does not demonstrate the ability to manage his or her VA benefits without VA supervision, the Hub Manager will:
(i) Appoint a fiduciary, or
(ii) Continue supervised direct payment for not longer than one additional 12-month period based upon evidence that additional supervision might assist the beneficiary in developing the ability to manage his or her own VA benefits. At the conclusion of the additional period of supervised direct payment, the Hub Manager will conduct the reassessment prescribed by paragraph (c) of this section and either recommend reevaluation under paragraph (c)(1) of this section or appoint a fiduciary under paragraph (c)(2)(i) of this section.
(a)
(1) Interview beneficiaries, dependents, and other interested persons regarding fiduciary matters;
(2) Interview proposed fiduciaries and current fiduciaries regarding their qualifications, performance, or compliance with VA regulations;
(3) Conduct investigations and examine witnesses regarding any fiduciary matter;
(4) Take affidavits;
(5) Administer oaths and affirmations;
(6) Certify copies of public or private documents; and
(7) Aid claimants and beneficiaries in the preparation of claims for VA benefits or other fiduciary or claim-related material.
(b)
(1) Assessing a beneficiary's and the beneficiary's dependents' welfare and physical and mental well-being, environmental and social conditions, and overall financial situation, based upon visiting the beneficiary's current residence and conducting a face-to-face interview of the beneficiary and the beneficiary's dependents, when practicable;
(i) The Hub Manager will waive the requirements of paragraph (b)(1) of this section if the Veterans Health Administration (VHA) has approved the fiduciary as the beneficiary's family caregiver, and VHA's status report regarding the beneficiary indicates the beneficiary is in an excellent situation.
(ii) The provisions of paragraph (b)(1)(i) of this section do not apply when the Hub Manager has information that a fiduciary, who is also the beneficiary's VHA-designated family caregiver, is misusing a beneficiary's VA funds under management, is neglecting a beneficiary, or has failed to comply with the requirements of § 13.140, or there is insufficient evidence to determine the beneficiary's well-being.
(2) Assessing the beneficiary's ability to manage his or her own VA benefits with only limited VA supervision (
(3) Collecting and reviewing financial documentation, including income and expenditure information;
(4) Providing any necessary assistance to the beneficiary with issues affecting current or additional VA benefits, claims, and non-VA matters that may affect or conflict with VA benefits;
(5) Making appropriate referrals in cases of actual or suspected physical or mental abuse, neglect, or other harm to a beneficiary;
(6) Investigating, when necessary, allegations that a beneficiary's fiduciary has engaged in misconduct or misused VA benefits to include but not limited to allegations regarding:
(i) Theft or misappropriation of funds,
(ii) Failure to comply with the responsibilities of a fiduciary as prescribed in § 13.140,
(iii) Other allegations of inappropriate fund management by a fiduciary, and
(iv) Other special circumstances which require a visit with or onsite review of the fiduciary, such as a change in an award of benefits or benefit status, or non-fiduciary program matters.
(c)
(1) Determine whether benefits should be paid directly to a beneficiary under § 13.110 or to a fiduciary appointed for the beneficiary under § 13.100;
(2) Determine whether benefit payments should continue to be made directly to a beneficiary under § 13.110 or to a fiduciary on behalf of a beneficiary; or
(3) Ensure the well-being of a beneficiary in the fiduciary program or to protect a beneficiary's VA benefit funds.
(a) An individual or entity may not serve as a fiduciary for a VA beneficiary if the individual or entity:
(1) Misused or misappropriated a beneficiary's VA benefits while serving as the beneficiary's fiduciary;
(2) Has been convicted of a felony offense. For purposes of this paragraph,
(i) The conviction occurred more than 10 years preceding the proposed date of appointment;
(ii) The conviction did not involve any of the following offenses:
(A) Fraud;
(B) Theft;
(C) Bribery;
(D) Embezzlement;
(E) Identity theft;
(F) Money laundering;
(G) Forgery;
(H) The abuse of or neglect of another person; or
(I) Any other financial crime;
(iii) There is no other person or entity who is willing and qualified to serve; and
(iv) The Hub Manager determines that the nature of the conviction is such that appointment of the individual poses no risk to the beneficiary and is in the beneficiary's interest.
(b) An individual may not serve as a fiduciary for a VA beneficiary if the individual:
(1) Refuses or neglects to provide the authorization for VA disclosure of information prescribed in § 13.100(i);
(2) Is unable to manage his or her own Federal or state benefits and is in a Federal or state agency's fiduciary, representative payment, or similar program;
(3) Has been adjudicated by a court with jurisdiction as being unable to manage his or her own financial affairs;
(4) Is incarcerated in a Federal, state, local, or other penal institution or correctional facility, sentenced to home confinement, released from incarceration to a half-way house, or on house arrest or in custody in any facility awaiting trial on pending criminal charges;
(5) Has felony charges pending;
(6) Has been removed as legal guardian by a state court for misconduct;
(7) Is under the age of majority; or
(8) Knowingly violates or refuses to comply with the regulations in this part.
Any individual or entity appointed by VA as a fiduciary to receive VA benefit payments on behalf of a beneficiary in the fiduciary program must fulfill certain responsibilities associated with the services of a fiduciary. These responsibilities include:
(a)
(2) The fiduciary must take all reasonable precautions to protect the beneficiary's private information contained in the fiduciary's paper and electronic records.
(i) For purposes of this section:
(A)
(B)
(ii) At a minimum, fiduciaries must place reasonable restrictions upon access to paper records containing the beneficiary's private information, including storage of such records in locked facilities, storage areas, or containers.
(iii) For electronic records containing the beneficiary's private information, the fiduciary must:
(A) Use unique identifications and passwords, which are not vendor-supplied default identifications and passwords, for computer, network, or online site access that are reasonably designed to maintain the security of the beneficiary's information and the fiduciary's financial transactions;
(B) Control access to data security passwords to ensure that such passwords are kept in a location and format that do not compromise the security of the beneficiary's private information; and
(C) For records containing private information on a computer system that is connected to the internet, keep reasonably up-to-date firewall and virus protection and operating system security patches to maintain the integrity of the beneficiary's private information and prevent unauthorized disclosure. For purposes of this section, a system is reasonably updated if the fiduciary installs software updates immediately upon release by the original equipment or software manufacturer, uses internet browser security settings suitable for transmission of private information, and maintains password-protected wireless connections or other networks.
(iv) The fiduciary must keep all paper and electronic records relating to the fiduciary's management of VA benefit funds for the beneficiary for the duration of service as fiduciary for the beneficiary and for a minimum of 2 years from the date that VA removes the fiduciary under § 13.500 or from the date that the fiduciary withdraws as fiduciary for the beneficiary under § 13.510.
(b)
(1) The use of the beneficiary's VA benefit funds under management only for the care, support, education, health, and welfare of the beneficiary and his or her dependents. Except as authorized under § 13.220 regarding fiduciary fees, a fiduciary may not derive a personal financial benefit from management or use of the beneficiary's funds;
(2) Protection of the beneficiary's VA benefits from loss or diversion;
(3) Except as prescribed in § 13.200 regarding fiduciary accounts, maintenance of separate financial accounts to prevent commingling of the beneficiary's funds with the fiduciary's own funds or the funds of any other beneficiary for whom the fiduciary has funds under management;
(4) Determination of the beneficiary's just debts. For purposes of this section,
(5) Timely payment of the beneficiary's just debts, provided that the fiduciary has VA benefit funds under management for the beneficiary to cover such debts;
(6) Providing the beneficiary with information regarding VA benefit funds under management for the beneficiary, including fund usage, upon request;
(7) Providing the beneficiary with a copy of the annual accounting approved by VA under § 13.280;
(8) Ensuring that any best-interest determination regarding the use of funds is consistent with VA policy, which recognizes that beneficiaries in the fiduciary program are entitled to the same standard of living as any other beneficiary with the same or similar financial resources, and that the fiduciary program is not primarily for the purpose of preserving funds for the beneficiary's heirs or disbursing funds according to the fiduciary's own beliefs, values, preferences, and interests; and
(9) Protecting the beneficiary's funds from the claims of creditors as described in § 13.270.
(c)
(1) Contacting social workers, mental health professionals, or the beneficiary's legal guardian regarding the beneficiary, when necessary;
(2) To the extent possible, ensuring the beneficiary receives appropriate medical care;
(3) Correcting any discord or uncomfortable living or other situations when possible;
(4) Acknowledging and addressing any complaints or concerns of the beneficiary to the best of the fiduciary's ability;
(5) Reporting to the appropriate authorities, including any legal guardian, any type of known or suspected abuse of the beneficiary;
(6) Maintaining contact with the beneficiary for purposes of assessing the beneficiary's capabilities, limitations, needs, and opportunities;
(7) Being responsive to the beneficiary and ensuring the beneficiary and his or her legal guardian have the fiduciary's current contact information.
(d)
(1) If the fiduciary is also appointed by a court, annually provide to the fiduciary hub with jurisdiction a certified copy of the accounting(s) provided to the court or facilitate the hub's receipt of such accountings;
(2) Notify the fiduciary hub regarding any change in the beneficiary's circumstances, to include the beneficiary's relocation, the beneficiary's serious illness, or any
(3) Provide documentation or verification of any records concerning the beneficiary or matters relating to the fiduciary's responsibilities within 30 days of a VA request, unless otherwise directed by the Hub Manager;
(4) When necessary, appear before VA for face-to-face meetings; and
(5) Comply with the policies and procedures prescribed in this part.
Except as prescribed in paragraph (b) of this section, any fiduciary appointed by VA to receive payments on behalf of a beneficiary must deposit the beneficiary's VA benefits in a fiduciary account that meets the requirements prescribed in paragraph (a) of this section.
(a)
(1) Established for direct deposit of VA benefits,
(2) Established in a Federally-insured financial institution, and in Federally-insured accounts when funds qualify for such deposit insurance, and
(3) Titled in the beneficiary's and fiduciary's names and note the existence of the fiduciary relationship.
(b)
(1) The beneficiary's spouse;
(2) State or local Government entities;
(3) Institutions, such as public or private medical care facilities, nursing homes, or other residential care facilities, when an annual accounting is not required.
(4) A trust company or a bank with trust powers organized under the laws of the United States or a state.
(a)
(b)
(c)
(1) The beneficiary's spouse, and
(2) The chief officer of an institution in which the beneficiary is being furnished hospital treatment or institutional, nursing, or domiciliary care. VA benefits paid to the chief officer may not be invested.
(a)
(1) Is a spouse, dependent, or other relative of the beneficiary; or
(2) Will receive any other form of payment in connection with providing fiduciary services for the beneficiary.
(b)
(1) For purposes of this section,
(2) A monthly fee may be collected for any month during which the fiduciary:
(i) Provides fiduciary services on behalf of the beneficiary,
(ii) Receives a recurring VA benefit payment for the beneficiary, and
(iii) Is authorized by the Hub Manager to receive a fee for fiduciary services.
(3) Fees may not be computed based upon:
(i) Any one-time, retroactive, or lump-sum payment made to the fiduciary on behalf of the beneficiary;
(ii) Any funds conserved by the fiduciary for the beneficiary in the beneficiary's account under § 13.200 or invested by the fiduciary for the beneficiary under § 13.210, to include any interest income and return on investment derived from any account; or
(iii) Any funds transferred to the fiduciary by a prior fiduciary for the beneficiary, or from the personal funds of patients or any other source.
(4) The Hub Manager will not authorize a fee for any month for which:
(i) VA or a court with jurisdiction determines that the fiduciary misused or misappropriated benefits, or
(ii) The beneficiary does not receive a VA benefit payment. However, the Hub Manager may authorize a fee for a month in which the beneficiary did not receive a benefit payment if VA later issues benefits for that month and the fiduciary:
(A) Receives VA approval to collect a fee for the month for which payment was made,
(B) Provided fiduciary services during the month for which payment was made, and
(C) Was the beneficiary's fiduciary when VA made the retroactive payment.
(a)
(b)
(c)
(i) A fiduciary that is a trust company or a bank with trust powers organized under the laws of the United States or a state;
(ii) A fiduciary who is the beneficiary's spouse; or
(iii) A fiduciary in the Commonwealth of Puerto Rico, Guam, or another territory of the United States, or in the Republic of the Philippines, who has entered into a restricted withdrawal agreement in lieu of a surety bond.
(2) The Hub Manager may, at any time, require the fiduciary to obtain a bond described in paragraph (a) of this section and meeting the requirements of paragraph (d) of this section, without regard to the amount of VA benefit funds under management by the fiduciary for the beneficiary, if special circumstances indicate that obtaining a bond would be in the beneficiary's interest. Such special circumstances may include but are not limited to:
(i) A marginal credit report for the fiduciary; or
(ii) A fiduciary's misdemeanor criminal conviction either before or after appointment for any offense listed in § 13.130(a)(2)(ii);
(d)
(1) The bond must be a corporate surety bond in an amount sufficient to cover the value of the VA benefit funds under management by the fiduciary for the beneficiary.
(2) After furnishing the prescribed bond to the fiduciary hub, the fiduciary must:
(i) Adjust the bond amount to account for any increase or decrease of more than 20 percent in the VA benefit funds under management by the fiduciary for the beneficiary; and
(ii) Furnish proof of the adjustment to the fiduciary hub not later than 60 days after a change in circumstance described in paragraph (d)(2)(i) of this section.
(3) The bond furnished by the fiduciary must also:
(i) Identify the fiduciary, the beneficiary, and the bonding company; and
(ii) Contain a statement that the bond is payable to the Secretary of Veterans Affairs.
(e)
(1) With each annual accounting prescribed by § 13.280; and
(2) At any other time the Hub Manager with jurisdiction requests proof.
(f)
(2) VA may collect on the bond regardless of any prior reissuance of benefits by VA under § 13.410 and until liability under the terms of the bond is exhausted.
(g)
(2)
(a)
(b)
(a)
(b)
(c)
(d)
(a)
(1) The deceased veteran's spouse, as defined by § 3.1000(d)(1) of this chapter;
(2) The veteran's children (in equal shares), as defined by § 3.57 of this
(3) The veteran's dependent parents (in equal shares) or surviving parent, as defined by § 3.59 of this chapter, provided that the parents were or parent was dependent within the meaning of § 3.250 of this chapter on the date of the veteran's death.
(4) Any balance remaining in the personal funds of patients account that cannot be distributed in accordance with paragraphs (a)(1) through (3) of this section will be used by VA to reimburse anyone who bore the expense of the veteran's last sickness or burial or will be deposited to the credit of the applicable current VA appropriation.
(b)
Under 38 U.S.C. 5301(a)(1), VA benefit payments are exempt, both before and after receipt by the beneficiary, from the claims of creditors and taxation. The fiduciary should invoke this defense in applicable circumstances. If the fiduciary does not do so, the Hub Manager may refer the matter to the District Counsel for evaluation and appropriate legal action.
(a)
(1) The amount of VA benefit funds under management for the beneficiary exceeds $10,000;
(2) The fiduciary deducts a fee authorized under § 13.220 from the beneficiary's account;
(3) The beneficiary is being paid VA compensation benefits at a total disability rating (100 percent), whether schedular, extra-schedular, or based on individual unemployability; or
(4) The Hub Manager determines an accounting is necessary to ensure the fiduciary has properly managed the beneficiary's funds.
(b)
(1) A beginning inventory or account balance,
(2) An itemization of income,
(3) An itemization of expenses,
(4) An ending inventory or account balance,
(5) Copies of financial institution documents reflecting receipts, expenditures, and beginning and ending balances, and
(6) Receipts, when required by the Hub Manager.
(c)
(1) The fiduciary must submit accountings on the appropriate VA form not later than 30 days after the end of the accounting period prescribed by the Hub Manager.
(2) The fiduciary must submit a corrected or supplemental accounting not later than 14 days after the date of VA notice of an accounting discrepancy.
(d)
(1) The beneficiary's spouse;
(2) A chief officer of a Federal institution;
(3) A chief officer of a non-VA facility receiving benefits for a beneficiary institutionalized in the facility and:
(i) The beneficiary's monthly care, maintenance, and personal use expenses equal or exceed the amount of the beneficiary's monthly VA benefit; and
(ii) The amount of VA benefit funds under management by the fiduciary does not exceed $10,000; or
(4) A fiduciary who receives benefits on behalf of a beneficiary and both permanently resides outside of the United States or in the Commonwealth of Puerto Rico or the Republic of the Philippines, and the fiduciary was appointed outside of the United States or in the Commonwealth of Puerto Rico or the Republic of the Philippines.
(e)
(a)
(i) The fiduciary serves 20 or more beneficiaries, and
(ii) The total annual amount of recurring VA benefits paid to the fiduciary for such beneficiaries exceeds the threshold established in 38 U.S.C. 5508 as adjusted by VA under 38 U.S.C. 5312.
(2) The Hub Manager must complete at least one periodic onsite review triennially if the fiduciary meets the requirements of paragraph (a)(1) of this section.
(3) VA will provide the fiduciary with written notice of the periodic onsite review at least 30 days before the scheduled review date. The notice will:
(i) Inform the fiduciary of the pending review and the fiduciary's obligation under this part to cooperate in the onsite review process, and
(ii) Request that the fiduciary make available for review all relevant records, including but not limited to case files, bank statements, accountings, ledgers, check registers, receipts, bills, and any other items necessary to determine that the fiduciary has been acting in the best interest of VA beneficiaries and meeting the responsibilities of fiduciaries prescribed in § 13.140.
(b)
(1) VA receives from any source credible information that the fiduciary has misused or is misusing VA benefits;
(2) The fiduciary's annual accounting is seriously delinquent. For purposes of this section,
(3) VA receives from any source credible information that the fiduciary is not adequately performing the responsibilities of a fiduciary prescribed in § 13.140; or
(4) The Hub Manager determines that an unscheduled onsite review is necessary to ensure that the fiduciary is
(c)
(i) A face-to-face meeting with the fiduciary. In the case of a fiduciary that is an entity, the face-to-face meeting will be with a representative of the entity;
(ii) A review of all relevant records maintained by the fiduciary, including but not limited to case files, bank statements, accountings, ledgers, check registers, receipts, bills, and any other items necessary to determine whether the fiduciary has been acting in the interest of VA beneficiaries; and
(iii) Interviews of beneficiaries, the fiduciary's employees, and other individuals as determined necessary by the Hub Manager.
(2) Not later than 30 days after completing a periodic or unscheduled onsite review, the Hub Manager will provide the fiduciary a written report of VA's findings, recommendations for correction of deficiencies, requests for additional information, and notice of VA's intent regarding further action.
(3) Unless good cause for an extension is shown, not later than 30 days after the date that VA mails the report prescribed by paragraph (d)(2) of this section, the fiduciary must submit to the fiduciary hub a response to any VA request for additional information or recommendation for corrective action.
(4) The Hub Manager will remove the fiduciary for all VA beneficiaries whom the fiduciary serves if the fiduciary:
(i) Refuses to cooperate with VA during a periodic or unscheduled onsite review,
(ii) Is unable to produce necessary records,
(iii) Fails to respond to a VA request for additional information or recommendation for corrective action, or
(iv) Is found during an onsite review to have misused VA benefits.
(a)
(b)
(1) Identify the beneficiary,
(2) Identify the fiduciary,
(3) State whether the fiduciary is an individual fiduciary serving 10 or more beneficiaries or a corporation or other entity serving one or more beneficiaries,
(4) Identify the source of the information,
(5) Describe in detail the facts found as a result of the investigation,
(6) State the reasons for the Hub Manager's determination regarding whether the fiduciary misused any part of the beneficiary's benefit paid to the fiduciary, and
(7) If the Hub Manager determines that the fiduciary did misuse any part of the beneficiary's benefit, identify the months in which such misuse occurred.
(c)
(1) The fiduciary;
(2) The beneficiary or the beneficiary's legal guardian, and the beneficiary's accredited representative, attorney, or claims agents;
(3) The court of jurisdiction if the fiduciary is also the beneficiary's court-appointed guardian and/or conservator; and
(4) The Director of the Pension and Fiduciary Service.
(d)
(i) The Hub Manager receives a written request for reconsideration from the fiduciary or the beneficiary not later than 30 days after the date that the Hub Manager mailed notice of his or her misuse determination; or
(ii) The Hub Manager receives a notice of disagreement from the beneficiary not later than 1 year after the date that the Hub Manager mailed notice of his or her misuse determination.
(2) The fiduciary or the beneficiary may submit additional information pertinent to reconsideration of the misuse determination and not previously considered by the Hub Manager, provided that the additional information is submitted with the written reconsideration request.
(3) The Hub Manager will close the record regarding reconsideration at the end of the 30-day period described in paragraph (d)(1)(i) of this section and furnish a timely request submitted by the fiduciary or the beneficiary, including any new information, to the Director of the VA Regional Office with jurisdiction over the fiduciary hub for a final decision.
(4) In making the misuse determination on reconsideration, the Regional Office Director's decision will be based upon a review of the information of record as of the date of the Hub Manager's misuse determination and any new information submitted with the request. The decision will:
(i) Identify the beneficiary,
(ii) Identify the fiduciary,
(iii) Identify if the fiduciary is also the beneficiary's court-appointed guardian or conservator,
(iv) Identify the date of the Hub Manager's prior decision,
(v) Describe in detail the facts found as a result of the Director's review of the Hub Manager's decision and any new information submitted with the reconsideration request, and
(vi) State the reasons for the Director's final decision, which may affirm, modify, or overturn the Hub Manager's decision.
(5) The Hub Manager will provide written notice of the Regional Office Director's final decision on reconsideration to:
(i) The fiduciary,
(ii) The beneficiary or the beneficiary's legal guardian, and the beneficiary's accredited representative, attorney, or claims agent;
(iii) The court, if the fiduciary is also the beneficiary's court-appointed guardian or conservator; and
(iv) The Director of the Pension and Fiduciary Service.
(e)
(1) Not later than 30 days after a final determination is made under paragraph (d) of this section that a fiduciary has misused VA benefits, the Director of the VA Regional Office who has jurisdiction over the fiduciary hub will notify the
(2) For purposes of application of § 13.410 regarding reissuance and recoupment of benefits, the Office of Inspector General will advise the Director of the Pension and Fiduciary Service of any final decision regarding prosecution of a fiduciary who misused VA benefits and any final judgment of a court in such a prosecution not later than 30 days after the decision is made or judgment is entered.
(a)
(2) This paragraph (a) applies to a fiduciary that is:
(i) An individual who served 10 or more beneficiaries during any month in which misuse occurred; or
(ii) A corporation or other entity serving one or more beneficiaries.
(b)
(1) The Hub Manager failed to properly investigate or monitor the fiduciary; for example, when:
(i) The Hub Manager failed to review the fiduciary's accounting within 60 days after the date on which the accounting was scheduled for review. The date that an accounting is scheduled for review is the date the fiduciary hub receives the accounting;
(ii) The Hub Manager did not decide whether to investigate an allegation of misuse within 60 days of receipt of the allegation;
(iii) After deciding to investigate an allegation of misuse and finding misuse, the Hub Manager failed to initiate action within 60 days of receipt of the misuse allegation to terminate the fiduciary.
(2) Actual negligence by VA is shown. For purposes of this section,
(i) The Hub Manager owed a duty to the beneficiary under this part,
(ii) The Hub Manager's action or failure to act was negligent, and
(iii) The Hub Manager's negligence proximately caused the misuse of benefits by the fiduciary. For purposes of this section,
(c)
(1) For purposes of this section,
(i) Recover any misused benefits from the surety company, if a surety bond was in place regarding protection of beneficiary funds; or
(ii) In cases in which no surety bond was in place and the fiduciary does not repay all misused benefits within the time prescribed by the Hub Manager in consultation with the fiduciary:
(A) Request the creation of a debt to the United States in the amount of any misused benefits that remain unpaid; and
(B) Coordinate further recoupment action, including collection of any debt owed by the fiduciary to the United States as a result of the misuse, with the appropriate Federal and state agencies.
(2) VA will pay benefits recouped under paragraph (c) of this section to the beneficiary's successor fiduciary after deducting any amount reissued under paragraph (a) or (b) of this section.
(d)
(a) The Hub Manager may remove a fiduciary if the Hub Manager determines that fiduciary services are no longer required for a beneficiary or removal is in the beneficiary's interest. Reasons for removal include, but are not limited to:
(1)
(ii) The beneficiary requests appointment of a successor fiduciary under § 13.100;
(iii) The beneficiary requests supervised direct payment of benefits under § 13.110; or
(iv) The beneficiary dies.
(2)
(ii) The fiduciary fails to maintain his or her qualifications or does not adequately perform the responsibilities of a fiduciary prescribed in § 13.140;
(iii) The fiduciary fails to timely submit a complete accounting as prescribed in § 13.280;
(iv) VA or a court with jurisdiction determines that the fiduciary misused or misappropriated VA benefits;
(v) The fiduciary fails to respond to a VA request for information within 30 days after such request is made, unless the Hub Manager grants an extension based upon good cause shown by the fiduciary;
(vi) The fiduciary is unable or unwilling to provide the surety bond prescribed by § 13.230 or, if applicable, enter into a restricted withdrawal agreement;
(vii) The fiduciary no longer meets the requirements for appointment under § 13.100; or
(viii) The fiduciary is unable or unwilling to manage the beneficiary's benefit payments, accounts, or investments.
(b)
(i) Provide the fiduciary and the beneficiary written notice of the removal; and
(ii) Instruct the fiduciary regarding the fiduciary's responsibilities prior to transfer of funds to a successor fiduciary or provide other instructions to the fiduciary.
(2) The fiduciary must:
(i) Continue as fiduciary for the beneficiary until the Hub Manager provides the fiduciary with the name and address of the successor fiduciary and instructions regarding the transfer of funds to the successor fiduciary; and
(ii) Not later than 30 days after transferring funds to the successor fiduciary or as otherwise instructed by the Hub Manager, provide the fiduciary hub a final accounting.
(a)
(b)
(i) Provides the fiduciary hub with jurisdiction written notice of the fiduciary's intent to withdraw as fiduciary for the beneficiary;
(ii) Describes the reasons for withdrawal;
(iii) Continues as fiduciary for the beneficiary until the Hub Manager provides the fiduciary with the name and address of the successor fiduciary and instructions regarding the transfer of funds to the successor fiduciary; and
(iv) Not later than 30 days after transferring funds to the successor fiduciary or as otherwise instructed by the Hub Manager, provides the fiduciary hub with jurisdiction a final accounting.
(2) Upon receipt of the notice of intent to withdraw prescribed in paragraph (b)(1)(i) of this section, the Hub Manager will make a reasonable effort under the circumstances to expedite the appointment of a successor fiduciary. In determining the extent to which the fiduciary hub must expedite the appointment of a successor fiduciary, the Hub Manager will consider:
(i) The reasons for the withdrawal request provided under paragraph (b)(1)(ii) of this section;
(ii) The number of beneficiaries affected;
(iii) The relationship between the affected beneficiary or beneficiaries and the fiduciary; and
(iv) Whether expedited appointment of a successor fiduciary is necessary to protect the interests of the beneficiary or beneficiaries.
(c)
Except as prescribed in paragraph (a) of this section, VA decisions regarding fiduciary matters are committed to the Secretary of Veterans Affairs' discretion by law, as delegated to subordinate officials under this part, and cannot be appealed to the Board of Veterans' Appeals or any court.
(a)
(1) The Hub Manager's appointment of a fiduciary under § 13.100;
(2) The Hub Manager's removal of a fiduciary under § 13.500;
(3) The Hub Manager's misuse determination under § 13.400;
(4) The VA Regional Office Director's final decision upon reconsideration of a misuse determination under § 13.400(d); and
(5) The Director of the Pension and Fiduciary Service's negligence determination for purposes of reissuance of benefits under § 13.410.
(b)
(2) The initiation and processing of appeals under this section are governed by parts 19 and 20 of this chapter.
(b) Appointments to the positions identified in subsection (a) of this section:
(A) excepted from the competitive service; and
(B) subject to laws and regulations governing Schedule B appointments, including basic qualification standards established by the Director of the Office of Personnel Management (Director) for the applicable occupation and grade level.
(b) The Director shall prescribe such regulations as may be necessary to implement this order.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
OPM shall list positions that it excepts from the competitive service in Schedules A, B, C, and D, and it shall list the position of administrative law judge in Schedule E, which schedules shall constitute parts of this rule, as follows:
Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.
Schedule C. Positions of a confidential or policy-determining character shall be listed in Schedule C.
Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.
Schedule E. Position of administrative law judge appointed under 5 U.S.C. 3105. Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service and that appointment to this position not be subject to the requirements of 5 CFR, part 302, including examination and rating requirements, though each agency shall follow the principle of veteran preference as far as administratively feasible.
(b) To the extent permitted by law and the provisions of this part, and subject to the suitability and fitness requirements of the applicable Civil Service Rules and Regulations, appointments and position changes in the excepted service shall be made in accordance with such regulations and practices as the head of the agency concerned finds necessary. These shall include, for the position of administrative law judge appointed under 5 U.S.C. 3105, the requirement that, at the time of application and any new appointment, the individual, other than an incumbent administrative law judge, must possess a professional license to practice law and be authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution. For purposes of this requirement, judicial status is acceptable in lieu of “active” status in States that prohibit sitting judges from maintaining “active” status to practice law, and being in “good standing” is also acceptable in lieu of “active” status in States where the licensing authority considers “good standing”
Except as required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, or E, or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.
(d) Effective on July 10, 2018, the position of administrative law judge appointed under 5 U.S.C. 3105 shall be listed in Schedule E for all levels of basic pay under 5 U.S.C. 5372(b). Incumbents of this position who are, on July 10, 2018, in the competitive service shall remain in the competitive service as long as they remain in their current positions.
(b) The Director of the Office of Personnel Management (Director) shall:
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
| 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 |