Federal Register Vol. 83, No.136,
Federal Register Volume 83, Issue 136 (July 16, 2018)
Federal Register Volume 83, Issue 136 (July 16, 2018)
| Page Range | 32759-33117 | |
| FR Document |
Document Created: 2017-12-29 23:37:55
Document Modified: 2017-12-29 23:37:55
| Page and Subject | |
|---|---|
| 83 FR 33115 - Establishment of the Task Force on Market Integrity and Consumer Fraud | |
| 83 FR 32932 - Sunshine Act Meeting | |
| 83 FR 32911 - Sunshine Act Meetings; National Science Board | |
| 83 FR 32833 - Public Hearing on Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts; Change of Date for the Public Hearing | |
| 83 FR 32903 - Gulf of Mexico, Outer Continental Shelf (OCS), Oil and Gas Lease Sale 251 | |
| 83 FR 32897 - Gulf of Mexico Outer Continental Shelf Region-Wide Oil and Gas Lease Sale 251 | |
| 83 FR 32932 - Self-Regulatory Organizations: Notice of Filing of a Proposed Rule Change by Miami International Securities Exchange, LLC to List and Trade on the Exchange Options on the SPIKESTM | |
| 83 FR 32909 - Sunshine Act Meeting | |
| 83 FR 32945 - Supplemental Environmental Impact Statement-Natural Resource Plan | |
| 83 FR 32807 - Yaw Maneuver Conditions-Rudder Reversals | |
| 83 FR 32884 - Declaration Regarding Emergency Use of Treatment for Uncontrolled Hemorrhage Due to Agents of Military Combat | |
| 83 FR 32950 - Agency Information Collection Activities; New Information Collection: Truck and Bus Maintenance Requirements and Their Impact on Safety | |
| 83 FR 32847 - Agency Information Collection Activities; Comment Request; Magnet Schools Assistance Program-Government Performance and Results Act (GPRA) Table Form | |
| 83 FR 32875 - Proposed Information Collection Activity; Comment Request | |
| 83 FR 32874 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 32825 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Beloit Corporation Superfund Site | |
| 83 FR 32798 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Beloit Corporation Superfund Site | |
| 83 FR 32945 - Tennessee, Alabama & Georgia Railway Company-Discontinuance of Service Exemption-in Walker County, Ga.; Chattooga & Chickamauga Railway Company-Discontinuance of Lease and Trackage Rights Operations-in Walker County, Ga. and Hamilton County, Tenn. | |
| 83 FR 32784 - Controlled Substances Quotas | |
| 83 FR 32906 - Importer of Controlled Substances Application: Cerilliant Corporation | |
| 83 FR 32905 - Bulk Manufacturer of Controlled Substances Application: Siegfried USA, LLC | |
| 83 FR 32840 - Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of Korea: Final Results of Countervailing Duty Administrative Review and Rescission of Countervailing Duty Administrative Review, in Part | |
| 83 FR 32847 - National Security Education Board; Notice of Federal Advisory Committee Meeting | |
| 83 FR 32854 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, Commonwealth of Massachusetts | |
| 83 FR 32855 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Cross-Media Electronic Reporting Rule (Renewal) | |
| 83 FR 32896 - Commercial Leasing for Wind Power on the Outer Continental Shelf in the New York Bight-Call for Information and Nominations | |
| 83 FR 32846 - Submission for OMB Review; Comment Request | |
| 83 FR 32886 - 30-Day Notice of Proposed Information Collection: Human Trafficking Housing Partnership | |
| 83 FR 32888 - 30-Day Notice of Proposed Information Collection: Pre-Purchase Homeownership Counseling Demonstration and Impact Evaluation Collection | |
| 83 FR 32887 - 30-Day Notice of Proposed Information Collection: Congregate Housing Services Program | |
| 83 FR 32853 - Dakota Natural Gas, LLC; Notice of Application | |
| 83 FR 32852 - Notice of Meeting; Jordan Cove Energy Project, LP; Pacific Connector Gas Pipeline, LP | |
| 83 FR 32852 - Jordan Cove Energy Project, L.P.; Pacific Connector Gas Pipeline, L.P.; Notice of Meeting | |
| 83 FR 32850 - Jordan Cove Energy Project, L.P., Pacific Connector Gas Pipeline, L.P.; Notice of Meeting | |
| 83 FR 32850 - Combined Notice of Filings | |
| 83 FR 32851 - Records Governing Off-the-Record Communications; Public Notice | |
| 83 FR 32849 - California Department of Water Resources; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests | |
| 83 FR 32850 - Big Level Wind LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 32849 - Pratt Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 32853 - Brantley Farm Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 32851 - Combined Notice of Filings #2 | |
| 83 FR 32848 - Combined Notice of Filings #1 | |
| 83 FR 32790 - Adjustment of Civil Monetary Penalty Amounts for 2018 | |
| 83 FR 32835 - Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 32833 - Small Diameter Graphite Electrodes From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 32833 - Approval of Subzone Status; VF Outdoor, LLC; Ontario, Santa Fe Springs and Corona, California | |
| 83 FR 32896 - Withdrawal of Temporary Physical Address Change for General Ledger Team | |
| 83 FR 32895 - Major Portion Prices and Due Date for Additional Royalty Payments on Indian Gas Production in Designated Areas Not Associated With an Index Zone | |
| 83 FR 32949 - Withdrawal of Proposed Enhancements to the Safety Measurement System | |
| 83 FR 32855 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 83 FR 32885 - Commercial Customs Operations Advisory Committee (COAC) | |
| 83 FR 32871 - Meeting of the National Advisory Council for Healthcare Research and Quality | |
| 83 FR 32872 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 83 FR 32805 - Migratory Bird Permits; Removal of Depredation Orders for Double-Crested Cormorants To Protect Aquaculture Facilities and Public Resources | |
| 83 FR 32912 - Watts Bar Nuclear Plant, Unit 1 | |
| 83 FR 32948 - Proposed Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of Nebraska, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs) | |
| 83 FR 32891 - Notice of Filing of Plats of Survey; Arizona | |
| 83 FR 32947 - Environmental Impact Statement: Lake, Cook and McHenry Counties, Illinois | |
| 83 FR 32881 - Scientific Conference: Opioid and Nicotine Use, Dependence, and Recovery-Influences of Sex and Gender; Public Meeting | |
| 83 FR 32882 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry on Compounding and Repackaging of Radiopharmaceuticals by State-Licensed Nuclear Pharmacies, Federal Facilities, and Certain Other Entities | |
| 83 FR 32878 - Hypertension: Conducting Studies of Drugs To Treat Patients on a Background of Multiple Antihypertensive Drugs; Draft Guidance for Industry; Availability | |
| 83 FR 32916 - Energy Northwest; Columbia Generating Station | |
| 83 FR 32883 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry and FDA Staff-Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle | |
| 83 FR 32880 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Petition To Request an Exemption From 100 Percent Identity Testing of Dietary Ingredients: Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements | |
| 83 FR 32877 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; New Animal Drugs for Investigational Use | |
| 83 FR 32953 - Agency Information Collection Activity: Survey of Veteran Enrollees' Health and Use of Health Care | |
| 83 FR 32954 - Agency Information Collection Activity: Notice of Lapse, Notice of Past Due Payment | |
| 83 FR 32930 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Change To Modify the NYSE American Options Fee Schedule | |
| 83 FR 32929 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the NYSE Arca Options Fee Schedule | |
| 83 FR 32915 - Information Collection: Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities | |
| 83 FR 32918 - Information Collection: 10 CFR Part 140, Financial Protection Requirements and Indemnity Agreements | |
| 83 FR 32919 - Holtec International's HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel | |
| 83 FR 32926 - Charles Schwab & Co. Inc. and Charles Schwab Investment Management, Inc. | |
| 83 FR 32842 - Current and Future Workforce Needs to Support a Strong Domestic Semiconductor Industry | |
| 83 FR 32815 - Terminated and Insolvent Multiemployer Plans and Duties of Plan Sponsors | |
| 83 FR 32843 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands; Exempted Fishing Permit | |
| 83 FR 32952 - Notice of Intent To Prepare a Programmatic Environmental Impact Statement of the Department of Veterans Affairs Housing Loan Program | |
| 83 FR 32895 - Minor Boundary Revision at Indiana Dunes National Lakeshore | |
| 83 FR 32759 - Special Conditions: Gulfstream Aerospace Corporation Model GVII-G500 Series Airplanes; Flight Envelope Protection-High Incidence Protection System | |
| 83 FR 32832 - Proposed Information Collection; Comment Request; Annual Capital Expenditures Survey | |
| 83 FR 32925 - Privacy Act of 1974; System of Records. | |
| 83 FR 32925 - DMS ETF Trust I, et al. | |
| 83 FR 32905 - Citric Acid and Certain Citrate Salts From Belgium, Colombia, and Thailand | |
| 83 FR 32856 - Resolution Planning Guidance for Eight Large, Complex U.S. Banking Organizations | |
| 83 FR 32894 - Notice of Realty Action; Proposed Direct Sale of Public Land, Utah | |
| 83 FR 32845 - Nominations to the Marine Mammal Scientific Review Groups | |
| 83 FR 32889 - Notice of Realty Action; Proposed Modified Competitive Sale of Public Land, Utah | |
| 83 FR 32892 - Notice of Realty Action: Classification for Lease and/or Conveyance for Recreation and Public Purposes of Public Lands for a Park in the Northwest Portion of the Las Vegas Valley, Clark County, Nevada | |
| 83 FR 32890 - Notice of Realty Action; Non-Competitive (Direct) Sale of Public Land in Park County, Wyoming | |
| 83 FR 32893 - Notice of Realty Action: Direct Sale of Public Land in Garfield County, Colorado | |
| 83 FR 32766 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 83 FR 32764 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 83 FR 32829 - Request for Information on National Reform of Regional Observer Program Insurance Requirements | |
| 83 FR 32908 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Approval of a New Collection; Comments Requested: National Survey of Victim Service Providers (NCVSP) | |
| 83 FR 32794 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Interstate Transport Requirements for the 2012 Fine Particulate Matter Standard | |
| 83 FR 32796 - Approval and Promulgation of Air Quality Implementation Plans; MD; Emissions Statement Requirement for the 2008 Ozone Standard | |
| 83 FR 33018 - FTA Fiscal Year 2018 Apportionments, Allocations, Program Information and Guidance | |
| 83 FR 32826 - Railroad Noise Emission Compliance Regulations | |
| 83 FR 32759 - Medical Use of Byproduct Material-Medical Event; Definitions and Training and Experience | |
| 83 FR 33046 - Medical Use of Byproduct Material-Medical Event Definitions, Training and Experience, and Clarifying Amendments | |
| 83 FR 32768 - Premerger Notification; Reporting and Waiting Period Requirements | |
| 83 FR 32956 - National Flood Insurance Program (NFIP): Conforming Changes To Reflect the Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12) and the Homeowners Flood Insurance Affordability Act of 2014 (HFIAA), and Additional Clarifications for Plain Language |
Issue
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Office of Natural Resources Revenue
Drug Enforcement Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Federal Transit Administration
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Nuclear Regulatory Commission.
Final guidance; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a final guidance document entitled, “Final Guidance for the Rule `Medical Use of Byproduct Material—Medical Events Definitions, Training and Experience, and Clarifying Amendments.' ” This guidance document addresses implementation of the NRC's final rule amending its medical use of byproduct material regulations which is being published concurrently in Separate Part IV of this issue of the
The guidance document is available on July 16, 2018.
Please refer to Docket ID NRC-2014-0030 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:
•
•
•
Donna-Beth Howe, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5441; email:
The NRC published the draft guidance document in the
The NRC is publishing concurrently with this guidance document the final rule, “Medical Use of Byproduct Material—Medical Event Definitions, Training and Experience, and Clarifying Amendments” (RIN 3150-AI63, NRC-2008-0175) in Separate Part IV of this issue of the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Gulfstream Aerospace Corporation (Gulfstream) Model GVII-G500 series airplanes. This airplane will have a novel or unusual design feature when compared to the state of technology and design envisioned in the airworthiness standards for transport category airplanes. This design feature is a high incidence protection system that limits the angle of attack at which the airplane can be flown during normal low speed operation. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level
This action is effective on July 16, 2018.
Joe Jacobsen, Airframe & Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3158; email
On June 30, 2013, Gulfstream Aerospace Corporation (Gulfstream) applied for a type certificate for its new Model GVII-G500 series airplane. The Gulfstream Model GVII-G500 series airplane will be a business jet with seating for up to 19 passengers. It will incorporate a low, swept-wing design with a T-tail. The powerplant will consist of two aft-fuselage-mounted turbofan engines. The Gulfstream Model GVII-G500 series airplane's maximum takeoff weight will be approximately 79,600 pounds.
The high incidence protection system prevents the airplane from stalling at low speeds and, therefore, a stall warning system is not needed during normal flight conditions.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Model GVII-G500 series airplane meets the applicable provisions of 14 CFR part 25, as amended by amendments 25-1 through 25-137.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVII-G500 series airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The Gulfstream Model GVII-G500 series airplane will incorporate the following novel or unusual design feature:
A high incidence protection system, which limits the angle of attack at which the airplane can be flown during normal low speed operation, prohibits the airplane from stalling, and cannot be overridden by the flightcrew. The application of this angle of attack limit influences the stall speed determination, stall characteristics, stall warning demonstration, and longitudinal handling characteristics of the airplane. Existing airworthiness regulations do not contain adequate standards to address this feature.
The high incidence protection system prevents the airplane from stalling at low speeds and, therefore, a stall warning system is not needed during normal flight conditions. However, during failures, which are not shown to be extremely improbable, the requirements of §§ 25.203 and 25.207 apply, although slightly modified by these conditions. If there are failures of the high incidence protection system that are not shown to be extremely improbable, the flight characteristics at the angle of attack for C
Part I of the special conditions is in lieu of §§ 25.21(b), 25.103, 25.145(a), 25.145(b)(6), 25.175(c) and (d), 25.201, 25.203, 25.207, and 25.1323(d). Part II is in lieu of §§ 25.21(g)(1), 25.105(a)(2)(i), 25.107(c) and (g), 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), 25.121(d)(2)(ii), 25.123(b)(2)(i), 25.125(b)(2)(ii)(B), and 25.143(j).
These special conditions address this novel or unusual design feature on the Gulfstream Model GVII-G500 series airplane, and contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are different from special conditions previously issued on this topic. In Part I, sections 3.b.iv, 3.b.vi, 3.e.vi, 5.a.i.1, 5.a.i.4, 5.a.i.6, 5.a.i.7, 5.c.i.4, 5.c.i.5, 5.c.i.6, 5.c.ii.4, and 5.c.ii.5, previously used verbiage was updated to reflect language recommended in the Aviation Rulemaking Advisory Committee (ARAC) Flight Test Harmonization Working Group (FTHWG) Phase 2 report. This language more accurately describes the actions required and formulas to be used to obtain the required result. In Part I, sections 3.b.ii and 5.a.ii.4, the ARAC FTHWG language was adapted to reflect specific Gulfstream design features.
In several previous special conditions on this subject, we used the nomenclature V
The FAA issued Notice of Proposed Special Conditions No. 25-18-02-SC for the Gulfstream Model GVII-G500 series airplane, which was published in the
As discussed above, these special conditions are applicable to the Gulfstream Model GVII-G500 series airplane. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
This action affects only certain novel or unusual design features on Gulfstream Model GVII-G500 series of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
In the following sections, “in icing conditions,” means with ice accretions (relative to the relevant flight phase) as defined in appendix C to part 25, at amendment 25-121.
These special conditions use terminology that does not appear in 14 CFR part 25. For the purpose of these special conditions, the following terms describe certain aspects of this novel or unusual design feature:
A system that operates directly and automatically on the airplane's flight controls to limit the maximum angle of attack that can be attained to a value below that at which an aerodynamic stall would occur.
The maximum angle of attack at which an airplane stabilizes with the high incidence protection system operating and the longitudinal control held on its aft stop.
The minimum steady flight speed in the airplane's configuration under consideration with the high incidence protection system operating. See Part I, Section 3, “Minimum Steady Flight Speed and Reference Stall Speed,” of these special conditions.
V
The applicant must establish the capability and reliability of the high incidence protection system. The applicant may establish this capability and reliability by flight testing, simulation, or analysis as appropriate. The capability and reliability required are:
a. It must not be possible to encounter a stall during the pilot-induced maneuvers required by Part I, section 5(a), “High Incidence Handling Demonstrations,” and the handling characteristics must be acceptable as required by Part I, section 5(b), “Characteristics in High Incidence Maneuvers” of these special conditions;
b. The airplane must be protected against stalling due to the effects of wind shears and gusts at low speeds as required by Section 6, “Atmospheric Disturbances” of these special conditions;
c. The ability of the high incidence protection system to accommodate any reduction in stalling incidence must be verified in icing conditions;
d. The high incidence protection system must be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures; and
e. The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309.
In lieu of § 25.103, “Stall speed,” the following applies:
a. The minimum steady flight speed, V
b. The minimum steady flight speed, V
i. The high incidence protection system operating normally;
ii. Idle thrust;
iii. All combinations of flap settings and landing gear positions for which V
iv. The weight used when the reference stall speed, V
v. The most unfavorable center of gravity (CG) allowable; and
vi. The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 V
c. The 1g minimum steady flight speed, V
d. The reference stall speed, V
e. V
i. Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed;
ii. The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which V
iii. The weight used when V
iv. The CG position that results in the highest value of the reference stall speed;
v. The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 V
vi. At the option of the applicant, the high incidence protection system can be disabled or adjusted to allow full development of the maneuver to the angle of attack corresponding to V
vii. Starting from the stabilized trim condition, with an application of the longitudinal control to decelerate the airplane so that the speed reduction does not exceed 1 knot per second.
In lieu of § 25.207, the following apply:
If the design meets all conditions of Part I, section 2 of these special conditions, then the airplane need not provide stall warning during normal operation. The conditions of Part I, section 2 provide a level of safety equal to the intent of § 25.207, “Stall warning,” so the provision of an additional, unique warning device for normal operations is not required.
For any failures of the high incidence protection system that the applicant cannot show to be extremely improbable, and that result in the capability of the system no longer satisfying any part of sections 2(a), (b), and (c) of Part I of these special conditions: The design must provide stall warning that protects against encountering unacceptable characteristics and against encountering stall.
i. This stall warning, with the flaps and landing gear in any normal position, must be clear and distinctive to the pilot, and must meet the requirements specified in sections 4(b)(iv) and 4(b)(v) of Part I of these special conditions.
ii. The design must also provide this stall warning in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.
iii. The design may furnish this stall warning either through the inherent aerodynamic qualities of the airplane or by a device that will provide clearly distinguishable indications to the flightcrew under all expected conditions of flight. However, a visual stall warning device that requires the attention of the flightcrew within the flight deck is not acceptable by itself. If a warning device is used, it must provide a warning in each of the airplane configurations prescribed in section 4(b)(i), above, and for the conditions prescribed in sections 4(b)(iv) and 4(b)(v) of part I of these special conditions.
iv. In non-icing conditions, the stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall in the following conditions:
1. In power-off straight deceleration not exceeding 1 knot per second to a speed of 5 knots or 5 percent calibrated airspeed (CAS), whichever is greater, below the warning onset; and
2. In turning flight, stall deceleration at entry rates up to 3 knots per second when recovery is initiated not less than 1 second after the warning onset.
v. In icing conditions, the stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall in power-off straight and turning flight decelerations not exceeding 1 knot per second, when the pilot starts a recovery maneuver not less than three seconds after the onset of stall warning.
vi. An airplane is considered stalled when the behavior of the airplane gives the pilot a clear, distinctive, and acceptable indication that the airplane is stalled. Acceptable indications of a stall, occurring either individually or in combination, are:
1. A nose-down pitch that cannot be readily arrested;
2. Buffeting of a magnitude and severity that is strong and thereby an effective deterrent to further speed reduction; or
3. The pitch control reaches the aft stop, and no further increase in pitch attitude occurs when the control is held full aft for a short time before recovery is initiated.
vii. An airplane exhibits unacceptable characteristics during straight or turning flight decelerations if it is not always possible to produce and to correct roll and yaw by unreversed use of aileron and rudder controls, or abnormal nose-up pitching occurs.
In lieu of § 25.201, “Stall demonstration,” the following is required:
i. Maneuvers to the limit of the longitudinal control, in the nose-up sense, must be demonstrated in straight flight and in 30-degree banked turns with:
1. The high incidence protection system operating normally;
2. Initial power conditions of:
a. Power off; and
b. Power necessary to maintain level flight at 1.5 V
3. None;
4. Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited by the airplane flight manual (AFM);
5. Representative weights within the range for which certification is requested;
6. The most adverse CG for recovery; and
7. The airplane trimmed for straight flight at the speed prescribed in section 3(e)(v) of these special conditions.
ii. The following procedures must be used to show compliance in non-icing and icing conditions:
1. Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed 1 knot per second until the control reaches the stop.
2. The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition, and must then be recovered by normal recovery techniques.
3. Maneuvers with increased deceleration rates:
a. In non-icing conditions, the requirements must also be met with increased rates of entry to the incidence limit, up to the maximum rate achievable.
b. In icing conditions, with the anti-ice system working normally, the requirements must also be met with increased rates of entry to the incidence limit, up to three knots per second.
4. Maneuvers with ice accretion prior to normal operation of the ice protection system:
For flight in icing conditions before the ice protection system has been activated and is performing its intended function, the handling demonstration requirements identified in section 5(a)(i) must be satisfied using the procedures specified in sections 5(a)(ii)(1) and 5(a)(ii)(2) of these special conditions. The airplane configurations required to be tested must be in accordance with the limitations and procedures for operating the ice protection system provided in the AFM, per § 25.21(g)(1), as modified by and Part II of these special conditions.
In lieu of § 25.203, “Stall characteristics,” the following apply:
i. Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30-degree banked turns, the airplane's characteristics must be as follows:
1. There must not be any abnormal nose-up pitching;
2. There must not be any uncommanded nose-down pitching, which would be indicative of stall. However, reasonable attitude changes associated with stabilizing the incidence at Alpha limit, as the longitudinal
3. There must not be any uncommanded lateral or directional motion, and the pilot must retain good lateral and directional control by conventional use of the controls throughout the maneuver; and
4. The airplane must not exhibit buffeting of a magnitude and severity that would act as a deterrent from completing the maneuver specified in section 5(a)(i) of these special conditions.
ii. In maneuvers with increased rates of deceleration, some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized Alpha limit. However, the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal control on the stop for a period of time appropriate to the maneuver.
iii. It must always be possible for flightcrew to reduce incidence by conventional use of the controls.
iv. The rate at which the airplane can be maneuvered from trim speeds, associated with scheduled operating speeds such as V
In addition to the requirements in section 5(b) of this special condition, the following requirements apply:
i. In non-icing conditions, maneuvers with a rate of deceleration of not more than 1 knot per second, up to the angle of attack corresponding to V
1. The high incidence protection system deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;
2. Automatic-thrust-increase system inhibited (if applicable);
3. Engines idling;
4. Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited by the AFM;
5. The most adverse CG for recovery; and
6. The airplane trimmed for straight flight at the speed prescribed in section 3(e)(v) of this special condition.
ii. In icing conditions, maneuvers with a rate of deceleration of not more than 1 knot per second up to the maximum angle of attack reached during maneuvers from section 5(a)(ii)(3)(b) must be demonstrated in straight flight with:
1. The high incidence protection system deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;
2. Automatic-thrust-increase system inhibited (if applicable);
3. Engines idling;
4. Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited by the AFM;
5. The most adverse CG for recovery; and
6. The airplane trimmed for straight flight at the speed prescribed in section 3(e)(v) of this special condition.
iii. During the maneuvers used to show compliance with sections 5(c)(i) and 5(c)(ii) of Part I of these special conditions, the airplane must not exhibit dangerous characteristics and it must always be possible for flightcrew to reduce angle of attack by conventional use of the controls. The pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.
Operation of the high incidence protection system must not adversely affect airplane control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind shear. This must be demonstrated in non-icing and icing conditions.
Add the following requirement to that of § 25.21:
(b) The flying qualities will be evaluated at the most unfavorable CG position.
1. In lieu of § 25.21(g)(1), the following applies:
(g) The requirements of this subpart associated with icing conditions apply only if certification for flight in icing conditions is desired. If certification for flight in icing conditions is desired, the following requirements also apply (see AC 25-25):
(1) Each requirement of this subpart, except §§ 25.121(a), 25.123(c), 25.143(b)(1) and (b)(2), 25.149, 25.201(c)(2), 25.207(c) and (d), and 25.251(b) through (e), must be met in icing conditions. Compliance must be shown using the ice accretions defined in appendix C to part 25, assuming normal operation of the airplane and its ice protection system in accordance with the operating limitations and operating procedures established by the applicant and provided in the airplane flight manual.
2. In lieu of § 25.103, “Stall speed,” define the stall speed as provided in Special Conditions Part I, section 3, “
3. In lieu of § 25.105(a)(2)(i) to read as follows:
(2) In icing conditions, if in the configuration of § 25.121(b) with the “Takeoff Ice” accretion defined in appendix C to part 25:
(i) The V2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the takeoff configuration, or
4. In lieu of § 25.107(c) and (g), the following apply, with additional sections (c') and (g'):
(c) In non-icing conditions, V
1. V
2. V
3. A speed that provides the maneuvering capability specified in § 25.143(h).
(c') In icing conditions with the “Takeoff Ice” accretion defined in appendix C to part 25, V
1. The V
2. A speed that provides the maneuvering capability specified in § 25.143(h).
(g) In non-icing conditions, V
1. 1.18 V
2. A speed that provides the maneuvering capability specified in § 25.143(h).
(g') In icing conditions with the “Final Takeoff Ice” accretion defined in appendix C to part 25, V
1. The V
2. A speed that provides the maneuvering capability specified in § 25.143(h).
5. In lieu of §§ 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), and 25.121(d)(2)(ii), the following apply:
(b) Takeoff; landing gear retracted. In the takeoff configuration existing at the point of the flight path at which the landing gear is fully retracted, and in the configuration used in § 25.111, but without ground effect,
2. The requirements of subparagraph (b)(1) of this section must be met:
(ii) In icing conditions with the “Takeoff Ice” accretion defined in appendix C of part 25, if in the configuration of § 25.121(b) with the “Takeoff Ice” accretion:
(A) The V
(c) Final takeoff. In the en route configuration at the end of the takeoff path determined in accordance with § 25.111:
2. The requirements of subparagraph (c)(1) of this section must be met:
(ii) In icing conditions with the “Final Takeoff Ice” accretion defined in appendix C of part 25, if:
(A) The V
(d) Approach. In a configuration corresponding to the normal all-engines operating procedure in which V
2. The requirements of sub-paragraph (d)(1) of this section must be met:
(ii) In icing conditions with the “Approach Ice” accretion defined in appendix C to part 25, in a configuration corresponding to the normal all-engines-operating procedure in which V
6. In lieu of § 25.123 (b)(2)(i), the following applies:
(b) The one-engine-inoperative net flight path data must represent the actual climb performance diminished by a gradient of climb of 1.1 percent for two-engine airplanes, 1.4 percent for three-engine airplanes, and 1.6 percent for four-engine airplanes.
2. In icing conditions with the “En route Ice” accretion defined in appendix C to part 25 if:
(i) The minimum en route speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en route configuration, or
7. In lieu of § 25.125(b)(2)(ii)(B) and § 25.125(b)(2)(ii)(C), the following applies:
(b) In determining the distance in (a):
2. A stabilized approach, with a calibrated airspeed of not less than V
(ii) In icing conditions, V
(A) The speed determined in sub-paragraph (b)(2)(i) of this section;
(B) A speed that provides the maneuvering capability specified in § 25.143(h) with the “Landing Ice” accretion defined in appendix C to part 25.
8. In lieu of § 25.143(j), the following applies:
(j) For flight in icing conditions—before the ice protection system has been activated and is performing its intended function—the following requirements apply:
(1) If activating the ice protection system depends on the pilot seeing a specified ice accretion on a reference surface (not just the first indication of icing), the requirements of § 25.143 apply with the ice accretion defined in part II(e) of appendix C to part 25.
(2) For other means of activating the ice protection system, it must be demonstrated in flight with the ice accretion defined in part II(e) of appendix C to part 25 that:
(i) The airplane is controllable in a pull-up maneuver up to 1.5 g load factor or lower if limited by AOA protection; and
(ii) There is no reversal of pitch control force during a pushover maneuver down to 0.5 g load factor.
9. In lieu of § 25.207, “Stall warning,” to read as the requirements defined in Part I of these special conditions.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective July 16, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 16, 2018.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective July 16, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 16, 2018.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Trade Commission.
Final rule.
The Commission is amending the Hart-Scott-Rodino (“HSR”) Premerger Notification Rules (the “Rules”) that require the parties to certain mergers and acquisitions to file reports with the Federal Trade Commission (“the Commission” or “FTC”) and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (“the Assistant Attorney General” or “DOJ”) (together the “Antitrust Agencies” or “Agencies”) and to wait a specified period of time before consummating such transactions. The Commission is amending the Rules to make them clearer and easier to apply. The Commission is also amending the Rules to allow for the use of email in certain circumstances. Finally, the Commission is adding updated Instructions to the Premerger Notification and Report Form which include amendments for clarity and to make several non-substantive changes.
Effective August 15, 2018.
Nora Whitehead, Attorney, Premerger Notification Office, Bureau of Competition, Room 5301, Federal Trade Commission, 400 7th Street SW, Washington, DC 20024. Telephone: (202) 326-3100, Email:
Section 7A of the Clayton Act (the “Act”) requires the parties to certain mergers or acquisitions to file reports with the Commission and DOJ and wait a specified period before consummating the proposed transaction to allow the Agencies to conduct their initial review of the transaction's competitive impact. The reporting requirement and the waiting period that it triggers are intended to enable the Antitrust Agencies to determine whether a proposed merger or acquisition may violate the antitrust laws if consummated and, when appropriate, to seek a preliminary injunction in federal court to prevent consummation.
Section 7A(d)(1) of the Act, 15 U.S.C. 18a(d)(1), directs the Commission, with the concurrence of the Assistant Attorney General, in accordance with the Administrative Procedure Act, 5 U.S.C. 553, to require that premerger notification be in such form and contain such information and documentary material as may be necessary and appropriate to determine whether the proposed transaction may, if consummated, violate the antitrust laws. Section 7A(d)(2) of the Act, 15 U.S.C.
18a(d)(2), grants the Commission, with the concurrence of the Assistant Attorney General, in accordance with 5 U.S.C. 553, the authority to define the terms used in the Act and prescribe such other rules as may be necessary and appropriate to carry out the purposes of section 7A of the Act.
Pursuant to that authority, the Commission, with the concurrence of the Assistant Attorney General, developed the Rules, codified in 16 CFR parts 801, 802, and 803, and the Premerger Notification and Report Form (“Form”) and its associated Instructions, codified in the appendix to part 803, to govern the form of premerger notification to be provided by merging parties.
Potential filing parties rely on the Rules to determine whether they must file under the Act and often consult the Premerger Notification Office to better understand how to apply the Rules. These changes to the Rules and Instructions address many of the questions received.
The Commission is amending the Rules, as described below, in order to clarify them and make them easier for potential filing parties to apply. The Commission is also amending the Rules to allow for the use of email in sending notice letters pursuant to 16 CFR 801.30, granting early termination, withdrawing a filing pursuant to 16 CFR 803.12, and issuing requests for additional information or documentary material (“Second Requests”).
The Commission is amending § 801.1(b)(2) to clarify the term “control” as it pertains to trusts. This change explains that a person or entity is deemed to control a trust if that person or entity has the contractual power to designate 50 percent or more of the trust's trustees, where the trust is also irrevocable and/or the settlor does not retain a reversionary interest. This revision does not alter the substance of the test, but merely aims to eliminate confusion that arises from the text as currently written.
The Commission is amending § 802.1 to remove “realty” from the heading and introductory paragraph of the rule. Although section 7A(c)(1) of the Act exempts from the reporting requirement both goods and realty transferred in the ordinary course of business, § 802.1 addresses only the exemption of goods, and the reference to realty in the heading and introductory paragraph is misleading and confusing. Prior to 1996, § 802.1 paralleled the language of the statute, which allowed for a broad ordinary course exemption but contained no guidance on specifics. In 1996, the FTC revised and clarified the “ordinary course of business” exemption with four new rules—§ 802.1 through § 802.3 and § 802.5. With this change, § 802.1 was amended to address only the acquisition of goods in the ordinary course of business. The removal of the term “realty” from § 802.1does not affect the treatment of acquisitions of realty, which are addressed in the other regulations noted above.
In addition, the Commission is amending example 4 to § 802.1 to clarify that the acquisition described could be exempt pursuant to § 802.2.
The Commission is amending § 802.30(c) to add “non-corporate interests” after assets and voting securities. This change clarifies that, in the context of a formation pursuant to § 801.40 or § 801.50, the contribution of non-corporate interests by the acquiring person to the newly formed entity, like the contribution of assets and voting securities, is exempt from the requirements of the Act as to that contributing acquiring person. This change corrects an oversight in the non-corporate rulemaking.
The Commission is amending § 802.41, Example 1, to replace the word “cash” with “assets.” In its current form, the example is confusing and misleading because the acquisition of an entity that holds only cash is not subject to notification requirements.
The Commission is amending § 803.5(a)(1) to clarify that the provision applies to acquisitions of non-corporate interests as well as acquisitions of voting securities. With this amendment, the Commission brings § 803.5(a)(1) into accord with the language in the rest of § 803.5 regarding the applicability of the rule to acquisitions of non-corporate interests.
The Commission is amending § 803.12(c) to clarify that the process for withdrawing an HSR filing and resubmitting it without incurring a new filing fee is available only during the initial waiting period. Although a filing may be withdrawn at any time while the waiting period is open, pursuant to § 803.12(a), a party may refile without paying a new fee only prior to the expiration or early termination of the initial waiting period and prior to the issuance of a Second Request. This revision eliminates confusion about the availability of the withdraw and refile process.
The Commission makes the following amendments to allow for the use of email.
• Section 803.5(a)(1) is amended to allow notice letters required by § 801.30 to be sent via email. The PNO has permitted notice letters to be sent via email for many years, and the Commission now formally authorizes the use of email to send notice letters pursuant to § 801.30. The Commission is also amending § 803.5(a)(1) to clarify that notice letters sent via email must be sent to the email address of an officer within the acquired issuer, such as the Chief Executive Officer, General Counsel or Secretary, or in the case of an unincorporated entity, persons exercising similar functions. Allowing notice letters to be sent via email to an appropriate person at the acquired entity will make the process of providing and receiving the notice letter required by § 801.30 more efficient for filing parties.
• Section 803.11(c) is amended to provide that grants of early termination will become effective upon notice to the filing persons transmitted by either telephone or email. Notice by email will also serve as written confirmation. Allowing for notice of grants of early termination by email eliminates the time-intensive and inefficient process of calling each party individually and then following-up with a hard copy letter, instead combining notice and confirmation into one step.
• Section 803.12(a) and (b) are amended to provide that a party's notification to the Agencies of its withdrawal of its premerger notification may be delivered in writing by email or mail to the Agencies.
• Section 803.20(b) is amended to provide that a Second Request may be delivered in writing by email. Current Agency practice is to send notice via mail as well as to email the parties a Second Request within the original waiting period. In addition, the section is amended to eliminate the requirement that the full text of a Second Request will be read upon request. This amendment makes clear that email confirmation of the Second Request within the original waiting period is sufficient for the Second Request to be effective, and that email is a valid means of communication during the waiting period.
These amendments will make the Rules easier to apply for both filing parties and the Agencies. Further, amending the Rules to allow for the use of email in sending notice letters pursuant to § 801.30, granting early termination, withdrawing a filing, and issuing Second Requests will make these processes more efficient.
The Commission is adding updated Instructions to the Form with amendments as follows.
Page I of the Instructions now provides an email address for the Premerger Notification Office, an updated address for DOJ's Premerger and Division Statistics Unit, and a reminder that affidavits and certifications submitted with DVD filings should be in searchable PDF format.
Page I of the Instructions is also edited to clarify how the terms “documentary attachments,” “person filing,” “filing person,” and “ultimate parent entity” are used in the Instructions.
Page II of the Instructions is edited to clarify that filing parties should continue to use 6- and 10-digit 2012 NAICS codes when responding to certain items in the Form, until further announcement by the Premerger Notification Office.
Page II of the Instructions is further edited to clarify that the limitation on the acquired person's response applies to Items 5-7 of the Form.
Page III of the Instructions is edited to indicate that there are now specific, limited criteria for fee payment via certified check.
Page IV of the Instructions is edited to remove references to fax numbers.
Page V of the Instructions is edited to clarify that it is not necessary to list all subsidiaries wholly owned by the acquired entity in Item 3(a), and to require filing parties to provide an index of any coded names used to refer to the parties in any transaction document(s).
Page V of the Instructions is also edited to include a list of the most common mistakes when completing the HSR Form.
Page VI of the Instructions is edited to include additional instructions regarding the numbering and cross-referencing of Item 4(c) and 4(d) documents.
Page VI of the Instructions is further clarified to note that any privilege log(s) should contain the names of inside and outside counsel providing privileged legal advice.
Page IX of the Instructions is edited to note that if the acquiring person reports an associate overlap only, the acquired person need not respond to Item 7.
Page XI of the Instructions is edited to cross-reference the regulation setting civil penalties for consummation of a reportable transaction without providing complete and proper notification.
The footer on each page of the Instructions has been updated to reflect the date of the latest revision.
These amendments to the Instructions, which provide additional clarity, will benefit filing parties in the preparation of the Form.
The Commission finds good cause to adopt these changes without prior public comment. Under the Administrative Procedure Act (“APA”), notice and comment are not required “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B).
The Commission is amending the Rules to make them clearer and easier to apply. The Commission is also amending the Rules to allow for the use of email in certain circumstances. Finally, the Commission is amending the Instructions to the Form for clarity and to make several non-substantive changes. These amendments fall within the category of rules covering agency procedure and practice that are exempt from the notice-and-comment requirements of the APA.
The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that the agency conduct an initial and final regulatory analysis of the anticipated economic impact of the proposed amendments on small businesses, except where the agency head certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605. The Regulatory Flexibility Act requirements apply, however, only to rules or amendments that are subject to the notice-and-comment requirements of the APA.
These changes do not contain any record maintenance, reporting or disclosure requirements that would constitute agency “collections of information” that would have to be submitted for clearance and approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.
Antitrust.
By direction of the Commission.
For the reasons stated above, the Federal Trade Commission amends 16 CFR parts 801, 802, and 803 as set forth below:
15 U.S.C. 18a(d).
(b) * * *
(2) Having the contractual power presently to designate 50 percent or more of the directors of a for-profit or not-for-profit corporation, or 50 percent or more of the trustees in the case of trusts that are irrevocable and/or in which the settlor does not retain a reversionary interest.
15 U.S.C. 18a(d).
Pursuant to section 7A(c)(1) of the Clayton Act (the “Act”), acquisitions of goods transferred in the ordinary course of business are exempt from the notification requirements of the Act. This section identifies certain acquisitions of goods that are exempt as transfers in the ordinary course of business. This section also identifies certain acquisitions of goods that are not in the ordinary course of business and, therefore, do not qualify for the exemption.
(d) * * *
(4) * * *
* * *
4. “A,” a national producer of canned fruit, preserves, jams and jellies, agrees to purchase from “B” for in excess of $50 million (as adjusted) a total of 20,000 acres of orchards and vineyards in several locations throughout the U.S. “A” plans to harvest the fruit from the acreage for use in its canning operations. The acquisition is not exempt under this section because orchards and vineyards are real property, not “goods.” If, on the other hand, “A” had contracted to acquire from “B” the fruit and grapes harvested from the orchards and vineyards, the acquisition would qualify for the exemption as an acquisition of current supplies under paragraph (c)(3) of this section. Although the transfer of orchards and vineyards is not exempt under this
(c) For purposes of applying § 802.4(a) to an acquisition that may be reportable under § 801.40 or § 801.50, assets, voting securities, or non-corporate interests contributed by the acquiring person to a new entity upon its formation are assets, voting securities, or non- corporate interests whose acquisition by that acquiring person is exempt from the requirements of the Act.
1. Corporations A and B, each having sales of in excess of $100 million (as adjusted), each propose to contribute in excess of $50 million (as adjusted) in assets in exchange for 50 percent of the voting securities of a new corporation, N. Under this section, the new corporation need not file notification, although both A and B must do so and observe the waiting period prior to receiving any voting securities of N.
15 U.S.C. 18a(d).
The revisions and addition read as follows:
(a)(1)
(vi) * * *
1. Company A intends to acquire voting securities of Company B. “A” sends, via email, a notice letter to a general email account,
(c) The Federal Trade Commission and the Assistant Attorney General may, in their discretion, terminate a waiting period upon the written request of any person filing notification or, notwithstanding paragraph (a) of this section, sua sponte. A request for termination of the waiting period shall be sent to the offices designated in § 803.10(c). Termination shall be effective upon notice to any requesting person by either email or telephone, and such notice shall be given as soon as possible. Such notice shall be made to each person which has filed notification, and notice of termination shall be published in the
(a)
(b)
(c)
(i) The notification is withdrawn prior to the expiration or early termination of the waiting period and prior to the issuance of a request for additional information pursuant to § 803.20 and section 7A(e) of the act;
(ii) The proposed acquisition does not change in any material way;
(iii) The resubmitted notification is recertified, and the submission, as it relates to Items 4(a), 4(b), 4(c), and 4(d) of the Notification and Report Form, is updated to the date of the resubmission;
(iv) A new executed affidavit is provided with the resubmitted HSR filing; and
(v) The resubmitted notification is refiled prior to the close of the second business day after withdrawal.
(b) * * *
(2) * * *
(ii) In the case of a written request, upon notice of the issuance of such request to the person to which it is directed within the original 30-day (or, in the case of a cash tender offer or of an acquisition covered by 11 U.S.C. 363(b), 15-day) waiting period (or, if § 802.23 applies, such other period as that section provides), provided that written confirmation of the request is emailed or mailed to the person to which the request is directed within the original 30-day (or, in the case of a cash tender offer or of an acquisition covered by 11 U.S.C. 363(b), 15-day) waiting period (or, if § 802.23 applies, such other period as that section provides). Notice to the person to which the request is directed may be given by email, telephone or in person. The person filing notification shall keep a designated individual reasonably available during normal business hours throughout the waiting period at the email or telephone number supplied in the Notification and Report Form. Notice of a request for additional information or documentary material need be given by email or telephone only to that individual or to the individual designated in accordance with paragraph (b)(2)(iii) of this section. The written confirmation of the request shall be emailed or mailed to the ultimate parent entity of the person filing notification, or if another entity within the person filed notification pursuant to § 803.2(a), then to such entity.
(3)
Drug Enforcement Administration, Department of Justice.
Final rule.
The Drug Enforcement Administration (DEA) is publishing this final rule to strengthen the process for setting controls over diversion of controlled substances and make other improvements in the quota management regulatory system for the production, manufacturing, and procurement of controlled substances.
This final rule is effective August 15, 2018.
Michael J. Lewis, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-8953.
Provisions of the Controlled Substances Act, 21 U.S.C. 801
The current regulations, issued initially in 1971, need to be updated to reflect changes in the manufacture of controlled substances, changing patterns of substance abuse and markets in illicit drugs, and the challenges presented by the current national crisis of controlled substance abuse. This final rule modifies the regulations to strengthen controls over diversion—that is, the redirection of controlled substances which may have lawful uses into illicit channels—and makes other improvements in the controlled substance regulatory quota system.
The quota process, in general terms, is a critical element of the Controlled Substances Act's regulatory system that seeks to prevent or limit diversion by preventing the accumulation of controlled substances in amounts exceeding legitimate need. The measures the final rule adopts to strengthen the system include authorizing the requisition from quota applicants of additional information helpful in detecting and preventing diversion, and ensuring that DEA's determinations regarding the appropriate quotas are adequately informed by input from other federal agencies, from the states, and from quota applicants.
The DEA is finalizing the rule as proposed without changes. Below are summaries of provisions contained in the final rule.
Section 1303.11 currently directs the Administrator of DEA to determine the total quantity of each basic class of controlled substance listed in schedule I or II needed in the calendar year for the medical, scientific, research, and industrial needs of the United States, for lawful export requirements, and for the establishment and maintenance of reserve stocks. Section 1303.11(b)(1) through (4) identifies a number of factors that are categorically to be considered in determining aggregate production quotas—relating to total net disposal, net disposal trends, inventories and inventory trends, and demand—followed by a final catchall factor, (5), regarding factors to be considered as the Administrator finds relevant.
The final rule makes two additions to the list of factors that must regularly be considered in setting the aggregate production quotas because of their importance. First, it adds to the list the extent of any diversion of the controlled substance in the class, which will ensure that the allowed aggregate production quota is limited to that needed to provide adequate supplies for the United States' legitimate needs. Second, the final rule amends the list of factors to be considered in establishing these quotas to include relevant information from the Department of Health and Human Services (HHS) and its components, including the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and the Centers for Medicare and Medicaid Services (CMS), as well as relevant information obtained from the states. The amendment will ensure that information will be requested from the relevant HHS components and will be considered in setting the aggregate production quotas.
The final rule provides that the Administrator will consider information from the states in setting the aggregate production quotas and make additional changes enhancing their role in § 1303.11(c). The states are critically situated to provide information about the extent of legitimate and illegitimate use of controlled substances because of their responsibilities for drug enforcement within their jurisdictions, including through the Prescription Drug Monitoring Programs (PDMP), their responsibilities for administration of their health care systems, and their responsibilities for dealing with the human and social costs of drug abuse and diversion. States may have relevant information indicating that individual procurement quota requests reflect quantities which will in fact be diverted to illicit use, which may in turn yield an exaggerated picture of the aggregate production quotas needed for legitimate purposes.
The final rule accordingly includes amendments to § 1303.11(c) which provide for (i) transmitting notices of proposed aggregate production quotas, and final aggregate production quota orders, to the state attorney general, and (ii) holding a hearing if necessary to resolve an issue of material fact raised by a state's objection to a proposed aggregate production quota as excessive in relation to legitimate United States need.
Section 1303.12 currently directs the Administrator to issue procurement quotas for manufacturers that use controlled substances to put them into dosage form or to make other substances. The section requires applicants for procurement quotas to state what basic class of controlled substance is needed, the purpose or purposes for which the class is desired, the quantity desired for each purpose during the next calendar year, and the quantities used and estimated to be used for each purpose during the current and preceding two calendar years. If the applicant's purpose is to manufacture another basic class of controlled substance, the applicant also must state the quantity of the other basic class that the applicant has applied to
The final rule amends § 1303.12(b) to clarify that the Administrator may require additional information from applicants that may help to detect or prevent diversion, including customer identities and amounts of the controlled substance sold to each customer.
Section 1303.13 authorizes the Administrator, at any time, to increase or reduce the aggregate production quotas for basic classes of controlled substances that were previously fixed pursuant to § 1303.11. The final rule in § 1303.13 parallels some of the amendments made to § 1303.11. Specifically, it includes changes in the extent of any diversion of the controlled substance among the factors to be considered in adjusting the aggregate production quota, requires transmission of adjustment notices and final adjustment orders to the state attorneys general, and provides for a hearing if necessary to resolve an issue of material fact raised by a state's objection to a proposed adjusted quota as excessive for legitimate United States need.
The final rules amends § 1303.22 to clarify that the Administrator may require additional information from individual manufacturing quota applicants that may help to detect or prevent diversion, including customer identities and amounts of the controlled substance sold to each customer.
The final rule amends § 1303.23 to provide that the factors the Administrator may deem relevant in fixing individual manufacturing quotas include the extent and risk of diversion of controlled substances.
The final rule includes an amendment relating to hearings in § 1303.32(a), conforming to the amendments to §§ 1303.11(c) and 1303.13(c) concerning hearings based on state objections.
In addition to the significant changes discussed above, the final rule corrects a number of typographic errors in the current regulations.
On April 19, 2018, the DEA published a notice of proposed rulemaking (NPRM) in the
DEA received a total of 1,561 written and electronic comments on the NPRM. In the NPRM, the DEA stated that some of the proposed rule's provisions relating to seeking information from other federal agencies and the states (21 CFR 1303.11(b)(6)) and those relating to the holding of hearings based on state objections (21 CFR 1303.11(c), 21 CFR 1303.13(c), and 21 CFR 1303.32(a)) were exempt from the notice and comment requirements of the Administrative Procedure Act as “rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). However, many commenters still addressed these two issues. While the DEA appreciates the interest commenters have shown in these areas, because they were exempt from the notice and comment requirements of the APA, the DEA has not considered these comments in its promulgation of this final rule.
After a review of the comments, DEA noted that there were six main issues that commenters raised, and that many commenters raised multiple issues in their comments. Each issue is summarized below, along with the DEA's responses. The DEA has also summarized the remainder of the comments which did not fit into one of the six main issues.
One advocacy group noted that available data indicated that the large increase in overdose deaths was largely due to illicitly manufactured fentanyl, heroin, and synthetic opioids, not prescription opioids. The advocacy group stated that the data reinforced the need to address the growing threat posed by heroin, counterfeit fentanyl, and other counterfeit drugs.
An association representing physicians also noted that although the rate of prescription opioid mortality continues to rise, illicit fentanyl and heroin have become the main contributors to opioid-related mortality.
A coalition commented that a major issue with the proposed rule was that it would do nothing to solve the current opioid epidemic because illicit fentanyl and heroin cause most of the overdoses in the United States, not prescription opioids. The coalition referenced journal articles for statistics to support their argument. The coalition also noted that the vast majority of the illicit fentanyl that is arriving into the United States is coming from China through the U.S. Postal Service, and that the policies in the proposed rule would have no effect on the current number of overdose deaths.
One law firm noted that after a re-evaluation of CDC data and DEA's own analyses, it has become evident that the current opioid “crisis” is caused by illicit synthetic opioids, particularly fentanyl and deadlier fentanyl derivatives with no medical use.
The DEA believes that the misuse of controlled prescription drugs (CPDs) is inextricably linked with the threat the United States faces from the trafficking of heroin and illicit fentanyl and fentanyl analogues. In 2016, almost 3.4 million Americans age 12 or older reported misusing prescription pain
Many commenters stated that the DEA is focusing on the wrong issues. A majority asserted that synthetic drugs are the cause of most of the overdose opioid deaths, and that the government should focus on those synthetic drugs instead of creating regulations that they feel lead to a reduction in injectable opioids.
Comments received from organizations and associations asserted that there is no risk of diversion for injectables. It was stated numerous times that the DEA should consider adding drug shortage information as a factor when establishing and adjusting quotas. It was also recommended that the DEA add the intent to resolve drug shortages to the relevant factors considered in adjusting quotas.
One commenter suggested DEA work on anti-diversion legislation that will put requirements in place during the manufacturing process to prevent diversion of controlled substances so it will not affect quotas. Another commenter requested DEA to provide quantitative evidence to show the impact current reductions have had on diversion of controlled substances.
Modifications to section 1303.11 would allow relevant information from appropriate HHS components to be considered in setting the aggregate production quota. HHS studies the use and misuse of controlled substances regarding the quantities of controlled substances necessary to support the medical needs in the United States pursuant to 42 U.S.C. 242(a). Furthermore, the CDC and the CMS may have relevant information related to the patterns of drug abuse and the diversion of controlled substances for illicit use which DEA will also consider when setting the aggregate production quota. The information collected from HHS
The Administrator of the DEA has the authority to determine the total quantity of each basic class of controlled substance listed in Schedule I or II needed in each calendar year for medical, scientific, research and industrial needs of the United States, for lawful export, and for the establishment and maintenance of reserve stocks. The DEA has observed a decline for certain prescriptions written for Schedule II opioids since 2014 which can be attributed to federal and state government activities and interventions, including the implementation of Prescription Drug Monitoring Programs, enforcement of current regulations, and guidance documents such as the CDC
One national organization noted that the comment period provided by the DEA was unusual in its brevity. The national organization referenced Executive Order 13563, as well as guidance from the Administrative Conference of the United States, to suggest that the DEA comment period should have at least been 30 days since it was a rulemaking that was not considered “significant.” The national organization stated that they were not certain that the additional 15 days necessary to achieve the 30-day period for review and input by experts outside of the agency would meaningfully “impede putting into effect the diversion countermeasures [the proposal] authorizes.”
Under Executive Order 13563, there is a presumption that a period of 60 days should be allotted for the comment period. The Administrative Conference of the United States' recommendations serve as guidance for the notice-and-comment period. While they recommend 30 to 60 days depending on the significance of a rule, they also recommend that agencies provide an explanation when they set a shorter comment period, as was done in the NPRM. 76 FR 48791 (Aug. 9, 2011).
Here, the DEA received more than 1,500 comments, many of which included a thoughtful and detailed analysis. Due to the opioid epidemic as expressed in the proposed rule and the urgent need to finalize this rule, the 15-day comment period was sufficient.
One company felt the proposed changes seemed to codify the current practice of considering ARCOS (Automated Reporting and Consolidated Orders System) data when setting quotas. Many comments under this issue suggested that the DEA clearly detail what information would be required. A trade group also explained that knowing what the DEA could request beforehand would allow manufacturers the ability to ensure that systems are in place to collect and provide relevant data in a timely manner. The group felt that the DEA should determine whether additional data should be required beyond what is already required for schedule II controlled substances by way of the DEA Form 222. The group also requested that the DEA make sure that any additional requested information not place an undue burden on manufacturers or delay the issuance of initial quotas. They argued that DEA needs to include adequate protection of proprietary and sensitive commercial and financial information provided by the manufacturers, because the
A pharmaceutical company requested that the DEA provide opportunities for companies to receive guidance and training on how to best satisfy the additional information requirements. Another pharmaceutical company stated they contract with Contract Manufacturing Organizations (CMO) for the manufacturing of their finished drug products, and that because of this the CMO would be the actual quota applicant but would not be equipped with the additional information to help in detecting and preventing diversion.
Two states commented on this issue and both applauded the DEA for taking action. West Virginia stated that obtaining additional information would be helpful because some of the legitimate demand may be double counted by way of multiple applicants relying on the same amounts of legitimate demand from the same customers. West Virginia's view was that the additional information will allow the DEA to prevent excess quota levels. Ohio also agreed with the proposed rule and encouraged the DEA to consider a more rigorous and information-driven quota application process.
Manufacturers of schedule I and II substances provide information needed to assist the DEA in making a quota determination. The information provided is based on their individual business activities. Regulations require manufacturers to utilize DEA Form 222
The DEA communicates with registrants who have pending quota applications via telephone or email when necessary, to request clarification or additional information required to process their applications in a timely manner. The DEA also maintains an email box that registrants may preemptively supply information and communicate concerns related to quota requirements. Appropriate safeguards are currently in place to protect confidential business information.
As stated above, requesting clarification or additional information is a current practice of DEA. The DEA provides training conferences annually, in strategic locations, to help registrants understand quota and reporting requirements. The agency also provides the presentations from the trainings on the DEA website. During these conferences, DEA explicitly states it never provides confidential and proprietary information supplied by registrants to outside sources. The additional information that may be requested is important and an integral part of the analysis as it helps DEA determine the amount of quota a manufacturer should be granted.
Approximately 1,300 comments were received from the general public expressing concerns about the proposed regulations affecting their ability to get their prescriptions, and the possibility of drug shortages being created because of the proposed rule. The DEA understands and appreciates the nature of the comments. It is not the DEA's intent to create shortages or prevent a patient with a legitimate need from getting their prescription. The purpose of the proposed rule is to improve the process of setting the annual quota while ensuring an adequate supply is available for the United States' legitimate needs.
The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), has reviewed this final rule and by approving it certifies that the rule will not have a significant economic impact on a substantial number of small entities.
The DEA estimates that 325 manufacturers may be affected by the final rule, of which 301 manufacturers (92.6% of the total) are small entities. There will not be a significant economic impact on a substantial number of these small entities or any others because, as the ensuing certifications discuss, any overall cost of the rule is not significant.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review.” The DEA has determined that this final rule is not a “significant regulatory action” under Executive Order 12866, section 3(f). The DEA analyzed the economic impact of each provision of this final rule. Section 1303.11 is amended to make two additions to the list of factors to be considered by the Administrator in setting the aggregate production quotas. First, it adds the extent of any diversion of the controlled substance in the class. Second, it adds relevant information from HHS and its components, as well as from the states. The DEA has always considered any information obtained from other federal and state government agencies when fixing the aggregate production quotas for a controlled substance. While the DEA may receive additional information that is valuable in detecting and preventing diversion, the DEA has no reason to believe that there will be adverse economic impact or other consequences sufficient to implicate Executive Order (E.O.) 12866.
Additionally, §§ 1303.11 and 1303.13 are amended to require the DEA to transmit copies of aggregate production quotas and any adjustments to those quotas published in the
Additionally, §§ 1303.11, 1303.13, and 1303.32 are amended to explicitly state that the DEA Administrator shall hold a hearing if he or she determines it is necessary to resolve an issue of material fact raised by a state objecting to the proposed quantity for the class as excessive for legitimate United States need. The estimated yearly cost of this revision will be dependent on the number of hearings the DEA Administrator determines to be necessary to resolve an issue of material fact raised by a state regarding the aggregate production quota. Hearings regarding aggregate production quotas are infrequent and the DEA estimates that hearings of this type will continue to be infrequent under this final rule. For these reasons, the DEA does not expect a material increase in the number of hearings or in the associated costs to DEA or the states.
Sections 1303.12 and 1303.22 are amended to explicitly state that the Administrator may require additional information from an individual manufacturing or procurement quota applicant, including customer identities and amounts of controlled substances sold to each of their customers. Currently, the DEA can and does request additional information of this nature from quota applicants if deemed necessary. While affording the Administrator express regulatory authority to require such information may result in the receipt of additional information that is valuable in detecting and preventing diversion, it is not expected that the difference will have adverse economic impact or other consequences sufficient to implicate E.O. 12866.
Sections 1303.11, 1303.13, and 1303.23 are amended to add the requirement that the DEA consider diversion of a controlled substance when fixing aggregate production quotas, adjusting aggregate production quotas, and fixing individual manufacturing quotas. When fixing and adjusting the aggregate production quota, or fixing an individual manufacturing quota for a controlled substance, the DEA has always considered all available information regarding the diversion of that controlled substance. While the final rule's amendments, as discussed above, may result in the receipt and consideration of additional information relating to diversion, it is not expected that the difference will have adverse economic impact or other consequences sufficient to implicate E.O. 12866.
This final rule is not an E.O. 13771 regulatory action because this final rule is not significant under E.O. 12866.
This regulation will not have substantial direct effects on the states, on the relationship between the national Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
This final rule codifies current agency practice under existing approved information collections, and does not impose new information collection requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.
This final rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million 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 rulemaking is not a major rule as defined by section 251 of the Congressional Review Act. 5 U.S.C. 804. This final rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Administrative practice and procedure, Drug traffic control.
Accordingly, for the reasons stated in the preamble, part 1303 of title 21 of the Code of Federal Regulations is amended as follows:
21 U.S.C. 821, 826, 871(b).
The additions and revision read as follows:
(b) * * *
(5) The extent of any diversion of the controlled substance in the class;
(6) Relevant information obtained from the Department of Health and Human Services, including from the Food and Drug Administration, the Centers for Disease Control and Prevention, and the Centers for Medicare and Medicaid Services, and relevant information obtained from the states; and
(c) The Administrator shall, on or before May 1 of each year, publish in the
(b) * * * The Administrator may require additional information from an applicant which, in the Administrator's judgment, may be helpful in detecting or preventing diversion, including customer identities and amounts of the controlled substance sold to each customer. * * *
(b) * * *
(1) Changes in the demand for that class, changes in the national rate of net disposal of the class, changes in the rate of net disposal of the class by registrants holding individual manufacturing quotas for that class, and changes in the extent of any diversion in the class;
(c) The Administrator in the event he determines to increase or reduce the aggregate production quota for a basic class of controlled substance, shall publish in the
The addition reads as follows:
(d) The Administrator may require additional information from an applicant which, in the Administrator's judgment, may be helpful in detecting or preventing diversion, including customer identities and amounts of the controlled substance sold to each customer.
Office of the General Counsel, HUD.
Final rule.
This rule provides for 2018 inflation adjustments of civil monetary penalty amounts required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
Dane Narode, Associate General Counsel, Office of Program Enforcement, Department of Housing and Urban Development, 1250 Maryland Avenue SW, Suite 200, Washington, DC 20024; telephone number 202-245-4141 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the Federal Information Relay Service, toll-free, at 800-877-8339.
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (Pub. L. 114-74, Sec. 701), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), requires agencies to make annual adjustments to civil monetary penalty (CMP) amounts for inflation “notwithstanding section 553 of title 5, United States Code.” Section 553 refers to the Administrative Procedure Act, which might otherwise require a delay for advance notice and opportunity for public comment on future annual inflation adjustments. This annual adjustment is for 2018.
The annual adjustment is based on the percent change between the U.S.
This rule makes the required 2018 inflation adjustment. Since HUD is not applying these adjustments retroactively, the 2018 increases apply to violations occurring on or after this rule's effective date. For each component, HUD provides a table showing how the penalties are being adjusted for 2018 pursuant to the 2015 Act. In the first column (“Description”), HUD provides a description of the penalty. In the second column (“Statutory Citation”), HUD provides the United States Code statutory citation providing for the penalty. In the third column (“Regulatory Citation”), HUD provides the Code of Federal Regulations citation under Title 24 for the penalty. In the fourth column (“Previous Amount”), HUD provides the amount of the penalty pursuant to the rule implementing the 2017 adjustment (82 FR 24521, May 30, 2017). In the fifth column (“2018 Adjusted Amount”), HUD lists the penalty after applying the 2018 inflation adjustment.
HUD generally publishes regulations for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking in 24 CFR part 10. However, part 10 provides for exceptions to the general rule if the agency finds good cause to omit advanced notice and public participation. The good cause requirement is satisfied when prior public procedure is “impractical, unnecessary, or contrary to the public interest” (see 24 CFR 10.1). As discussed, this rule makes the required 2018 inflation adjustment, which HUD does not have discretion to change. Moreover, the 2015 Act specifies that a delay in the effective date under the Administrative Procedure Act is not required for annual adjustments under the 2015 Act. HUD has determined,
Section 7(o) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(o)) requires that any HUD regulation implementing any provision of the Department of Housing and Urban Development Reform Act of 1989 that authorizes the imposition of a civil money penalty may not become effective until after the expiration of a public comment period of not less than 60 days. This rule does not authorize the imposition of a civil money penalty—rather, it makes a standard inflation adjustment to penalties that were previously authorized. As noted above, the 2018 inflation adjustments are made in accordance with a statutorily prescribed formula that does not provide for agency discretion. Accordingly, a delay in the effectiveness of the 2018 inflation adjustments in order to provide the public with an opportunity to comment is unnecessary because the 2015 Act exempts the adjustments from the need for delay, the rule does not authorize the imposition of a civil money penalty, and, in any event, HUD would not have the discretion to make changes as a result of any comments.
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) requires that for every new regulation issued, at least two prior regulations be identified for removal, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. As discussed above in this preamble, this final rule adjusts existing civil monetary penalties for inflation by a statutorily required amount.
As a result of this review, OMB determined that this rule was not significant under Executive Order 12866 and Executive Order 13563. Moreover, as this rule is not a significant regulatory action under Executive Order 12866, it is not considered an Executive Order 13771 regulatory action.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule will not have federalism implications and would not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.
This interim final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Grant programs-housing and community development, Loan programs-housing and community development, Mortgage insurance, Penalties.
Government contracts, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aged, Civil rights, Fair housing, Individuals with disabilities, Investigations, Mortgages, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Consumer protection, Intergovernmental relations, Manufactured homes, Reporting and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD amends 24 CFR parts 28, 30, 87, 180, and 3282 to read as follows:
28 U.S.C. 2461 note; 31 U.S.C. 3801-3812; 42 U.S.C. 3535(d).
(a)
(b)
12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, and 1735f-15; 15 U.S.C. 1717a; 28 U.S.C. 1 note and 2461 note; 42 U.S.C. 1437z-1 and 3535(d).
(b)
(b)
(c)(1) * * * The maximum penalty is $9,819 for each violation, up to a limit of $1,963,870 for all violations committed during any one-year period. * * *
(c) * * * The maximum penalty is $9,819 for each violation, up to a limit of $1,963,870 for all violations committed during any one-year period. * * *
(c) * * * The maximum penalty is $9,819 for each violation, up to a limit of $1,963,870 for all violations committed during any one-year period. * * *
(g)
(c) * * * The maximum penalty is $9,819 for each violation, up to a limit of $1,963,870 during any one-year period. * * *
(c)
(b)
(c)
28 U.S.C. 1 note; 31 U.S.C. 1352; 42 U.S.C. 3535(d).
(a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $19,639 and not more than $196,387 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see appendix B) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $19,639 and not more than $196,387 for each such failure.
(e) First offenders under paragraph (a) or (b) of this section shall be subject to a civil penalty of $19,639, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $19,639 and $196,387 as determined by the agency head or his or her designee.
28 U.S.C. 1 note; 29 U.S.C. 794; 42 U.S.C. 2000d-1, 3535(d), 3601-3619, 5301-5320, and 6103.
(a) * * *
(1) $20,521, if the respondent has not been adjudged in any administrative hearing or civil action permitted under the Fair Housing Act or any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a federal, state, or local governmental agency, to have committed any prior discriminatory housing practice.
(2) $51,302, if the respondent has been adjudged in any administrative hearing or civil action permitted under the Fair Housing Act, or under any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a federal, state, or local government agency, to have committed one other discriminatory housing practice and the adjudication was made during the 5-year period preceding the date of filing of the charge.
(3) $102,606, if the respondent has been adjudged in any administrative hearings or civil actions permitted under the Fair Housing Act, or under
28 U.S.C. 1 note; 28 U.S.C. 2461 note; 42 U.S.C. 3535(d) and 5424.
Failure to comply with these regulations may subject the party in question to the civil and criminal penalties provided for in section 611 of the Act, 42 U.S.C. 5410. The maximum amount of penalties imposed under section 611 of the Act shall be $2,852 for each violation, up to a maximum of $3,565,045 for any related series of violations occurring within one year from the date of the first violation.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia (the Commonwealth or Virginia). This revision pertains to the infrastructure requirement for interstate transport of pollution with respect to the 2012 fine particulate matter (PM
This final rule is effective on August 15, 2018.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0337. All documents in the docket are listed on the
Joseph Schulingkamp, (215) 814-2021, or by email at
On May 9, 2018 (83 FR 21233), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of Virginia's submittal to address the infrastructure requirements under section 110(a)(2)(D)(i) of the CAA for the 2012 PM
Virginia's May 16, 2017 SIP submittal includes a summary of annual emissions of oxides of nitrogen (NO
Additionally, Virginia described in its submittal several existing SIP-approved measures and other federally enforceable source-specific measures, pursuant to permitting requirements under the CAA, that apply to sources of PM
A detailed summary of Virginia's submittal and EPA's review and rationale for approval of this SIP revision as meeting CAA section 110(a)(2)(D)(i)(I) for the 2012 PM
EPA used the information in the 2016 PM
Two anonymous public comments were received on the NPR. The first comment generally discussed greenhouse gases and climate change and was determined to not be relevant nor specific to this rulemaking action. Thus, no response is provided for this comment. The second comment expressed that the commenter would not like to see particulate pollution from Virginia or any state degrade Allegheny County, Pennsylvania's air. As explained in the proposed rulemaking in detail, EPA determined that Virginia's emission sources do not contribute significantly to nonattainment, nor interfere with maintenance, of the 2012 PM
EPA is approving the May 16, 2017 SIP revision addressing the interstate transport requirements for the 2012 PM
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 14, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
This action, addressing Virginia's interstate transport for the 2012 PM
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e)* * *
(1)* * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Maryland. This SIP revision fulfills Maryland's emissions statement requirement for the 2008 ozone national ambient air quality standard (NAAQS). EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on August 15, 2018.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0637. All documents in the docket are listed on the
Erin Trouba, (215) 814-2023, or by email at
On February 20, 2018 (83 FR 7124), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of Maryland's certification that Maryland's emissions statement regulation meets the emissions statement requirement of section 182(a)(3)(B) of the CAA for the 2008 ozone NAAQS. The formal SIP revision (#17-02) was submitted by Maryland, through the Maryland Department of the Environment (MDE), on September 25, 2017.
In Maryland's September 25, 2017 SIP revision submittal, Maryland states that the existing COMAR 26.11.01.05-1 “Emissions Statements” rule satisfies CAA section 182(a)(3)(B) for the 2008 ozone NAAQS. Under CAA section 182(a)(3)(B), states are required to have an emission statements rule for nonattainment areas for the 2008 ozone NAAQS. In addition, states in the ozone transport region are required to have an emission statement rule statewide, including for attainment areas.
EPA received fourteen public comments on our February 20, 2018 NPR proposing to approve Maryland's September 25, 2017 submittal. Only one comment was adverse and relevant to this action. The adverse comment is summarized and responded to in the following paragraph. All other comments received were not specific to this action, and thus are not addressed here.
EPA is approving the State of Maryland's September 25, 2017 SIP revision submittal which addresses the 2008 8-hour ozone NAAQS emissions statement requirements as a revision to the Maryland SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 14, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
This action, approving Maryland's certification that it's SIP-approved emissions statement regulation meets the emissions statement requirement of section 182(a)(3)(B) of the CAA for the 2008 ozone NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) Region 5 is publishing a direct final Notice of Deletion of the Research Center Property (RCP) of the Beloit Corporation Superfund Site (Site), in Rockton, Illinois from the National Priorities List (NPL). This partial deletion includes all media at the 20-acre RCP. The rest of the Site remains on the NPL and is not affected by this action. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan. EPA is publishing this direct final partial deletion with the concurrence of the State of Illinois because all appropriate response actions at the RCP under CERCLA have been completed, other than maintenance, monitoring and five-year reviews. However, this partial deletion does not preclude future actions under Superfund.
This direct final partial deletion is effective September 14, 2018 unless EPA receives adverse comments by August 15, 2018. If adverse comments are received, will publish a timely withdrawal of the direct final partial deletion in the
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1990-0011, by one of the following methods:
U.S. Environmental Protection Agency, Region 5, Superfund Records Center, 77 West Jackson Boulevard, 7th Floor South, Chicago, IL 60604, Phone: (312) 886-0900, Hours: Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.
Talcott Free Library, 101 East Main Street, Rockton, IL 61072, Phone: (815) 624-7511, Hours: Monday, Tuesday and Thursday, 9:00 a.m. to 8:00 p.m., Wednesday and Friday 9:00 a.m. to 5:30 p.m., and Saturday 9:00 a.m. to 3:00 p.m.
Randolph Cano, NPL Deletion Coordinator, U.S. Environmental Protection Agency Region 5 (SR-6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 886-6036, or via email at
EPA Region 5 is publishing this direct final Notice of Partial Deletion for the Beloit Corporation (Beloit Corp.) Site (Site), from the National Priorities List (NPL). This partial deletion pertains to the Former Beloit Corp. Research Center Property portion of the Site, PIN 03-12-452-003, located at 1155 Prairie Hill Road, Rockton, Illinois. The NPL constitutes Appendix B of 40 CFR. Part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Beloit Corp. Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in § 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the Former Beloit Corp. Research Center Property, PIN 03-12-452-003 of the Beloit Corp. Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to partially delete this portion of the Site from the NPL unless adverse comments are received during the public comment period.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required,
ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to the deletion of the Former Beloit Corp. Research Center Property, PIN 03-12-452-003 of the Beloit Corp. Site:
(1) EPA has consulted with the State of Illinois prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion published in the “Proposed Rules” section of the
(2) EPA has provided the State thirty (30) working days for review of this action and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the State, through the Illinois Environmental Protection Agency (IEPA), has concurred on the partial deletion of the Site from the NPL.
(3) Concurrent with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in two major local newspapers, the Rockton Herald and the Rockford Register Star. The newspaper notices announce the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.
(4) EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified in the
(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion in the
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of
The following information provides EPA's rationale for deleting the Former Beloit Corp. Research Center Property, PIN 03-12-452-003, of the Beloit Corp. Site from the NPL:
The Beloit Corp. Site (CERCLIS ID ILD021440375) is located in Rockton, Winnebago County, Illinois. The Site consists of one, site-wide operable unit. The Site includes the approximately 200-acre former Beloit Corp. property and additional adjacent areas, including the Blackhawk Acres residential subdivision, and other industrial properties adjacent to the subdivision, including the former Soterion/United Recovery facility, a portion of the Taylor, Inc. property and the Safe-T-Way property. The Site is bound on the north by Prairie Hill Road, on the west by the Rock River, on the south by a line projected from the Rock River along the south edge of a Village of Rockton easement and access road to Blackhawk Boulevard, and on the east by Blackhawk Boulevard. See Figures 1 and 2 in Maps—Beloit Corp. Site and Area for Partial Deletion, Docket Document ID No. EPA-HQ-SFUND-1990-0011-0286 in the Docket.
The Beloit Corp. used approximately 20 acres of its 200-acre property for a research center (the Former Beloit Corp. Research Center Property), and 55 acres for a manufacturing plant, a wastewater treatment plant and lagoons, a gravel pit, and parking and outdoor storage areas. The Beloit Corp. used about 39 acres of open field south of its manufacturing and storage areas for foundry sand disposal and fibrous sludge spreading. About 86 heavily wooded acres of the Beloit Corp. property located west and south of the operations areas remain vacant and are within a backwater and floodplain area of the Rock River.
The Beloit Corp. property is divided into several parcels of land and has been redeveloped. The northern parcel of the Site is the location of the Former Beloit Corp. Research Center, PIN 03-12-452-003, and is the property EPA is deleting from the Site (see Property Map for 03-12-452-003 in Maps—Beloit Corp. Site and Area for Partial Deletion, Docket Document ID EPA-HQ-SFUND-1990-0011-0286 in the Docket). This property is approximately 20.757 acres and is owned by the Rock River Land Development Company (Rock River). The address for this property is 1155 Prairie Hill Road, Rockton, Illinois. The property is zoned for heavy industrial use and is occupied by Andritz Paperchine, a supplier of papermaking technology.
The remaining western and southern parcels of the former Beloit Corp. property are owned by Lubrizol Holding, Inc. (Lubrizol) and are not being deleted as part of this action. These parcels include the locations of the former Beloit Corp. manufacturing building, the former Beloit Corp. wastewater treatment plant and lagoons, the vacant fields, woods and floodplain areas, EPA's groundwater extraction and treatment system cleanup remedy, and the majority of EPA's groundwater monitoring well network (former Beloit Corp. Manufacturing Property). The PINs for these properties are 03-13-201-002, 03-12-452-002, 03-12-376-001, 03-13-126-001, 03-13-176-004. These parcels are also zoned for heavy industrial use. This part of the Site is occupied by Chemtool Inc. (Chemtool) and is used to manufacture specialized industrial lubricants. The address for the portion of the Site remaining on the NPL is 1165 Prairie Hill Road, Rockton, Illinois.
The Beloit Corp. property was farmland until Beloit Corp. purchased it in 1957. The property has been used for industrial purposes since 1957. Beloit Corp. manufactured machines at the Site that produced layered paper products from paper pulp. Beloit Corp. used solvents at its plant for parts cleaning operations. Beloit Corp. used petroleum-based, non-chlorinated solvents until the mid-1970s, and chlorinated solvents from the mid-1970s until 1983. The exact composition of the chlorinated solvents and the amounts Beloit Corp. used are unknown. Beloit Corp. used mineral spirits for metal degreasing and parts cleaning from 1983 until the facility closed in 1999.
IEPA began investigating potential contamination on the Beloit Corp. property and in the surrounding area in the 1980s. In 1986, IEPA sampled residential wells in the Blackhawk Acres subdivision adjacent to the Beloit Corp. facility. Sixteen of the 55 private drinking water wells that were sampled were contaminated.
IEPA's investigations determined that the most likely source of the groundwater contamination in the Blackhawk Acres subdivision was the Beloit Corp. EPA proposed the Beloit Corp. property and the surrounding area to the NPL as the Beloit Corp. Superfund Site on June 24, 1988 (53 FR 23988). EPA finalized listing the Beloit Corp. Site on the NPL on August 30, 1990 (55 FR 35502).
Beloit Corp. entered into a Consent Decree with IEPA in 1991 to conduct a Remedial Investigation (RI) and Feasibility Study (FS) at the Site. The RI found that the groundwater is contaminated with volatile organic compounds (VOCs) including tetrachloroethene (PCE), 1,1,1-tricloroethane (1,1,1-TCA), and trichloroethene (TCE).
In 1993, IEPA determined that three residential wells in the Blackhawk Acres subdivision contained TCE in groundwater above the Maximum Contaminant Level (MCL) established under the Safe Drinking Water Act. IEPA subsequently fitted these three residential wells contaminated above the MCL with carbon filtration systems plus IEPA fitted a fourth residential well with a carbon filtration system. The filtration systems continue to be maintained by IEPA. In 1999, IEPA connected a fifth residence with contaminated well water to the Rockton municipal water supply when the contamination was discovered in 1998.
The highest area of groundwater contamination is located under the southern area of the Erection Bay section of the Beloit Corp. manufacturing building. The primary groundwater contaminant in this area is PCE. The PCE contamination is believed to be due to the discharge of VOCs to the ground surface before Beloit Corp. constructed the Erection Bay over this area in 1989. The groundwater contamination is in the upper aquifer and generally flows from north to south. The groundwater contamination does not impact the Former Beloit Corp. Research Center Property, which is upgradient of the contaminant plume and EPA is deleting from the NPL in this action.
IEPA issued an Action Memorandum to Beloit Corp. in 1996 to implement an Interim Source Control Action (ISCA) at the Site. The Action Memorandum required immediate measures to control the high levels of VOC groundwater contamination near the Beloit Corp. manufacturing building.
Beloit Corp. conducted an Engineering Evaluation/Cost Analysis (EE/CA) to evaluate potential ISCA alternatives. The non-time critical removal action objectives developed in the EE/CA were to: Limit the potential for the migration of VOCs in groundwater at the Site through the installation of a groundwater containment system; initiate the removal of VOCs from the groundwater at the source area (the vicinity of the Erection Bay and groundwater
IEPA selected a groundwater pump and treat system as the ISCA. Beloit Corp. developed a Removal Action Design Report and constructed the groundwater extraction and treatment system in 1996. The pump and treat system consists of four extraction wells and an air stripper tower adjacent to the southwest corner of the Beloit Corp. manufacturing building on PIN 03-13-201-002. This system is currently operated by IEPA. The treated groundwater is discharged to the Rock River at an outfall located on Beloit Corp.'s former wastewater treatment plant and lagoons property, PIN 03-12-452-002, under a National Pollutant Discharge Elimination System (NPDES) permit.
Beloit Corp. filed for bankruptcy in 1999. As part of the bankruptcy, the court entered an order which, among other things, transferred the ownership of Beloit Corp.'s assets and liabilities, including the Beloit Corp. property, to the Beloit Liquidating Trust (the Trust). The ownership of the Beloit Corp. property then transferred to Giuffre II, LLC (Giuffre). The United States and Giuffre signed a settlement agreement in February 2002 under section 122(h) of CERCLA (the section 122(h) Agreement). The State of Illinois was also a party to the settlement agreement. The State of Illinois signed the agreement in April 2002.
The section 122(h) Agreement settled and resolved the potential liability of Giuffre resulting from its ownership and/or operation of the Beloit Corp. property. The purpose of the section 122(h) Agreement was to facilitate the cleanup of the Site and the reuse of the property.
On March 18, 2003, Giuffre sold the Former Beloit Corp. Research Center Property portion of the Site (the part of the Site being deleted as part of this action, outside the area of groundwater contamination) to PPC Investment Group LLC (PPC). PPC leased the property to Paperchine. PPC sold the Former Beloit Corp. Research Center Property to Rock River on January 5, 2015. Rock River continues to lease the Property to Paperchine (now known as Andritz Paperchine).
Giuffre deeded the remaining areas of the former Beloit Corp. property (
This partial deletion pertains to all media at the approximately 20.757-acre Former Beloit Corp. Research Center Property portion of the Beloit Corp. Site, PIN 03-12-452-003, located at 1155 Prairie Hill Road, Rockton, Illinois (see Property Map for 03-12-452-003 in Maps—Beloit Corp. Site and Area for Partial Deletion, Docket Document ID EPA-HQ-SFUND-1990-0011-0286 in the Docket).
Beloit Corp. conducted the RI in four phases between 1992 and 1998. The Phase I and II investigations identified and investigated the source area(s) of the VOCs at the Site. The Phase III investigation determined the extent of the VOC groundwater contamination. The Phase IV investigation evaluated potential sources of a deeper TCE contaminant plume in the upper aquifer in wells in the southern portion of the Beloit property, the southern Blackhawk Acres subdivision and in the Village of Rockton. The Phase IV investigation also evaluated whether VOCs detected at a home in the Blackhawk Acres subdivision were migrating from an upgradient source area, and determined what effect the ISCA pump and treat system was having on groundwater in the southern portion of the Blackhawk Acres subdivision.
The RI investigated the former Beloit Corp. foundry sand disposal area, former on-Site wastewater treatment plant (WWTP) lagoons, fibrous sludge spreading area where sludge from WWTP lagoons was applied, storage yard area, Erection Bay, chip pad, former dry well, welding area, loading dock, paint room, a nearby gravel pit, the Blackhawk Acres subdivision, the Rock River and the wetlands west of the Beloit Corp. operations areas, Rockton Excavating's property, the Village of Rockton, and the Soterion property.
The RI determined that the primary groundwater contamination at the Site originates under the southern area of the Erection Bay section of the Beloit Corp. manufacturing building. This area is located on PIN 03-13-201-002 within the Former Beloit Corp. Manufacturing Property, not the Former Beloit Corp. Research Center Property. The groundwater contamination is located in the shallow zone of the upper aquifer, from the water table, which is about 20 feet below ground surface (ft-bgs), to a depth of approximately 60 ft-bgs. The groundwater contamination flows generally from north to south, off-Site and away from the Former Beloit Corp. Research Center Property.
The groundwater contamination is believed to be due to the discharge of VOCs to the ground surface in this area before Beloit Corp. constructed the Erection Bay over this location in 1989. Soil and soil gas sampling in this area during the RI and during an additional Source Area Investigation in 2007, however, could not find any significant residual levels of VOCs in any unsaturated soil at the Site, including below the floor of the Erection Bay building.
The RI found a plume of deeper groundwater contamination at the Site in the upper aquifer near the southeast corner of the Former Beloit Corp. Manufacturing Property. This groundwater contamination also flows off-Site, towards Rockton and the Rock River. This groundwater contamination is also downgradient of, and flows away from the Former Beloit Corp. Research Center Property.
The groundwater in the deeper plume is contaminated primarily with TCE and is found at a depth of approximately 70 ft-bgs. The source of the deeper, TCE Plume could not be located, but is believed to be in the vicinity of groundwater monitoring wells W26C and W18, near the southeast corner of the Former Beloit Corp. Manufacturing Property and the northwest corner of the Soterion facility. Extensive sampling of the soils and groundwater in these areas did not indicate the presence of residual TCE in the soils. The groundwater data however, provides evidence that a historical release of TCE occurred in this area, even though the source has since dissipated.
The only structure on the Former Beloit Corp. Research Center Property (the part of the Site that is being deleted) that was operated by Beloit Corp. was its research center. Beloit Corp. built the research center in 1960 and used the building to design and demonstrate its papermaking machines.
Beloit Corp. conducted a Feasibility Study (FS) to evaluate cleanup alternatives to address the groundwater contamination at the Site. The FS did not develop cleanup alternatives to address other Site media because the baseline risk assessment did not identify any unacceptable risks associated with exposure to the other media including surface and subsurface soil, dust, vapor, surface water or sediment.
EPA's and IEPA's remedial action objectives for the Site are to: Prevent exposure to contaminated groundwater; prevent or minimize further migration of the contaminated groundwater plumes located at and downgradient of the Beloit Corp. manufacturing building; and to remediate the contaminated groundwater to the more stringent of either the MCLs or applicable State of Illinois Groundwater Quality Standards (35 IAC Part 620), including 35 IAC Part 620.410 Class I Groundwater Quality Standards for Class I Potable Resource Groundwater, or 35 IAC Part 620.450 Alterative Groundwater Quality Standards.
The only remedial alternative EPA and IEPA considered for the Former Beloit Corp. Research Center Property was institutional controls (ICs). EPA and IEPA did not evaluate an active groundwater remedy for the Former Beloit Corp. Research Center Property because the RI determined that the groundwater in this area of the Site was not contaminated.
EPA and IEPA issued a Record of Decision (ROD) for the Site in 2004. The ROD selected a cleanup remedy for the Site which included: Continued operation and monitoring of the groundwater pump and treat ISCA system located on the Former Beloit Corp. Manufacturing Property; VOC source area treatment on the Former Beloit Corp. Manufacturing Property by in-situ chemical oxidation; monitored natural attenuation to address the off-property and off-Site groundwater contamination; and ICs.
The only remedy component applicable to the Former Beloit Corp. Research Center Property in the ROD is the ICs. The ICs would be in the form of a restrictive covenant and would prohibit the use of shallow groundwater on the Beloit Corp. property (
IEPA conducted additional investigations in the former manufacturing plant source area of the Site in 2006 for the remedial design. IEPA's investigations indicated that the source area of the groundwater contamination is larger than previously indicated (but not on the Former Beloit Corp. Research Center Property), and that the aquifer material is not conducive to in-situ chemical treatment.
EPA and IEPA issued an Explanation of Significant Differences (ESD) in 2007 modifying the Site remedy. The ESD changed the treatment component of the remedy from in-situ chemical oxidation to installing one or more additional extraction wells south and southeast of the Erection Bay on the Former Beloit Corp. Manufacturing Property. The new extraction wells would capture additional groundwater contamination. The groundwater from the additional wells would be conveyed to the existing ISCA air-stripper for treatment and discharged to the Rock River under the NPDES permit. The ESD also included pneumatic fracturing at the additional extraction well locations to loosen up the soil to increase the effectiveness of the new wells.
The ESD did not alter the conclusion that the southern area of the Erection Bay in the manufacturing plant area of the Former Beloit Corp. Manufacturing Property is the primary source of the groundwater contamination at the Site. The ESD did not change the IC component for the Former Beloit Corp. Research Center Property or require any additional remedial action for the Former Beloit Corp. Research Center Property.
The ROD as modified by the ESD, requires: (1) The continued operation of the existing groundwater pump and treat ISCA system at the source area on the Former Beloit Corp. Manufacturing Property (not on the Former Beloit Corp. Research Center Property); (2) installing additional extraction wells in the source area on the Former Beloit Corp. Manufacturing Property (not on the Former Beloit Corp. Research Center Property); (3) groundwater monitoring; (4) operating and maintaining (O&M) the ISCA pump and treat system on the Former Beloit Manufacturing Property (not on the Former Beloit Corp. Research Center Property), and (5) implementing ICs to prohibit the withdrawal of the shallow groundwater for potable use.
IEPA completed the remedial action to expand and increase the effectiveness of the 1996 groundwater pump and treat system on the Former Beloit Manufacturing Property in 2008. IEPA expanded the groundwater pump and treat building to accommodate the increase in the volume of extracted groundwater, installed three new groundwater extraction wells, and shut down one extraction well (EW01) to adjust the zone of groundwater extraction to better target the source area.
IEPA conducted pneumatic fracturing at the three additional extraction well locations to increase the volume of water pumped out by the extraction wells in the source area. IEPA connected the new extraction wells to the groundwater treatment system and tested the system to ensure it was properly operating. EPA documented the completion of the remedial action construction activities in a September 29, 2008 PCOR (Docket Document ID EPA-HQ-SFUND-1990-0011-0260).
The cleanup levels for the groundwater contaminants at the Beloit Corp. Site are federal MCLs and/or Illinois Class I standards, whichever are more stringent. The RI determined that the groundwater below the Former Beloit Corp. Research Center Property is upgradient of, and is not affected, by the groundwater contamination at the Site, and that the groundwater below the Research Center Property already meets the cleanup levels for the Site.
IEPA conducted an updated hydraulic capture zone analysis of the expanded groundwater extraction system in 2013. The updated capture zone analysis further confirms that the VOC-contaminated groundwater originating from the former Erection Bay source area is being captured and treated by the expanded ISCA pump and treat system, and is not affecting the Former Beloit Corp. Research Center Property. The results of the capture zone analysis are provided in the Task 1 Follow-Up Activities to the Five-Year Review Report, June 2014 (Docket Document ID EPA-HQ-SFUND-1990-0011-0269).
Annual VOC sampling of a deep, water supply well located on the Former Beloit Corp. Research Center Property (well WW441K) also confirms that the groundwater in the lower aquifer below the Former Beloit Corp. Research Center Property has not been affected by Site contamination. Well WW441K is located in the lower aquifer, which is separated from the upper aquifer by approximately 40 feet of silty clay. The well is screened from 175 to 185 ft-bgs and from 225 to 235 ft-bgs, and is approximately 100 feet deeper than the deepest contamination detected at the Site.
Well WW441K is used to supply water for employee toilets and sink uses, and for limited cleaning purposes. The Illinois Department of Public Health requires the well to be sampled annually for VOCs and for other contaminants as scheduled (Water
A second, deeper water supply well is located on the Former Beloit Corp. Research Center Property (WW441L). Well WW441L is an open borehole well from 330 ft-bgs to 554 ft-bgs and is maintained as a backup well for fire protection. Based on other Site information and data, well WW441L is also not expected to be impacted by Site-related contamination. Additional information about wells WW441K and WW441L is provided in the Technical Memorandum: Paperchine Investment Group LLC Water Supply Wells at Beloit Corp. NPL Site, June 2017, Docket Document ID EPA-HQ-SFUND-1990-0011-0284.
The only O&M required for the Former Beloit Corp. Research Center Property is to maintain and monitor upgradient groundwater monitoring wells on the property as needed, and to maintain, monitor and enforce the ROD-required IC.
PPC filed a Uniform Environmental Covenant, pursuant to the Illinois Uniform Environmental Covenants Act [UECA, 765 Illinois Compiled Statutes (ILCS) 122] on the Former Beloit Corp. Research Center Property, PIN 03-12-452-003, with the Winnebago County Recorder's Office on February 7, 2013, Instrument 20131006292. A copy of the recorded Environmental Covenant (EC) is in Docket Document ID EPA-HQ-SFUND-1990-0011-0276 in the Docket.
PPC's EC: (1) Restricts or limits the use of the land to industrial land use; (2) prohibits the construction of new or non-existing wells or consumptive use of the groundwater underlying the property; (3) prohibits any activity that may interfere with or would affect the integrity or the configuration of the RA at the Site, or the operation and maintenance of any RA component; and (4) grants authorized representatives of IEPA and EPA the right to enter and have continued access to the Site at reasonable times to perform the RA. The covenant “runs with the land” and remains in effect until the contaminated groundwater at the Site is restored to the more stringent of either the federal MCLs or State of Illinois Class I groundwater standards for all contaminants of concern. Similar ICs will be placed on the Former Beloit Corp. Manufacturing Property. IEPA is also in the process of establishing a Groundwater Management Zone to prevent the use of contaminated groundwater in other Site areas beyond the former Beloit Corp. property.
Other O&M at the Site includes IEPA's operation of the groundwater treatment system on the Former Beloit Corp. Manufacturing Property and semi-annual groundwater monitoring at 21 groundwater monitoring locations. Eight of the groundwater monitoring locations have nested wells screened at different elevations within the aquifer to monitor the groundwater at different depths. IEPA's groundwater monitoring indicates that the contaminant plume has stabilized and that the contaminated groundwater is not moving off-Site. IEPA samples nearby residential wells every two years to ensure that the groundwater containment system continues to be protective. The concentrations of contaminants in private residential wells have been below MCLs since 2001.
EPA and IEPA conducted the first statutory five-year review (FYR) at the Beloit Corp. Site under Section 121(c) of CERCLA on September 27, 2013. A FYR evaluates whether the remedial action at a site remains protective of human health and the environment at sites where contaminants remain on-site at levels that do not allow for unlimited use and unrestricted exposure.
The FYR Report determined that a protectiveness determination could not be made at the Site without further information to assess the potential for vapor intrusion into nearby residences and commercial properties, and updated groundwater modeling. The issues and recommendations in the FYR Report did not apply to the Former Beloit Corp. Research Center Property, which is upgradient from the source area of the groundwater contamination at the Site and is not subject to vapor intrusion concerns.
IEPA conducted a vapor intrusion assessment and updated the Site groundwater model to address the issues in the FYR Report. The vapor intrusion assessment determined that the Site does not pose a risk to Site workers or nearby residents through the vapor intrusion pathway. The updated Site groundwater model capture zone analysis demonstrates that the groundwater contamination in the Former Beloit Corp. Manufacturing Property source area of the Site is being captured and treated by the expanded groundwater pump and treat system required by the 2007 ESD.
EPA issued a FYR Addendum documenting that the Site is currently protective of human health and the environment on January 25, 2018. The FYR Addendum also determined that in order for the Site to be protective over the long-term an EC must be implemented on the Former Beloit Corp. Manufacturing Property, a GMZ must be implemented in Site areas beyond the Former Beloit Corp. property, and an institutional controls action plan and long-term stewardship plan for monitoring and maintaining ICs need to be implemented. The next FYR is scheduled to be completed by September 27, 2018.
EPA and IEPA satisfied public participation activities for the Site required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617. IEPA has actively engaged the Rockton community about the Beloit Corp. Superfund Site since the 1980s. IEPA held public meetings and availability sessions about the Site throughout the RI/FS at the Talcott Free Library and the Hononegah High School. These forums allowed citizens, local officials and the media to learn about the Site, ask questions and express their concerns directly to IEPA community involvement and technical staff. IEPA announced all meetings and availability sessions to the public in local newspaper advertisements and IEPA fact sheets prior to the meetings.
IEPA developed and distributed four fact sheets about the Site throughout the RI/FS. The fact sheets provided information about the residential well sampling, the environmental investigations, Site updates, public meeting announcements, the proposed plan, new documents and reports added to the information repository, the start and completion of cleanup actions, schedule delays and the establishment of the Administrative Record.
IEPA published three weekly notices about its proposed cleanup plan for the Site in the Rockton Herald in 2004 prior to issuing the ROD. The notices included information about the 30-day public comment period and the public meeting. IEPA mailed a proposed plan fact sheet summarizing the proposed cleanup plan and the other cleanup alternatives that were considered, to citizens, the media, and local officials prior to selecting a final cleanup plan in the 2004 ROD. The fact sheet also announced and included information about the public comment period and the public meeting. IEPA extended the public comment period for the proposed plan period by 30 days in response to
IEPA published a notice announcing the 2013 FYR and inviting the public to comment and express their concerns about the Site at the start of the FYR. IEPA published these notices in the Rockton Herald and the Rockford Register Star.
EPA published notices announcing this proposed Direct Final Partial Deletion in the Rockton Herald and the Rockford Register Star prior to publishing this deletion in the
The Former Beloit Corp. Research Center Property portion of the Beloit Corp. Site, PIN 03-12-452-003, meets all of the site deletion requirements specified in Office of Solid Waste and Emergency Response (OSWER) Directive 9320.22,
The NCP (40 CFR 300.425(e)) states that a Superfund site or a portion of a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Illinois, has determined that all required response actions have been implemented at the Former Beloit Corp. Research Center Property portion of the Beloit Corp. Site, PIN 03-12-452-003, and that no further response action by the responsible parties is appropriate on this property.
EPA, with concurrence of the State of Illinois through the IEPA, has determined that all appropriate response actions under CERCLA at the Former Beloit Corp. Research Center Property, PIN 03-12-452-003, other than maintenance and monitoring of groundwater monitoring wells and ICs, and five-year reviews, have been completed. Therefore, EPA is deleting the Former Beloit Corp. Research Center Property, PIN 03-12-452-003, of the Beloit Corp. Site from the NPL.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 14, 2018 unless EPA receives adverse comments by August 15, 2018. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Partial Deletion before the effective date of the partial deletion and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Partially Delete and the comments already received. There will be no additional opportunity to comment.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out in this document, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
(a) * * *
P = Sites with partial deletion(s).
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, are issuing this final rule to comply with a court order that vacated provisions of regulations governing control of depredating double-crested cormorants at aquaculture facilities and for control of double-crested cormorants to protect public resources. Pursuant to the U.S. District Court for the District of Columbia order dated May 25, 2016, this rule removes regulatory provisions that allowed take of double-crested cormorants at aquaculture facilities and to protect public resources without the need for a permit.
This action is effective July 16, 2018.
This final rule is available on the internet at
Ken Richkus, Acting Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, Virginia 22041-3803, telephone (703) 358-1780. Individuals who are hearing impaired or speech impaired may call the Federal Relay Service at 1-800-877-8337 for TTY assistance.
The U.S. Fish and Wildlife Service (Service) is delegated the primary responsibility of conserving migratory birds through protection, restoration, and management. This delegation is authorized by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
Regulations pertaining to migratory bird permits are at 50 CFR part 21. Subpart D of part 21 contains regulations for the control of depredating birds. Depredation and control orders authorize the take of specific species of migratory birds for specific purposes without a Federal depredation permit, as long as the control and depredation actions comply with the regulatory requirements of the order.
The two depredation orders at issue in this final rule—the Aquaculture Depredation Order (“AQDO”), at 50 CFR 21.47, and the Public Resource Depredation Order (“PRDO”), at 50 CFR 21.48 (collectively, the “Orders”)—have been reissued every 5 years since their initial promulgation in 1998 and 2003, respectively. The AQDO was adopted by the Service in 1998 in response to complaints that the fish-eating habits of the cormorants were becoming increasingly costly to aquaculture and other industries. The AQDO authorized “landowners, operators, and tenants actually engaged in the production of commercial freshwater aquaculture stocks (or their employees or agents)” in certain States to take cormorants “when found committing or about to commit depredations to aquaculture stocks” (63 FR 10550, March 4, 1998). The authority granted by the AQDO would “automatically expire on April 30, 2005, unless revoked or specifically extended prior to that date.”
In 1999, in response to continued complaints, the Service issued a notice of intent to develop a national cormorant plan.
In 2009, the two depredation orders were reissued for another 5 years.
On May 25, 2016, the U.S. District Court for the District of Columbia vacated the two depredation orders (
This rulemaking is necessary to comply with the May 25, 2016, court order. Therefore, under these circumstances, we have determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are impractical and unnecessary. Public opportunity for comment is simply not required when an agency amends a regulation to comply with a court order. When an agency removes regulatory provisions set aside by a court order, that action is ministerial in nature and allows for no discretion on the part of the agency.
We have further determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective upon publication, which is to comply with the District Court's order as soon as practicable.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
To comply with the court order and mandate discussed above, we amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 703-712.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to add a new load condition to the design standards for transport category airplanes. The new load condition would require the airplane be designed to withstand the loads caused by rapid reversals of the rudder pedals and would apply to transport category airplanes that have a powered rudder control surface or surfaces. This rule is necessary because accident and incident data show that pilots sometimes make rudder reversals during flight, even though such reversals are unnecessary and discouraged by flightcrew training programs. The current design standards do not require the airplane structure to withstand the loads that may result from such reversals. If the airplane loads exceed those for which it is designed, the airplane structure may fail, resulting in catastrophic loss of control of the airplane. This proposal aims to prevent structural failure of the rudder and vertical stabilizer that may result from these rudder reversals.
Send comments on or before October 15, 2018.
Send comments identified by docket number [Insert docket number from heading] using any of the following methods:
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For technical questions concerning this action, contact Robert C. Jones, Propulsion & Mechanical Systems Section, AIR-672, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax (206) 231-3182; email
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority. It prescribes new safety standards for the design of transport category airplanes.
The FAA proposes to add a new load condition to the design standards in title 14, Code of Federal Regulations (14 CFR) part 25. The new load condition, to be located in new proposed § 25.353, would require that the airplane be designed to withstand the loads caused by rapid reversals of the rudder pedals. Specifically, applicants would have to show that their proposed airplane design can withstand an initial full rudder pedal input, followed by three rudder reversals at the maximum sideslip angle, followed by return of the rudder to neutral. Due to the rarity of such multiple reversals, the proposed rule would specify the new load condition is an ultimate load condition rather than a limit load condition. Consequently, the applicant would not have to apply an additional factor of safety to the calculated load levels.
The proposed rule would affect manufacturers of transport category airplanes applying for a new type certificate after the effective date of the final rule. The proposed rule may also affect applicants applying for an amended or supplemental type certificate as determined under 14 CFR 21.101 after the effective date of the final rule. Proposed § 25.353 would apply to transport category airplanes that have a powered rudder control surface or surfaces, as explained in the “Discussion of the Proposal.”
Accident and incident data from the events described in section II.B.1 show pilots sometimes make multiple and unnecessary rudder reversals during flight. In addition, FAA-sponsored
Section 25.351, the standard for protecting the airplane's vertical stabilizer from pilot-commanded maneuver loads, only addresses single, full rudder inputs at airspeeds up to the design diving speed (V
Incidents and accidents related to rudder reversals have occurred in the past, and the FAA believes that another such event could occur, resulting in injuries to occupants or a structural failure that jeopardizes continued safe flight and landing of the airplane.
Rudder reversals have caused a number of accidents and incidents. On November 12, 2001, American Airlines Flight 587 (AA587), an Airbus Model A300-600 series airplane, crashed at Belle Harbor, New York, resulting in 265 deaths and the loss of the airplane. The National Transportation Safety Board (NTSB) found that the probable cause of this accident was the in-flight separation of the vertical stabilizer as a result of the loads beyond ultimate design that were created by the first officer's unnecessary and excessive rudder pedal inputs. The NTSB also noted that contributing to these rudder pedal inputs were characteristics of the Airbus A300-600 rudder system design and elements of the American Airlines Advanced Aircraft Maneuvering Program.
In two additional events—commonly known as the Interflug incident
Other rudder reversal events have occurred more recently. On January 10, 2008, an Airbus Model 319-114 series airplane, operated as Air Canada Flight 190 (AC190), encountered a wake vortex while at cruise altitude over Washington State.
The Transportation Safety Board of Canada (TSB) investigated this event, along with NTSB accredited representatives, and classified it as an accident. Analysis by the TSB showed that the pilot's actions resulted in a load on the vertical stabilizer that exceeded its limit load by approximately 29 percent. The TSB found that the flightcrew was startled by wake turbulence at that altitude, erroneously believed that the airplane had malfunctioned, and therefore responded with erroneous actions. The pilot had received training to avoid rudder reversals.
On May 27, 2005, a Bombardier DHC-8-100 series airplane, operated by Provincial Airlines Limited for passenger service, experienced a stall and uncontrolled descent over Canada.
Since the AA587 accident, the FAA has responded to the risk posed by rudder reversals, in part, by requesting that applicants for new type certificates show that their designs are capable of continued safe flight and landing after experiencing repeated rudder reversals. Applicants have been able to show this capability through rudder control laws in flight control systems. Applicants have incorporated these control laws through software and, therefore, added no weight or maintenance cost to the airplanes.
In 2016, the European Aviation Safety Agency (EASA) began applying special conditions to new airplane certification programs. EASA mandated these special conditions to address the exact risk of rudder reversals explained in this NPRM. The requirements in the EASA special conditions are identical to the requirements proposed in this NPRM.
In 2006, the FAA sponsored a survey
• Pilots use the rudder more than previously thought and often in ways not recommended by manufacturers.
• Pilots make erroneous rudder pedal inputs, and some erroneous rudder pedal inputs include rudder reversals.
• Even after specific training, many pilots are not aware that they should not make rudder reversals, even below V
• The survey indicated that pilots in airplane upset situations (
In 2011, the FAA tasked ARAC to consider the need to add a new flight maneuver load condition to part 25, subpart C, that would ensure airplane structural capability in the presence of rudder reversals and increasing sideslip angles (yaw angles) at airspeeds up to V
The FCHWG was tasked to examine several options to protect the airplane from pilot-commanded rudder reversals. These options included developing new standards for—
• Loads,
• Maneuverability,
• System design,
• Control sensitivity,
• Alerting, and
• Pilot training.
The FCHWG completed its report in November 2013.
While multiple rudder reversals are a very low probability event, they have occurred in service and cannot be ruled out in the future. The FCHWG found that a load condition was the optimal way to protect the airplane from the excessive loads that can result from multiple rudder reversals. The FCHWG recommended a load condition over the other options because it would be a performance-based requirement. The FCHWG noted that this would provide applicants for design approval with the flexibility to determine the best way to meet a load condition.
Following the AA587 accident described in section II.B.1 of this NPRM, the NTSB provided safety recommendations to the FAA. The NTSB stated, “For airplanes with variable stop rudder travel limiter systems, protection from dangerous structural loads resulting from sustained alternating large rudder pedal inputs can be achieved by reducing the sensitivity of the rudder control system (for example, by increasing the pedal forces), which would make it harder for pilots to quickly perform alternating full rudder inputs.” In Safety Recommendation A-04-056,
This proposed rule would address this recommendation and, if incorporated on new airplane designs, would reduce the risk of an event similar to AA587. The proposed rule would also respond to the NTSB's concern about rudder pedal sensitivity.
During its investigation of the AA587 accident, the NTSB found that many pilots of transport category airplanes mistakenly believed that, as long as the airplane's speed is below V
Section 25.1583(a)(3) was revised to change the information that applicants must furnish in the AFM explaining the use of V
In 2012, the FAA adopted an airworthiness directive (AD) applicable to all Airbus Model A300-600 and Model A310 series airplanes.
In 2015, the FAA adopted an AD applicable to all Airbus Model A318, A319, A320, and A321 series airplanes.
The FAA has developed proposed Advisory Circular (AC) 25.353-X, “Design Load Conditions for Rudder Control Reversal,” to be published concurrently with this NPRM. This proposed AC would provide guidance
The FAA proposes to revise 14 CFR by adding new § 25.353 to add a design load condition. It would apply to transport category airplanes that have a powered rudder control surface or surfaces, as explained later in this section. The load condition would require that the airplane be able to withstand three full reversals of the rudder pedals at the most critical points in the flight envelope. From a neutral position, the pedal input would be sudden and to one side and held; then, as the maximum sideslip angle is reached, the pedals would be suddenly displaced in the opposite direction and held until the opposite angle is reached; then again to the first side; then again to the second side; then suddenly moved back to the neutral position.
The reason for this proposal is that pilots make inadvertent and erroneous rudder pedal inputs, and the accident and incident data show that the loads caused by rudder reversals can surpass the airplane's structural limit load and sometimes its ultimate load. Compliance with the proposed rule would require a showing that the airplane's vertical stabilizer and other airplane structure are strong enough to withstand the rudder reversals.
Ten of the eleven members of the FCHWG recommended proposing some form of a new load condition to protect the airplane against rudder reversals. During discussions, five members of the FCHWG
Five members of the FCHWG
One member, The Boeing Company (Boeing), took the position that no new rulemaking or design standards are required, and that the risk from rudder reversals should be addressed by flightcrew training. Boeing stated that rudder reversals are always inappropriate and that pilots should never make such commands. Boeing argued it is inappropriate to issue an airworthiness standard to mitigate a situation caused by actions that pilots should avoid. The FAA rejects this alternative because, while multiple rudder reversals are a very low probability event, they have been seen in service, despite training, and cannot be ruled out in the future.
As indicated previously, yaw maneuver loads are currently specified in § 25.351, “Yaw maneuver conditions.” The FAA used this requirement as a template to develop the proposed new rudder reversal design load condition. Therefore, the proposed load condition would be similar to the load condition required by § 25.351, except as follows:
• Section 25.351 specifies a single, full-pedal command followed by a sudden pedal release after the airplane has reached the steady-state sideslip angle. Proposed § 25.353 would specify a single, full-pedal command followed by three rudder reversals, and return to neutral.
• In the proposed rule, the rudder reversals must be performed at the maximum sideslip angle, which is referred to as the “overswing sideslip angle.” This term is also used in § 25.351 and would have the same meaning. The overswing sideslip angle is the maximum sideslip angle that occurs following full rudder pedal input and includes the additional sideslip that may occur beyond the steady-state sideslip angle.
• The § 25.353 load requirement would be an ultimate design load condition, instead of a limit load condition as in § 25.351. This means that applicants would apply a safety factor of 1.0, rather than 1.5. The proposed rudder reversal maneuver would cover the worst-case rudder maneuver expected to occur in service. Because service history has shown that three full rudder reversals are unusual, the FAA proposes that a safety factor of 1.0 is appropriate.
• The proposed § 25.353 condition would require only that the applicant account for the rudder reversals at speeds up to the design cruising speed (V
• Section 25.351 requires a pilot force of up to 300 pounds, depending on the airplane's speed. In contrast, the pilot force specified in § 25.353 would be limited to 200 pounds because it would be difficult, and therefore very unlikely, for a pilot to maintain 300 pounds of force while performing rapid alternating inputs.
• The proposed § 25.353 condition would be evaluated only with the landing gear retracted and speed brakes (and spoilers when used as speed brakes) retracted. This is because flight loads would be more severe with the gear and speed brakes retracted.
The proposed rule is performance-based. For example, an applicant could choose to comply with the proposed standard by using control system architecture and control laws to limit the airplane response to rudder reversals, and thereby reduce structural loads on the airplane. An applicant could also choose to comply by increasing the capability of the airplane to withstand the maximum expected structural loads that could result from the proposed load condition.
After examining all the data and considering stakeholder opinions, the FAA has determined that the proposed rule should apply to new type certification programs of transport category airplane designs and to amended or supplemental type certificate programs as determined under § 21.101. The proposed rule would affect manufacturers of transport category airplanes. In the future, applicants who want to certify new airplanes under part 25 would have to comply with proposed § 25.353.
As noted previously, this proposed rule would apply only to airplanes that use powered rudder control surfaces. In this proposed rule, a powered rudder control surface is one in which the force required to deflect the surface against the airstream is generated or augmented by hydraulic or electric systems. An unpowered rudder control surface is
1. The only U.S. transport category airplane models, currently in production, that use unpowered rudder control surfaces are small business jets. Small airplanes typically have a minimal delay between pilot yaw control inputs and airplane response. The pilots of these airplanes receive more immediate feedback of airplane response to their yaw control inputs and, therefore, are less likely to execute inappropriate pedal movements resulting in rudder reversals.
2. The only U.S. transport category airplane models, currently in production, that use an unpowered rudder control surface are also equipped with a yaw damper. The FAA has assessed the design of this yaw damper and determined its normal operation would be adequate to reduce yaw overshoot loads resulting from rudder reversals to acceptable levels. However, the yaw damper system on these airplanes is not required to be operational on any given flight. The yaw damper is included in these airplanes primarily to improve ride quality for passenger comfort (as opposed to providing adequate stability about the yaw axis to ensure airplane safety). Since the yaw damper may not be available on a given flight, the manufacturer of these airplanes has stated it might need to add structure or an improved yaw damper to any new type certificated airplanes to comply with the proposed rule.
3. The use of unpowered rudder control surfaces is diminishing in the transport category airplane fleet. The FAA expects that most, if not all, new type certificate applications to which this proposed rule would apply will employ powered rudder control surfaces.
4. The FAA has reviewed the accident and incident records and has found no events in which pilots commanded inappropriate rudder reversals on airplanes with unpowered rudder control surfaces. This alone does not mean such systems cannot be affected by pilot-commanded inappropriate rudder reversals. However, the absence of any previous incidents indicates that excluding these designs would not appreciably increase the future risk of such events above acceptable levels.
The proposed design criteria would provide a practical, relatively low-cost solution that would be achievable on future designs without the requirement to significantly strengthen the vertical stabilizer, or make significant changes to system design. In fact, some current airplanes would be able to meet the proposed criteria with no changes whatsoever. This proposal should require a minimal increment of applicant resources to show compliance. While an applicant might choose to comply with this performance-based standard by strengthening the airplane structure, the FAA believes that most applicants would use control laws to comply with this proposed rule. These control laws are a part of the flight control computer, and they adjust control surface deflections based on pilot input and other factors like airspeed. Since control laws are typically implemented through systems and software, there would be little to no incremental cost in the form of weight, equipment, maintenance, or training.
Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
In conducting these analyses, FAA has determined that this proposed rule has benefits that justify its costs and is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866. The rule is also not “significant” as defined in DOT's Regulatory Policies and Procedures. The proposed rule will not have a significant economic impact on a substantial number of small entities, will not create unnecessary obstacles to the foreign commerce of the United States, and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified previously.
Department of Transportation Order 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the costs and benefits is not prepared. Such a determination has been made for this proposed rule. The reasoning for this determination follows.
The genesis of this proposed rule is the crash of American Airlines Flight 587 (AA587), near Queens, New York,
The National Transportation Safety Board (NTSB) found that the probable cause of the accident was “the in-flight separation of the vertical stabilizer [airplane fin] as a result of loads above ultimate design created by the first officer's unnecessary and excessive rudder pedal inputs.”
Significant rudder reversals events are unusual in the history of commercial airplane flight, having occurred during just five notable accidents and incidents, with AA587 being the only catastrophic accident resulting from rudder reversals.
In transport category airplanes, rudder inputs are generally limited to aligning the airplane with the runway during crosswind landings and controlling engine-out situations, which occur predominately at low speeds. At high speeds, the pilot normally directly rolls the airplane using the ailerons.
Following the AA587 accident, in November 2004 the NTSB released Safety Recommendation A-04-56 recommending that the FAA modify part 25 “to include a certification standard that will ensure safe handling qualities in the yaw axis throughout the flight envelope. . . .”
Since the catastrophic AA587 accident, the FAA has responded to the risk posed by rudder reversals by requesting, through the issue paper process, that applicants for new type certificates show that their designs are capable of continued safe flight and landing after experiencing repeated rudder reversals. For airplanes with FBW systems, manufacturers have been able to show capability by means of control laws, incorporated through software changes and, therefore, adding no weight and imposing no additional maintenance cost to the airplanes. Many if not all of these designs have demonstrated tolerance to three or more rudder reversals. Aside from converting to an FBW system, alternatives available to manufacturers specializing in airplane designs with mechanical or hydro-mechanical rudders include increasing the reliability of the yaw damper and strengthening the airplane vertical stabilizer.
To estimate the cost of the proposed rule, the FAA solicited unit cost estimates from U.S. industry and incorporated these estimates into an airplane life cycle model. The FAA received one estimate for large part 25 airplanes and two estimates for small part 25 airplanes (business jets).
One of the business jet estimates was provided by a manufacturer specializing in mechanical rather than FBW rudder systems; therefore, that estimate reflects significantly higher compliance costs. This manufacturer's most cost-efficient approach to addressing the proposed requirement—although high in comparison to manufacturers who use FBW systems exclusively—is to comply with a strengthened vertical stabilizer. The cost of complying with a more reliable yaw damper was higher than strengthening the vertical stabilizer, and higher yet if complying by converting to a FBW rudder system for new models.
As a result of these high costs and other reasons set forth in the preamble, the FAA has decided that the proposed rule would not apply to airplanes with “unpowered” (mechanical) rudder control surfaces. An “unpowered” rudder control surface is one whose movement is affected through mechanical means, without any augmentation from hydraulic or electrical systems. Accordingly, the proposed rule would not apply to models with mechanical rudder control systems, but would apply only to models with FBW or hydro-mechanical
The FAA estimates the costs of the proposed rule using unit cost per model estimates from industry for FBW models and our estimates of the number of new large airplane and business jet certifications with FBW rudder systems in the ten years after the effective date of the proposed rule. These estimates are shown in table 1. The FAA solicits comments, with detailed cost estimates, on our estimates.
With these cost estimates, the FAA finds the proposed rule to be minimal cost, with expected net safety benefits from the reduced risk of rudder reversal accidents.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. As noted above, because manufacturers with FBW rudder systems have been able to show compliance by means of low-cost changes to control laws incorporated through software changes, the FAA estimates the costs of this proposed rule to be minimal. Therefore, as provided in section 605(b), the head of the FAA certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA has assessed the effect of this proposed rule and determined that its purpose is to protect the safety of U.S. civil aviation. Therefore, the proposed rule is in compliance with the Trade Agreements Act.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million.
This proposed rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.
(1) In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
(2) Executive Order 13609, “Promoting International Regulatory Cooperation,” promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
FAA Order 1050.1E identifies FAA actions that are categorically excluded
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, “Federalism.” The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies web page at
3. Accessing the Government Printing Office's web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced in item (1) above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702 and 44704.
For airplanes with a powered rudder control surface or surfaces, the airplane must be designed to withstand the ultimate loads that result from the yaw maneuver conditions specified in paragraphs (a) through (e) of this section at speeds from V
(a) With the airplane in unaccelerated flight at zero yaw, the flight deck rudder control is displaced as specified in § 25.351(a) and (b).
(b) With the airplane yawed to the overswing sideslip angle, the flight deck rudder control is suddenly displaced in the opposite direction.
(c) With the airplane yawed to the opposite overswing sideslip angle, the flight deck rudder control is suddenly displaced in the opposite direction.
(d) With the airplane yawed to the subsequent overswing sideslip angle, the flight deck rudder control is suddenly displaced in the opposite direction.
(e) With the airplane yawed to the opposite overswing sideslip angle, the flight deck rudder control is suddenly returned to neutral.
Pension Benefit Guaranty Corporation.
Proposed rule.
The Pension Benefit Guaranty Corporation proposes to amend its multiemployer reporting, disclosure, and valuation regulations to reduce the number of actuarial valuations required for smaller plans terminated by mass withdrawal, add a valuation filing requirement and a withdrawal liability reporting requirement for certain terminated plans and insolvent plans, remove certain insolvency notice and update requirements, and reflect the repeal of the multiemployer plan reorganization rules.
Comments must be submitted on or before September 14, 2018 to be assured of consideration.
Comments may be submitted by any of the following methods:
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•
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All submissions must include the agency's name (Pension Benefit Guaranty Corporation, or PBGC) and the RIN for this rulemaking (RIN 1212-AB38). All comments received will be posted without change to PBGC's website,
Hilary Duke (
This proposed rule would make certain reporting and disclosure of multiemployer information to PBGC and interested parties more efficient and reflect the repeal of the multiemployer plan reorganization rules. The proposal would reduce costs by allowing smaller plans terminated by mass withdrawal to perform actuarial valuations less frequently and by removing certain notice requirements for insolvent plans. This would reduce plan administrative costs and, in turn, may reduce financial assistance provided by PBGC.
PBGC's legal authority for this action is based on section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA; section 4041A(f)(2) of ERISA, which gives PBGC authority to prescribe reporting requirements for terminated plans; section 4245(e) of ERISA, which directs PBGC to prescribe requirements for notices regarding multiemployer plan insolvency; section 4261 of ERISA, which authorizes PBGC to provide financial assistance to insolvent plans, and section 4281(d)(3) of ERISA, which directs PBGC to prescribe requirements for notices to plan participants and beneficiaries in the event of a benefit suspension by an insolvent plan.
The plan sponsor of a multiemployer plan terminated by mass withdrawal is responsible for specific duties, including an annual actuarial valuation of the plan's assets and benefits. This proposed rule would reduce administrative burden by allowing the plan sponsor to perform an actuarial valuation only every 5 years if the present value of the plan's nonforfeitable benefits is $50 million or less. The proposed rule would add a new requirement for plan sponsors of certain terminated or insolvent plans to file actuarial valuations with PBGC. Where the present value of the plan's nonforfeitable benefits is $50 million or less, a plan receiving financial assistance from PBGC would be able to file alternative valuation information.
The plan sponsor of a multiemployer plan also is responsible for determining, giving notice of, and collecting withdrawal liability. The proposal would require plan sponsors of certain terminated or insolvent plans to file with PBGC information about withdrawal liability payments and whether any employers have withdrawn but have not yet been assessed withdrawal liability.
A multiemployer plan terminated by mass withdrawal that is insolvent or is expected to be insolvent for a plan year must provide certain notices to PBGC and participants and beneficiaries. Similarly, a multiemployer plan that is certified by the plan's actuary to be in critical status and that is expected to become insolvent under section 4245 of ERISA must provide certain notices to PBGC and interested parties. Notices include a notice of insolvency and a notice of insolvency benefit level. The proposed rule would eliminate outdated information included in the notices. The proposal would require a plan to provide notices of insolvency if the plan sponsor determines the plan is insolvent in the current plan year or is expected to be insolvent in the next plan year. The proposal also would eliminate the requirement to provide most annual updates to the notices of insolvency benefit level.
The Pension Benefit Guaranty Corporation (PBGC) administers two insurance programs for private-sector defined benefit pension plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA): A single-employer plan termination insurance program and a multiemployer plan insolvency insurance program. In general, a multiemployer pension plan is a collectively bargained plan involving two or more unrelated employers. This proposed rule deals with multiemployer plans.
Under section 4041A of ERISA, a mass withdrawal termination of a plan occurs when all employers withdraw or cease to be obligated to contribute to the plan. A plan terminated by mass
Before 2015, financially troubled multiemployer plans entered a “reorganization” status if their funding was below a certain level. Plans in reorganization status were subject to certain rules affecting plan funding, benefits, and reporting and disclosure. The plan sponsor of a plan in reorganization that determined the plan was insolvent or was expected to be insolvent for a plan year was required to provide PBGC and interested parties notices regarding the plan's insolvency. The Pension Protection Act of 2006 established critical and endangered statuses for underfunded plans and provided new tools to help multiemployer plans in those statuses improve plan funding but did not repeal the reorganization rules. Section 108 of the Multiemployer Pension Reform Act of 2014 (MPRA) repealed the rules on reorganization under section 4241 of ERISA effective for plan years beginning after December 31, 2014. MPRA also amended the notice requirements under section 4245(e) of ERISA and 418E(e) of the Internal Revenue Code (Code) to replace the references to a plan in reorganization with references to a plan in critical status. These amendments did not substantively change the notice requirements.
This proposed rule would reduce reporting and disclosure requirements for multiemployer plans that are terminated by mass withdrawal or in critical status and that are, or are expected to be, insolvent.
PBGC's regulation on Termination of Multiemployer Plans (29 CFR part 4041A) establishes rules for the administration of multiemployer plans that have terminated by mass withdrawal, including basic duties of plan sponsors of plans terminated by mass withdrawal. Among the requirements, the plan sponsor of a plan terminated by mass withdrawal must value the plan's nonforfeitable benefits and assets as of the last day of the plan year in which the plan terminates and the last day of each plan year thereafter. The details of the annual actuarial valuation requirement are provided in subpart B of PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281).
The plan sponsor of a plan terminated by mass withdrawal uses the annual actuarial valuation to determine whether the value of nonforfeitable benefits exceeds the value of assets. If benefits exceed assets, the plan may need to reduce benefits. If no benefits are subject to reduction, the plan will continue to make periodic determinations of plan solvency. The proposed rule would revise § 4041A.25 of the multiemployer termination regulation to clarify the timing of the plan sponsor's determinations of plan solvency by combining similar provisions to eliminate repetition and by removing potentially confusing language.
The plan sponsor of a plan in critical status must also make determinations of plan solvency. If the plan sponsor determines under section 4245(d) of ERISA that the plan is expected to be insolvent for a plan year, the plan must file a notice with PBGC, including a copy of the most recent actuarial valuation for the plan. PBGC uses the annual actuarial valuation to estimate the liabilities PBGC will incur when the plan becomes insolvent and for purposes of its financial statements.
PBGC is proposing to reduce the number of plans terminated by mass withdrawal that are required to prepare an annual actuarial valuation. Section 4041A.24 of the multiemployer termination regulation provides that if the value of nonforfeitable benefits for a plan terminated by mass withdrawal is $25 million or less as determined for a plan year, the plan sponsor may use the actuarial valuation for the next two years and perform a new actuarial valuation for the third plan year. The proposed rule would increase the threshold requirement for plans and allow them to use less frequent actuarial valuations. A plan would be able to use an actuarial valuation for 5 years if the present value of the plan's nonforfeitable benefits is $50 million or less and be in compliance with the statutory requirement that there be an annual written determination of the value of the plan's nonforfeitable benefits and the plan's assets.
If the present value of a plan's nonforfeitable benefits exceeds $50 million, the plan would continue to be required to perform actuarial valuations annually.
To estimate PBGC's multiemployer plan liabilities, PBGC also is proposing to add the annual actuarial valuation requirement for insolvent plans receiving financial assistance from PBGC (whether terminated or not terminated) and plans terminated by plan amendment that are expected to become insolvent.
The proposed amendments would enable PBGC to continue to have reasonably reliable data to measure its liabilities, while reducing burden on plans that present smaller exposure. PBGC currently obtains actuarial valuations for plans receiving financial assistance by contacting plan sponsors. The proposal would require a plan sponsor to file the plan's actuarial valuation with PBGC within 180 days after the end of the plan year for which the actuarial valuation is performed. Having plans file the actuarial valuation or alternative valuation information within the proposed time period would provide for a more efficient process for plans and PBGC. The proposed rule would also make clarifications and other editorial changes to part 4041A.
The plan sponsor of a multiemployer plan is required to determine and collect withdrawal liability in accordance with section 4219 of ERISA. The plan sponsor assesses withdrawal liability by issuing a notice to an employer, including the amount of the employer's liability and a schedule of payments. The plan sponsor also must file with PBGC a certification that notices have been provided to employers.
PBGC uses information about withdrawal liability payments and settlements, and whether employers have withdrawn from the plan but have not yet been assessed withdrawal liability, to estimate PBGC's multiemployer liabilities for purposes of its financial statements and to provide financial assistance to plans.
PBGC is proposing that plan sponsors of plans subject to the actuarial valuation requirement (plans terminated by mass withdrawal, plans terminated by plan amendment that are expected to become insolvent, and insolvent plans receiving financial assistance from PBGC (whether terminated or not terminated)), file with PBGC information about withdrawal liability, in the aggregate and by employer, that the plan has or has not yet assessed withdrawn employers. The information would be specified in the withdrawal liability instructions on PBGC's website. For each employer not yet assessed withdrawal liability, information would include the name of the employer and the reasons the employer has not yet been assessed withdrawal liability. For each employer assessed withdrawal liability, information would include the name of the employer and whether there are scheduled periodic payments or there has been a lump-sum settlement. For periodic payments, information would include the start date, end date, frequency of payment (monthly, quarterly, annually), amount of payment, and whether the employer is current on making its payments. For lump sum settlements, information would include the amount and date of payment. To satisfy the filing requirement for employers assessed withdrawal liability, a plan sponsor could choose to file documents already prepared containing the withdrawal liability information for each employer, such as withdrawal liability notices setting forth scheduled payments or withdrawal liability settlement agreements.
The proposal would require a plan sponsor to file the withdrawal liability information with PBGC within 180 days after the earlier of the end of the plan year in which the plan terminates or becomes insolvent and each plan year thereafter, unless there is no updated information to file. Having plans file the withdrawal liability information electronically and within the proposed time period would provide for an efficient process for plans and PBGC.
The plan sponsor of a multiemployer plan terminated by mass withdrawal must make determinations of insolvency annually in accordance with section 4281 of ERISA and the plan sponsor of a multiemployer plan in critical status must make determinations of insolvency in accordance with section 4245(d) of ERISA. When the plan sponsor of a multiemployer plan determines that the plan's resources are not sufficient to pay the promised level of benefits stated in the plan when due during the plan year, the plan sponsor must suspend benefits above the amount that assets will cover. However, benefits may not be reduced to an amount less than the PBGC guarantee level. Plans that are not able to pay benefits at the promised level of benefits stated in the plan are required to notify PBGC and plan participants and beneficiaries.
The notice requirements for plans that have terminated by mass withdrawal are provided under subpart D of PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281). Similar notice requirements are provided for plans that are in critical status under PBGC's regulation on Notice of Insolvency (29 CFR part 4245). Under the latter, in addition to notifying PBGC and participants and beneficiaries, plans must notify other interested parties, including employers required to contribute to the plan and employee organizations that, for collective bargaining purposes, represent participants employed by such employers.
There are two types of notice that plans must provide: A “notice of insolvency,” stating the plan year that the plan is insolvent or is expected to be insolvent, and a “notice of insolvency benefit level,” stating the level of benefits that will be paid during
PBGC's regulations currently require plan sponsors to provide the notice of insolvency benefit level annually. PBGC's experience has been that virtually all multiemployer plans that become insolvent will remain so. Thus, once a plan sponsor has provided the initial notice of insolvency benefit level, there is little need to require the plan sponsor to provide similar subsequent notices. Consequently, PBGC is proposing to eliminate most of the annual updates to the notices of insolvency benefit level. The plan sponsor would provide updated notices to PBGC and to all participants and beneficiaries only if there is a change in the amount of benefits paid that affects participants and beneficiaries generally. If a participant or beneficiary enters pay status or is reasonably expected to enter pay status during the insolvency year, or there is a change in benefit level that affects only one participant or beneficiary or a participant class, a notice would only be required to be provided to PBGC and to each affected person. For example, in the latter case, if a participant enters pay status or a participant's death results in the payment of benefits to the participant's beneficiary, only PBGC and those affected participants and beneficiaries would be provided notices.
Plan sponsors are required to electronically file notices of termination, notices of insolvency, and notices of insolvency benefit level.
The plan sponsor of a multiemployer plan must apply to PBGC for financial assistance if the plan sponsor determines that the plan's resource benefit level will be below the level of benefits guaranteed by PBGC or that the plan will be unable to pay guaranteed benefits when due for any month during the year. Section 4281.47 of PBGC's duties of plan sponsor regulation requires a plan sponsor to file an initial application with PBGC at the same time that it files a notice of insolvency benefit level. When the plan sponsor determines an inability to pay guaranteed benefits for any month, the plan sponsor must file a recurring application within 15 days after the plan sponsor makes the determination. To provide PBGC adequate time to review applications for financial assistance, the proposed rule would require an initial application to be filed no later than 90 days before the first day of the month for which the plan sponsor has determined that the resource benefit level will be below the level of guaranteed benefits. The proposed rule would require a recurring application to be filed as soon as practicable after the plan sponsor determines the plan will be unable to pay guaranteed benefits when due for a month and make other editorial changes. The contents of the applications for financial assistance would be moved from the regulations to instructions on PBGC's website.
The amendments to §§ 4041A.2, 4041A.12 and 4041A.25 of the multiemployer termination regulation that make changes to the definitions, the content of the notice of termination, and the determination of plan solvency would be applicable as of the effective date of the final rule.
The amendments to § 4041A.23 of the multiemployer termination regulation and to part 4245 that require plan sponsors to file with PBGC withdrawal liability information would be applicable for plan years ending after the effective date of the final rule.
The amendments to § 4041A.24 of the multiemployer termination regulation and to part 4245 that change the annual actuarial valuation requirement would be applicable to actuarial valuations prepared for plan years ending after the effective date of the final rule.
The amendments to part 4245 and part 4281 that make changes to the content and timing of the notices of insolvency and notices of insolvency benefit level and that make changes to the timing of an application for financial assistance would be applicable as of the effective date of the final rule.
PBGC has determined that this rulemaking is not a “significant regulatory action” under Executive Order 12866 and Executive Order 13771. Accordingly, this proposed rule is exempt from Executive Order 13771 and OMB has not reviewed the rule under Executive Order 12866.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule is associated with retrospective review and analysis in PBGC's Plan for Regulatory Review issued in accordance with Executive Order 13563.
Although this is not a significant regulatory action under Executive Order 12866, PBGC has examined the economic implications of this proposed rule and has concluded that the amendments to the annual actuarial valuation requirements and notice of insolvency and notice of insolvency benefit level would reduce costs for multiemployer plans by approximately $438,000. The analysis is as follows.
PBGC has estimated the value of this proposed rule for the annual actuarial valuation requirements for plans terminated by mass withdrawal that are not insolvent (assuming an annual
As of the end of the 2017 fiscal year, there were 72 insolvent plans. Of that total, there were 15 insolvent plans whose nonforfeitable benefits have a present value exceeding $50 million. As PBGC currently obtains actuarial valuations from these insolvent plans and provides financial assistance for the cost of performing the actuarial valuations, PBGC believes there is no additional cost under this proposed rule for performing insolvent plan actuarial valuations.
The savings under the proposed rule are offset by the annual cost of the actuarial valuation and alternative valuation filing requirements. PBGC estimates that each year, approximately 40 plans will file actuarial valuations and approximately 10 plans will file alternative valuation information. As discussed below under the Paperwork Reduction Act analysis, PBGC estimates an annual aggregate hour burden of 20 hours at an estimated dollar equivalent of $1,500 and an annual aggregate cost burden of $8,000.
Under the proposed rule, PBGC expects to receive withdrawal liability information from approximately 140 plans. As discussed below under the Paperwork Reduction Act analysis, PBGC estimates an annual hour burden of 140 hours at an estimated dollar equivalent of $10,500 and an annual cost burden of $56,000.
As discussed below under the Paperwork Reduction Act analysis, PBGC estimates that the annual aggregate cost of preparing the notice of insolvency and notice of insolvency benefit level without the proposed rule, and based on recent plan experience, is approximately $627,400 ($12,000 + $615,400). This estimate is based on an estimated 11 plans required to issue the notice of insolvency and 55 plans required to issue an annual update to the notice of insolvency benefit level. Allowing plans to issue a combined notice and eliminating most of the annual updates to the notice of insolvency benefit level will reduce the cost to $380,400, saving plans approximately $247,000 ($627,400 − $380,400).
The Regulatory Flexibility Act imposes certain requirements with respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the Regulatory Flexibility Act requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the proposed rule describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions.
For purposes of the Regulatory Flexibility Act requirements with respect to this proposed rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This is substantially the same criterion PBGC uses in other regulations
Thus, PBGC believes that assessing the impact of the proposed rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act. PBGC therefore requests comments on the appropriateness of the size standard used in evaluating the impact on small entities of the proposed amendments.
On the basis of its definition of small entity, PBGC certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
PBGC is submitting the information requirements under this proposed rule to the Office of Management and Budget (OMB) under the Paperwork Reduction Act. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The collection of information in part 4041A is approved under control number 1212-0020 (expires November 30, 2018). Based on recent plan experience, PBGC estimates that the current notice of termination and other requirements in part 4041A have an annual burden of 69 hours and a cost of $50,000, increased from an estimated 17 hours and $3,850.
PBGC estimates that the proposed changes to file withdrawal liability information electronically would have a minimal hour and cost burden as it is expected that the information would be easily accessible and that most plans would use documents already prepared containing withdrawal liability information. PBGC estimates that approximately 140 plans would file withdrawal liability information and that it would take each plan approximately 2 hours to electronically file the information. PBGC further estimates that the filings would be completed by pension fund office staff (50%) and outside attorneys (50%). The total hour burden would be approximately 140 hours of pension fund office time at an estimated dollar equivalent of $10,500 (based on an assumed hourly rate of $75 for administrative, clerical, and supervisory time). The total cost burden would be approximately $56,000 (based on 140 contracted hours assuming an average hourly rate of $400).
PBGC expects that an estimated 40 plans (28 plans with nonforfeitable benefits that exceed $50 million plus 12 plans with nonforfeitable benefits of $50 million or less) would file actuarial valuations and that it would take each plan 30 minutes to file the information electronically. PBGC expects that an estimated 10 plans receiving financial assistance from PBGC would file alternative valuation information and that it would take each plan 2 hours to file the information electronically. PBGC further estimates that the filings would be completed by pension fund office staff (50%) and outside attorneys (50%). The total estimated hour burden to file the actuarial valuations and to complete and file the alternative valuation information would be approximately 20 hours of pension fund office time at an estimated dollar equivalent of $1,500 (based on an assumed hourly rate of $75 for administrative, clerical, and supervisory time). The total cost burden would be approximately $8,000 (based on 20 contracted hours assuming an average hourly rate of $400).
PBGC estimates that without the proposed rule there would be 2,111 notices and responses and that the total annual burden of the collection of information in part 4041A would be about 69 hours and $50,000. PBGC estimates that with the proposed rule there would be 2,301 notices and responses each year and that the total annual burden of the collection of information would be an hour burden of about 229 hours for pension fund office time (69+140+20) at an estimated dollar equivalent of $17,175 and a cost burden for work by outside consultants of $114,000 ($50,000+$56,000+$8,000).
The collection of information in part 4245 is approved under control number 1212-0033 (expires November 30, 2018). PBGC estimates that only 1 plan would issue new notices of insolvency under part 4245 and that each year there would be 1,038 notices or combined notices issued to participants and beneficiaries, PBGC, and other interested parties. PBGC previously estimated that the notices were prepared and distributed by outside consultants and that the annual hour burden was 1 hour and the annual cost burden was $723. Based on recent plan experience, the time to prepare and distribute the notices can vary significantly by plan size. PBGC estimates that without the proposed rule, the annual hour burden would be 20 hours and the annual cost burden would be $12,000. The proposed regulation would reduce the burden by allowing plans to combine the notice of insolvency and the notice of insolvency benefit level and by eliminating most of the annual updates to participants and beneficiaries. PBGC estimates the proposed rule would reduce the annual hour burden to 16 hours of pension fund office time and the annual cost burden for work by outside consultants to $10,000.
The collection of information in part 4281 is approved under control number 1212-0032 (expires November 30, 2018). PBGC expects to receive the following notices under part 4281: 1 notice of benefit reduction; 10 notices of insolvency; 55 notices of insolvency benefit level; 10 initial applications for financial assistance; and 300 non-initial applications for financial assistance. PBGC's estimates previously assumed that the notices were prepared and distributed by outside consultants. PBGC estimated an annual hour burden of 60 hours and an annual cost burden of $309,020. Based on recent plan experience and information that the notices are distributed by pension fund offices, PBGC estimates an annual hour burden of 1,300 hours and an annual cost burden of $615,400. Under the proposed rule, most of the annual updates to the notice of insolvency benefit level would be eliminated unless there is a change in benefit level. PBGC estimates the proposed change would reduce the number of plans issuing notices of insolvency benefit level from 55 plans to approximately 5 plans. PBGC estimates that 13,826 notices and applications would be issued annually under part 4281. PBGC estimates that the proposed rule would reduce the annual hour burden to 240 hours of pension fund office time and the annual cost burden for work by outside consultants to $370,400.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
For the reasons given above, PBGC proposes to amend 29 CFR chapter XL and 29 CFR parts 4041A, 4245, and 4281 as follows:
29 U.S.C. 1302(b)(3), 1341a, 1431, 1441.
The addition reads as follows:
(a)
(b)
(b)
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(2)
(i) Amend the plan to reduce benefits subject to reduction (if any) in accordance with the procedures in subpart C of part 4281 of this chapter to the extent necessary to ensure that the plan's assets are sufficient to discharge when due all of the plan's obligations with respect to nonforfeitable benefits or, if that result cannot be achieved, to the maximum extent possible; and
(ii) If, after implementing the provisions of paragraph (b)(2)(i) of this section, the plan's assets are insufficient to discharge when due all of the plan's obligations with respect to nonforfeitable benefits, make determinations of plan solvency in accordance with § 4041A.25.
(3)
(c)
(i) The plan is receiving financial assistance from PBGC for the plan year following the plan year for which an actuarial valuation is required under paragraph (a) of this section.
(ii) The present value of the plan's nonforfeitable benefits does not exceed $50 million according to the most recent actuarial valuation under paragraph (a) of this section.
(2)
(i) The plan sponsor files with PBGC the information in paragraph (c)(3) of this section within the time required for filing the actuarial valuation under paragraph (a)(4) of this section, and
(ii) If, within 90 days after the plan sponsor makes the filing described in paragraph (c)(2)(i) of this section, PBGC requests other information reasonably required to determine the plan's assets and liabilities, the plan sponsor files such other information within 60 days after PBGC's request.
(3)
(i) The most recent summary plan description of the plan or the date the document was previously filed with PBGC.
(ii) The most recent actuarial valuation of the plan or the date the document was previously filed with PBGC.
(iii) Information reasonably necessary for PBGC to prepare an actuarial valuation as specified in the valuation instructions on PBGC's website (
The revisions read as follows:
(a)
(1) For a plan that had no benefits subject to reduction when it terminated, the plan year the plan terminated; or
(2) For a plan that eliminated benefits subject to reduction by amendment after termination, the plan year in which the amendment that eliminated all (or all remaining) benefits subject to reduction is effective.
(b)
29 U.S.C. 1302(b)(3), 1341a, 1431, 1426(e).
(a)
(b)
(2)
(i) A method permitted under the rules in subpart B of part 4000 of this chapter.
(ii) For interested parties other than participants and beneficiaries who are in pay status or reasonably expected to enter pay status during the insolvency year for which the notice is given, the plan sponsor may post the notice at participants' work sites or publish the notice in a union newsletter or in a newspaper of general circulation in the area or areas where participants reside. Notice to a participant is deemed notice to that participant's beneficiary or beneficiaries.
(3)
(4)
(5)
The revision and addition read as follows:
(1) Employers required to contribute to the plan;
(2) Employee organizations that, for collective bargaining purposes, represent plan participants employed by such employers; and
(3) Plan participants and beneficiaries.
(a)
(b)
(a)
(b) Notices to interested parties. A notice of insolvency under § 4245.3 required to be given to interested parties must contain all of the following information—
(1) The information set forth in § 4281.44(b)(1) through (4) of this chapter.
(2) The estimated total amount of annual benefit payments under the plan (determined without regard to the insolvency) for the insolvency year.
(3) The estimated amount of the plan's available resources for the insolvency year.
(a)
(1) For the initial insolvency year, provide the notices of insolvency benefit level to PBGC and to interested parties.
(2) For any insolvency year following the initial insolvency year—
(i) If there is a change in the insolvency benefit level that affects plan payees generally, provide the notices of insolvency benefit level to PBGC and to plan payees. For purposes of this section, “plan payee” means a participant or beneficiary in pay status or reasonably expected to enter pay status during the insolvency year.
(ii) If there is a change in the insolvency benefit level that affects only one plan payee or a class of plan payees but not plan payees generally (treating commencement of a person's benefits for this purpose as a change in the insolvency benefit level for that person), provide the notices of insolvency benefit level to PBGC and to each affected plan payee.
(b)
(c)
(a)
(b)
(1) The name of the plan.
(2) The plan year for which the notice is issued.
(3) The estimated amount of annual benefit payments under the plan (determined without regard to the insolvency) for the insolvency year.
(4) The estimated amount of the plan's available resources for the insolvency year.
(5) The amount of financial assistance, if any, requested from PBGC.
(c)
The plan sponsor of a successor plan created by a partition order under § 4233.14 of this chapter must issue to participants and beneficiaries any notice required under the partition order and is not required to file or issue notices under §§ 4245.3 or 4245.5.
(a)
(b)
(1) File withdrawal liability information with PBGC in accordance with § 4041A.23 of this chapter. The filing under paragraph § 4041A.23(b) of this chapter must be not later than 180 days after the earlier of the end of the plan year in which the plan becomes insolvent or terminates and each plan year thereafter.
(2) Have performed and file with PBGC actuarial valuations in accordance with § 4041A.24 of this chapter, except that if a plan is not terminated, the termination year valuation under § 4041A.24(a)(1) of this chapter must be performed for the plan for the plan year in which the plan becomes insolvent.
29 U.S.C. 1302(b)(3), 1341(a), 1399(c)(1)(D), 1431, and 1441.
The addition reads as follows:
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(i) 90 days before the beginning of the insolvency year, or
(ii) 30 days after the date the insolvency determination is made.
(2)
(c)
(1) A method permitted under the rules in subpart B of part 4000 of this chapter.
(2) For participants and beneficiaries other than those who are in pay status or reasonably expected to enter pay status during the insolvency year for which the notice is given, the plan sponsor may post the notice at participants' work sites or publish the notice in a union newsletter or in a newspaper of general circulation in the area or areas where participants reside. Notice to a participant is deemed notice to that participant's beneficiary or beneficiaries.
(a)
(b)
(1) The name of the plan.
(2) A statement of the plan year for which the plan sponsor has determined that the plan is or is expected to be insolvent.
(3) A statement that benefits above the amount that can be paid from available resources or the level guaranteed by PBGC, whichever is greater, will be suspended during the insolvency year, with a brief explanation of which benefits are guaranteed by PBGC under section 4022A of ERISA.
(4) The name, address, and telephone number of the plan administrator or other person designated by the plan sponsor to answer inquiries concerning benefits.
(a)
(1) Except as provided in paragraph (a)(2) of this section, for the initial insolvency year and for any insolvency year following the initial insolvency year, if there is a change in insolvency benefit level that affects plan payees generally, provide the notices of insolvency benefit level to PBGC and to plan payees.
(2) For any insolvency year following the initial insolvency year, if there is a change in the insolvency benefit level that affects only one plan payee or a class of plan payees but not plan payees generally (treating commencement of a person's benefits for this purpose as a change in the insolvency benefit level for that person), provide the notices of
(b)
(c)
(i) 90 days before the beginning of the insolvency year, or
(ii) 30 days after the date the insolvency determination is made.
(2)
(d)
(a)
(b)
(1) The name of the plan.
(2) The insolvency year for which the notice is being sent.
(3) The monthly benefit that the participant or beneficiary may expect to receive during the insolvency year.
(4) A statement that in subsequent plan years, depending on the plan's available resources, this benefit level may be increased or decreased but not below the level guaranteed by PBGC, and that the participant or beneficiary will be notified in advance of the new benefit level if it is less than the participant's full nonforfeitable benefit under the plan.
(5) The amount of the participant's or beneficiary's monthly nonforfeitable benefit under the plan.
(6) The amount of the participant's or beneficiary's monthly benefit that is guaranteed by PBGC.
(7) The name, address, and telephone number of the plan administrator or other person designated by the plan sponsor to answer inquiries concerning benefits.
The revisions read as follows:
(b)
(2)
(3)
(c)
(2)
(3)
Environmental Protection Agency.
Proposed rule; notification of intent.
The Environmental Protection Agency (EPA) Region 5 is issuing a Notice of Intent to Delete the Former Beloit Corporation Research Center Property (RCP) of the Beloit Corporation Superfund Site (Site), in Rockton, Illinois, from the National Priorities List (NPL) and requests public comments on this proposed action. This partial deletion includes all media at the 20-acre RCP. The rest of the Site remains on the NPL and is not affected by this action. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). EPA and the State of Illinois, through the Illinois Environmental Protection Agency, have
Comments must be received by August 15, 2018.
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1990-0011, by mail to Randolph Cano, NPL Deletion Coordinator, U.S. Environmental Protection Agency Region 5 (SR-6J), 77 West Jackson Boulevard, Chicago, IL 60604. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Randolph Cano, NPL Deletion Coordinator, U.S. Environmental Protection Agency Region 5 (SR-6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 886-6036, email:
In the “Rules and Regulations” section of today's
For additional information, see the direct final Notice of Partial Deletion which is located in the Rules section of this
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
FRA proposes to eliminate the requirement that certain locomotives display a badge or tag to demonstrate the railroad has certified the locomotives comply with noise emission standards. This proposed rule would reduce economic burdens on the rail industry by removing the badge or tag requirement.
(1) Written comments must be received by September 14, 2018. Comments received after that date will be considered to the extent practicable.
(2) FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to August 15, 2018, one will be scheduled and FRA will publish a supplemental document in the
•
•
•
•
Michael Watson, Industrial Hygienist, Office of Railroad Safety, Federal Railroad Administration, 1200 New Jersey Avenue SE, W38-224, Washington, DC 20590 (telephone 202-493-1388), or Sam Gilbert, Trial Attorney, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue SE, W31-228, Washington, DC 20590 (telephone 202-493-0270).
On January 30, 2017, the President issued Executive Order 13771, which requires, when an agency proposes a new significant regulation, it must identify at least two existing regulations to be repealed. FRA reviewed the Railroad Noise Emission Compliance Regulations in 49 CFR part 210
FRA estimates there would be no cost burden associated with this proposed rule. In fact, the elimination of the requirement to install a badge in locomotives would save most railroads both the labor to install the badge, and the cost of the badge itself. Over a 20-year period, FRA estimates $1,858,859 in cost savings would accrue—a present, discounted value of $1,053,564 (7% discount).
FRA regulations in part 210 limit the noise emitted by railroad locomotives, cars, and other equipment. FRA originally developed these regulations in consultation with the Environmental Protection Agency under the Noise Control Act of 1972 (86 Stat. 1234, Pub. L. 92-574) and FRA's general enforcement and inspection authority under the railroad safety statutes.
Part 210 requires railroads to certify that locomotives built after December 31, 1979, comply with FRA's noise emission standards. Under section 210.27(d), railroads must attach a permanent badge or tag in the cab of the locomotive displaying the results of the certification test (including the method, date and location of the test, and the sound level reading obtained during the test).
In 2014, the Association of American Railroads (AAR) requested FRA eliminate the requirement to display the certification of compliance with noise emission standards in the locomotive, in its comments on a separate proposed rule concerning stenciling requirements for window glazing. AAR Comment, November 25, 2014, Docket No. FRA-2012-0103. AAR noted that when FRA added section 210.27(d) in 1983, few locomotives had been tested and certified to comply with FRA's noise emission standards. AAR contended that instead of testing individual locomotives for compliance with the noise emission standards, railroads currently test locomotives by model. Documentation of that testing is maintained by the railroads as a usual and customary practice, and may be consulted if FRA has a doubt about whether a locomotive has been tested for compliance with part 210.
FRA declined to eliminate the display requirement for noise certification at that time because it was beyond the scope of the window-glazing rulemaking. However, FRA said it would consider the merits of AAR's request and evaluate how to address the issue in the future. 81 FR 6775, 6778 (Feb. 9, 2016).
FRA continually reviews and revises its regulations to ensure the regulatory burden on the rail industry is not excessive, clarify the application of existing requirements and remove requirements no longer necessary, and keep pace with emerging technology, changing operational realities and safety concerns. In addition, on January 30, 2017, the President issued Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs). Executive Order 13771 requires agencies to identify at least two existing regulations to repeal when they propose a new significant regulation. Because the badge or tag requirement is unnecessary for purposes of FRA enforcement of the noise testing requirements, FRA determined repealing section 210.27(d) would reduce the burden on the rail industry without adversely impacting FRA's ability to ensure compliance with part 210. Accordingly, FRA proposes to eliminate the requirement for locomotives to display a permanent badge or tag certifying compliance with noise emission standards.
FRA seeks comments on all proposals made in this NPRM.
Section 210.27 requires railroads certify their locomotives comply with FRA's noise emission standards. Paragraph (a) requires railroads certify that locomotives built after December 31, 1979, comply with the noise emission standards. Paragraph (b) provides railroads must determine certification for each locomotive model by load cell testing or passby testing. Paragraph (c) states if railroads use passby testing, they should conduct the test with the locomotive operating at maximum rated horsepower output. Under paragraph (d), railroads must attach a permanent badge or tag in the cab of the locomotive to display the results of the certification test.
FRA determined this badge or tag is no longer necessary, and the proposed rule would remove paragraph (d) in its entirety. Although railroads would no longer need to display a badge or tag in the locomotive cab, they would still need to test their locomotives and certify they comply with the noise emission standards, as required under section 210.27(a) through (c).
FRA evaluated this proposed rule consistent with existing policies and procedures, and determined it to be non-significant under both Executive Orders 12866 and 13563 as well as DOT policies and procedures (44 FR 11034 (February 26, 1979)). The proposed rule is also consistent with Executive Order 13563, which emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Finally, this proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.
FRA proposes to eliminate the requirement that locomotives display a permanent badge or tag to demonstrate they have been certified to comply with noise emission standards. (The permanent badge or tag will hereafter be referred to as a “badge” in this analysis.) A badge is typically a metal plate installed inside the cab of the locomotive. Most railroads would benefit from this proposed rule because a badge is currently required in all locomotives. Any railroad purchasing new locomotives would not be required to display a badge, therefore saving it money. Also, badges would no longer need to be replaced when locomotives are overhauled.
FRA estimates there would be no cost burden associated with this proposed rule. The elimination of the requirement to install a badge in locomotives would save most railroads both the labor to install the badge, and the cost of the badge itself. Over a 20-year period, this analysis finds $1,858,859 in cost savings would accrue through the elimination of this requirement. The present, discounted value of these cost savings is $1,053,564 (7% discount). FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this proposed rule. FRA requests comments on all aspects of the regulatory evaluation and its conclusions.
The Regulatory Flexibility Act (RFA) (94 Stat. 1164, Pub. L. 96-354), as amended, and codified as amended at 5 U.S.C. 601-612, and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking), require agency review of proposed and final rules to assess their impact on “small
Federal agencies may adopt their own size standards for small entities, in consultation with the Small Business Administration and in conjunction with public comment. FRA published a final statement of agency policy that formally establishes “small entities” or “small businesses” as being railroads, contractors, and hazardous materials shippers with the revenue of a Class III railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less.
FRA estimates there are 704 Class III railroads, most of which would be affected by this proposed rule. Most Class III railroads do not purchase new locomotives; rather, they purchase used locomotives from Class I and Class II railroads. Therefore, any badges required would have already been installed by the larger railroad. If a small railroad did indeed purchase a new locomotive, however, they would save money because the badge would no longer be required. Small railroads would at all events benefit since they would not need to replace badges as they age or when locomotives are overhauled. Therefore, any impact on small railroads by this proposed regulation would likely be small and entirely beneficial.
FRA invites comments from all interested parties concerning the potential economic impact on small entities resulting from this proposed rule. FRA will consider the comments and data it receives in determining the small entity impact for the final rule.
The information collection requirements in this proposed rule are being submitted for approval to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
All estimates include the time for reviewing instructions, searching existing data sources, gathering or maintaining the needed data, and reviewing the information.
Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized.
For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Collection Clearance Officer, Office of Railroad Safety, Federal Railroad Administration, at 202-493-6292, or Ms. Kimberly Toone, Information Collection Clearance Officer, Office of Railroad Administration, Federal Railroad Administration, at 202-493-6139.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be submitted via email to Mr. Brogan at
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The current OMB control number for this information collection is OMB No. 2130-0527.
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132 (Federalism), agencies may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local
This proposed rule has been analyzed consistent with the principles and criteria in Executive Order 13132. This proposed rule would not have a substantial effect on the States or their political subdivisions; it would not impose any substantial direct compliance costs; and it would not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
However, this proposed rule could have preemptive effect under certain provisions of the Federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970 (former FRSA), repealed and re-codified at 49 U.S.C. 20106, and the former Locomotive Boiler Inspection Act (LIA) at 45 U.S.C. 22-34, repealed and re-codified at 49 U.S.C. 20701-03. The former FRSA provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “local safety or security hazard” exception to section 20106. Moreover, the U.S. Supreme Court has held the former LIA preempts the field concerning locomotive safety.
FRA has evaluated this proposed regulation consistent with its “Procedures for Considering Environmental Impacts” (FRA's Procedures), 64 FR 28545 (May 26, 1999), as required by the National Environmental Policy Act (42 U.S.C. 4321
Under section 4(c) and (e) of FRA's Procedures, the agency has further concluded no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. Consequently, FRA finds this proposed regulation is not a major Federal action significantly affecting the quality of the human environment.
Under Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531, each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act, 2 U.S.C. 1532, further requires that before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. The proposed rule would not result in the expenditure, in the aggregate, of $100,000,000 or more in any one year (adjusted annually for inflation), and thus preparation of such a statement is not required.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
Noise control.
For the reasons discussed in the preamble, FRA proposes to amend part 210 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:
Sec. 17, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 4916); 49 CFR 1.89.
Issued in Washington, DC.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification; Request for Information (RFI).
NMFS requests information from the public to support a national initiative to reform and streamline observer program insurance requirements. The goals of this reform effort are to: ease the regulatory burden and reduce costs for private companies that provide observer staffing to NMFS observer programs through more efficient, nationally applicable insurance requirements; eliminate outdated and/or inappropriate regulatory requirements; reduce observer deployment risks for vessel owners and shore side processors; and identify insurance that could improve observer safety and facilitate full compensation for observer occupational injuries. To proceed with this effort, NMFS seeks technical information on the types of insurance and minimum coverage amounts (in dollars) that
Interested persons are invited to submit comments on or before September 14, 2018.
You may submit written comments by any of the following methods:
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Requests for additional information should be directed to Dennis Hansford, 301-427-8136 or
The Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
Collection of information on fishing and fish processing, such as type and quantity of fishing gear used, catch in numbers of fish or weight thereof, fishing locations, and biological information, are critical to effective fishery management.
In 2016, 53 fisheries subject to management under an FMP or international authority were monitored by observer programs. To carry out required observer coverage, NMFS administers 14 observer programs that operate in the agency's five regions. These programs train and deploy observers, establish information collection protocols, debrief observers following deployment to provide quality control on information that observers collect, and oversee private companies that provide program support. At present, all NMFS observer programs staff their at-sea and shore side observer deployments through private companies, commonly referred to as observer providers. Observer providers service NMFS regional observer programs under two distinct models: (1) Direct service, where the NMFS observer program contracts with an observer provider; and (2) industry-funded, where the observer provider contracts with industry to fulfill observer coverage requirements. Further information about NMFS' regional observer programs is available at
While observers most frequently are deployed under the MSA to collect information on fishing vessels, observers also are deployed on motherships, and shore side processing facilities. Additionally, NMFS' regional observer programs deploy at-sea monitors, who collect only vessel catch information under “catch share programs,” which allocate a portion of a fishery total allowable catch to permit holders or sectors. For purposes of this RFI, the term “observer” refers to a person deployed in any of these roles.
The Bureau of Labor Statistics, Census of Fatal Occupational Injuries ranks commercial fishing as one of the most dangerous occupations. Because most observers are deployed to fishing vessels, observer risk of occupational injury is on par with that of commercial fishermen. Observer programs also entail risks for observer employers—private companies—and the fishing vessels and shore side processors that are subject to observer coverage. The risks for the three parties include:—
1. Observers—risk of occupational injury.
2. Vessel owners and shore side processors—observer claims for compensation for incidents arising out of deployment,
3. Private companies—observer claims for compensation for incidents arising out of deployment,
Insurance and statutory compensation programs are the traditional mechanisms to address the risks that private companies entail. However, the nuances of maritime law combined with the unique nature of the fishery observer occupation have complicated efforts to address observer risks, whether through insurance or statutory program. Since 1994, Councils and NMFS have taken various efforts to resolve insurance issues for observer programs. These efforts have resulted in regulatory—or contract based—insurance requirements that differ across regions. At present, the types of insurance policies that observer providers are required to have, either by regulation or by contract, include the following:
Regulatory based observer provider insurance requirements are codified at 50 CFR 679.52(b)(11)(vi) (North Pacific Groundfish Observer Program), 50 CFR 660.17(e)(vii) (West Coast Groundfish Observer Program), and 50 CFR 648.11(h)(3) (Northeast Observer Program).
In addition, Congress addressed compensation for observer occupational risks through the 1996 Sustainable
Beginning in 2014, NMFS initiated a reevaluation of regional observer program insurance requirements. This effort included an Observer Provider Insurance Workshop in 2016 during which observer providers, insurance experts, and observers joined NMFS and representatives from other federal agencies to discuss the efficiency of observer provider insurance requirements and compensation for observer occupational injuries. Subsequent to the Insurance Workshop, NMFS published an Observer Provider Insurance Workshop Technical Report (Tech Report), available at
In addition, NMFS has learned that, while FECA does provide coverage for observer at-sea injuries, the compensation formula under that Act does not provide for overtime pay. Because observers typically work 12-16 hour shifts to correspond with fishing vessel crew shifts, they often do not receive full wage compensation for occupational injury claims under FECA.
To address these issues, the Tech Report recommended that NMFS explore replacing regional insurance requirements with nationally applicable minimum insurance requirements. The goal of that action would be to streamline and improve the efficiency of regional observer provider insurance requirements, thereby resulting in reduced regulatory burden, cost savings, and a suite of insurance that better addresses observer deployment risks. Considering the highly technical nature of maritime insurance and insurance markets in general, the Tech Report recommended that NMFS first gather more information on the types of insurance and minimum dollar coverage amounts for the risks that observer deployments present. NMFS issues this RFI to gather that information through the questions below.
In addition, NMFS seeks public comment on the related issue of FECA compensation for observer occupational injuries and whether some form of private insurance could supplement FECA benefits. National inconsistencies with observer compensation for occupational injuries were noted not only in the Tech Report, but also in the Observer Program Safety Review (OPSR) Final Report, available at
To reform and streamline observer provider insurance requirements, and facilitate observer compensation for at-sea occupational injuries under FECA, NMFS seeks public comment on the issues raised in this RFI and, in particular, on the following questions. See
1. What insurance policies and coverage amounts (in dollars) are appropriate to address observer deployment risks for: (a) Observers, (b) observer providers, and (c) owners of vessel and shore side processors and other observing platforms?
2. If observer providers have different insurance requirements to cover the different contexts in which observers are deployed—at-sea and shore side, what would be the most feasible and efficient insurance package and associated dollar amounts for covering all of the various contexts?
3. As an alternative to national minimum insurance requirements, would it be feasible, and more efficient, for observer providers to self-organize and self-insure?
4. If an insurance policy for a Jones Act or General Maritime Law claim is required, acknowledging that courts in some jurisdictions have held that those claims are inapplicable to observers, might it be beneficial to continue the requirement?
5. What gaps, if any, are there in FECA coverage for observer occupational injuries? For observers, what, if any, problems have you experienced with regard to claims and benefits for occupational injuries, whether under FECA, state worker's compensation, or private insurance?
6. If there are gaps in FECA coverage, is there a type of private insurance that could supplement FECA compensation for observer occupational injuries?
7. What types of insurance could advance NMFS' efforts to improve the safety of observer programs and reduce the occurrence of observer occupational injuries?
8. To maximize efficiency of observer insurance requirements, should NMFS address the requirements regionally, through regional regulatory or contractual insurance requirements, or through nationally applicable minimum insurance standards? If a, what regional or national policies and dollar amounts of coverage would be appropriate?
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before September 14, 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 Valerie Mastalski, U.S. Census Bureau, Room HQ-8K073, Washington, DC 20233; (301) 763-3317 (or via the internet at
The U.S. Census Bureau plans to conduct the 2018 through 2020 Annual Capital Expenditures Survey (ACES). This survey collects data on fixed assets and depreciation, sales and receipts, capitalized computer software, and capital expenditures for new and used structures and equipment. The ACES is the sole source of detailed comprehensive statistics on actual business spending for private non-farm companies, organizations, and associations operating in the United States. Both employer and nonemployer companies are included in the survey.
The Bureau of Economic Analysis is the primary Federal user of ACES data. BEA relies on ACES data to refine and evaluate annual estimates of investment in structures and equipment in the national income and product accounts, compile annual input-output tables, and compute gross domestic product by industry. The Federal Reserve Board uses these data to improve estimates of investment indicators for monetary policy. The Bureau of Labor Statistics uses these data to improve estimates of capital stocks for productivity analysis. The Centers for Medicare and Medicaid Services use these data for developing estimates of investment in private health care structures and equipment as a part of the National Health Expenditure Accounts. Industry analysts use these data for market analysis, economic forecasting, identifying business opportunities, product development, and business planning.
Planned changes from the previous ACES are the elimination of detailed capital expenditures by type of structure and type of equipment. These data are collected in years ending in -2 and -7, concurrently with the Economic Census. They are not in scope of this notice, which covers ACES data collection for 2018 through 2020.
The Census Bureau does plan to add questions on the dollar value of new and used robotics expenditures beginning with the 2018 survey. These questions will gauge prevalence of robotics use by detail North American Industry Classification System (NAICS) industries.
The initial mailing will include a letter instructing respondents to report online. The Census Bureau eliminated the use of paper forms with the 2016 ACES. The electronic reporting system provides a cost-effective and user-friendly method to collect data from companies. The Census Bureau will supply companies with a unique authentication code for the electronic reporting tool. Respondents will have the option of printing out a worksheet that lists all of the questions. Respondents will be able to 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. The online reporting instrument is tailored to the company's diversity of operations and number of industries with payroll. Employer companies will complete the ACE-1 electronic reporting instrument and nonemployers will complete the ACE-2 electronic reporting instrument.
Companies will be asked to respond to the survey within 30 days of the initial mailing. The Census Bureau will use reminder letters and/or telephone calls to encourage participation of companies that have not responded within 30 days.
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
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.
U.S. Department of Commerce.
Change of date for public hearing.
The Department of Commerce is cancelling one of the days of the two-day public hearing associated with the notice of request for public comments and public hearing that appeared in the
The public hearing will be held on July 19, 2018, beginning at 8:30 a.m. local time and concluding at 5:30 p.m. local time.
The public hearing will be held at 1401 Constitution Avenue NW, Washington DC, 20230.
Sahra Park-Su, U.S. Department of Commerce (202) 482-2811. For more information about the section 232 program, including the regulations and the text of previous investigations, see
In the
The hearing will be held on July 19 only and will take place from 8:30 a.m.-5:30 p.m. The location of the hearing remains unchanged at the Department of Commerce, 1401 Constitution Avenue NW, Washington DC, 20230.
The hearing is open to the general public and seating is on a first-come-first served basis. We anticipate a high volume of interest and encourage all members of public wishing to attend, to arrive early and be prepared to go through a security screening. You must present a valid form of identification such as a driver's license, passport, or state issued ID.
The main entrance of the Department of Commerce is on 14th Street NW. between Pennsylvania Avenue and Constitution Avenue, across from the Ronald Reagan Building. Upon entering the building, please go through security and check in at the guard's desk. DOC staff will meet and escort visitors to the auditorium.
On May 9, 2018, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the Port of Long Beach, grantee of FTZ 50, requesting subzone status subject to the existing activation limit of FTZ 50, on behalf of VF Outdoor, LLC, in Ontario, Santa Fe Springs and Corona, California.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that Fushun Jinly Petrochemical Carbon Co., Ltd. (Fushun Jinly) did not make sales of
Applicable July 16, 2018.
Dennis McClure or John Anwesen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5973, or (202) 482-0131, respectively.
Commerce published the
Commerce has exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the final determination of this review is now July 10, 2018.
The merchandise covered by the order includes all small diameter graphite electrodes with a nominal or actual diameter of 400 millimeters (16 inches) or less and graphite pin joining systems for small diameter graphite electrodes. Small diameter graphite electrodes and graphite pin joining systems for small diameter graphite electrodes that are subject to the order are currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 8545.11.0010, 3801.10, and 8545.11.0020. While the HTSUS subheadings are 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 Issues and Decision Memorandum.
In the Issues and Decision Memorandum, we address all issues raised in interested parties' case and rebuttal briefs. In the Appendix to this notice, we provide a list of the issues raised by parties. The Issues and Decision Memorandum is a public document and is on file in the Central Records Unit (CRU), Room B8024 of the main Department of Commerce building, as well as 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 review of the record and comments received from interested parties regarding our
In the
Commerce determines that the following weighted-average dumping margin exists for Fushun Jinly for the POR from February 1, 2016, through January 31, 2017:
Because no party requested a review of the China-wide entity, and Commerce no longer considers the China-wide entity as an exporter conditionally subject to administrative reviews,
Commerce determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b). We intend to issue
Consistent with Commerce's assessment practice in non-market economy cases, for sales that were not reported in the U.S. sales data submitted by companies individually examined during this review, we will instruct CBP to liquidate entries associated with those sales at the rate for the China-wide entity. Furthermore, where we found that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
The following deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) No cash deposit will be required for subject merchandise exported by Fushun Jinly; (2) for previously investigated or reviewed Chinese and non-Chinese exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recently completed segment of this proceeding in which they were reviewed; (3) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be equal to the weighted-average dumping margin for the China-wide entity (
We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
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 POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties has 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 return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results of administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that 230 companies made sales of certain frozen warmwater shrimp (shrimp) from India at less than normal value during the period of review (POR) February 1, 2016, through January 31, 2017.
Applicable July 16, 2018.
Manuel Rey or Brittany Bauer, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5518 or (202) 482-3860, respectively.
This review covers 231 producers and/or exporters. The producers/exporters which Commerce selected for individual examination are Devi
On March 12, 2018, Commerce published the
The merchandise subject to the order is certain frozen warmwater shrimp.
All issues raised in the case briefs by parties are listed in the Appendix to this notice and addressed in the IDM. Parties can find a complete discussion of these issues and the corresponding recommendations in this public memorandum, which 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 a review of the record and comments received from interested parties regarding our
We are assigning the following dumping margins to the firms listed below for the period of February 1, 2016, through January 31, 2017:
Review-Specific Average Rate Applicable to the Following Companies:
Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries.
Because the weighted-average dumping margin for the Liberty Group is zero, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.
Pursuant to 19 CFR 351.212(b)(1), because Devi reported the entered value for all its U.S. sales, we calculated importer-specific
For the companies which were not selected for individual examination, we used as the assessment rate the cash deposit rate assigned to these exporters, in accordance with our practice.
Commerce's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by Devi or the Liberty Group for which these companies did not know that the merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
The following cash deposit requirements will be effective for all shipments of 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 rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent (
This notice serves as the only 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.
In accordance with 19 CFR 351.305(a)(3), this notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213(h).
1. Ministerial Errors for Devi
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that Hyundai Steel Co. (Hyundai Steel), a producer/exporter of certain cut-to-length carbon-quality steel plate (CTL plate) from the Republic of Korea (Korea), received countervailable subsidies during the period of review (POR), January 1, 2016, through December 31, 2016, and that Dongkuk Steel Mill Co., Ltd. (DSM), a producer/exporter of CTL plate did not. We are also rescinding the review for 12 companies.
Applicable July 16, 2018.
John Conniff at 202-482-1009 (for Hyundai Steel), or Jolanta Lawska at 202-482-8362 (for DSM), AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
Commerce published the preliminary results of this administrative review of CTL plate from Korea on March 12, 2018.
The products covered by the order are certain hot-rolled carbon-quality steel:
The merchandise subject to the order is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7225.40.3050, 7225.40.7000, 7225.50.6000, 7225.99.0090, 7226.91.5000, 7226.91.7000, 7226.91.8000, 7226.99.0000.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by the order is dispositive.
All issues raised in interested parties' case briefs are addressed in the Issues and Decision Memorandum.
Based on the comments received from the petitioner and Hyundai Steel, we made no changes to the net subsidy rates calculated for the mandatory respondents. For a discussion of these issues, see the Issues and Decision Memorandum.
Commerce conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we find that there is a subsidy,
Commerce initiated a review of 14 companies in this administrative review.
In accordance with section 777A(e)(1) of the Act and 19 CFR 351.221(b)(5), we determine the total estimated net countervailable subsidy rates for the period January 1, 2016, through December 31, 2016 to be:
In accordance with 19 CFR 351.212(b)(2), Commerce intends to issue appropriate instructions to U.S. Customs and Border Protection (CBP) 15 days after publication of the final results of this review. For Hyundai Steel, Commerce will instruct CBP to liquidate shipments of subject merchandise produced and/or exported by the company, entered or withdrawn from warehouse, for consumption from January 1, 2016, through December 31, 2016, at the percent rate of the entered value. Because we have calculated a
Commerce intends also to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above, with the exception of DSM, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of 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.
These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Institute of Standards and Technology, Department of Commerce.
Notice; Request for Information (RFI).
The National Institute of Standards and Technology (NIST) on behalf of the Department of Commerce and the National Security Council is seeking information on the scope and sufficiency of efforts to educate, train, and attract the workforce necessary to meet the demands of the current and future semiconductor industry, in support of the President's National Security Strategy.
Comments must be received by 5:00 p.m. Eastern time on August 15, 2018. Written comments in response to this RFI should be submitted in accordance with the instructions in the
To respond to this RFI, please submit written comments by email to
Comments containing references, studies, research, and other empirical data that are not widely published should include electronic copies of the referenced materials. Please do not submit additional materials.
All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. 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. Do not submit confidential business information, or otherwise sensitive or protected information. Comments that contain profanity, vulgarity, threats, or other inappropriate language or content will not be considered.
For questions about this FRN contact: Jason Boehm or David Seiler, U.S. Department of Commerce, National Institute of Standards and Technology, at 301-975-8678 or 301-975-2074.
Please direct media inquiries to Jennifer Huergo in the NIST Public Affairs Office at
President Trump's National Security Strategy,
Responses to this RFI will inform recommendations to the National Security Council on steps the Administration can take to strengthen the technical workforce that supports the semiconductor and related industries. The report will assess the scope and sufficiency of efforts to educate and train the future American semiconductor workforce from primary through higher education, and provide recommendations and a plan on how the government will continue to support the growth and sustainment of this workforce to meet the needs of both the private and public sectors.
In this RFI, NIST seeks specific information from stakeholders of the semiconductor industry such as materials providers, equipment suppliers, manufacturers, designers, trade associations, educational institutions, government entities, and other interested parties about the workforce needs of the semiconductor industry, and potential efforts to strengthen the current and future workforce. In this request, the term “semiconductor” broadly refers to semiconductor materials, devices, sensors, integrated circuits, computing architectures, software tools, design, lithography, fabrication, testing, packaging, embedded software and firmware developers, and related technologies that, through a combination of materials processing, manufacturing, and application, form the foundation and basis for the semiconductor, memory, technology manufacturing, computing, and information technology industry sectors.
NIST seeks information that will assist U.S. Government efforts in developing recommendations for supporting the growth and sustainment of the Nation's semiconductor workforce to meet the current and future needs of the public and private sectors. Our goal is to gather input that will be utilized to refine and target relevant federal resources and programs to attract, educate, and train the necessary advanced technical workforce necessary to ensure that the U.S. maintains a robust semiconductor industrial base, including the fundamental research needed to continue to innovate in semiconductor technologies, that is necessary to drive future advances in transformational technologies including
Respondents are encouraged—but not required—to respond to any or all of the following questions, and may address related topics. Please identify the questions or topic areas each of your comments addresses. The following questions cover the major areas about which NIST seeks comment. These questions are directed towards domestic semiconductor manufacturers, associated supporting industries, educational institutions, and their stakeholders. Responses may include estimates. Please indicate where the response is an estimate.
Respondents may organize their submissions in response to this RFI in any manner, and all responses that comply with the requirements listed in the
Comments containing references, studies, research, and other empirical data that are not widely published should include electronic copies of the referenced materials.
Briefly describe your company or organization in terms of:
a. What is the name of your company or organization?
b. How is your company or organization involved with the semiconductor industry (
1. When hiring technical staff, for what types of positions do you encounter the most difficultly in finding qualified employees?
a. Have you been able to identify any causes for these recruitment difficulties (lack of appropriate educational programs, lack of collaboration between industry and educational institutions, competition within your industry, competition for talent from outside your industry, etc.)
2. Are there specific educational levels that are needed for your current workforce?
a. Are there some educational levels where it is harder to find qualified staff?
b. Have you been able to identify any causes for these difficulties in finding qualified staff (high competition for a specific talent pool, lack of experienced individuals, educational programs not directly aligned with your needs, etc.)
3. Are there certain factors relating to workforce needs that your company or organization prioritizes when locating a new facility, for example a strong base of existing talent, a robust local educational ecosystem, etc.?
4. How do you see the work force needs of your company or organization changing over the next 5 years, 10 years, 15 years?
a. Do you think that certain levels of education will be more important?
b. Are there fields of training that you think will be more important?
5. As the industry continues to evolve and develop and integrate new technologies (
a. Do you have an opinion on the types of training needed to develop these skillsets for the future?
b. From your experience are there types of partnerships with federal agencies and/or educational institutions that would be helpful to prepare this workforce for the future?
6. Are there certain obstacles that you see as the biggest impediment to meeting your workforce needs? For example, a lack of aligned educational programs (including internship and apprenticeship opportunities), a lack of collaboration with such educational programs, a lack of students in science and engineering, a lack of interest in your industry, a lack of facilities with appropriate equipment to train workers (
7. Are there specific approaches your company or organization utilizes to address your workforce needs? For example, tailored partnerships and curricula with regional universities and community colleges, internship or apprenticeship programs, training or retraining of displaced workers, or other approaches?
8. Are there certain approaches or actions that would most effectively stimulate the supply of qualified workers for the semiconductor industry in the near term (
9. What approaches do you think would most effectively stimulate the supply of qualified workers for the semiconductor industry over the long term (
10. Although apprenticeship has, in the past, been available mostly to those in the traditional trades, efforts are now underway to expand apprenticeship into new fields, including advanced manufacturing, IT, healthcare, energy supply and distribution, banking and finance and engineering (in partnership with four-year institutions). Have you considered engaging in apprenticeship training to prepare your workforce? Why or why not?
11. Are there examples of partnerships with local educational institutions (
12. Are there types of support (grants, economic development incentives or other benefits) from federal, state and local government agencies that have helped enable your workforce? Of these types of support what makes them most effective?
15 U.S.C. 278s.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of an application for an exempted fishing permit; request for comments.
NMFS announces the receipt of an application for an exempted fishing permit (EFP) from the NMFS Panama City, FL laboratory. If granted, the EFP would authorize NMFS or NMFS contracted commercial fishers aboard their commercial fishing vessels
Comments must be received no later than August 15, 2018.
You may submit comments on the application by any of the following methods:
•
•
The EFP application and related documents are available for review upon written request to any of the above addresses.
Sarah Stephenson, 727-824-5305; email:
The EFP is requested under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
The applicant requests authorization to collect deep-water reef fish species in the U.S. Caribbean EEZ off the west, north, and south coasts of Puerto Rico. The applicant is seeking to gather information that could be used to define essential fish habitat for deep-water snapper species off the coast of Puerto Rico, and to obtain additional life history information about queen and blackfin snapper. Specimens would be collected by NMFS researchers and/or contractors and contracted commercial fishermen aboard three commercial fishing vessels. These activities may be conducted without NMFS staff aboard the contracted vessels. Each vessel's home port is located in Puerto Rico. This permit would exempt project participants from certain seasonal and area closure regulations at 50 CFR 622.435, as identified and described below. The EFP would be effective from the date of issuance through August 1, 2020.
Activities would consist of harvesting reef fish during a total of 450 fishing trips in the 2-year project period, of which 225 would be within the U.S. Caribbean EEZ off Puerto Rico. The remaining trips would be conducted in Puerto Rico territorial waters. Sampling sites would be randomly selected from locations with a high probability of containing habitat that could be considered essential for deep-water snappers as determined by bathymetric maps recently produced by NOAA's Marine Spatial Ecology Division. The target depth range for this project is 100 to 500 m, with sampling sites selected in each 50 m depth range throughout the overall depth range.
Sampling would be conducted by hook-and-line drift fishing in deep-water habitats, with underwater cameras attached to the fishing line. On each fishing trip, three to seven sites would be fished per day based on distance between the sampling sites and weather, with an average of five sites per day at sea and an average of 15 days at sea per vessel. At each site, one vertical fishing line would be deployed from the commercial fishing vessel with a surface float and bottom weight for a 30 minute soak time. Twelve #9 hooks would be attached to the bottom 2 m of the line and manual snapper reels would be used to retrieve the line. A GoPro camera encased in a light-weight pressure-tested housing and a light would be attached to a small, neutrally buoyant fitting on the vertical line. This camera array would be attached to the fishing line at two separate points, approximately 3 m above the bottom weight.
Project activities would be conducted from September 1, 2018, through August 1, 2020. The majority of sampling would occur each year in September and October. Sampling would occur at approximately 75 sites at each of the following locations in the EEZ off Puerto Rico:
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•
•
The applicant will target queen and blackfin snappers, but anticipates encountering other species. All queen and blackfin snappers caught during the EFP would be retained, and the gonads and otoliths would be extracted for subsequent analysis by NMFS, Puerto Rico's Department of Natural and Environmental Resources, and the University of South Carolina. Length measurements would be recorded for all targeted and incidental species except for species for which harvest is prohibited under Federal law (
Based on catch and effort information from the commercial sector in Puerto Rico, the applicant anticipates harvesting up to 100 specimens of both queen and blackfin snappers in each of the three sampling regions, each year. Under the EFP, the applicant would be allowed to fish for and possess blackfin snapper during the October 1 through December 31 seasonal closure in place for vermilion, black, silk, or blackfin snappers (50 CFR 622.435(a)(1)(iii)). In addition, under the EFP, the applicant would be allowed to fish for and possess queen and blackfin snappers in or from the Bajo de Sico closed area, which is located in the project's western area off Puerto Rico, during the October 1 to March 31 closure period (50 CFR 622.435(a)(2)(iv)). Based on the sampling plan, the applicant anticipates making a maximum of 10 fishing trips over the 2 year period of the EFP to the Bajo de Sico closed area during the months of October through March.
Based on catch and effort information from the commercial sector in Puerto Rico, the applicant also anticipates catching up to 100 fish of the following species from each of the three sampling regions each year, as incidental catch: Black, silk, vermilion, and wenchman snappers (Snapper Unit 1); coney, graysby, red hind, and rock hind groupers (Grouper Unit 3); black, red, tiger, and yellowfin groupers (Grouper Unit 4), and misty and yellowedge groupers (Grouper Unit 5). It is possible that the applicant may also incidentally catch cardinal snapper, which is in Snapper Unit 2 with queen snapper, as they are targeting queen snapper and these species are frequently caught together.
Some of these incidental species (namely, red, black, tiger, yellowfin, yellowedge, and red hind groupers and vermilion, black, and silk snappers) are also subject to seasonal closures (50 CFR
NMFS finds this application warrants further consideration based on a preliminary review. Possible conditions the agency may impose on this permit, if it is granted, include but are not limited to, a prohibition on conducting sampling activities within marine protected areas, marine sanctuaries, or special management zones, without additional authorization, and requiring compliance with best practices in the event of interactions with any protected species. NMFS may also require annual reports summarizing the amount of reef fish species harvested during the seasonal and area closures, as well as during the period of effectiveness of any issued EFP. Additionally, NMFS would require any sea turtles taken incidentally during the course of the activities to be handled with due care to prevent injury to live specimens, observed for activity, and returned to the water.
A final decision on issuance of the EFP will depend on NMFS' review of public comments received on the application, consultations with the affected state(s), the Council, and the U.S. Coast Guard, and a determination that it is consistent with all applicable laws.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for nominations.
As required by of the Marine Mammal Protection Act (MMPA), the Secretary of Commerce established three independent regional scientific review groups (SRGs) to provide advice on a range of marine mammal science and management issues. NMFS conducted a membership review of the Alaska, Atlantic, and Pacific SRGs, and is soliciting nominations for new members to fill vacancies and gaps in expertise.
Nominations must be received by August 15, 2018.
Nominations can be emailed to
Shannon Bettridge, Office of Protected Resources, 301-427-8402,
Section 117(d) of the MMPA (16 U.S.C. 1386(d)) directs the Secretary of Commerce to establish three independent regional SRGs to advise the Secretary (authority delegated to NMFS). The Alaska SRG advises on marine mammals that occur in waters off Alaska that are under the jurisdiction of the United States. The Pacific SRG advises on marine mammals that occur in waters off the U.S. West Coast, Hawaiian Islands, and the U.S. Territories in the Central and Western Pacific that are under the jurisdiction of the United States. The Atlantic SRG advises on marine mammals that occur in waters off the Atlantic coast, Gulf of Mexico, and U.S. Territories in the Caribbean that are under the jurisdiction of the United States.
SRGs members are highly qualified individuals with expertise in marine mammal biology and ecology, population dynamics and modeling, commercial fishing technology and practices, and stocks taken under section 101(b) of the MMPA. The SRGs provide expert reviews of draft marine mammal stock assessment reports and other information related to the matters identified in section 117(d)(1) of the MMPA, including:
A. Population estimates and the population status and trends of marine mammal stocks;
B. Uncertainties and research needed regarding stock separation, abundance, or trends, and factors affecting the distribution, size, or productivity of the stock;
C. Uncertainties and research needed regarding the species, number, ages, gender, and reproductive status of marine mammals;
D. Research needed to identify modifications in fishing gear and practices likely to reduce the incidental mortality and serious injury of marine mammals in commercial fishing operations;
E. The actual, expected, or potential impacts of habitat destruction, including marine pollution and natural environmental change, on specific marine mammal species or stocks, and for strategic stocks, appropriate conservation or management measures to alleviate any such impacts; and
F. Any other issue which the Secretary or the groups consider appropriate.
SRG members collectively serve as independent advisors to NMFS and the U.S. Fish and Wildlife Service and provide their expert review and recommendations through participation in the SRG. Members attend annual meetings and undertake activities as independent persons providing expertise in their subject areas. Members are not appointed as representatives of professional organizations or particular stakeholder groups, including government entities, and are not permitted to represent or advocate for those organizations, groups, or entities during SRG meetings, discussions, and deliberations.
SRG membership is voluntary; and, except for reimbursable travel and related expenses, service is without pay. The term of service for SRG members is three years, and members may serve up to three consecutive terms if reappointed.
NMFS annually reviews the expertise available on the SRG and identifies gaps in the expertise that is needed to provide advice pursuant to section 117(d) of the MMPA. In conducting the reviews, NMFS attempts to achieve, to
For the Atlantic SRG (including waters off the Atlantic coast, Gulf of Mexico, and U.S. Territories in the Caribbean), NMFS seeks individuals with expertise in one or more of the following priority areas (not in order of priority): Acoustics methodology and anthropogenic effects of sound on cetaceans; line-transect methodology, mark-recapture methods and survey design, and quantitative ecology; Gulf of Mexico/southeast U.S. bottlenose dolphin population dynamics; and manatees. Additional areas of expertise areas include marine mammal bycatch reduction, Caribbean marine mammal species, and genetics.
For the Pacific SRG (including waters off the Pacific coast, Hawaiian Islands and the U.S. Territories in the Central and Western Pacific), NMFS seeks individuals with expertise in one or more of the following areas (not in order of priority): Marine mammal stock definition and assessment under the MMPA and ESA; abundance estimation, especially distance sampling and mark-recapture methods and survey design; West Coast and Alaska fishing gear/techniques; West Coast pinnipeds, including assessment, life history, ecology, and human-pinniped interactions; large whales, particularly with regard to entanglement issues; ocean health and veterinary expertise, especially relative to disease and habitat change; fisheries oceanography and ecology, particularly decadal and long-term understanding; quantitative ecology, population dynamics, modeling, and statistics, especially as related to abundance and bycatch estimation, Bayesian methods, applications of new technologies, and methods for data-limited circumstances; State, Tribal, or regional/local fishery and/or marine mammal entanglement issues in the Pacific Islands and West Coast states; sea otters; science-management interface, such as management approaches with imperfect data; and interdisciplinary skills combining different fields of research.
For the Alaska SRG, NMFS seeks individuals with expertise in one or more of the following areas, in order of priority: The Alaska commercial fishing industry and commercial fishery methods/gear, particularly fisheries with marine mammal bycatch interactions; population dynamics, modeling, and statistics; and abundance estimation, especially distance sampling and mark-recapture methods and survey design; and knowledge of the MMPA and processing of marine mammal stock assessments.
Nominations for new members should be sent to Dr. Shannon Bettridge in the NMFS Office of Protected Resources (see
Although the MMPA does not explicitly prohibit Federal employees from serving as SRG members, NMFS interprets MMPA section 117(d)'s reference to the SRGs as “independent” bodies that are exempt from Federal Advisory Committee Act requirements to mean that SRGs are intended to augment existing Federal expertise and are not composed of Federal employees or contractors. Therefore, NMFS will not consider any nominee who is currently a Federal employee or a full-time contractor supporting a Federal agency.
When reviewing nominations, NMFS, in consultation with the U.S. Fish and Wildlife Service, will consider the following six criteria:
(1) Ability to make time available for the purposes of the SRG;
(2) Knowledge of the species (or closely related species) of marine mammals in the SRG's region;
(3) Scientific or technical achievement in a relevant discipline, particularly the areas of expertise identified above, to be considered an expert peer reviewer for the topic;
(4) Demonstrated experience working effectively on teams;
(5) Expertise relevant to current and expected needs of the SRG, in particular, expertise required to provide adequate review and knowledgeable feedback on current or developing stock assessment issues, techniques, etc. In practice, this means that each member should have expertise in more than one topic as the species and scientific issues discussed in SRG meetings are diverse; and
(6) No conflict of interest with respect to their duties as a member of the SRG.
Following review, nominees who are identified by NMFS as potential new members must be vetted and cleared in accordance with Department of Commerce policy. NMFS will contact these individuals and ask them to provide written confirmation that they are not registered Federal lobbyists or registered foreign agents, and to complete a confidential financial disclosure form, which will be reviewed by the Ethics Law and Programs Division within the U.S. Department of Commerce's Office of General Counsel. All nominees will be notified of a selection decision in advance of the 2019 SRG meetings.
Office of the Under Secretary of Defense for Acquisition and Sustainment, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by August 15, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Mr. Licari at
Under Secretary of Defense for Personnel and Readiness, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the National Security Education Board will take place.
Open to the public Thursday, September 6, 2018 from 10:00 a.m. to 4:30 p.m.
Washington Hilton, 1919 Connecticut Avenue NW, Washington, DC 20009.
Michael Nugent, (571) 256-0702 (Voice), (703) 692-2615 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Office of Innovation and Improvement (OII), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before September 14, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Justis Tuia, 202-453-6654.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by
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 following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests is August 3, 2018. The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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This is a supplemental notice in the above-referenced proceeding of Pratt Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 30, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Big Level Wind LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 30, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
The environmental staff of the Federal Energy Regulatory Commission (Commission) along with representatives of the U.S. Forest Service, Bureau of Land Management, and the U.S. Army Corps of Engineers will meet with representatives of the Yurok Tribe to discuss the proposed Jordan Cove LNG and Pacific Connector Pipeline Projects. The meeting will be held at the location and time listed below:
Members of the public and intervenors in the referenced proceeding may attend and observe this meeting; however, participation will be limited to tribal representatives and agency personnel. If tribal representatives decide to disclose information about a specific location which could create a risk or harm to an archeological site or Native American cultural resource, the public will be excused for that portion of the meeting. A summary of the meeting will be entered into the Commission's administrative record.
If you plan to attend this meeting, please contact Mr. John Peconom, Environmental Project Manager at (202) 502-6352 or
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator 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:
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
The environmental staff of the Federal Energy Regulatory Commission (Commission) along with representatives of the U.S. Forest Service, Bureau of Land Management, and the U.S. Army Corps of Engineers will meet with representatives of the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians to discuss the proposed Jordan Cove LNG and Pacific Connector Pipeline Projects. The meeting will be held at the location and time listed below:
Members of the public and intervenors in the referenced proceeding may attend and observe this meeting; however, participation will be limited to tribal representatives and agency personnel. If tribal representatives decide to disclose information about a specific location which could create a risk or harm to an archeological site or Native American cultural resource, the public will be excused for that portion of the meeting. A summary of the meeting will be entered into the Commission's administrative record.
If you plan to attend this meeting, please contact Mr. John Peconom, Environmental Project Manager at (202) 502-6352 or
The environmental staff of the Federal Energy Regulatory Commission (Commission) along with representatives of the U.S. Forest Service, Bureau of Land Management, and the U.S. Army Corps of Engineers will meet with representatives of the Karuk Tribe to discuss the proposed Jordan Cove LNG and Pacific Connector Pipeline Projects. The meeting will be held at the location and time listed below:
Members of the public and intervenors in the referenced proceeding may attend and observe this meeting; however, participation will be limited to tribal representatives and agency personnel. If tribal representatives decide to disclose information about a specific location which could create a risk or harm to an archeological site or Native American cultural resource, the public will be excused for that portion of the meeting. A summary of the meeting will be entered into the Commission's administrative record.
If you plan to attend this meeting, please contact Mr. John Peconom, Environmental Project Manager at (202) 502-6352 or
This is a supplemental notice in the above-referenced proceeding of Brantley Farm Solar, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 30, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that on June 28, 2018, Dakota Natural Gas, LLC (DNG), P.O. Box 68, Le Sueur, Minnesota 56058, filed in Docket No. CP18-511-000 an application pursuant to section 7(f) of the Natural Gas Act (NGA) requesting a service area determination so that it may expand or enlarge its facilities with or without further Commission authorization. DNG is a recently formed local distribution company (LDC) which aims to serve customers primarily in Drayton, North Dakota. In order to serve customers in Drayton, DNG would need to construct approximately 17.3 miles of new pipeline facilities, of which 9.3 miles would be located in Minnesota, running west from an interconnect with Viking Gas Transmission Company at a Town Border Station northwest of Donaldson, Minnesota to the Minnesota-North Dakota Border, with an additional 1.5-mile segment running from the Minnesota-North Dakota border to a regulator station north of Drayton. The remaining 6.5 miles of pipeline would run south from the regulator station to the city of Drayton. DNG also requests that the Commission determine that DNG qualifies as an LDC for the purposes of transportation under section 311 of the Natural Gas Policy Act of 1978 and that it be granted waiver of all reporting and accounting requirements, as well as other rules and regulations that are normally applicable to natural gas companies subject to the Commission's jurisdiction, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website web at
Any questions concerning this application may be directed to Jason T. Gray, Gray, Duncan, Weinberg, Genzer, & Pembroke, P.C., 1615 M Street NW, Suite 800, Washington, DC 20036, by telephone at (202) 467-6370, by fax at (202) 467-6379, or by email at
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 seven 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
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
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the Commonwealth of Massachusetts' request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA approves the authorized program revision for the Commonwealth of Massachusetts' National Primary Drinking Water Regulations Implementation as of August 15, 2018, if no timely request for a public hearing is received and accepted by the Agency. EPA approves the other authorized program revisions/modifications as of July 16, 2018.
Devon Martin, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, (202) 566-2603,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On September 8, 2017, the Massachusetts Department of Environmental Protection (MassDEP) submitted an application titled “EEA ePLACE Platform” for revisions/modifications to its EPA-approved programs under title 40 CFR to allow new electronic reporting. EPA reviewed MassDEP's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Massachusetts's request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 50-52, 61-63, 65, 70, 141, 144, 146, 240-259, 260-270, 272-279, and 280, is being published in the
Part 52—Approval and Promulgation of Implementation Plans;
Part 61—National Emission Standards for Hazardous Air Pollutants, Subpart M, Asbestos;
Part 62—Approval and Promulgation of State Plans for Designated Facilities and Pollutants;
Part 63—National Emission Standards for Hazardous Air Pollutants for Source Categories;
Part 70—State Operating Permit Programs;
Part 142—National Primary Drinking Water Regulations Implementation;
Part 145—State Underground Injection Control Programs;
Part 239—Requirements for State Permit Program Determination of Adequacy;
Part 271—Requirements for Authorization of State Hazardous: Waste Program; and
Part 281—Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks.
Specifically, EPA has approved the state's authorized program revisions for electronic submissions that include a handwritten signature on a separate paper submission report instead of an electronic signature.
MassDEP was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Also, in this notice, EPA is informing interested persons that they may request a public hearing on EPA's action to approve the Commonwealth of Massachusetts' request to revise its National Primary Drinking Water Regulations implementation program under 40 CFR part 142, in accordance with 40 CFR 3.1000(f), to allow for electronic reporting. Requests for a hearing must be submitted to EPA within 30 days of publication of today's
In the event a hearing is requested and granted, EPA will provide notice of the hearing in the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Cross-Media Electronic Reporting Rule (EPA ICR No. 2002.07, OMB Control No. 2025-0003), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through July 31, 2018. Public comments were previously requested via the
Additional comments may be submitted on or before August 15, 2018.
Submit your comments, referencing Docket ID Number EPA-HQ-OEI-2011-0096, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Devon Martin, Office of Environmental Information (2823T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-2603; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
The companies listed in this notice have applied to the Board for approval,
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 8, 2018.
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Board of Governors of the Federal Reserve System (Board) and Federal Deposit Insurance Corporation (FDIC).
Proposed guidance; request for comments.
The Board and the FDIC (together, the “Agencies”) are inviting comments on proposed guidance for the 2019 and subsequent resolution plan submissions by the eight largest, complex U.S. banking organizations (“Covered Companies” or “firms”). The proposed guidance is meant to assist these firms in developing their resolution plans, which are required to be submitted pursuant to Section 165(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed guidance, which is largely based on prior guidance issued to these Covered Companies, describes the Agencies' expectations regarding a number of key vulnerabilities in plans for an orderly resolution under the U.S. Bankruptcy Code (i.e., capital; liquidity; governance mechanisms; operational; legal entity rationalization and separability; and derivatives and trading activities). The proposed guidance also updates certain aspects of prior guidance based on the Agencies' review of these firms' recent resolution plan submissions. The Agencies invite public comment on all aspects of the proposed guidance.
Comments should be received September 14, 2018.
Interested parties are encouraged to submit written comments jointly to both Agencies. Comments should be directed to:
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All public comments will be made available on the Board's website at
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Section 165(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5365(d)) and the jointly issued implementing regulation, 12 CFR part 243 and 12 CFR part 381 (“the Rule”), requires certain financial companies to report periodically to the Board and the FDIC their plans for rapid and orderly resolution under the U.S. Bankruptcy Code in the event of material financial distress or failure.
Among other requirements, the Rule requires each financial company's resolution plan to include a strategic analysis of the plan's components, a description of the range of specific actions the company proposes to take in resolution, and a description of the company's organizational structure, material entities and interconnections and interdependencies. The Rule also requires that resolution plans include a confidential section that contains confidential supervisory and proprietary information submitted to the Board and the FDIC (together, the “Agencies”), and a section that the Agencies make available to the public. Public sections of resolution plans can be found on the Agencies' websites.
The goal of the Dodd-Frank Act resolution planning process is to help ensure that a firm's failure would not have serious adverse effects on financial stability in the United States. Specifically, the resolution planning process requires firms to demonstrate that they have adequately assessed the challenges that their structure and business activities pose to resolution and that they have taken action to address those issues. Management should also consider resolvability as part of day-to-day decision making, particularly those related to structure, business activities, capital and liquidity allocation, and governance. In addition, firms are expected to maintain a meaningful set of options for selling operations and business lines to generate resources and to allow for restructuring under stress, including through the sale or wind down of discrete businesses that could further minimize the direct impact of distress or failure on the broader financial system. While these measures cannot guarantee that a firm's resolution would be simple or smoothly executed, these preparations can help ensure that the firm could be resolved under bankruptcy without government support or imperiling the broader financial system.
The Rule describes an iterative process aimed at strengthening the resolution planning capabilities of each financial institution. With respect to the eight largest, complex U.S. banking organizations (“Covered Companies” or “firms”),
The proposed guidance is organized into six substantive areas, consistent with the guidance the Agencies provided to Covered Companies in April 2016 to assist in the development of their 2017 resolution plans,
Each area is important to firms in resolution as each plays a part in helping to ensure that the firm can be resolved in an orderly manner. The guidance would describe the Agencies' expectations for each of these areas.
The proposed guidance is largely consistent with the 2016 Guidance, which the Covered Companies used to develop their 2017 resolution plan submissions. Accordingly, the firms have already incorporated significant aspects of the proposed guidance into their resolution planning. The proposal would update the derivatives and trading activities (DER), and payment, clearing, and settlement activities (PCS) areas of the 2016 Guidance based on the Agencies' review of the Covered Companies' 2017 plans. It would also make minor clarifications to certain areas of the 2016 Guidance. In general, the proposed revisions to the guidance are intended to streamline the firms' submissions and to provide additional clarity. The proposed guidance is not meant to limit firms' consideration of additional vulnerabilities or obstacles that might arise based on a firm's particular structure, operations, or resolution strategy and that should be factored into the firm's submission.
Possessing fully developed capabilities related to managing, identifying, and valuing the collateral that is received from, and posted to, external parties and its affiliates;
Having management information systems that readily produce key data on financial resources and positions on a legal entity basis, and that ensure data integrity and reliability;
Developing a clear set of actions to be taken to maintain payment, clearing and settlement activities and to maintain access to financial market utilities, as further discussed below; and
Maintaining an actionable plan to ensure the continuity of all of the shared and outsourced services that their critical operations rely on.
In addition, the proposed guidance provides that a firm should analyze and address legal issues that may arise in connection with emergency motions the firm anticipates filing at the outset of its bankruptcy case seeking relief needed to pursue its preferred resolution strategy, including legal precedent and evidentiary support the firm expects to provide in support of such motions, key regulatory actions, and contingency arrangements.
In addition to making some clarifications, this proposal differs from prior guidance in that it reflects enhancements informed by the Agencies' review of the Covered Companies 2017 plans in the areas of DER and PCS.
The following description summarizes the changes relative to the topics outlined in the 2016 Guidance to which the Agencies are seeking comment and, where relevant, provides additional detail:
The provision of PCS by firms, financial market utilities (FMUs), and agent banks is an essential component of the U.S. financial system, and maintaining the continuity of PCS services is important for the orderly resolution of firms. Prior guidance from the Agencies indicated that a firm's resolution plan submissions should describe arrangements to facilitate continued access to PCS services through the firm's resolution.
Based upon recent resolution plan submissions and the Agencies' engagement with the firms, the Agencies believe that the firms have developed capabilities to identify and consider the risks associated with continuity of access to PCS services in resolution. All of the firms described methodologies to identify key FMUs and agent banks based on quantitative and qualitative criteria and included playbooks for identified key FMUs or agent banks. These playbooks described potential adverse actions that could be taken by the FMU or agent bank, described possible contingency arrangements, and discussed the operational and financial impacts of such actions or arrangements, all of which were
In applying the framework, the firm would be expected to consider its role as a user and/or a provider of PCS services. The proposal refers to a user of PCS services as a firm that accesses the services of an FMU through its own membership in that FMU or through the membership of another firm that provides PCS services on an agency basis. A firm is a provider of PCS services under the proposed guidance if it provides its clients with access to an FMU or agent bank through the firm's membership in or relationship with that service provider. A firm also would be a provider if it delivers PCS services critical to a client through the firm's own operations in a manner similar to an FMU.
The proposal provides that a firm's framework should take into account the various relationships the firm and its key clients have with those key FMUs and agent banks by providing a mapping of material entities, critical operations, core business lines, and key clients to key FMUs and agent banks. This framework would be expected to consider both direct relationships (e.g., firm's direct membership in the FMU, firm provides key clients with critical PCS services through its own operations, firm's contractual relationship with an agent bank) and indirect relationships (e.g., firm provides its clients with access to the relevant FMU or agent bank through the firm's membership in or relationship with that FMU or agent bank).
By developing and evaluating these activities and relationships through a framework that incorporates the elements above, a firm should be able to consider the issue of maintaining continuity of PCS services in a systematic manner.
Firms communicated with key FMUs and agent banks in preparing their most recent resolution plan submissions and indicated that such communication was helpful in refining their analysis concerning potential adverse actions and contingency arrangements. Firms would be expected to continue to engage with key FMUs, agent banks, and clients, and playbooks would be expected to reflect any feedback received during such ongoing outreach. Firms are encouraged to continue engaging with each other, key FMUs and agent banks, and other stakeholders to identify possible initiatives or additional ways to support continued access to PCS services.
The proposed guidance differentiates the type of information to be included in a firm's key FMU and agent bank playbooks based on whether a firm is a user of PCS services with respect to that FMU or agent bank, a provider of PCS services with respect to that FMU or agent bank, or both. To the extent a firm is both a user and a provider of PCS services with respect to a particular FMU or agent bank, the firm would be expected to provide the described content for both users and providers of PCS services. A firm would be able to do so either in the same playbook or in separate playbooks included in its resolution plan submission.
In discussing the potential range of adverse actions that a key FMU or agent bank could take, each playbook would be expected to address the operational and financial impact of such actions on each material entity and discuss contingency arrangements that the firm may initiate in response to such actions by the key FMU or key agent bank. Operational impacts may include effects
The proposal states that playbooks should discuss the potential range of contingency arrangements available to the firm to minimize disruption to its provision of PCS services to its clients and the financial and operational impacts of such arrangements. Contingency arrangements may include viable transfer of client activity and any related assets or any alternative arrangements that would allow the firm's key clients to maintain continued access to critical PCS services. The playbook also would be expected to describe the range of contingency actions that the firm may take concerning its provision of intraday credit to key clients and to provide analysis quantifying the potential liquidity that the firm could generate by taking each such action in stress and in the resolution period. To the extent a firm would not take any such actions as part of its preferred resolution strategy, the firm would be expected to describe its reasons for not taking any contingency action.
Under the proposal, a firm should communicate the potential impacts of implementation of any identified contingency arrangements or alternatives to its key clients, and playbooks should describe the firm's methodology for determining whether it should provide any additional communication to some or all key clients (
This section of the proposed guidance is intended to explain expectations for Bank of America Corporation, Citigroup Inc., The Goldman Sachs Group, Inc., JP Morgan Chase & Co., Morgan Stanley, and Wells Fargo & Company (each, a “dealer firm”).
The size, scope, complexity, and opacity of a firm's global derivatives and trading activities may present
Over the past several years, the Agencies have engaged significantly with dealer firms to assess their resolution capabilities and to provide feedback with respect to their resolution preparedness. As a group, dealer firms have made meaningful improvements over previous resolution plan submissions. These improvements include efforts by dealer firms to enhance their resolution capabilities related to derivatives and trading activities and to integrate those capabilities with their business-as-usual practices. The expectations set out in this section of the proposed guidance reflect many of those improvements. As described in more detail below, this section of the proposed guidance is organized in five subsections. The first four of the subsections describe expectations for resolution capabilities that are commensurate with the size, scope and complexity of a firm's derivatives portfolios and should help assure that dealer firms maintain the operational preparedness to implement an orderly resolution. The fifth subsection—derivatives stabilization and de-risking strategy—describes expectations for a dealer firm's analysis of its approach to managing its derivatives portfolios in an orderly resolution.
In addition to the 2016 Guidance, the Agencies have also issued: the
Certain provisions of the Rule contain “collection of information” requirements within the meaning of the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3501 through 3521). In accordance with the requirements of the PRA, a respondent is not required to respond to an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Agencies believe that the proposed changes to the 2016 Guidance would not result in an increase in information collection burden to the Covered Companies. The Agencies invite public comment on this assessment.
This document is organized around a number of key vulnerabilities in resolution (i.e., capital; liquidity; governance mechanisms; operational; legal entity rationalization and separability; and derivatives and trading activities) that apply across resolution plans. Additional vulnerabilities or
The Agencies will review the Plan to determine if it satisfactorily addresses key potential vulnerabilities, including those detailed below. If the Agencies jointly decide that these matters are not satisfactorily addressed in the Plan, the Agencies may determine jointly that the Plan is not credible or would not facilitate an orderly resolution under the U.S. Bankruptcy Code.
A firm's external TLAC should be complemented by appropriate positioning of additional loss-absorbing capacity within the firm (internal TLAC). The positioning of a firm's internal TLAC should balance the certainty associated with pre-positioning internal TLAC directly at material entities with the flexibility provided by holding recapitalization resources at the parent (contributable resources) to meet unanticipated losses at material entities. That balance should take account of both pre-positioning at material entities and holding resources at the parent, and the obstacles associated with each. Accordingly, the firm should not rely exclusively on either full pre-positioning or parent contributable resources to recapitalize any material entity. The plan should describe the positioning of internal TLAC within the firm, along with analysis supporting such positioning.
Finally, to the extent that pre-positioned internal TLAC at a material entity is in the form of intercompany debt and there are one or more entities between that material entity and the parent, the firm should mitigate uncertainty related to potential creditor challenge; for example, by ensuring that the seniority and tenor of the intercompany debt is the same between all entities in the chain.
The firm's RCEN methodology should use conservative forecasts for losses and risk-weighted assets and incorporate estimates of potential additional capital needs through the resolution period,
The firm should have the liquidity capabilities necessary to execute its preferred resolution strategy, including those described in SR Letter 14-1.
Additionally, the RLAP methodology should take into account (A) the daily contractual mismatches between inflows and outflows; (B) the daily flows from movement of cash and collateral for all inter-affiliate transactions; and (C) the daily stressed liquidity flows and trapped liquidity as a result of actions taken by clients, counterparties, key financial market utilities (FMUs), and foreign supervisors, among others.
The firm's RLEN methodology should:
(A) Estimate the minimum operating liquidity (MOL) needed at each material entity to ensure those entities could continue to operate post-parent's bankruptcy filing and/or to support a wind-down strategy;
(B) Provide daily cash flow forecasts by material entity to support estimation of peak funding needs to stabilize each entity under resolution;
(C) Provide a comprehensive breakout of all inter-affiliate transactions and arrangements that could impact the MOL or peak funding needs estimates; and
(D) Estimate the minimum amount of liquidity required at each material entity to meet the MOL and peak needs noted above, which would inform the firm's board(s) of directors of when they need to take resolution-related actions.
The MOL estimates should capture material entities' intraday liquidity requirements, operating expenses, working capital needs, and inter-affiliate funding frictions to ensure that material entities could operate without disruption during the resolution.
The peak funding needs estimates should be projected for each material entity and cover the length of time the firm expects it would take to stabilize that material entity. Inter-affiliate funding frictions should be taken into account in the estimation process.
The firm's forecasts of MOL and peak funding needs should ensure that material entities could operate post-filing consistent with regulatory requirements, market expectations, and the firm's post-failure strategy. These forecasts should inform the RLEN estimate, i.e., the minimum amount of HQLA required to facilitate the execution of the firm's strategy. The RLEN estimate should be tied to the firm's governance mechanisms and be incorporated into the playbooks as discussed below to assist the board of directors in taking timely resolution-related actions.
The firm should demonstrate that key actions will be taken at the appropriate time in order to mitigate financial, operational, legal, and regulatory vulnerabilities. To ensure that these actions will occur, the firm should establish clearly identified triggers linked to specific actions for:
(A) The escalation of information to senior management and the board(s) to potentially take the corresponding actions at each stage of distress post-recovery leading eventually to the decision to file for bankruptcy;
(B) Successful recapitalization of subsidiaries prior to the parent's filing for bankruptcy and funding of such entities during the parent company's bankruptcy to the extent the preferred strategy relies on such actions or support; and
(C) The timely execution of a bankruptcy filing and related pre-filing actions.
These triggers should be based, at a minimum, on capital, liquidity, and market metrics, and should incorporate the firm's methodologies for forecasting the liquidity and capital needed to operate as required by the preferred strategy following a parent company's bankruptcy filing. Additionally, the triggers and related actions should be specific.
Triggers linked to firm actions as contemplated by the firm's preferred strategy should identify when and under what conditions the firm, including the parent company and its material entities, would transition from business-as-usual conditions to a stress period and from a stress period to the runway and recapitalization/resolution periods. Corresponding escalation procedures, actions, and timeframes should be constructed so that breach of the triggers will allow prerequisite actions to be completed. For example, breach of the triggers needs to occur early enough to ensure that resources are available and can be downstreamed, if anticipated by the firm's strategy, and with adequate time for the preparation of the bankruptcy petition and first-day motions, necessary stakeholder communications, and requisite board actions. Triggers identifying the onset of the runway and recapitalization/resolution periods, and the associated escalation procedures and actions, should be discussed directly in the governance playbooks.
As noted, the analysis should include mitigants to the potential challenges to the planned Support. The plan should include the mitigant(s) to such challenges that the firm considers most effective. In identifying appropriate mitigants, the firm should consider the effectiveness of a contractually binding mechanism (CBM), pre-positioning of financial resources in material entities, and the creation of an intermediate holding company. Moreover, if the plan includes a CBM, the firm should consider whether it is appropriate that the CBM should have the following: (A) clearly defined triggers; (B) triggers that are synchronized to the firm's liquidity and capital methodologies; (C) perfected security interests in specified collateral sufficient to fully secure all Support obligations on a continuous basis (including mechanisms for adjusting the amount of collateral as the value of obligations under the agreement or collateral assets fluctuates); and (D) liquidated damages provisions or other features designed to make the CBM more enforceable. The firm also should consider related actions or agreements that may enhance the effectiveness of a CBM. A copy of any agreement and documents referenced therein (e.g., evidence of security interest perfection) should be included in the resolution plan.
The governance playbooks included in the resolution plan should incorporate any developments from the firm's analysis of potential legal challenges regarding the Support, including any Support approach(es) the firm has implemented. If the firm analyzed and addressed an issue noted in this section in a prior plan submission, the plan may reproduce that analysis and arguments and should build upon it to at least the extent described above. In preparing the analysis of these issues, firms may consult with law firms and other experts on these matters. The Agencies do not object to appropriate collaboration between firms, including through trade organizations and with the academic community, to develop analysis of common legal challenges and available mitigants.
• Identifying key clients,
• Mapping material entities, critical operations, core business lines, and key clients to both key FMUs and agent banks; and
• Developing a playbook for each key FMU and agent bank reflecting the firm's role(s) as a user and/or provider of PCS services.
The framework should address both direct relationships (e.g., firm's direct membership in the FMU, firm provides key clients with critical PCS services through its own operations, firm's contractual relationship with an agent bank) and indirect relationships (e.g., firm provides its clients with access to the relevant FMU or agent bank through the firm's membership to or relationship with that FMU or agent bank).
• Description of the firm's relationship as a user with the key FMU or agent bank and the identification and mapping of PCS services to material entities, critical operations, and core business lines that use those PCS services;
• Discussion of the potential range of adverse actions that may be taken by that key FMU or agent bank when the firm is in resolution,
• Discussion of PCS-related liquidity sources and uses in business-as-usual (BAU), in stress, and in the resolution period, presented by currency type (with U.S. dollar equivalent) and by material entity.
○ PCS Liquidity Sources: These may include the amounts of intraday extensions of credit, liquidity buffer, inflows from FMU participants, and client prefunded amounts in BAU, in stress, and in the resolution period. The playbook should also describe intraday credit arrangements (e.g., facilities of the FMU, agent bank, or a central bank) and any similar custodial arrangements that allow ready access to a firm's funds for PCS-related FMU and agent bank obligations (including margin requirements) in various currencies, including placements of firm liquidity at central banks, FMUs, and agent banks.
○ PCS Liquidity Uses: These may include firm and client margin, pre-funding and intraday extensions of credit, including incremental amounts required during resolution.
○ Intraday Liquidity Inflows and Outflows: The playbook should describe the firm's ability to control intraday liquidity inflows and outflows and to identify and prioritize time-specific payments. The playbook should also describe any account features that might restrict the firm's ready access to its liquidity sources.
• Identification and mapping of PCS services to the material entities, critical operations, and core business lines that provide those PCS services, and a description of the scale and the way in which each provides PCS services;
• Identification and mapping of PCS services to key clients that rely upon the firm to provide those PCS services and any related credit or liquidity offered in connection with such services;
• Discussion of the potential range of firm contingency arrangements available to minimize disruption to the provision of PCS services to its clients, including the viability of transferring client activity and any related assets, as well as any alternative arrangements that would allow the firm's key clients continued access to critical PCS services if the firm could no longer provide such access (e.g., due to the firm's loss of FMU or agent bank access), and the financial and operational impacts of such arrangements;
• Description of the range of contingency actions that the firm may take concerning its provision of intraday credit to clients, including analysis quantifying the potential liquidity the firm could generate by taking such actions in stress and in the resolution period, such as (i) requiring clients to designate or appropriately pre-position liquidity, including through pre-funding of settlement activity, for PCS-related FMU and agent bank obligations at specific material entities of the firm (e.g., direct members of FMUs) or any similar custodial arrangements that allow ready access to clients' funds for such obligations in various currencies; (ii) delaying or restricting client PCS activity; and (iii) restricting, imposing conditions upon (e.g., requiring collateral), or eliminating the provision of intraday credit or liquidity to clients; and
• Description of how the firm will communicate to its key clients the potential impacts of implementation of any identified contingency arrangements or alternatives, including a description of the firm's methodology for determining whether any additional communication should be provided to some or all key clients (e.g., due to the client's BAU usage of that access and/or related intraday credit or liquidity), and the expected timing and form of such communication.
• Be able to query and provide aggregate statistics for all qualified financial contracts concerning cross-default clauses, downgrade triggers, and other key collateral-related contract terms — not just those terms that may be impacted in an adverse economic environment — across contract types, business lines, legal entities, and jurisdictions;
• Be able to track both firm collateral sources (i.e., counterparties that have pledged collateral) and uses (i.e., counterparties to whom collateral has been pledged) at the CUSIP level on at least a t+1 basis;
• Have robust risk measurements for cross-entity and cross-contract netting, including consideration of where collateral is held and pledged;
• Be able to identify CUSIP and asset class level information on collateral pledged to specific central counterparties by legal entity on at least a t+1 basis;
• Be able to track and report on inter-branch collateral pledged and received on at least a t+1 basis and have clear policies explaining the rationale for such inter-branch pledges, including any regulatory considerations; and
• Have a comprehensive collateral management policy that outlines how the firm as a whole approaches collateral and serves as a single source for governance.
The firm should identify all critical outsourced services that support critical operations and could not be promptly substituted. The firm should (A) evaluate the agreements governing these services to determine whether there are any that could be terminated despite continued performance upon the parent's bankruptcy filing, and (B) update contracts to incorporate appropriate terms and conditions to prevent automatic termination and facilitate continued provision of such services during resolution. Relying on entities projected to survive during resolution to avoid contract termination is insufficient to ensure continuity. In
For either alternative, the firm should address all potential significant legal obstacles identified by the firm. For example, the firm should address due process arguments likely to be made by creditors asserting that they have not had sufficient opportunity to respond to the emergency motion given the likelihood that a creditors' committee will not yet have been appointed. The firm also should consider, and discuss in its plan, whether it would enhance the successful implementation of its preferred strategy to conduct outreach to interested parties, such as potential creditors of the holding company and the bankruptcy bar, regarding the strategy.
If the firm chooses the bridge transfer alternative, its analysis and arguments should address at a minimum the following potential issues: (A) the legal basis for transferring the parent holding company's equity interests in certain subsidiaries (transferred subsidiaries) to a Bankruptcy Bridge Company, including the basis upon which the Bankruptcy Bridge Company would remain obligated for credit enhancements; (B) the ability of the bankruptcy court to retain jurisdiction, issue injunctions, or take other actions to prevent third parties from interfering with, or making collateral attacks on (i) a Bankruptcy Bridge Company, (ii) its transferred subsidiaries, or (iii) a trust or other legal entity designed to hold all ownership interests in a Bankruptcy Bridge Company (new ownership entity); and (C) the role of the bankruptcy court in granting the emergency motion due to public policy concerns—e.g., to preserve financial stability. The firm should also provide a draft agreement (e.g., trust agreement) detailing the preferred post-transfer governance relationships between the bankruptcy estate, the new ownership entity, and the Bankruptcy Bridge Company, including the proposed role and powers of the bankruptcy court and creditors' committee. Alternative approaches to these proposed post-transfer governance relationships should also be described, particularly given the strong interest that parties will have in the ongoing operations of the Bankruptcy Bridge Company and the likely absence of an appointed creditors' committee at the time of the hearing.
If the firm chooses the elevation alternative, the analysis and arguments should address at a minimum the following potential issues: (A) The legal basis upon which the parent company would seek to remain obligated for credit enhancements; (B) the ability of the bankruptcy court to retain jurisdiction, issue injunctions, or take other actions to prevent third parties from interfering with, or making collateral attacks on, the parent in bankruptcy or its subsidiaries; and (C) the role of the bankruptcy court in granting the emergency motion due to public policy concerns—e.g., to preserve financial stability.
Specifically, application of the criteria should:
(A) Facilitate the recapitalization and liquidity support of material entities, as required by the firm's resolution strategy. Such criteria should include clean lines of ownership, minimal use of multiple intermediate holding companies, and clean funding pathways between the parent and material operating entities;
(B) Facilitate the sale, transfer, or wind-down of certain discrete operations within a timeframe that would meaningfully increase the likelihood of an orderly resolution of the firm, including provisions for the continuity of associated services and mitigation of financial, operational, and legal challenges to separation and disposition;
(C) Adequately protect the subsidiary insured depository institutions from risks arising from the activities of any nonbank subsidiaries of the firm (other than those that are subsidiaries of an insured depository institution); and
(D) Minimize complexity that could impede an orderly resolution and minimize redundant and dormant entities.
These criteria should be built into the firm's ongoing process for creating, maintaining, and optimizing its structure and operations on a continuous basis.
Within the plan, the firm should demonstrate how the firm's LER Criteria and implementation efforts meet the guidance above. The plan should also provide the separability analysis noted above. Finally, the plan should include a description of the firm's legal entity rationalization governance process.
This section of the proposed guidance applies to Bank of America Corporation, Citigroup Inc., Goldman Sachs Group, Inc., JP Morgan Chase & Co., Morgan Stanley, and Wells Fargo & Company (each, a “dealer firm”).
A dealer firm should have booking practices commensurate with the size, scope, and complexity of a firm's derivatives portfolios,
A dealer firm should be able to assess how the management of inter-affiliate risks can be affected in resolution, including the potential disruption in the risk transfers of trades between affiliate entities. Therefore, a dealer firm should have capabilities to provide timely transparency into the management of risk transfers between affiliates by maintaining an inter-affiliate market risk framework, consisting of at least the following two components
1. A method for measuring, monitoring, and reporting the market risk exposures for a given material derivatives entity resulting from the termination of a specific counterparty or a set of counterparties (e.g., all trades with a specific affiliate or with all affiliates in a specific jurisdiction)
2. A method for identifying, estimating associated costs of, and evaluating the effectiveness of, a re-hedge strategy in resolution put on by the same material derivatives entity.
In determining the re-hedge strategy, the firm should consider whether the instruments used (and the risk factors and risk sensitives controlled for) are sufficiently tied to the material derivatives entity's trading and risk-management practices to demonstrate its ability to execute the strategy in resolution using existing resources (e.g., existing traders and systems).
A dealer firm's resolution plan should describe and demonstrate its inter-affiliate market risk framework (discussed above). In addition, the firm's plan should provide detailed descriptions of its compression strategies used for executing its preferred strategy and how those strategies would differ from those used currently to manage its inter-affiliate derivatives activities. The plan should also include detailed descriptions of the firm's compression capabilities, the associated risks, and obstacles in resolution.
A dealer firm should have the capabilities to produce analysis that reflects derivatives portfolio segmentation and differentiation of assumptions taking into account trade-level characteristics. More specifically, a dealer firm should have the systems capabilities that would allow it to produce a spectrum of derivatives portfolio segmentation analysis using multiple segmentation dimensions, including (1) legal entity (and material entities that are branches), (2) trading desk and/or product, (3) cleared vs. clearable vs. non-clearable trades, (4) counterparty type, (5) currency, (6) maturity, (7) level of collateralization, and (8) netting set.
A dealer firm should have the operational capacity to facilitate the orderly transfer of prime brokerage accounts to peer prime brokers in periods of material financial distress and in resolution. The firm's plan should include an assessment of how it would transfer such accounts. This assessment should be informed by clients' relationships with other prime brokers, the use of automated and manual transaction processes, clients' overall long and short positions facilitated by the firm, and the liquidity of clients' portfolios. The assessment should also analyze the risks of and mitigants to the loss of customer-to-customer internalization (e.g., the inability to fund customer longs with customer shorts), operational challenges, and insufficient staffing to effectuate the scale and speed of prime brokerage account transfers envisioned under the firm's preferred resolution strategy.
In addition, a dealer firm should describe and demonstrate its ability to segment and analyze the quality and composition of prime brokerage customer account balances based on a set of well-defined and consistently applied segmentation criteria (e.g., size, single-prime, platform, use of leverage, non-rehypothecatable securities, and liquidity of underlying assets). The capabilities should cover the firm's prime brokerage customer account balances, and the resulting segments should represent a range in potential transfer speed (e.g., from fastest to longest to transfer, from most liquid to least liquid). The selected segmentation criteria should, at a minimum, reflect characteristics
A dealer firm's plan should provide a detailed analysis of the strategy to stabilize and de-risk its derivatives portfolios (“derivatives strategy”) that has been incorporated into its preferred resolution strategy.
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A dealer firm's analysis of its derivatives strategy should, at a minimum, take into account (i) the starting profile of its derivatives portfolios (e.g., nature, concentration, maturity, clearability, and liquidity of positions); (ii) the profile and function of the derivatives entities during the resolution period; (iii) the means, challenges, and capacity for managing and de-risking its derivatives portfolios (e.g., method for timely segmenting, packaging, and selling the derivatives positions; challenges with novating less liquid positions; re-hedging strategy); (iv) the financial and operational resources required to effect the derivatives strategy; and (v) any potential residual portfolio (further discussed below). In addition, the firm's resolution plan should address the following areas in the analysis of its derivatives strategy:
The purpose of the public section is to inform the public's understanding of the firm's resolution strategy and how it works.
The public section should discuss the steps that the firm is taking to improve resolvability under the U.S. Bankruptcy Code. The public section should provide background information on each material entity and should be enhanced by including the firm's rationale for designating material entities. The public section should also discuss, at a high level, the firm's intra-group financial and operational interconnectedness (including the types of guarantees or support obligations in place that could impact the execution of the firm's strategy). There should also be a high-level discussion of the liquidity resources and loss-absorbing capacity of the firm.
The discussion of strategy in the public section should broadly explain how the firm has addressed any deficiencies, shortcomings, and other key vulnerabilities that the Agencies have identified in prior Plan submissions. For each material entity, it should be clear how the strategy provides for continuity, transfer, or orderly wind-down of the entity and its operations. There should also be a description of the resulting organization upon completion of the resolution process.
The public section may note that the resolution plan is not binding on a bankruptcy court or other resolution authority and that the proposed failure scenario and associated assumptions are hypothetical and do not necessarily reflect an event or events to which the firm is or may become subject.
By order of the Board of Directors.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice announces a meeting of the National Advisory Council for Healthcare Research and Quality.
The meeting will be held on Wednesday, July 18, 2018, from 8:30 a.m. to 2:45 p.m.
The meeting will be held at AHRQ, 5600 Fishers Lane, Rockville, Maryland, 20857.
Jaime Zimmerman, Designated Management Official, at the Agency for Healthcare Research and Quality, 5600 Fishers Lane, Mail Stop 06E37A, Rockville, Maryland 20857, (301) 427-
If sign language interpretation or other reasonable accommodation for a disability is needed, please contact the Food and Drug Administration (FDA) Office of Equal Employment Opportunity and Diversity Management on (301) 827-4840, no later than Tuesday, July 3, 2018. The agenda, roster, and minutes will be available from Ms. Bonnie Campbell, Committee Management Officer, Agency for Healthcare Research and Quality, 5600 Fishers Lane, Rockville, Maryland 20857. Ms. Campbell's phone number is (301) 427-1554.
The National Advisory Council for Healthcare Research and Quality is authorized by Section 941 of the Public Health Service Act, 42 U.S.C. 299c. In accordance with its statutory mandate, the Council is to advise the Secretary of the Department of Health and Human Services and the Director of AHRQ on matters related to AHRQ's conduct of its mission including providing guidance on (A) priorities for health care research, (B) the field of health care research including training needs and information dissemination on health care quality and (C) the role of the Agency in light of private sector activity and opportunities for public private partnerships. The Council is composed of members of the public, appointed by the Secretary, and Federal ex-officio members specified in the authorizing legislation.
On Wednesday, July 18, 2018, the Council meeting will convene at 8:30 a.m., with the call to order by the Council Chair and approval of previous Council summary notes. The meeting is open to the public and will be available via webcast at
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project “Consumer Assessment of Healthcare Providers and Systems (CAHPS) Clinician and Group Survey Database.”
Comments on this notice must be received by September 14, 2018.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by emails at
In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection. The CAHPS Database is a repository for data from selected CAHPS surveys. The primary purpose of the CAHPS Database is to facilitate comparisons of CAHPS survey results by survey users. This voluntary compilation of survey results from a large pool of data into a single database enables survey users to compare their own results to relevant Database results. The CAHPS Database also offers an important source of primary data for research related to consumer assessments of quality as measured by CAHPS surveys.
The CAHPS Clinician & Group Survey (CG-CAHPS) Database is the newest component of the CAHPS Database. It was developed in response to the growing demand for Database results for the various versions of the CG-CAHPS Survey, including the 12-month and Visit versions. In May 2011, the first set of Database results for both the 12-month and Visit versions was released through the CAHPS Database Online Reporting System.
AHRQ developed the database for CAHPS CG Survey data following the CAHPS Health Plan Database as a model. The CAHPS Health Plan Database was developed in 1998 in response to requests from health plans, purchasers, and CMS for survey data to support public reporting of health plan ratings, health plan accreditation and quality improvement (OMB Control Number 0935-0165, expiration 5/31/2020). Demand for survey results from the CG Survey has grown as well, and therefore AHRQ developed a dedicated Clinician and Group Database to support benchmarking, quality improvement, and research (OMB Control Number 0935-0197, expiration 02/28/2019).
The CAHPS Database contains data from AHRQ's standardized CAHPS Surveys which provide survey measures of quality to health care purchasers, consumers, regulators, and policy makers. The Health Plan Database also provides data for AHRQ's annual National Healthcare Quality and Disparities Reports.
The goal of this project is to renew the CAHPS CG Survey Database. This database will continue to update the CAHPS CG Database with the latest results of the CAHPS CG Survey. These results consist of 31 items that measure 5 areas or composites of patients' experiences with physicians and staff in outpatient medical practices. This database can be used to do the following:
(1) Improve care provided by individual providers, sites of care, medical groups, or provider networks.
(2) Offer several products and services, including providing survey results presented through an Online Reporting System, summary chartbooks, custom analyses, private reports in Excel format, and data for research purposes.
(3) Provides information to help identify strengths and areas with potential for improvement in patient care. The five composite measures are:
This study is being conducted by AHRQ through its contractor, Westat, pursuant to AHRQ's statutory authority to conduct and support research on health care and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of health care services and with respect to quality measurement and improvement, and health surveys and database development. 42 U.S.C. 299a(a)(1), (2), and (8).
To achieve the goal of this project, the following activities and data collections will be implemented:
(1) Registration Form—The purpose of this form is to determine the eligibility status and initiate the registration process for participating organizations seeking to submit their CAHPS CG survey data voluntarily to the CAHPS CG Survey Database. The point of contact (POC) at the participating organization (or parent organization) will complete the form. The POC is either a corporate-level health manager or a survey vendor who contracts with a participating organization to collect the CAHPS CG survey data.
(2) Data Use Agreement—The purpose of the Data Use Agreement (DUA) is to obtain authorization from participating organizations to use their voluntarily submitted CAHPS CG survey data for analysis and reporting according to the terms specified in the DUA. The DUA states how data submitted by participating organizations will be used and provides confidentiality assurances. The POC at the organization will complete the form. Vendors do not sign the DUA.
(3) Data Submission—The number of submissions to the database may vary each year because medical groups and practices may not administer the survey and submit data each year. Data submission is typically handled by one POC who is either a health system, a medical group or practice or a survey vendor who contracts with the medical group or practice to collect data on their behalf. After the POC has completed the Registration Form and the DUA, they will submit patient-level data collected from the CAHPS CG survey to the CAHPS CG Survey Database. Data on organizational characteristics such as ownership, number of patient visits per week, provider specialty, and information related to survey administration such as mode, dates of survey administration, sample size, and response rate, which are collected as part of CAHPS CG survey operations are also submitted.
Each submission will consist of 3 data files: (1) A Group File that contains information about the group ownership, (2) a Practice File containing the practice ownership and affiliation (
Survey data from the CAHPS CG Database is used to produce four types of products: (1) An online reporting of results available to the public on the CAHPS Database website; (2) individual participant reports (in Excel format), used for comparing a participating organization's CAHPS survey results to the database averages, that are confidential and customized for each participating organization that submits their data, (3) an annual Chartbook that presents summary-level results in a downloadable file in PDF format; and (4) a de-identified dataset that is made available to researchers for additional analyses.
Information for the CAHPS CG Database has been collected by AHRQ on an annual basis since 2010. Participating organizations are asked to submit their data voluntarily to the database each year. The data are cleaned with standardized programs, then aggregated and used to produce summarized results. In addition, reports in Excel format are produced that compare the participating organizations' results to the overall database results. These reports are sent via a secured FTP site upon the participating organization's request.
Database results and individual participant reports can serve a variety of purposes:
• Identifying areas for quality improvement at multiple levels, including medical group, practice site, and individual practitioner.
• Briefing senior leadership on patients' views of the health care they receive.
• Supporting public reporting of patients' assessments of care.
• Combining with other quality measures to examine health care outcomes.
The CAHPS CG Database supports research by providing a de-identified analytic database. Much like the CAHPS Health Plan Database developed in 1998 (OMB Control Number 0935-0165, Expiration Date 5/31/2020), researchers can use the CAHPS CG Survey Database to examine:
• Disparities in CAHPS satisfaction scores by racial and ethnic characteristics of patients.
• Comparisons of adult and child CAHPS survey results.
Analysis of case-mix factors affecting CAHPS scores, such as patient age, education, and self-reported health status.
Exhibit 1 shows the estimated burden hours for the participating in the CG database. The 11 POCs in exhibit 1 are the number of estimated vendors. Survey vendors assist the Health/Medical entities with submitting data submission materials. Survey vendors generally submit all required survey data and other materials other than the DUA. The 86 POCs in exhibit 1 are the number of estimated participating Health/Medical entities based on 2017 submission.
Each vendor will register online for submission. The online Registration Form will require about 5 minutes to complete. The DUA will be completed by the 86 participating Health/Medical entities. Vendors do not sign DUAs. The DUA process requires about 15 minutes to sign and return by fax, mail or to upload directly to the submission system and includes an accompanying practice site excel file that is uploaded to the submission system. Each submitter will provide a copy of their questionnaire and the survey data file in the required file format. Survey data files must conform to the data file layout specifications provided by the CAHPS Database. The average number of data submissions per vendor is estimated to be 10. Once a data file is uploaded, the file will be automatically checked to ensure it conforms to the specifications and a data file status report will be produced and made available to the submitter. Submitters will review each report and will be expected to fix any errors in their data file and resubmit if necessary. It will take about one hour to complete each file submission. The total burden is estimated to be 133 hours annually.
Exhibit 2 shows the estimated annualized cost burden based on the respondents' time to complete the submission process. The cost burden is estimated to be $6,602 annually.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ's health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
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 15, 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:
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 the 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
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CMS created a Health Equity Technical Assistance (TA) email (
The Program was later expanded in response to legislation enacted by Congress to address the particular needs of persons with mental illness (24 U.S.C. Sections 321 through 329). Further refinements occurred in response to Executive Order (E.O.) 11490 (as amended) where HHS was given the responsibility to “develop plans and procedures for assistance at ports of entry to U.S. personnel evacuated from overseas areas, their onward movement to final destination, and follow-up assistance after arrival at final destination.” In addition, under E.O. 12656 (53 CFR 47491), “Assignment of emergency preparedness responsibilities,” HHS was given the lead responsibility to develop plans and procedures in order to provide assistance to U.S. citizens and others evacuated from overseas areas.
Overall, the Program manages two major activities, Emergency and Non-emergency Repatriation Activities. The ongoing routine arrivals of individual repatriates and the repatriation of individuals with mental illness constitute the Program Non-emergency activities. Emergency activities are comprised of group repatriations (evacuations of 50-500 individuals) and emergency repatriations (evacuations of 500 or more individuals). Operationally, these activities involve different kinds of preparation, resources, and implementation. However, the core Program policies and administrative procedures are essentially the same. The Program provides services through agreements with local repatriation service providers (
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In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW, Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden information to be collected; and (d) ways to minimize the burden of the collection of information on
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 15, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA has the authority under the Federal Food, Drug, and Cosmetic Act (FD&C Act) to approve new animal drugs. A new animal drug application (NADA) cannot be approved until, among other things, the new animal drug has been demonstrated to be safe and effective for its intended use(s). In order to properly test a new animal drug for an intended use, appropriate scientific investigations must be conducted. Under specific circumstances, section 512(j) of the FD&C Act (21 U.S.C. 360b(j)) permits the use of an investigational new animal drug to generate data to support an NADA approval. Section 512(j) of the FD&C Act authorizes us to issue regulations relating to the investigational use of new animal drugs.
Our regulations in 21 CFR part 511 set forth the conditions for investigational use of new animal drugs and require reporting and recordkeeping. The information collected is necessary to protect the public health. We use the information to determine that investigational animal drugs are distributed only to qualified investigators, adequate drug accountability records are maintained, and edible food products from treated food-producing animals are safe for human consumption. We also use the information collected to monitor the validity of the studies submitted to us to support new animal drug approval.
In the
FDA estimates the burden of this collection of information as follows:
The estimate of the time required for reporting requirements, record preparation, and maintenance for this collection of information is based on our informal communication with industry. Based on the number of sponsors subject to animal drug user fees, we estimate that there are 104 respondents. We use this estimate consistently throughout the table and calculate the “number of responses per respondent” by dividing the total annual responses by number of respondents. Additional information needed to make a final calculation of the total burden hours (
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 “Hypertension: Conducting Studies of Drugs to Treat Patients on a Background of Multiple Antihypertensive Drugs.” This draft guidance is intended to clarify the recommended approach for sponsors developing drugs to treat hypertension for patients who are on a background of multiple antihypertensive drugs.
Submit either electronic or written comments on the draft guidance by September 14, 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 the draft 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. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Stephen Grant, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 4160, Silver Spring, MD 20903, 301-796-2240.
FDA is announcing the availability of a draft guidance for industry entitled “Hypertension: Conducting Studies of Drugs to Treat Patients on a Background of Multiple Antihypertensive Drugs.” This draft guidance is intended to clarify the recommended approach for sponsors developing drugs to treat hypertension for patients who are on a background of multiple antihypertensive drugs. Sponsors have approached FDA to discuss development programs for drugs intended to treat
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 conducting studies of drugs to treat hypertension in patients on a background of multiple antihypertensive drugs. 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.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014. The collection of information in the guidance for industry entitled “Hypertension Indication: Drug Labeling for Cardiovascular Outcome Claims” (available at
Persons with access to the internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 15, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports Agency regulations. The Dietary Supplement Health and Education Act (Pub. L. 103-417) added section 402(g) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 342(g)), which provides, in part, that the Secretary of Health and Human Services may, by regulation, prescribe good manufacturing practices for dietary supplements. Section 402(g)(1) of the FD&C Act states that a dietary supplement is adulterated if it has been prepared, packed, or held under the types of conditions that do not meet current good manufacturing practice regulations. Section 701(a) of the FD&C Act (21 U.S.C. 371(a)) gives us the authority to issue regulations for the efficient enforcement of the FD&C Act.
Part 111 (21 CFR part 111) establishes the minimum Current Good Manufacturing Practice (CGMP) necessary for activities related to manufacturing, packaging, labeling, or holding dietary supplements to ensure the quality of the dietary supplement. Section 111.75(a)(1) of our regulations (21 CFR 111.75(a)(1)) establishes a procedure for a petition to request an exemption from 100 percent identity testing of dietary ingredients. Under § 111.75(a)(1)(ii), manufacturers may request an exemption from the requirements set forth in § 111.75(a)(1)(i) when the dietary ingredient is obtained from one or more suppliers identified in the petition. The regulation clarifies that we are willing to consider, on a case-by-case basis, a manufacturer's conclusion, supported by appropriate data and information in the petition submission, that it has developed a system that it would implement as a sound, consistent means of establishing, with no material diminution of assurance compared to the assurance provided by 100 percent identity testing, the identity of the dietary ingredient before use.
Section 111.75(a)(1) reflects our determination that manufacturers that test or examine 100 percent of the incoming dietary ingredients for identity can be assured of the identity of the ingredient. However, we recognize that it may be possible for a manufacturer to demonstrate, through various methods and processes in use over time for its particular operation, that a system of less than 100 percent identity testing would result in no material diminution of assurance of the identity of the dietary ingredient as compared to the assurance provided by 100 percent identity testing. To provide an opportunity for a manufacturer to make such a showing and reduce the frequency of identity testing of components that are dietary ingredients from 100 percent to some lower frequency, we added to § 111.75(a)(1), an exemption from the requirement of 100 percent identity testing when a manufacturer petitions the Agency for such an exemption to 100 percent identity testing under § 10.30 (21 CFR 10.30) and the Agency grants such exemption. Such a procedure would be consistent with our stated goal, as described in the CGMP final rule, of providing flexibility in the CGMP requirements. Section 111.75(a)(1)(ii) sets forth the information a manufacturer is required to submit in such a petition. The regulation also contains a requirement to ensure that the manufacturer keeps our response to a petition submitted under § 111.75(a)(1)(ii) as a record under § 111.95 (21 CFR 111.95). The collection of information in § 111.95 has been approved under OMB control number 0910-0606.
In the
We estimate the burden of the information collection as follows:
Since OMB's last approval of the information collection, we have received no petitions. We therefore retain the currently approved estimated burden which assumes no more than one petition will be submitted annually. We further assume it would take respondents 8 hours to prepare the factual and legal information necessary to support a petition for exemption and to prepare the petition, for a total of 8 burden hours annually. These figures are based on our experience with the information collection.
Food and Drug Administration, HHS.
Notice of public meeting.
The Food and Drug Administration's (FDA or Agency) Office of Women's Health, Center for Drug Evaluation and Research, and Center for Tobacco Products are announcing the following conference entitled “Scientific Conference: Opioid and Nicotine Use, Dependence, and Recovery—Influences of Sex and Gender.” The purpose of the conference is to discuss the biological (sex) and sociological (gender) influences on misuse, abuse, and cessation of opioids and tobacco. Researchers, educators, and clinicians may benefit from attending this multidisciplinary review and update on opioid and tobacco.
The two-day conference will be held on September 27, 2018 (8:30 a.m.-4:00 p.m.) and September 28, 2018 (8:30 a.m.-4:00 p.m.). See the
The conference will be held at FDA's White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503-A), Silver Spring, MD 20993. Entrance for the conference participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking and security information, please refer to
Gwendolyn Jones, Food and Drug Administration, Bldg. 32, Rm. 2333, 10903 New Hampshire Ave., Silver Spring, MD 20993,
FDA is responsible for protecting the public health by assuring the safety and efficacy of FDA-regulated products. This conference will provide the Agency with further insight into the devastating public health crises caused by pervasive opioid and tobacco use. Drug overdose deaths and opioid-involved deaths continue to increase in the United States. Many of the drug overdose deaths (more than 6 out of 10) involve an opioid. Since 1999, the number of overdose deaths involving opioids (including prescription opioids and heroin) quadrupled. Drug overdose deaths and opioid-involved deaths continue to increase in the United States. Of the 63,632 drug overdose deaths in 2016, 66.4 percent (42,249) involved opioids, with increases across age groups, racial/ethnic groups, urbanization levels, and multiple states. Combustible cigarettes have been identified as the dominant cause of tobacco-related disease and are responsible for more than 20 million premature deaths since the first Surgeon General's report in 1964. Together, opioid and tobacco use are the leading causes of preventable disease and death in the United States, and women are increasingly affected. Sex and gender differences may influence susceptibility to substance abuse, which could have implications for optimal prevention and treatment. Gender influencers also impact public health from a familial and environmental perspective. Researchers, educators, and clinicians must be able to recognize and consider both sex and gender differences to identify and treat women most at risk.
The conference will include presentations and panel discussions by experts in the field of opioid and tobacco research, professional education, and clinical care on the biological (sex) and sociological (gender) influences on misuse, abuse, and cessation of opioids and tobacco. Each panel discussion will have a Q&A session to respond to questions from in-person attendees.
Registration is free and in-person seating is limited. The conference will also be available for viewing via webcast. Persons interested in attending or viewing this conference must register online by September 24, 2018, 5:00 p.m. Eastern Time. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted. If you need special accommodations due to a disability, please email Gwendolyn Jones at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 15, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports the Agency guidance document entitled “Guidance for Industry on Compounding and Repackaging of Radiopharmaceuticals by State-Licensed Nuclear Pharmacies, Federal Facilities, and Certain Other Entities.”
Under current law, radiopharmaceuticals that are compounded by entities that are not registered with FDA as outsourcing facilities, and radiopharmaceuticals that are repackaged, are subject to all applicable provisions of the Federal Food, Drug, and Cosmetic Act (FD&C Act) related to drug production. Because Congress explicitly excluded radiopharmaceuticals from section 503A of the FD&C Act (21 U.S.C. 353a) (see section 503A(d)(2)), compounded radiopharmaceuticals are not eligible for the exemptions under section 503A from section 505 of the FD&C Act (21 U.S.C. 355) (concerning new drug approval requirements), section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) (concerning labeling with adequate directions for use), and section 501(a)(2)(B) of the FD&C Act (21 U.S.C. 351(a)(2)(B)) (concerning current good manufacturing practice requirements). In addition, the FD&C Act does not provide an exemption for repackaged radiopharmaceuticals.
FDA developed this guidance document to describe the conditions under which the Agency generally does not intend to take action for violations of sections 505, 502(f)(1), and 501(a)(2)(B) of the FD&C Act when a State-licensed nuclear pharmacy, Federal facility, or other facility that is not an outsourcing facility and that holds a radioactive materials license for medical use issued by the Nuclear Regulatory Commission or by an Agreement State compounds or repackages radiopharmaceuticals for human use.
One of the guidance document's conditions is that the compounded radiopharmaceutical is not essentially a copy of an approved radiopharmaceutical. If a compounder intends to rely on a determination from a prescriber that there is a change between the compounded radiopharmaceutical and the comparable approved radiopharmaceutical that produces a clinical difference for an identified individual patient, either the prescribing practitioner or the compounder documents the determination on the prescription or order in writing. This documentation reflects a conversation with the prescribing practitioner, and the compounder maintains records of the prescription or order documenting this determination.
In the
(Comment 1) One commenter said documentation of a minor deviation from an approved radiopharmaceutical should remain at the facility that performed the minor deviation.
(Response 1) The documentation condition (
(Comment 2) One commenter supports the requirement for notating clinical differences, particularly for documenting both the change to the radiopharmaceutical and the reason that the change is important for the patient.
(Response 2) FDA concurs with this commenter's views about the importance of the documentation.
(Comment 3) One commenter recommended that the guidance document require written documentation when a commercially manufactured radiopharmaceutical is compounded for a patient because the radiopharmaceutical is unavailable due to a drug shortage.
(Response 3) The guidance document explains that FDA does not consider a compounded radiopharmaceutical to be essentially a copy of a marketed FDA-approved radiopharmaceutical if the FDA-approved radiopharmaceutical is on FDA's drug shortage list (see section 506E of the FD&C Act (21 U.S.C. 356e)) at the time of compounding and distribution. FDA maintains a database for drug shortages. If the Agency identifies a compounded radiopharmaceutical that has the characteristics of a drug that is “essentially a copy,” FDA intends to review its database to determine whether there was a shortage of the approved radiopharmaceutical at the time of compounding and distribution.
FDA estimates the burden of this collection of information as follows:
The total estimated third-party disclosure burden for the guidance document is shown above.
We estimate that a total of approximately 10 compounders annually (“No. of Respondents” in table 1, line 1) will consult a prescriber to determine whether they decided that the compounded radiopharmaceutical has a change that produces a clinical difference for an identified individual patient as compared to the comparable approved radiopharmaceutical. We estimate that compounders will document this determination on approximately 250 prescriptions or orders for compounded radiopharmaceuticals (“Total Annual Disclosures” in table 1, line 1). We estimate that the consultation between the compounder and the prescriber and noting this determination on each prescription or order that does not already document this determination will take approximately 3 minutes per prescription or order.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 15, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under the Safe Medical Devices Act of 1990 (Pub. L. 101-629), FDA may establish special controls, including performance standards, postmarket surveillance, patient registries, guidelines, and other appropriate actions it believes necessary to provide reasonable assurance of the safety and effectiveness of the device. The special control guidance serves as the special control for the automated blood cell separator device operating by centrifugal or filtration separation principle intended for the routine collection of blood and blood components (§ 864.9245 (21 CFR 864.9245)).
For currently marketed products not approved under the premarket approval process, the manufacturer should file with FDA for 3 consecutive years an annual report on the anniversary date of the device reclassification from class III to class II or on the anniversary date of the 510(k) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360(k)) clearance. Any subsequent change to the device requiring the submission of a premarket notification in accordance with section 510(k) of the FD&C Act should be included in the annual report. Also, a manufacturer of a device determined to be substantially equivalent to the centrifugal or filtration-based automated cell separator device intended for the routine collection of blood and blood components should comply with the same general and special controls.
The annual report should include, at a minimum, a summary of anticipated and unanticipated adverse events that have occurred and that are not required to be reported by manufacturers under Medical Device Reporting (MDR) (part 803 (21 CFR part 803)). The reporting of adverse device events summarized in an annual report will alert FDA to trends or clusters of events that might be a safety issue otherwise unreported under the MDR regulation. The report should also include any subsequent change to the preamendments class III device requiring a 30-day notice in accordance with 21 CFR 814.39(f).
Reclassification of this device from class III to class II relieves manufacturers of the burden of complying with the premarket approval requirements of section 515 of the FD&C Act (21 U.S.C. 360e) and may permit small potential competitors to enter the marketplace by reducing the burden. Although the special control guidance recommends that manufacturers of these devices file with FDA an annual report for 3 consecutive years, this would be less burdensome than the current postapproval requirements under 21 CFR part 814, subpart E, including the submission of periodic reports under 21 CFR 814.84.
Collecting or transfusing facilities, the intended users of the device, and the device manufacturers have certain responsibilities under the Federal regulations. For example, collecting or transfusing facilities are required to maintain records of any reports of complaints of adverse reactions (21 CFR 606.170), while the device manufacturer is responsible for conducting an investigation of each event that is reasonably known to the manufacturer and evaluating the cause of the event (§ 803.50(b) (21 CFR 803.50(b))). In addition, manufacturers of medical devices are required to submit to FDA individual adverse event reports of death, serious injury, and malfunctions (§ 803.50).
In the special control guidance document, FDA recommends that manufacturers include in their three annual reports a summary of adverse reactions maintained by the collecting or transfusing facility or similar reports of adverse events collected.
In the
We estimate the burden of the information collection as follows:
Based on FDA records, there are approximately three manufacturers of automated blood cell separator devices. We estimate that the manufacturers will spend approximately 5 hours preparing and submitting the annual report. The total burden hours are reduced from previous collections due to a decrease in the number of manufacturers.
Other burden hours required for § 864.9245 are reported and approved under OMB control number 0910-0120 (premarket notification submission 510(k), 21 CFR part 807, subpart E), and OMB control number 0910-0437 (MDR, part 803).
Office of the Secretary, Department of Health and Human Services.
Notice.
The Secretary of Health and Human Services (HHS) is issuing this notice pursuant to the Federal Food, Drug, and Cosmetic (FD&C) Act. On June 7, 2018, Patrick M. Shanahan, Deputy Secretary of Defense, determined in accordance with the Federal Food, Drug and Cosmetic Act, as delegated by the Secretary of Defense, that there is a military emergency or significant potential for a military emergency, involving a heightened risk to U.S. military forces of an attack with an agent or agents that may cause, or are otherwise associated with an imminently life-threatening and specific risk to those forces. More specifically, U.S. Forces are now deployed in multiple locations where they serve at
On the basis of this determination, on July 9, 2018 the Secretary declared that circumstances exist justifying the authorization of emergency use of Freeze Dried Plasma (FDP) to treat uncontrolled hemorrhage due to agents of military combat (
The declaration is effective July 9, 2018.
Robert P. Kadlec, MD, MTM&H, MS, Assistant Secretary for Preparedness and Response, Office of the Secretary, Department of Health and Human Services, 200 Independence Avenue SW, Washington, DC 20201, Telephone (202) 205-2882 (this is not a toll free number).
Under Section 564 of the FD&C Act, the Commissioner of the Food and Drug Administration (FDA), acting under delegated authority from the Secretary of HHS, may issue an Emergency Use Authorization (EUA) authorizing (1) the emergency use of an unapproved drug, an unapproved or uncleared device, or an unlicensed biological product; or (2) an unapproved use of an approved drug, approved or cleared device, or licensed biological product. Before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of four determinations: (1) A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear (“CBRN”) agent or agents; (2) the identification of a material threat by the Secretary of Homeland Security pursuant to section 319F-2 of the Public Health Service (PHS) Act
Based on any of these four determinations, the Secretary of HHS may then declare that circumstances exist that justify the EUA, at which point the FDA Commissioner may issue an EUA if the criteria for issuance of an authorization under section 564 of the FD&C Act are met. The determination of a military emergency or significant potential for a military emergency by the Deputy Secretary of Defense, and the declaration that circumstances exist justifying emergency use of French FDP by the Secretary of HHS, as described below, enable the FDA Commissioner to issue an EUA for FDP in emergency situations when plasma is not available for use or its use is not practical for emergency use under section 564 of the FD&C Act.
On June 7, 2018, Patrick M. Shanahan, Deputy Secretary of Defense, determined in accordance with section 564(b)(1)(B) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 360bbb-3(b)(1)(B), as delegated by the Secretary of Defense, that there is a military emergency or significant potential for a military emergency, involving a heightened risk to U.S. military forces of an attack with an agent or agents that may cause, or are otherwise associated with an imminently life-threatening and specific risk to those forces. The Deputy Secretary further stated that, more specifically, U.S. Forces are now deployed in multiple locations where they serve at heightened risk of an enemy attack with agents of military combat, including firearms, projectiles, and explosive devices, that may cause major and imminently life-threatening combat casualties involving uncontrolled hemorrhage.
On July 9, 2018, on the basis of the Deputy Secretary of Defense's determination that there is a military emergency or significant potential for a military emergency involving a heightened risk to U.S. military forces of an attack with an agent or agents that may cause, or are otherwise associated with an imminently life-threatening and specific risk to those forces, I declared that circumstances exist justifying the authorization of emergency use of FDP to treat uncontrolled hemorrhage due to agents of military combat (
Notice of any EUAs issued by the FDA Commissioner pursuant to this determination and declaration will be provided promptly in the
U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS).
Committee management; notice of Federal Advisory Committee meeting.
The Commercial Customs Operations Advisory Committee (COAC) will hold its public meeting on Wednesday, August 1, 2018 via webinar. The meeting will be open to the public.
The COAC will meet on Wednesday, August 1, 2018 from 1:00 p.m. to 4:00 p.m. EST. Please note that
The meeting will be held via webinar. The webinar link and conference phone number will be provided to all registrants by 5:00 p.m. on July 31, 2018. For information on services for individuals with disabilities or to request special assistance at the meeting, contact Ms. Florence Constant-Gibson, Office of Trade Relations, U.S. Customs & Border Protection, at (202) 344-1440 as soon as possible.
Members of the public who are pre-registered to attend via webinar and later need to cancel, please do so by 9:00 a.m. EST on August 1, 2018 utilizing the following link:
To facilitate public participation, we are inviting public comment on the issues the committee will consider prior to the formulation of recommendations as listed in the Agenda section below.
Comments must be submitted in writing no later than 5:00 p.m. EST on July 31, 2018, and must be identified by Docket No. USCBP-2018-0026, and may be submitted by
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There will be multiple public comment periods held during the meeting on August 1, 2018. Speakers are requested to limit their comments to two (2) minutes or less to facilitate greater participation. Contact the individual listed below to register as a speaker. Please note that the public comment period for speakers may end before the time indicated on the schedule that is posted on the CBP web page,
Ms. Florence Constant-Gibson, Office of Trade Relations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Room 3.5A, Washington, DC 20229; telephone (202) 344-1440; facsimile (202) 325-4290; or Mr. Bradley Hayes, Executive Director, Office of Trade Relations and Designated Federal Officer for COAC at (202) 344-1440.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix. The Commercial Customs Operations Advisory Committee (COAC) provides advice to the Secretary of Homeland Security, the Secretary of the Treasury, and the Commissioner of U.S. Customs and Border Protection (CBP) on matters pertaining to the commercial operations of CBP and related functions within the Department of Homeland Security and the Department of the Treasury.
The Designated Federal Officer will introduce the newly appointed, re-appointed, and alternate COAC members. The COAC will also hear from the following subcommittees on the topics listed below and then will review, deliberate, provide observations, and formulate recommendations on how to proceed:
1. The Exports Subcommittee will discuss a path forward for its work and the work of the Export Manifest Working Group for the 15th Term COAC. There will also be an update on the automated export manifest pilots, and on progress in implementing a post-departure filing pilot as part of the ocean pilot.
2. The Trusted Trader Subcommittee will present an update from the C-TPAT Minimum Security Criteria Working Group on its recommendation regarding CBP's plans to roll out new C-TPAT criteria. The subcommittee will also provide an update on the progress on the Trusted Trader Strategy and the formation of a new Trade Compliance Working Group.
3. The Trade Modernization Subcommittee will discuss the progress of the Regulatory Reform Working Group's efforts to identify and prioritize areas of regulations administered by CBP which can be reformed and the Foreign Trade Zone Regulations Working Group. In addition, the subcommittee will discuss the progress being made in the E-Commerce Working Group.
4. The Trade Enforcement and Revenue Collection (TERC) Subcommittee will provide updates from the Anti-Dumping/Countervailing Duties (AD/CVD), Bond, Forced Labor and Intellectual Property Rights Working Groups and will also speak to the lessons learned from the risk-based bonding tabletop exercise.
Meeting materials will be available by July 31, 2018 at:
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. 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:
Anna P. Guido, Reports Management
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 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
Copies of available documents submitted to OMB may be obtained from Ms. Downs.
This notice informs the public that HUD is seeking approval from OMB for the
The
The Summary Budget and the Annual Program Budget make up the budget of the grantee's annual extension request. Together the forms provide itemized expenses for anticipated program costs and a matrix of budgeted yearly costs. The budget forms show the services funded through the grant and demonstrate how matching funds, participant fees, and grant funds will be used in tandem to operate the grant program. Field staff approve the annual budget and request annual extension funds according to the budget. Field staff can also determine if grantees are meeting statutory and regulatory requirements through the evaluation of this budget.
HUD will use the Payment Voucher to monitor use of grant funds for eligible activities over the term of the grant. The Grantee may similarly use the Payment Voucher to track and record their requests for payment reimbursement for grant-funded activities.
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 is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. 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:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
The average time per study participant (up to 5,854 study participants) to complete the final follow-up survey is 30 minutes. The study mails study participant tracking letters twice per year. The average time for study participants' review of the letters and return of the tracking form is 5 minutes. The collection of co-borrower consent involves including the co-borrower consent form in the study's regular tracking letters, along with a request for the co-borrower to review, sign, and return the written consent form. For co-borrowers who do not return the written form, the study will collect consent verbally at the time of the interim survey. The study estimates that approximately 1,000 study participants will have co-borrowers. The co-borrowers' review of the co-borrower consent information and completion of the consent process is estimated to require approximately 5 minutes per co-borrower. The average time for lenders to prepare study participants' loan origination and performance data for the study team is 60 minutes. The study team will ask for this data semi-annually from each lender during the next 3 years from each lender. The total burden for the study is 3,949.64 hours: 3,903 hours for study participants, 83 hours for co-borrowers, and 6 hours for lenders.
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.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) is considering the modified competitive sale of 160 acres of public land in Emery County, Utah, at not less than the appraised fair market value to the adjacent landowners Hunter Prep Plant LLC, Ross Huntington, and Clinton Price.
In order to ensure consideration in the environmental analysis of the proposed sale, comments must be received by August 30, 2018.
Address all written comments concerning this notice to the BLM, Price Field Office, Attn: Hunter Plant Public Land Disposal, 125 S. 600 W, Price, Utah, 84501. Electronic mail will also be accepted and should be sent to
Jaydon Mead, Realty Specialist, (435) 636-3646, at the above address, or email to
The following described public land in Emery County, Utah, is being considered for modified competitive sale, subject to the applicable provisions of Sections 203 and 209 of the Federal Land Policy and Management Act of
The area described contains 160 acres, according to the official plat of the survey of the said land, on file with the BLM.
The proposed sale is in conformance with the BLM Price Field Office Resource Management Plan (PFO RMP) that was approved in October 2008. The parcel is identified for disposal by sale under Section 203 of FLPMA in the PFO RMP on page 2 of Appendix R-11. This parcel of land was identified for disposal because it is isolated from large blocks of public land making it difficult and uneconomic to manage. The land would be offered to the adjoining land owners on a modified competitive basis, with Hunter Prep Plant, LLC, as the designated bidder, giving them the right to meet the highest bid pursuant to 43 CFR 2711.3-2(a)(1). Conveyance of the identified public land would be subject to valid existing rights and encumbrances of record. Conveyance of any mineral interests pursuant to Section 209 of FLPMA will be analyzed during processing of the proposed sale. On July 16, 2018, the above-described land will be segregated from appropriation under the public land laws, including the mining laws, except the sale provisions of FLPMA. Until completion of the sale action, the BLM is no longer accepting land use applications affecting the identified public land. The segregative effect will terminate upon issuance of a patent, publication in the
For a period until August 30, 2018, interested parties and the general public may submit in writing any comments concerning the land being considered for sale, including notification of any encumbrances or other claims relating to the identified land, to the Field Manager, BLM Price Field Office, at the above address. In order to ensure consideration in the environmental analysis of the proposed sale, comments must be in writing and postmarked or delivered within 45 days of the initial date of publication of this notice. Comments, including names and street addresses of respondents, will be available for public review at the BLM Price Field Office during regular business hours, except holidays. Individual respondents may request confidentiality. Before including your address, phone number, email address, or other personal identifying information in your comment, be advised 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 from public review your personal identifying information, we cannot guarantee that we will be able to do so.
43 CFR 2711.1-2.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes a non-competitive (direct) sale of 1.31 acres of public land in Park County, Wyoming, to the Jeanne S. Moeller Trust pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, to resolve an unauthorized use of public lands. The sale will be subject to the applicable provisions of Section 203 of FLPMA, and BLM regulations. The appraised fair market value for the sale parcel is $1,250.
Interested parties may submit written comments regarding the sale until August 30, 2018.
Mail written comments concerning this notice to Field Manager, BLM Cody Field Office, 1002 Blackburn Street, Cody, Wyoming 82414.
Cara Blank, Realty Specialist, at the above address, by email at
The following described public land in Park County, Wyoming, has been examined and found suitable for sale under the authority of Section 203 of FLPMA, as amended:
The areas described contains 1.31 acres in Park County, Wyoming.
The sale is in conformance with the BLM Cody Resource Management Plan, which identifies this parcel of public land as suitable for disposal on page 105 and management action 6011, approved on September 18, 2015. The parcel is not needed for any other Federal purpose. The regulations at 43 CFR 2711.3-3(a) permit the BLM to make direct sales of public lands when a competitive sale is not appropriate and the public interest would be best served by a direct sale. A competitive sale is not appropriate because these lands contain improvements owned by the Jeanne S. Moeller Trust, rendering the land not usable by the public. The public interest would be served by resolving this inadvertent unauthorized use and receiving the fair market value for the lands.
On August 30, 2018, the above-described lands will be segregated from appropriation under the public lands laws, including the mining laws, except the sale provision of the FLPMA. Until completion of the sale action, the BLM is no longer accepting land use applications affecting the public land, except applications for the amendment of previously-filed, right-of-way applications or existing authorizations to increase the term of the grants in accordance with 43 CFR 2807.15 and 2886.15. The temporary segregative effect will terminate upon the issuance of a patent, publication in the
In addition, this Notice will publish once each week for three weeks in the Powell Tribune newspaper.
The following terms, conditions, and reservations will appear on the conveyance document for the sale parcel:
1. A right-of-way is reserved for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945);
2. A reservation of all minerals to the United States, and the right to prospect for, mine, and remove such minerals under applicable law and such regulations as established by the
3. The parcel is subject to valid existing rights.
Only written comments submitted by postal service or overnight mail will be considered as properly filed. Electronic mail, facsimile, or telephone comments will not be considered.
Before including your address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask the BLM in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so. Comments, including names and street addresses of respondents, will be available for public review at the BLM Cody Field Office during regular business hours, except holidays.
Any comments regarding the sale will be reviewed by the BLM Wyoming State Director or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action.
43 CFR 2711.
Bureau of Land Management, Interior.
Notice of official filing.
The plats of survey of the following described lands were officially filed in the Bureau of Land Management (BLM), Arizona State Office, Phoenix, Arizona, on the dates indicated. Surveys announced in this notice are necessary for the management of lands administered by the agencies indicated.
These plats will be available for inspection in the Arizona State Office, Bureau of Land Management, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427. Protests of the survey should be sent to the Arizona State Director at the above address.
Gerald Davis, Chief Cadastral Surveyor of Arizona; (602) 417-9558;
The supplemental plat, in one sheet, showing the amended lotting in section 30, Township 10 North, Range 10 East, accepted June 7, 2018, and officially filed June 8, 2018, for Group 9111, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat, in one sheet, representing the dependent resurvey of a portion of the north boundary of section 26, a portion of the lines of Homestead Entry Survey No. 577, and a metes-and-bounds survey, partially surveyed Township 11 North, Range 10 East, accepted January 17, 2018, and officially filed January 18, 2018, for Group 1177, Arizona.
This plat was prepared at the request of the United States Forest Service.
The plat, in one sheet, representing the Amended Protraction Diagram (APD), partially surveyed Township 11 North, Range 10 East, accepted January 17, 2018, and officially filed January 18, 2018, for Group 1177, Arizona.
This plat was prepared at the request of the United States Forest Service.
This plat supersedes the APD approved November 26, 2013.
The plat, in one sheet, representing the dependent resurvey of a portion of the west boundary of the Navajo Indian Reservation, from the southwest corner of the present reservation to the six mile corner, Township 21 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat, in one sheet, representing the dependent resurvey of a portion of the west boundary of the Navajo Indian Reservation, from the six mile corner to the twelve mile corner, Township 22 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat, in one sheet, representing the dependent resurvey of a portion of the west boundary of the Navajo Indian Reservation, from the twelve mile corner to the eighteen mile corner, a portion of the south boundary, and the establishment of the northeast township corner, partially surveyed Township 23 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat, in one sheet, representing the Amended Protraction Diagram (APD), partially surveyed Township 23 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
This plat supersedes that portion of Arizona Protraction Diagram No. 47 for this area.
The plat, in one sheet, representing the dependent resurvey of a portion of the west boundary of the Navajo Indian Reservation, from the eighteen mile corner to the intersection with the Little Colorado River, the meanders of the right bank of the Little Colorado River, and the establishment of the northeast township corner, partially surveyed Township 24 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat, in one sheet, representing the Amended Protraction Diagram (APD), partially surveyed, Township 24 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
This plat supersedes that portion of Arizona Protraction Diagram No. 47 for this area.
The plat, in five sheets, representing the dependent resurvey of a portion of the Sixth Standard Parallel North (south boundary), a portion of the west boundary, the meanders of a portion of the right bank of the Little Colorado River, and the establishment of the northeast township corner and the standard corner of Township 25 North, Ranges 11 and 12 East, partially surveyed, Township 25 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat, in one sheet, representing the Amended Protraction Diagram (APD), partially surveyed, Township 25 North, Range 11 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1169, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
This plat supersedes that portion of Protraction Diagram No. 47 for that area.
The plat, in one sheet, representing the Amended Protraction Diagram (APD), unsurveyed Township 3 North, Range 16 East, accepted April 26, 2018, and officially filed April 27, 2018.
This plat was prepared at the request of the Bureau of Land Management.
This plat supersedes the APD accepted November 26, 2013.
The plat, in one sheet, representing the survey of the south and east boundaries, the subdivisional lines, and the subdivision of certain sections, Township 40 North, Range 25 East, accepted April 26, 2018, and officially filed April 27, 2018, for Group 1173, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat, in one sheet, representing the dependent resurvey of the north boundary, Township 26 North, Range 29 East, the survey of the north boundary, the governing section line, a portion of the subdivisional lines, and the subdivision of certain sections, partially surveyed Township 27 North, Range 29 East, accepted June 11, 2018, and officially filed June 13, 2018, for Group 1178, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The supplemental plat, in one sheet, showing the amended lotting in section 34, Township 13 North, Range 2 West, accepted June 7, 2018, and officially filed June 8, 2018, for Group 9112, Arizona.
This plat was prepared at the request of the United States Forest Service.
The plat, in two sheets, representing the dependent resurvey of a portion of the east boundary, a portion of the subdivisional lines, a portion of patented mineral surveys in sections 1, 2, 11 and 12, and the metes-and-bounds survey of Tract 37, Township 2 South, Range 12 East, accepted June 28, 2018, and officially filed July 2, 2018, for Group 1168, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat, in three sheets, representing the dependent resurvey of portions of the south and west boundaries, a portion of the subdivisional lines, portions of certain patented mineral surveys in sections 29, 31 and 32, the survey of a portion of the center line of the right-of-way of U.S. Highway No. 60, and a metes-and-bounds survey in section 31, Township 1 South, Range 13 East, accepted June 28, 2018, and officially filed July 2, 2018, for Group 1168, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat, in one sheet, representing the dependent resurvey of a portion of the subdivisional lines, Township 2 South, Range 13 East, accepted June 28, 2018, and officially filed July 2, 2018, for Group 1168, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
A person or party who wishes to protest against any of these surveys must file a written notice of protest within 30 calendar days from the date of this publication with the Arizona State Director, Bureau of Land Management, stating that they wish to protest.
A statement of reasons for a protest may be filed with the notice of protest to the State Director, or the statement of reasons must be filed with the State Director within 30 days after the protest is filed. Before including your address, or other personal information in your protest, please be aware that your entire protest, 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.
43 U.S.C. Chap. 3.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM), Las Vegas Field Office, has examined and found suitable for classification for lease and subsequent conveyance to the City of Las Vegas, approximately 10 acres of public land in the Las Vegas Valley, Clark County, Nevada, under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended, and the Taylor Grazing Act. The City of Las Vegas proposes to use the 10 acres of land for a community park that will help meet future expanding needs in the northwestern part of the Las Vegas Valley.
Interested parties may submit written comments regarding the proposed classification for lease and conveyance of the land until August 30, 2018.
Mail written comments to the BLM Las Vegas Field Office, Attn: Vanessa L. Hice, Assistant Field Manager, 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130, or faxed to 775-515-5010.
Roger Ketterling at the above address, or by telephone at 702-515-5087, or by email to
The parcel is located south of Kyle Canyon Road, at Iron Mountain Road and Alpine Ridge Way in northwest Las Vegas and is legally described as:
The area described contains 10.00 acres in Clark County, Nevada.
In accordance with the R&PP Act, the City of Las Vegas has filed an application to develop the above-described land as a community park consisting of large and small picnic shelters, ball parks, children's play area, pedestrian walkways, parking and turf open space play areas. Additional detailed information pertaining to this Notice, plan of development, and site plan is located in case file N-94460, which is available for review at the BLM Las Vegas Field Office at the above address.
The City of Las Vegas is a political subdivision of the State of Nevada and is therefore a qualified applicant under the R&PP Act.
Subject to limitations prescribed by law and regulation, prior to patent
The land identified is not needed for any Federal purpose. The lease and/or conveyance is in conformance with the BLM Las Vegas Resource Management Plan decision LD-1, approved on October 5, 1998, and would be in the public interest. The Las Vegas Valley Disposal Boundary Environmental Impact Statement and Record of Decision issued on December 23, 2004, analyzed the sale parcels. A parcel-specific Determination of National Environmental Policy Act Adequacy (DNA), document number DOI-BLM-NV-S010-2017-0092-DNA, was prepared in connection with this Notice of Realty Action. The City of Las Vegas has not applied for more than the 640-acre limitation for public purpose uses in a year and has submitted a statement in compliance with the regulations at 43CFR 2741.4(b).
The lease and conveyance, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945); and
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine, and remove such deposits for the same under applicable law and such regulations as the Secretary of the Interior may prescribe.
Any lease and conveyance will also be subject to valid existing rights, will contain any terms or conditions required by law (including, but not limited to, any terms or conditions required by 43 CFR 2741.4), and will contain an appropriate indemnification clause protecting the United States from claims arising out of the lessee's/patentee's use, occupancy, or operations on the leased/patented lands. It will also contain any other terms and conditions deemed necessary and appropriate by the Authorized Officer.
Upon publication of this Notice in the
Interested parties may submit written comments on the suitability of the land for a public park in the City of Las Vegas. Comments on the classification are restricted to whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or if the use is consistent with State and Federal programs. Interested parties may also submit written comments regarding the specific use proposed in the application and plan of development, and whether the BLM followed proper administrative procedures in reaching the decision to lease and convey under the R&PP Act.
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 the BLM in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Only written comments submitted to the Field Manager, BLM Las Vegas Field Office, will be considered properly filed. Any adverse comments will be reviewed by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action.
In the absence of any adverse comments, the decision will become effective on September 14, 2018. The lands will not be available for lease and conveyance until after the decision becomes effective.
43 CFR 2741.5.
Bureau of Land Management.
Notice of realty action.
The Bureau of Land Management (BLM) is proposing a non-competitive (direct) sale of 0.16 acres of public land in Garfield County, Colorado, to Ida Hoaglund, to resolve an inadvertent unauthorized use and occupancy of public land.
Written comments must be received no later than August 30, 2018.
Mail written comments to Gloria Tibbetts, Acting Field Manager, Colorado River Valley Field Office, 2300 River Frontage Road, Silt, CO 81652. Written comments may also be submitted electronically to:
Monte Senor, Realty Specialist, BLM Colorado River Valley Field Office, telephone: (970) 876-9053, email:
The direct sale is a result of an IBLA-sanctioned settlement agreement to resolve an appeal of a BLM trespass decision involving an unauthorized use of public land. In addition to cash compensation for the sale, the proponent will donate two public access easements to the United States to improve public access for hunting and other recreational opportunities. The donation will be processed, separately from the subject sale, under appropriate acquisition regulations and guidelines.
The subject sale described in this notice will be processed pursuant to Section 203 of the Federal Land Policy and Management Act of 1976 (FLPMA) and BLM disposal regulations. The appraised fair market value of the sale parcel is $800. The proposed sale meets the criteria for direct sales established in FLPMA, Section 203(a)(3) and 43 CFR 2711.3-3(a). Direct sales (without competition) may be used when, in the opinion of the authorized officer, a competitive sale is not appropriate and the public interest would best be served by a direct sale. In accordance with BLM regulations, the BLM authorized officer finds the public interest would best be served by conducting a direct sale pursuant to 43 CFR 2711.3-3(a)(5). This regulation allows a direct sale when a need exists to resolve inadvertent unauthorized use or occupancy of the lands.
The subject parcel, which is located near Rulison Parachute Road and Cottonwood Creek in Garfield County, Colorado, is legally described as:
The area described contains 0.16 acres.
This sale is in conformance with the BLM Colorado River Valley Field Office Record of Decision and Approved Resource Management Plan, approved in June 2015.
A parcel-specific Environmental Assessment (EA) document numbered DOI-BLM-CO-N0400-2018-0008-EA was prepared in connection with this Notice of Realty Action. A copy of the EA is available online at:
The proposed direct sale would be conducted in compliance with regulations contained in 43 CFR 2711.3-3, which allows the BLM to conduct direct sales of public lands when a competitive sale is not appropriate and the public interest is best served by a direct sale. Pursuant to 43 CFR 2711.1-2, the land would not be sold until after September 14, 2018, and this notice will be published once a week for 3 weeks in the
The patent, if issued, would be subject to the following terms, conditions, and reservations:
1. Reservation of a right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C 945);
2. A reservation of all mineral deposits in the land so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe are reserved to the United States, together with all necessary access and exit rights;
3. Valid existing rights and encumbrances of record including, but not limited to, rights-of-way for roads and public utilities; and
4. An appropriate indemnification clause protecting the United States from claims arising out of the lessees/patentee's use, occupancy, or occupation on the leased/patented lands;
Information concerning the sale, appraisal, reservations, procedures and conditions, and other environmental documents that may appear in the BLM public files for this proposed action are available for review during normal business hours, Monday through Friday, at the BLM Colorado River Valley Field Office, except during Federal holidays. Submit comments on this notice to the address in the
Before including your address, phone number, email address, or other personally identifiable information in your comments, be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask the BLM in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so.
Any adverse comments regarding this sale will be reviewed by the BLM Colorado State Director or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action in whole or in part. In the absence of timely filed objections, this realty action will become the final determination of the Department of the Interior.
43 CFR 2711.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) is considering the direct sale (without competition) of 200 acres of public land in Emery County, Utah, at not less than the appraised fair market value to PacifiCorp.
In order to ensure consideration in the environmental analysis of the proposed sale, comments must be received by August 30, 2018.
Send all written comments concerning this notice to the BLM, Price Field Office, Attn: Price Land Sale, 125 S 600 W, Price, Utah, 84501. Electronic mail will also be accepted and should be sent to
Jaydon Mead, Realty Specialist, (435) 636-3646, at the above address, or email to
The following described public land in Emery County, Utah, is being considered for direct sale, subject to the applicable provisions of Sections 203 and 209 of the Federal Land Policy and Management Act of 1976 (FLPMA) and 43 CFR parts 2711 and 2720:
The area described contains 200 acres, according to the official plat of the survey of the said land, on file with the BLM.
The proposed sale is in conformance with the BLM Price Field Office Resource Management Plan (PFO RMP) that was approved in October 2008. The parcel is identified for disposal, by sale, under Section 203 of the FLPMA in the PFO RMP on page 2 of Appendix R-11. This parcel is isolated from large blocks of public land making it difficult and uneconomic to manage. Pursuant to 43 CFR 2711.3-3(a)(4), the land would be offered to Pacificorp on a non-competitive basis due to the lack of public access and their ownership of the surrounding lands. Conveyance of the identified public land would be subject to valid existing rights and encumbrances of record. Conveyance of any mineral interests pursuant to Section 209 of the FLPMA will be analyzed during processing of the proposed sale. On July 16, 2018, the above-described land will be segregated from appropriation under the public land laws, including the mining laws, except the sale provisions of the FLPMA. Until completion of the sale action, the BLM is no longer accepting land use applications affecting the identified public land. The segregative effect will terminate upon issuance of a patent, publication in the
For a period until August 30, 2018, interested parties and the general public may submit in writing any comments concerning the land being considered for sale, including notification of any encumbrances or other claims relating to the identified land, to the Field Manager, BLM Price Field Office, at the above address. In order to ensure consideration in the environmental analysis of the proposed sale, comments
Before including your address, phone number, email address, or other personal identifying information in your comment, be advised 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 from public review your personal identifying information, we cannot guarantee that we will be able to do so.
43 CFR 2711.1-2
National Park Service, Interior.
Notification of boundary revision.
The boundary of Indiana Dunes National Lakeshore is modified to include 1.30 acres of land located in Porter County, Indiana, immediately adjacent to the boundary of the national lakeshore. The United States will acquire the parcel by a land exchange.
The effective date of this boundary revision is July 16, 2018.
The map depicting this boundary revision is available for inspection at the following locations: National Park Service, Land Resources Program Center, Midwest Region, 601 Riverfront Drive, Omaha, Nebraska 68102 and National Park Service, Department of the Interior, 1849 C Street NW, Washington, DC 20240.
Chief Realty Officer Daniel L. Betts, National Park Service, Land Resources Program Center, Midwest Region, 601 Riverfront Drive, Omaha, Nebraska 68102, telephone (402) 661-1780.
Notice is hereby given that, pursuant to 54 U.S.C. 100506(c), the boundary of Indiana Dunes National Lakeshore is modified to include 1.30 acres of adjacent land identified as Tract 09-131. The boundary revision is depicted on Map No. 626/140729, dated January, 2018.
54 U.S.C. 100506(c) provides that, after notifying the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources, the Secretary of the Interior is authorized to make this boundary revision upon publication of notice in the
Office of Natural Resources Revenue, Interior.
Notice.
Final regulations for valuing gas produced from Indian leases, published August 10, 1999, require the Office of Natural Resources Revenue (ONRR) to determine major portion prices and notify industry by publishing the prices in the
The due date to pay additional royalties based on the major portion prices is September 28, 2018.
On August 10, 1999, ONRR's predecessor, the Minerals Management Service, published a final rule titled “Amendments to Gas Valuation Regulations for Indian Leases” effective January 1, 2000 (64 FR 43506). The gas valuation regulations apply to all gas production from Indian (Tribal or allotted) oil and gas leases, except leases on the Osage Indian Reservation.
The regulations require ONRR to publish major portion prices for each designated area not associated with an index zone for each production month beginning January 2000, as well as the due date for additional royalty payments.
For information on how to report additional royalties due to major portion prices, please refer to our Dear Payor letter dated December 1, 1999, on the ONRR website at
: Mineral Leasing Act of 1920, 30 U.S.C. 181
Office of the Secretary, Office of Natural Resources Revenue, Interior.
Notice.
The Office of Natural Resources Revenue (ONRR) is withdrawing the temporary physical address change published in the
The cancellation takes effect on July 16, 2018.
Darrel Redford, Supervisory Accountant, at (303) 231-3085, or email to
As of July 16, 2018, all courier services and deliveries should be made to ONRR, at the Denver Federal Center, Building 85, Entrance N-1, West 6th Ave. and Kipling St., Denver, Colorado 80225. Visitor parking is available in the north parking lot near Entrance N-1, which is the only entrance on the north side of Building 85. To request service, please use the courtesy phone and call Janet Giron at (303) 231-3088.
44 U.S.C. 1505.
Bureau of Ocean Energy Management, Interior.
Notice; reopening of comment period.
On April 11, 2018, the Bureau of Ocean Energy Management (BOEM) issued a Call for Information and Nominations for Commercial Leasing for Wind Power on the Outer Continental Shelf (OCS) in the New York Bight (Call). BOEM invited the submission of information and nominations for commercial wind leases that would allow a lessee to propose the construction of a wind energy project in the New York Bight, and to develop one or more projects, if approved, after further environmental review. Additionally, the announcement requested comments and information from interested and affected parties about site conditions, resources, and multiple uses in close proximity to, or within, the Call Areas. Information received will help inform BOEM's identification of Wind Energy Areas, which would be further evaluated for potential commercial wind leasing. The April 11 notice had a comment period deadline of May 29, 2018. Several stakeholders have contacted BOEM and requested additional time to submit comments. BOEM agrees that it would be helpful in this instance to reopen the comment period.
BOEM must receive nominations describing your interest in one or more, or any portion of, the Call Areas, by a postmarked date of July 30, 2018, for your nomination to be considered. BOEM requests comments or submissions of information to be postmarked or delivered by this same date. BOEM will consider only those nominations received during the comment period.
If you are submitting a nomination for a lease area in response to this Call, please submit your nomination by following the instructions in the “Required Nomination Information” section of the Call (83 FR 15602, 15617) to the following address: BOEM, Office of Renewable Energy Programs, 45600 Woodland Road (VAM-OREP), Sterling, Virginia 20166. In addition to a paper
Comments and other submissions of information may be submitted by either of the following two methods:
1.
2. U.S. Postal Service or other delivery service. Send your comments and information to the following address: Bureau of Ocean Energy Management, Office of Renewable Energy Programs, 45600 Woodland Road (VAM-OREP), Sterling, Virginia 20166.
All responses will be reported on
If you wish to protect the confidentiality of your nominations or comments, clearly mark the relevant sections and request that BOEM treat them as confidential. Please label privileged or confidential information “Contains Confidential Information,” and consider submitting such information as a separate attachment. Treatment of confidential information is addressed in the section of this Call entitled, “Protection of Privileged or Confidential Information.” Information that is not labeled as privileged or confidential will be regarded by BOEM as suitable for public release.
Luke Feinberg, BOEM, Office of Renewable Energy Programs, 45600 Woodland Road (VAM-OREP), Sterling, Virginia 20166, (703) 787-1705 or
Authority: This Call is published pursuant to subsection 8(p)(3) of the OCS Lands Act, 43 U.S.C. 1337(p)(3), which was added by section 388 of the Energy Policy Act of 2005 (EPAct), as well as the implementing regulations at 30 CFR part 585.
The responses to this Call could lead to the initiation of a competitive leasing process in some parts of the Call Areas (
BOEM will not treat as confidential any aggregate summaries of such information or comments not containing such information. Additionally, BOEM will not treat as confidential (1) the legal title of the nominating entity (for example, the name of your company), or (2) the list of whole or partial blocks that you are nominating. Information that is not labeled as privileged or confidential will be regarded by BOEM as suitable for public release.
Bureau of Ocean Energy Management, Interior.
Final notice of sale.
On Wednesday, August 15, 2018, the Bureau of Ocean Energy Management (BOEM) will open and publicly announce bids received for blocks offered in the Gulf of Mexico (GOM) Outer Continental Shelf (OCS) Region-wide Oil and Gas Lease Sale 251 (GOM Region-wide Sale 251), in accordance with the provisions of the Outer Continental Shelf Lands Act (OCSLA), as amended, and the implementing regulations issued pursuant thereto. The GOM Region-wide Sale 251 Final Notice of Sale (NOS) package contains information essential to potential bidders.
BOEM will hold GOM Region-wide Sale 251 at 9:00 a.m. on Wednesday, August 15, 2018. All times referred to in this document are Central Standard Time, unless otherwise specified.
Bids will be accepted prior to the bid receipt deadline at 1201 Elmwood Park Boulevard, New Orleans, Louisiana. Public bid reading for GOM Region-wide Sale 251 will be held at 1201 Elmwood Park Boulevard, New Orleans, Louisiana, but the venue will not be open to the general public, media, or industry during bid opening or reading. Bid opening will be available for public viewing on BOEM's website at
For more information on bid submission, see Section VII, “Bidding Instructions,” of this document.
Ann Glazner, Deputy Regional Supervisor, Office of Leasing and Plans, 504-736-
This Final NOS includes the following sections:
Whole and partial blocks that lie within the current boundaries of the Flower Garden Banks National Marine Sanctuary (in the East and West Flower Garden Banks and the Stetson Bank), identified in the following list:
Blocks that are adjacent to or beyond the United States Exclusive Economic Zone in the area known as the northern portion of the Eastern Gap:
All whole and portions of blocks deferred by the Gulf of Mexico Energy Security Act of 2006, Public Law 109-432:
Depth restricted, segregated block portion(s):
Block 299, Main Pass Area, South and East Addition (Louisiana Leasing Map LA10A), containing 1,125 acres, from the surface of the earth down to a subsea depth of 1,900 feet with respect to the following described portions:
The following blocks, whose lease status is currently under appeal:
Each lease is issued pursuant to OCSLA, 43 U.S.C. 1331-1356, as amended, and is subject to OCSLA implementing regulations promulgated pursuant thereto in 30 CFR part 556, and other applicable statutes and regulations in existence upon the effective date of the lease. Each lease is also subject to those applicable statutes enacted and regulations promulgated thereafter, except to the extent that the after-enacted statutes and regulations explicitly conflict with an express provision of the lease. Additionally, each lease is subject to amendments to statutes and regulations, including but not limited to OCSLA, that do not explicitly conflict with an express provision of the lease. The lessee expressly bears the risk that such new or amended statutes and regulations (
BOEM will use Form BOEM-2005 (February 2017) to convey leases resulting from this sale. This lease form may be viewed on BOEM's website at
Primary Terms are summarized in the following table:
(1) The primary term for a lease in water depths less than 400 meters issued as a result of this sale is five years. If the lessee spuds a well targeting hydrocarbons below 25,000 feet TVDSS within the first five years of the lease, then the lessee may earn an additional three years, resulting in an eight-year primary term. The lessee will earn the eight-year primary term when the well is drilled to a target below 25,000 feet TVDSS, or the lessee may earn the eight-year primary term in cases where the well targets, but does not reach, a depth below 25,000 feet TVDSS due to mechanical or safety reasons, where sufficient evidence is provided that it did not reach that target for reasons beyond the lessee's control.
In order to earn the eight-year extended primary term, the lessee is required to submit to the BOEM GOM Regional Supervisor for Leasing and Plans, as soon as practicable, but in no instance more than 30 days after completion of the drilling operation, a letter providing the well number, spud date, information demonstrating a target below 25,000 feet TVDSS and whether that target was reached, and if applicable, any safety, mechanical, or other problems encountered that prevented the well from reaching a depth below 25,000 feet TVDSS. This letter must request confirmation that the lessee earned the eight-year primary term. The BOEM GOM Regional Supervisor for Leasing and Plans will confirm in writing, within 30 days of receiving the lessee's letter, whether the lessee has earned the extended primary term and update BOEM records accordingly. The extended primary term is not effective unless and until the lessee receives confirmation from BOEM.
A lessee that has earned the eight-year primary term by spudding a well with a hydrocarbon target below 25,000 feet TVDSS during the standard five-year primary term of the lease will not be granted a suspension for that same period under the regulations at 30 CFR 250.175 because the lease is not at risk of expiring.
(2) The primary term for a lease in water depths ranging from 400 to less than 800 meters issued as a result of this sale is five years. If the lessee spuds a well within the five-year primary term of the lease, the lessee will earn an additional three years, resulting in an eight-year primary term.
In order to earn the eight-year primary term, the lessee is required to submit to the BOEM GOM Regional Supervisor for Leasing and Plans, as soon as practicable, but in no instance more than 30 days after spudding a well, a letter providing the well number and spud date, and requesting confirmation that the lessee earned the eight-year extended primary term. Within 30 days of receipt of the request, the BOEM GOM Regional Supervisor for Leasing and Plans will provide written confirmation of whether the lessee has earned the extended primary term and update BOEM records accordingly. The extended primary term is not effective unless and until the lessee receives confirmation from BOEM.
(3) The standard primary term for a lease in water depths ranging from 800 to less than 1,600 meters issued as a result of this sale is seven years. If the lessee spuds a well within the standard seven-year primary term, the lessee will earn an additional three years, resulting in a ten-year extended primary term.
In order to earn the ten-year primary term, the lessee is required to submit to the BOEM GOM Regional Supervisor for Leasing and Plans, as soon as practicable, but in no instance more than 30 days after spudding a well, a letter providing the well number and spud date, and requesting confirmation that the lessee earned the ten-year primary term. Within 30 days of receipt of the request, the BOEM GOM Regional Supervisor for Leasing and Plans will provide written confirmation of whether the lessee has earned the extended primary term and update BOEM records accordingly. The extended primary term is not effective unless and until the lessee receives confirmation from BOEM.
(4) The primary term for a lease in water depths 1,600 meters or greater issued as a result of this sale will be ten years.
• $25.00 per acre or fraction thereof for blocks in water depths less than 400 meters; and
• $100.00 per acre or fraction thereof for blocks in water depths 400 meters or deeper.
BOEM will not accept a bonus bid unless it provides for a cash bonus in an amount equal to, or exceeding, the specified minimum bid of $25.00 per acre or fraction thereof for blocks in water depths less than 400 meters, and $100.00 per acre or fraction thereof for blocks in water depths 400 meters or deeper.
Annual rental rates are summarized in the following table:
Any lessee with a lease in less than 400 meters water depth who earns an eight-year primary term will pay an escalating rental rate as shown above. The rental rates after the fifth year for blocks in less than 400 meters water depth will become fixed and no longer escalate, if another well is spudded targeting hydrocarbons below 25,000 feet TVDSS after the fifth year of the lease, and BOEM concurs that such a well has been spudded. In this case, the rental rate will become fixed at the rental rate in effect during the lease year in which the additional well was spudded. Royalty Rate
• 12.5 percent for leases situated in water depths less than 200 meters; and,
• 18.75 percent for leases situated in water depths of 200 meters and deeper.
• $7.00 per acre or fraction thereof per year for blocks in water depths less than 200 meters; and
• $11.00 per acre or fraction thereof per year for blocks in water depths 200 meters and deeper.
The issuance of leases with Royalty Suspension Volumes (RSVs) or other forms of royalty relief is authorized under existing BOEM regulations at 30 CFR part 560. The specific details relating to eligibility and implementation of the various royalty relief programs, including those involving the use of RSVs, are codified in Bureau of Safety and Environmental Enforcement (BSEE) regulations at 30 CFR part 203.
In this sale, the only royalty relief program being offered that involves the provision of RSVs relates to the drilling of ultra-deep wells in water depths of less than 400 meters, as described in the following section.
Leases issued as a result of this sale may be eligible for RSV incentives on gas produced from ultra-deep wells pursuant to 30 CFR part 203. These regulations implement the requirements of the Energy Policy Act of 2005 (42 U.S.C. 13201
Consistent with the Record of Decision for the Final Programmatic Environmental Impact Statement for the 2017-2022 Five Year OCS Oil and Gas Leasing Program, Stipulation No. 5 (Topographic Features) and Stipulation No. 8 (Live Bottom) will apply to every lease sale in the GOM Program Area. One or more of the remaining eight stipulations listed below may be applied to leases issued as a result of this sale. The blocks to which particular stipulations will apply is identified on the map “Final, Gulf of Mexico Region-wide Oil and Gas Lease Sale 251, August 15, 2018, Stipulations and Deferred Blocks” included in the Final NOS package. The detailed text of the following stipulations is contained in the “Lease Stipulations” section of the Final NOS package.
Information to Lessees (ITLs) provides detailed information on certain issues pertaining to specific oil and gas lease sales. The detailed text of the ITLs for this sale is contained in the “Information to Lessees” section of the Final NOS package and covers the following topics:
The maps pertaining to this lease sale may be viewed on BOEM's website at
The lease terms and economic conditions associated with leases of certain blocks are shown on the map entitled, “Final, Gulf of Mexico Region-wide Oil and Gas Lease Sale 251, August 15, 2018, Lease Terms and Economic Conditions.”
The lease stipulations and the blocks to which they apply are shown on the map entitled, “Final, Gulf of Mexico Region-wide Oil and Gas Lease Sale 251, August 15, 2018,
Bids may be submitted in person or by mail at the address below in the “Mailed Bids” section. Bidders submitting their bid(s) in person are advised to email
For each block bid upon, a separate sealed bid must be submitted in a sealed envelope (as described below) and include the following:
• Total amount of the bid in whole dollars only;
• Sale number;
• Sale date;
• Each bidder's exact name;
• Each bidder's proportionate interest, stated as a percentage, using a maximum of five decimal places (
• Typed name and title, and signature of each bidder's authorized officer;
• Each bidder's qualification number;
• Map name and number or Official Protraction Diagram (OPD) name and number;
• Block number; and
• Statement acknowledging that the bidder(s) understand that this bid legally binds the bidder(s) to comply with all applicable regulations, including those requiring it to post a deposit in the amount of one-fifth of the bonus bid amount for any tract bid upon and make payment of the balance of the bonus bid and first year's rental upon BOEM's acceptance of high bids.
The information required to accompany the bid(s) is specified in the document “Bid Form” that is available in the Final NOS package. A blank bid form is provided in the Final NOS package for convenience and may be copied and completed with the necessary information described above.
Each bid must be submitted in a separate sealed envelope labeled as follows:
• “Sealed Bid for GOM Region-wide Sale 251, not to be opened until 9 a.m. Wednesday, August 15, 2018;”
• Map name and number or OPD name and number;
• Block number for block bid upon; and
• The exact name and qualification number of the submitting bidder only.
The Final NOS package includes a sample bid envelope for reference.
If bids are mailed, please address the envelope containing the sealed bid envelope(s) as follows: Attention: Leasing and Financial Responsibility Section, BOEM Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard GM 266A, New Orleans, Louisiana 70123-2394. Contains Sealed Bids for GOM Region-wide Sale 251. Please Deliver to Mr. Greg Purvis, 2nd Floor, Immediately.
Bidders that are not currently an OCS oil and gas lease record title holder or designated operator, or those that ever have defaulted on a one-fifth bonus bid deposit, by Electronic Funds Transfer (EFT) or otherwise, must guarantee (secure) the payment of the one-fifth bonus bid deposit prior to bid submission using one of the following four methods:
• Provide a third-party guarantee;
• Amend an area-wide development bond via bond rider;
• Provide a letter of credit; or
• Provide a lump sum payment in advance via EFT.
For more information on EFT procedures, see Section X of this document entitled, “The Lease Sale.” Please allow sufficient time for your EFT payment to process so that it can be confirmed prior to your bid submission.
Prior to bidding, each bidder should file the Equal Opportunity Affirmative Action Representation Form BOEM-2032 (October 2011,
The GDIS is composed of three parts:
(1) The “Statement” page includes the company representatives' information and lists of blocks bid on that used proprietary data and those blocks bid on that did not use proprietary data;
(2) The “Table” listing the required data about each proprietary survey used (see below); and
(3) The “Maps” being the live trace maps for each proprietary survey that is identified in the GDIS statement and table.
Every bidder, including joint bidders, must provide all applicable parts of the GDIS at the time of bid submission. If the data you are using has been reprocessed in any way, externally or “in-house,” it is considered proprietary data and is no longer considered speculative. All three parts of the GDIS must be submitted for proprietary data.
The GDIS must be submitted in a separate and sealed envelope, and must identify all proprietary data, which includes reprocessed speculative data, and/or any Controlled Source Electromagnetic surveys, Amplitude Versus Offset (AVO), Gravity, or Magnetic data; or other information used as part of the decision to bid or participate in a bid on the block. The bidder and joint bidder must also include a live trace map (
The GDIS statement must include the name, phone number, and full address of a contact person and an alternate who are both knowledgeable about the geophysical information and data listed and who are available for 30 days after the sale date. The GDIS statement also must include a list of all blocks bid upon that did not use proprietary or reprocessed pre- or post-stack geophysical data and information as part of the decision to bid or to participate as a joint bidder in the bid. The GDIS statement must be submitted even if no proprietary geophysical data and information were used in bid preparation for the block.
The GDIS table should have columns that clearly state:
• The sale number;
• The bidder company's name;
• The Joint Bidder Company (if applicable);
• The block area and block number bid on;
• The owner of the original data set (
• The industry's original name of the survey (
• The BOEM permit number for the survey;
• Whether the data set is a fast track version;
• Whether the data is speculative or proprietary;
• The data type (
• The Migration algorithm (
• The Live Proprietary Survey Coverage (2-D miles 3-D Blocks);
• The computer storage size, to the nearest gigabyte, of each seismic data and velocity volume used to evaluate the lease block;
• The name of the party that reprocessed the data and the date the final reprocessing was completed (month and year);
• If data was previously sent to BOEM, list the sale number and date of the sale for which it was used; and
• Whether proprietary or Speculative AVO/AVA (PROP/SPEC) was used.
The computer storage size information will be used in estimating the reproduction costs for each data set, if applicable. The availability of reimbursement of production costs will be determined consistent with 30 CFR 551.13.
BOEM reserves the right to query about alternate data sets, to quality check, and to compare the listed and alternative data sets to determine which data set most closely meets the needs of the fair market value determination process. For an example of the preferred format of the table, see “Example of Preferred Format” that is included in the Final NOS package. A blank digital version of the preferred table can be accessed on the GOM Region-wide Sale 251 web page at
The GDIS maps are live trace maps (
Pursuant to 30 CFR 551.12 and 30 CFR 556.501, as a condition of the sale, the BOEM Gulf of Mexico requires that all bidders and joint bidders submit the proprietary data identified on their GDIS within 30 days after the lease sale (unless they are notified after the lease sale that BOEM has withdrawn the request). This requirement only pertains to proprietary data that is not commercially available. Commercially available data is not required to be submitted to BOEM, and reimbursement will not be provided if such data is submitted by a bidder. The BOEM Gulf of Mexico Regional Director will notify bidders and joint bidders of any withdrawal of the request, for all or some of the proprietary data identified on the GDIS, within 15 days of the lease sale. Pursuant to 30 CFR part 551 and 30 CFR 556.501, as a condition of this sale, all bidders that are required to submit data must ensure that the data is received by BOEM no later than the 30th day following the lease sale, or the next business day if the submission deadline falls on a weekend or Federal holiday.
The data must be submitted to BOEM at the following address: Bureau of Ocean Energy Management, Resource Studies, GM 881A, 1201 Elmwood Park Blvd., New Orleans, LA 70123-2304.
BOEM recommends that bidders mark the submission's external envelope as “Deliver Immediately to DASPU.” BOEM also recommends that the data be submitted in an internal envelope, or otherwise marked, with the following designation: “Proprietary Geophysical Data Submitted Pursuant to GOM Region-wide Sale 251 and used during <Bidder Name's> evaluation of Block <Block Number>.”
In the event a person supplies any type of data to BOEM, that person must meet the following requirements to qualify for reimbursement:
(1) The person must be registered with the System for Award Management (SAM), formerly known as the Central Contractor Registration (CCR). CCR usernames will not work in SAM. A new SAM User Account is needed to register or update an entity's records. The website for registering is
(2) The persons must be enrolled in the Department of Treasury's Invoice Processing Platform (IPP) for electronic invoicing. The person must enroll in the IPP at
(3) The persons must have a current Online Representations and Certifications Application (ORCA) at
Bidders should refer to Section X of this document, “The Lease Sale: Acceptance, Rejection, or Return of Bids,” regarding a bidder's failure to comply with the requirements of the Final NOS, including any failure to submit information as required in the Final NOS or Final NOS package.
BOEM requests that bidders provide this information in the suggested format prior to, or at the time of, bid submission. The suggested format is included in the Final NOS package. The form must not be enclosed inside the sealed bid envelope.
BOEM may require bidders to submit other documents in accordance with 30 CFR 556.107, 30 CFR 556.401, 30 CFR 556.501, and 30 CFR 556.513.
On May 15, 2018, BOEM published the most recent List of Restricted Joint Bidders in the
All signatories executing documents on behalf of bidder(s) must execute the same in conformance with the BOEM qualification records. Bidders are advised that BOEM considers the signed bid to be a legally binding obligation on the part of the bidder(s) to comply with all applicable regulations, including that requiring payment of one-fifth of the bonus bid on all high bids. A statement to this effect is included on each bid form (see the document “Bid Form” that is included in the Final NOS package).
BOEM warns bidders against violation of 18 U.S.C. 1860, prohibiting unlawful combination or intimidation of bidders.
Bids may be withdrawn only by written request delivered to BOEM prior to the Bid Submission Deadline. The withdrawal request must be on company letterhead and must contain the bidder's name, its BOEM
Minimum bonus bid calculations, including rounding, for all blocks are shown in the document “List of Blocks Available for Leasing” included in the Final NOS package. The bonus bid amount must be stated in whole dollars. If the acreage of a block contains a decimal figure, then prior to calculating the minimum bonus bid, BOEM rounded up to the next whole acre. The appropriate minimum rate per acre was then applied to the whole (rounded up) acreage. The bonus bid amount must be greater than or equal to the minimum bonus bid in whole dollars.
The Final NOS package includes instructions, samples, and/or the preferred format for the following items. BOEM strongly encourages bidders to use the recommended formats. If bidders use another format, they are responsible for including all the information specified for each item in the Final NOS package.
Sealed bids received in response to the Final NOS will be opened at the place, date, and hour specified under the
Each bidder submitting an apparent high bid must submit a bonus bid deposit to the Office of Natural Resources Revenue (ONRR) equal to one-fifth of the bonus bid amount for each such bid. A copy of the notification of the high bidder's one-fifth bonus bid amount may be obtained on the BOEM website at
BOEM requires bidders to use EFT procedures for payment of one-fifth bonus bid deposits for GOM Region-wide Sale 251 following the detailed instructions contained on the ONRR Payment Information web page at
The United States reserves the right to withdraw any block from this lease sale prior to issuance of a written acceptance of a bid for the block.
The United States reserves the right to reject any and all bids. No bid will be accepted, and no lease for any block will be awarded to any bidder, unless:
(1) The bidder has complied with all requirements of the Final NOS, including those set forth in the documents contained in the Final NOS package, and applicable regulations;
(2) The bid is the highest valid bid; and
(3) The amount of the bid has been determined to be adequate by the authorized officer.
Any bid submitted that does not conform to the requirements of the Final NOS and Final NOS package, OCSLA, or other applicable statute or regulation will be rejected and returned to the bidder. The U.S. Department of Justice and the Federal Trade Commission will review the results of the lease sale for antitrust issues prior to the acceptance of bids and issuance of leases.
To ensure that the U.S. Government receives a fair return for the conveyance of leases from this sale, high bids will be evaluated in accordance with BOEM's bid adequacy procedures, which are available at
BOEM requires each bidder awarded a lease to:
(1) Execute all copies of the lease (Form BOEM-2005 (February 2017), as amended);
(2) Pay by EFT the balance of the bonus bid amount and the first year's rental for each lease issued in accordance with the requirements of 30 CFR 218.155 and 556.520(a); and
(3) Provide to BOEM the bonding required by 30 CFR part 556, subpart I.
ONRR requests that bidders use only one transaction to pay the balance of the bonus bid amount and the first year's rental. When ONRR receives such payment, the bidder awarded the lease may not request a refund of the balance bonus bid amount or first year's rental payment.
The BOEM Gulf of Mexico RD has the discretion to change any date, time, and/or location specified in the Final NOS package in the case of an event that the BOEM Gulf of Mexico RD deems may interfere with the carrying out of a fair and orderly lease sale process. Such events could include, but are not limited to, natural disasters (
Bureau of Ocean Energy Management, Interior.
Notice of availability of a Record of Decision.
The Bureau of Ocean Energy Management (BOEM) is announcing the availability of a Record of Decision for proposed Gulf of Mexico (GOM) regionwide oil and gas Lease Sale 251. This Record of Decision identifies BOEM's selected alternative for proposed Lease Sale 251, which is analyzed in the
The Record of Decision is available on BOEM's website at
For more information on the Record of Decision, you may contact Mr. Greg Kozlowski, Deputy Regional Supervisor, Office of Environment, by telephone at 504-736-2512 or by email at
In the 2018 GOM Supplemental EIS, BOEM evaluated five alternatives in regard to proposed Lease Sale 251. These alternatives are summarized below:
A total of 207 blocks within the CPA and 160 blocks in the WPA are affected by the Topographic Features Stipulation. There are currently no identified topographic features protected under this stipulation in the EPA. The Live Bottom Stipulation covers the pinnacle trend area of the CPA, affecting a total of 74 blocks. Under Alternative D, the number of blocks that would become unavailable for lease represents only a small percentage of the total number of blocks to be offered under Alternative A, B, or C (<4%, even if blocks subject to all three stipulations were excluded). Therefore, Alternative D could reduce offshore infrastructure and activities in the pinnacle trend area, but Alternative D also shifts the location of offshore infrastructure and activities farther from these sensitive zones and would not lead to a reduction in overall offshore infrastructure and activities.
The additional eight lease stipulations for proposed regionwide Lease Sale 251 are the Military Areas Stipulation; the Evacuation Stipulation; the Coordination Stipulation; the Blocks South of Baldwin County, Alabama, Stipulation; the Protected Species Stipulation; the United Nations Convention on the Law of the Sea Royalty Payment Stipulation; the Below Seabed Operations Stipulation; and the Stipulation on the Agreement between the United States of America and the United Mexican States Concerning
After careful consideration, BOEM has selected the preferred alternative (Alternative A) in the 2018 GOM Supplemental EIS for proposed Lease Sale 251. BOEM's selection of the preferred alternative meets the purpose and need for the proposed action, as identified in the 2018 GOM Supplemental EIS, and provides for orderly resource development with protection of the human, marine, and coastal environments while also ensuring that the public receives an equitable return for these resources and that free-market competition is maintained.
This Notice of Availability of a Record of Decision is published pursuant to the regulations (40 CFR part 1505) implementing the provisions of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
On the basis of the record
The Commission, pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)), instituted these investigations effective June 2, 2017, following receipt of a petition filed with the Commission and Commerce by Archer Daniels Midland Company, Decatur, Illinois; Cargill, Incorporated, Minneapolis, Minnesota; and Tate & Lyle Ingredients Americas, LLC, Hoffman Estates, Illinois. The Commission scheduled the final phase of the investigations following notification of a preliminary determination by Commerce that imports of citric acid and certain citrate salts from Belgium, Colombia, and Thailand were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigation and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)). It completed and filed its determinations in these investigations on July 10, 2018. The views of the Commission are contained in USITC Publication 4799 (July 2018), entitled
By order of the Commission.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before September 14, 2018.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DRW, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Assistant Administrator of the DEA Diversion Control Division (“Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.33(a), this is notice that on November 2, 2017, Siegfried USA, LLC, 33 Industrial Park Rd., Pennsville, NJ 08070 applied to be registered as a bulk manufacturer for the basic classes of controlled substances:
The company plans to manufacture the listed controlled substances in bulk for sale to its customers.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before August 15, 2018. Such persons may also file a written request for a hearing on the application on or before August 15, 2018.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DRW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All request for hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DRW, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been delegated to the Assistant Administrator of the DEA Diversion Control Division (“Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on June 12, 2018, Cerilliant Corporation, 811 Paloma Drive, Suite A, Round Rock, Texas 78665 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import small quantities of the listed controlled substances for the manufacture of analytical reference standards and distribution to their research and forensic customers.
Bureau of Justice Statistics, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, 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 60 days until September 14, 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 Barbara Oudekerk, Statistician, Bureau of Justice Statistics, 810 Seventh Street NW, Washington, DC 20531 (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.
The Legal Services Corporation's Board of Directors and its six committees will meet July 25-26, 2018. On Wednesday, July 25, the first meeting will commence at 3:00 p.m., Mountain Daylight Time (MDT), with the meetings thereafter commencing promptly upon adjournment of the immediately preceding meeting. On Thursday, July 26, the first meeting will commence at 9:00 a.m., (MDT), with the next meeting commencing promptly upon adjournment of the immediately preceding meeting. The closed session meeting of the Board of Directors will commence promptly upon adjournment of the open session of the Board of Directors meeting.
The Grove Hotel, 245 South Capitol Blvd., Boise, Idaho 83702.
Unless otherwise noted herein, the Board and all committee meetings will be open to public observation. Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348
• Once connected to the call, your telephone line will be
• To participate in the meeting during public comment press #6 to “UNMUTE” your telephone line, once you have concluded your comments please press *6 to “MUTE” your line.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the presiding Chair may solicit comments from the public.
* Please note that all times in this notice are in
** Any portion of the closed session consisting solely of briefings does not fall within the Sunshine Act's definition of the term “meeting” and, therefore, the requirements of the Sunshine Act do not apply to such portion of the closed session. 5 U.S.C. 552b(a)(2) and (b).
A verbatim written transcript will be made of the closed session of the Board, Institutional Advancement Committee, and Audit Committee meetings. The transcript of any portions of the closed sessions falling within the relevant provisions of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(6) and (10), will not be available for public inspection.
A copy of the General Counsel's Certification that, in his opinion, the closing is authorized by law will be available upon request.
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended, (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of a revision to an announcement of meetings for the transaction of National Science Board business.
83 FR 32330-31, published on July 12, 2018.
Presentation and Panel Discussion—“Being Smart About Artificial Intelligence (AI)”
Open meetings in the boardroom are webcast. In addition to the regular link for the July 2018 meetings at
Brad Gutierrez,
Nuclear Regulatory Commission.
License amendment request; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Facility Operating License No. NPF-90 for the Watts Bar Nuclear Plant (Watts Bar or WBN), Unit 1. The proposed amendment would modify the Watts Bar, Unit 1, Technical Specifications (TSs) to extend Surveillance Requirements (SRs) 3.3.1.5, 3.3.2.2, and 3.3.6.2.
Comments must be filed by August 15, 2018. Requests for a hearing or petitions for leave to intervene must be filed by September 14, 2018.
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
Natreon Jordan, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7410; email:
Please refer to Docket ID NRC-2018-0144 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-2018-0144 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 Facility Operating
The proposed amendment would amend the Watts Bar, Unit 1, TS SR 3.0.2 and certain SRs in Table SR 3.0.2-1 to permit the extension of the above SRs, so that Tennessee Valley Authority (the licensee) can perform the SRs listed in Table 1 of the enclosure to the licensee's application during the Unit 1 outage (U1R15). Further, the licensee will perform these SRs if Unit 1 enters Mode 5 prior to its U1R15 outage.
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 section 50.92 of title 10 of the
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The requested action is an extension to the performance interval of a limited number of TS surveillance requirements. The performance of these surveillances, or the extension of these surveillances, is not a precursor to an accident. Performing these surveillances or failing to perform these surveillances does not affect the probability of an accident. Therefore, the proposed delay in performance of the SRs in this amendment request does not increase the probability of an accident previously evaluated.
A delay in performing these surveillances does not result in a system being unable to perform its required function. In the case of this one-time extension request, the short period of additional time that the systems and components will be in service before the next performance of the surveillance will not affect the ability of those systems to operate as designed. Therefore, the systems required to mitigate accidents will remain capable of performing their required function. No new failure modes have been introduced because of this action and the consequences remain consistent with previously evaluated accidents. On this basis, the proposed delay in performance of the SRs in this amendment request does not involve a significant increase in the consequences of an accident.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment does not involve a physical alteration of any system, structure, or component (SSC) or a change in the way any SSC is operated. The proposed amendment does not involve operation of any SSCs in a manner or configuration different from those previously recognized or evaluated. No new failure mechanisms will be introduced by the one-time SR extensions being requested.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed amendment is a one-time extension of the performance interval of a limited number of TS SRs. Extending these SRs does not involve a modification of any TS limiting condition for operation. Extending these SRs does not involve a change to any limit on accident consequences specified in the license or regulations. Extending these SRs does not involve a change in how accidents are mitigated or a significant increase in the consequences of an accident. Extending these SRs does not involve a change in a methodology used to evaluate consequences of an accident. Extending these SRs does not involve a change in any operating procedure or process.
Operating history has demonstrated that the WBN Units 1 and 2 SSPS [solid state protection system] is highly reliable. A review of the test results has not revealed any automatic logic failures. Based on the limited additional period of time that the systems and components will be in service before the surveillances are next performed, as well as the operating experience that these surveillances are typically successful when performed, it is reasonable to conclude that the margins of safety associated with these SRs will not be affected by the requested extension.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
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 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
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 Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
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 July 8, 2018 (ADAMS Accession No. ML18189A001).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities.”
Submit comments by August 15, 2018.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0143), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street, NW Washington, DC 20503; email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0009 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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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “10 CFR [
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Renewed Facility Operating License No. NPF-21, issued on May 22, 2012, and held by Energy Northwest (the licensee) for the operation of Columbia Generating Station (Columbia), located in Benton County, Washington. The proposed amendment would revise the Environmental Protection Plan (Non-Radiological) (EPP), contained in Appendix B to the Columbia renewed facility operating license. The NRC is issuing a final environmental assessment (EA) and finding of no significant impact (FONSI) associated with the proposed license amendment.
The EA and FONSI referenced in this document is available on July 16, 2018.
Please refer to Docket ID NRC-2018-0146 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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John Klos, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5136; email:
The NRC is considering issuance of an amendment to Renewed Facility Operating License No. NPF-21 issued to
Columbia is a single unit plant with a boiling water reactor and a closed-cycle cooling system that withdraws water from and discharges water to the Columbia River. The facility occupies approximately 1,089 acres (441 hectares) of land leased from the U.S. Department of Energy within the Hanford Reservation. The leased land is located in Benton County, Washington, 12 miles (19 kilometers) northwest of Richland and approximately 160 miles (257 kilometers) southeast of Seattle. The Columbia River borders the site to the east and flat rolling hills surround the site.
The U.S. Atomic Energy Commission, the NRC's predecessor agency, and the NRC have previously conducted environmental reviews of Columbia operations in several documents, which contain more detailed descriptions of the plant site and environs. Those documents include the Final Environmental Statement related to construction of the facility in December 1972 (ADAMS Accession No. ML101870543); the Final Environmental Statement related to initial operation of the facility in December 1981 (ADAMS Accession No. ML100570374); and NUREG-1437, “Generic Environmental Impact Statement [GEIS] for License Renewal of Nuclear Plants, Supplement 47, Regarding Columbia Generating Station—Final Report,” dated April 2012 and its associated GEIS documents (ADAMS Package Accession No. ML12097A267).
The proposed action would add language in Section 4.2, “Environmental Monitoring,” of the Columbia EPP to require Energy Northwest to adhere to the specific requirements within the ITS in the currently applicable biological opinion. The proposed action would be in accordance with the licensee's application dated December 18, 2017.
By amending Section 4.2 of the EPP to state that Energy Northwest must adhere to the ITS in the currently applicable biological opinion, the proposed action would require Energy Northwest's compliance with the National Marine Fisheries Service's (NMFS) biological opinion, dated March 10, 2017 (ADAMS Accession No. ML17072A036). This biological opinion applies to Upper Columbia River spring run Chinook salmon (
1. Minimize the potential for incidental take of ESA-listed species as a result of elevated concentrations of chemical constituents in the mainstem Columbia River.
2. Minimize the potential for incidental take of ESA-listed species as a result of entrainment and impingement associated with the cooling water intake structure for Columbia.
3. Minimize the potential for incidental take
4. Ensure completion of a monitoring and reporting program to confirm that the terms and conditions in this ITS were effective in avoiding and minimizing incidental take from permitted activities and ensuring incidental take is not exceeded.
In order to implement the RPMs, the ITS prescribes a number of Terms and Conditions (T&Cs). The T&Cs require Energy Northwest to conduct effluent monitoring (RPM1), conduct impingment and entrainment studies (RPM 2), implement various best practices while conducting biological monitoring studies to minimize impacts to listed species (RPM 3), and submit a report to NMFS regarding all biological monitoring activites (RPM 4). Specificially, to minimize chemical exposures to ESA-listed species as described in RPM 1, Energy Northwest must conduct physical and chemical monitoring of the Columbia effluent, as specified in its National Pollutant Discharge Elimination System (NPDES) Permit No. WA002515-1, to ensure that effluent water quality controls are functioning as intended. To minimize potential impingment and entrainment as described in RPM 2, Energy Northwest must prepare and conduct an impingment study and an entrainment study for NMFS's review and comment, as described in its NPDES permit.
To minimize the potential for a take during biological monitoring as described in RPM 3, the ITS prescribes several best practices and reporting requirements for Energy Northwest to implement, including:
• Fish handling practices.
• Requirements to stop sampling when water temperatures reach specified limits, or if any ESA-listed adult salmon or steelhead or steelhead redds are observed at the site.
• Reporting requirments if Energy Northwest unintentionally captures any ESA-listed adult salmon or steelhead while angling for resident fish, if a take is likely, or if any authorized level of take is exceeded than the levels specied in the ITS.
To ensure completion of a monitoring and reporting program and to ensure that incidental take is not exceeded as described in RPM 4, Energy Northwest must submit to NMFS, with a copy to NRC, an annual post-season report describing the biological monitoring activities that occurred and a summary of each take including the ESA-listed species affected, the type of take, the location where the take occurred, and the date of occurrence. The annual report must also summarize any operational changes to Columbia that affect the effluent discharge and have the potential to affect ESA-listed resources.
Notably, because the proposed amendment would require Energy Northwest's compliance with the “currently applicable” biological opinion, if NMFS were to issue a new biological opinion in the future, the proposed amendment would require Energy Northwest to adhere to the specific requirements in the ITS of that
The proposed action is needed to reflect the biological opinion issued by NMFS on March 10, 2017, and to require Energy Northwest's compliance with the ITS and related RPMs and T&Cs contained therein. The proposed action is administrative in nature.
The NRC has completed its evaluation of the proposed action and concludes that the proposed changes are administrative in nature, would have no direct effects on plant equipment or plant operation, and would not involve any changes to the design bases for Columbia.
With regard to potential radiological impacts, the proposed action would not increase the probability or consequences of accidents, would not change the types or increase the amount of effluent that may be released offsite, and would result in no increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, because the proposed action is administrative in nature, it would not have any direct impacts on land, air, or water resources, including impacts to terrestrial biota. In addition, the NRC staff identified no socioeconomic or environmental justice impacts associated with the proposed action. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
An indirect effect of the proposed action is that Energy Northwest's impingement and entrainment studies (RPM 1 and 2) would likely require in-water work and the collection of larvae and eggs. In-water work could cause minor disturbances to nearby biota. However, the activity would be temporary and fish could swim away to avoid the area and return once the temporary work is completed. Removal of larvae and eggs of resident fish species could occur during collection periods for the entrainment study. However, the amount of individuals that would be collected for the study would be negliable when compared to the size of local resident fish populations. In addition, RPM 3 requires Energy Northwest to modify some of its collection practices while conducting biological monitoring studies. In general, these practices will result in beneficial effects to ESA-listed species because the purpose of the modifications are to minimize impacts. For example, during electrofishing, where fish are temporarily stunned for biologists to collect and measure them, RPM 3 requires Energy Northwest to handle ESA-listed fish with extreme care and keep them in cold water to the maximum extent possible during sampling and processing procedures. The NRC staff concludes that the indirect effects from the impingement and entrainment studies as well as the modified collection practices will not result in significant environmental impacts to the radiological or non-radiological environment.
Based on the foregoing analysis, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the NRC staff considered denial of the proposed license amendment (
The proposed action does not involve the use of any different resources than those previously considered in NUREG-1437, Supplement 47, prepared for the license renewal of Columbia.
The NRC did not enter into consultation with any other Federal Agency or with the State of Washington regarding the environmental impact of the proposed action. However, on June 6, 2018, the NRC notified the Washington State official, Mr. Richard Cowley, Washington State Department of Health, Office of Radiation Protection of the proposed amendment. The State official had no comments.
The NRC is considering issuance of an amendment to Renewed Facility Operating License No. NPF-21, issued to Energy Northwest for operation of Columbia. The proposed amendment would revise the Columbia EPP to require Energy Northwest to adhere to the specific requirements within the ITS in the currently applicable biological opinion. On the basis of the EA included in Section II of this document and incorporated by reference into this finding, the NRC concludes that the proposed action would not have significant effects on the quality of the human environment. The NRC's evaluation considered information provided in the licensee's application as well as the NRC's independent review of other relevant environmental documents. Based on its findings, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “10 CFR part 140, Financial Protection Requirements and Indemnity Agreements.”
Submit comments by August 15, 2018.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0039), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0050 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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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “10 CFR part 140, Financial Protection Requirements and Indemnity Agreements.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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Nuclear Regulatory Commission.
License application; opportunity to request a hearing and to petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) received a license application from Holtec International (Holtec), by letter dated March 30, 2017, as supplemented on April 13, October 6, December 21, and 22, 2017; and February 22, 2018. By this application, Holtec is requesting authorization to construct and operate the HI-STORE Consolidated Interim Storage (CIS) Facility, in Lea County, New Mexico. If the NRC approves the application and issues a license to Holtec, Holtec intends to store up to 8,680 metric tons of uranium (MTU) of commercial spent nuclear fuel in the HI-STORM UMAX Canister Storage System for a 40-year license term.
A request for a hearing or petition for leave to intervene must be filed by September 14, 2018.
Please refer to Docket ID NRC-2018-0055 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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Jose R. Cuadrado, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0606; email:
The NRC received an application from Holtec for a specific license pursuant to part 72 of title 10 of the
Holtec is proposing to construct and operate the HI-STORE Consolidated Interim Storage (CIS) Facility on a large parcel of presently unused land owned by the Eddy-Lea Energy Alliance (ELEA), LLC. The ELEA was formed in 2006 in accordance with enabling legislation passed in New Mexico and consists of an alliance of the city of Carlsbad, Eddy County, the city of Hobbs, and Lea County. The proposed site for the CIS facility is located in southeastern New Mexico in Lea County, 32 miles east of Carlsbad, New Mexico, and 34 miles west of Hobbs, New Mexico.
Holtec is proposing to construct and operate Phase 1 of the CIS facility within an approximately 1,040 acre parcel. Holtec is currently requesting authorization to possess and store 500 canisters of spent nuclear fuel (SNF) containing up to 8,680 metric tons of uranium (MTUs), which includes spent uranium-based fuel from commercial nuclear reactors, as well as a small quantity of spent mixed-oxide fuel. If the NRC issues the requested license, Holtec expects to subsequently request additional amendments to the initial license to expand the storage capacity of the facility. In its plans, Holtec proposes expanding the facility in 19 subsequent expansion phases, each for an additional 500 canisters, to be completed over the course of 20 years. Ultimately, Holtec anticipates that approximately 10,000 canisters of SNF would be stored at the CIS facility upon completion of 20 phases. Each phase would require NRC review and approval.
According to its application, Holtec intends to only use the HI-STORM UMAX Canister Storage System for storage of spent nuclear fuel canisters at the facility. The HI-STORM UMAX Canister Storage System stores the canister containing SNF entirely below-ground, providing a clear, unobstructed view of the entire CIS facility from any location.
Within 60 days after the date of publication of this notice, any person (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 part 2. 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.
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
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
The documents identified in this
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing sensitive unclassified information (including Sensitive Unclassified Non-Safeguards Information (SUNSI) and Safeguards Information (SGI)). Requirements for access to SGI are primarily set forth in 10 CFR parts 2 and 73. Nothing in this Order is intended to conflict with the SGI regulations.
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 or SGI is necessary to respond to this notice may request access to SUNSI or SGI. 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 or SGI submitted later than 10 days after publication 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 requestor shall submit a letter requesting permission to access SUNSI, SGI, or both 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 Deputy General Counsel for Hearings 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);
(3) If the request is for SUNSI, the identity of the individual or entity requesting access to SUNSI and the requestor'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; and
(4) If the request is for SGI, the identity of each individual who would have access to SGI if the request is granted, including the identity of any expert, consultant, or assistant who will aid the requestor in evaluating the SGI. In addition, the request must contain the following information:
(a) A statement that explains each individual's “need to know” the SGI, as required by 10 CFR 73.2 and 10 CFR 73.22(b)(1). Consistent with the definition of “need to know” as stated in 10 CFR 73.2, the statement must explain:
(i) Specifically why the requestor believes that the information is necessary to enable the requestor to proffer and/or adjudicate a specific contention in this proceeding;
(ii) The technical competence (demonstrable knowledge, skill, training or education) of the requestor to effectively utilize the requested SGI to provide the basis and specificity for a proffered contention. The technical competence of a potential party or its counsel may be shown by reliance on a qualified expert, consultant, or assistant who satisfies these criteria.
(b) A completed Form SF-85, “Questionnaire for Non-Sensitive Positions,” for each individual who would have access to SGI. The completed Form SF-85 will be used by the Office of Administration to conduct the background check required for access to SGI, as required by 10 CFR part 2, subpart C, and 10 CFR 73.22(b)(2), to determine the requestor's trustworthiness and reliability. For security reasons, Form SF-85 can only be submitted electronically through the electronic questionnaire for investigations processing (e-QIP) website, a secure website that is owned and operated by the Office of Personnel Management. To obtain online access to the form, the requestor should contact the NRC's Office of Administration at 301-415-3710.
(c) A completed Form FD-258 (fingerprint card), signed in original ink, and submitted in accordance with 10 CFR 73.57(d). Copies of Form FD-258 may be obtained by writing the Office of Administrative Services, Mail Services Center, Mail Stop P1-37, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by email to
(d) A check or money order payable in the amount of $324.00
(e) If the requestor or any individual(s) who will have access to SGI believes they belong to one or more of the categories of individuals that are exempt from the criminal history records check and background check requirements in 10 CFR 73.59, the requestor should also provide a statement identifying which exemption the requestor is invoking and explaining the requestor's basis for believing that the exemption applies. While processing the request, the Office of Administration, Personnel Security Branch, will make a final determination whether the claimed exemption applies. Alternatively, the requestor may contact the Office of Administration for an evaluation of their exemption status prior to submitting their request. Persons who are exempt from the background check are not required to complete the SF-85 or Form FD-258; however, all other requirements for access to SGI, including the need to know, are still applicable.
These documents and materials should
D. To avoid delays in processing requests for access to SGI, the requestor should review all submitted materials for completeness and accuracy (including legibility) before submitting them to the NRC. The NRC will return incomplete packages to the sender without processing.
E. Based on an evaluation of the information submitted under paragraphs C.(3) or C.(4) above, as applicable, 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 or need to know the SGI requested.
F. For requests for access to SUNSI, if the NRC staff determines that the requestor satisfies both E.(1) and E.(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 setting forth terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI by each individual who will be granted access to SUNSI.
G. For requests for access to SGI, if the NRC staff determines that the requestor has satisfied both E.(1) and E.(2) above, the Office of Administration will then determine, based upon completion of the background check, whether the proposed recipient is trustworthy and reliable, as required for access to SGI by 10 CFR 73.22(b). If the Office of Administration determines that the individual or individuals are trustworthy and reliable, the NRC will promptly notify the requestor in writing. The notification will provide the names of approved individuals as well as the conditions under which the SGI will be provided. Those conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
H. Release and Storage of SGI. Prior to providing SGI to the requestor, the NRC staff will conduct (as necessary) an inspection to confirm that the recipient's information protection system is sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively, recipients may opt to view SGI at an approved SGI storage location rather than establish their own SGI protection program to meet SGI protection requirements.
I. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI or SGI 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 or SGI contentions by that later deadline.
J. Review of Denials of Access.
(1) If the request for access to SUNSI or SGI is denied by the NRC staff either after a determination on standing and requisite need, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) Before the Office of Administration makes a final adverse determination regarding the trustworthiness and reliability of the proposed recipient(s) for access to SGI, the Office of Administration, in accordance with 10 CFR 2.336(f)(1)(iii), must provide the proposed recipient(s) any records that were considered in the trustworthiness and reliability determination, including those required to be provided under 10 CFR 73.57(e)(1), so that the proposed recipient(s) have an opportunity to correct or explain the record.
(3) The requestor may challenge the NRC staff's adverse determination with respect to access to SUNSI or with respect to standing or need to know for SGI 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.
(4) The requestor may challenge the Office of Administration's final adverse determination with respect to trustworthiness and reliability for access to SGI by filing a request for review in accordance with 10 CFR 2.336(f)(1)(iv).
(5) Further appeals of decisions under this paragraph must be made pursuant to 10 CFR 2.311.
K. Review of Grants of Access. A party other than the requestor 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
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.
L. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI or SGI, 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.
Occupational Safety and Health Review Commission.
Rescindment of System of Records Notices.
In accordance with the Privacy Act of 1974, the Occupational Safety and Health Review Commission (OSHRC) is rescinding the Privacy Act system-of-records notices for following systems of records: Travel Records, OSHRC-1; and Mailing Lists for News Releases, Speeches, Booklets, Reports, OSHRC-2.
Comments must be received by OSHRC on or before August 15, 2018. The rescindment of OSHRC-1 and OSHRC-2 will become effective on that date, without any further notice in the
You may submit comments by any of the following methods:
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Ron Bailey, Attorney-Advisor, Office of the General Counsel, via telephone at (202) 606-5410, or via email at
Following OSHRC's review of its systems of records, the agency is rescinding two of its system-of-records notices: (1) Travel Records, OSHRC-1; and (2) Mailing Lists for News Releases, Speeches, Booklets, Reports, OSHRC-2.
The records included in OSHRC-1 are fully covered by the following Privacy Act notices for governmentwide systems of records: GSA/GOVT-4, see 74 FR 26700, July 6, 2009, and GSA/GOVT-3, see 78 FR 20108, May 3, 2013. OSHRC-1 is therefore being rescinded to avoid duplicative notices.
Additionally, based on a comprehensive review of OSHRC's records, the agency has determined that mailing lists for news releases, speeches, booklets, and reports are no longer maintained by the agency. As this system of records, OSHRC-2, no longer exists, its notice is being rescinded.
The notices rescinding OSHRC-1 and OSHRC-2 are as follows.
Travel Records, OSHRC-1.
April 14, 2006, 71 FR 19556; August 4, 2008, 73 FR 45256; October 5, 2015, 80 FR 60182; and September 28, 2017, 82 FR 45324.
Mailing Lists for News Releases, Speeches, Booklets, Reports, OSHRC-2.
April 14, 2006, 71 FR 19556; August 4, 2008, 73 FR 45256; October 5, 2015, 80 FR 60182; and September 28, 2017, 82 FR 45324.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements in rule 20a-1 under the Act, Item 19(a)(3) of Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A under the Securities Exchange Act of 1934, and sections 6-07(2)(a), (b), and (c) of Regulation S-X (“Disclosure Requirements”). The requested exemption would permit an investment adviser to hire and replace certain sub-advisers without shareholder approval and grant relief from the Disclosure Requirements as they relate to fees paid to the sub-advisers.
DMS ETF Trust I, DMS ETF Trust II, and DMS Mutual Fund Trust (each, a “Trust” and collectively, the “Trusts”), each a Delaware statutory trust that will be registered under the Act as an open-end management investment company, and DMS ETF Solutions, LLC (the “Initial Adviser”), a Delaware limited liability company that will be registered as an investment adviser under the Investment Advisers Act of 1940 (collectively with the Trusts, the “Applicants”).
The application was filed on March 12, 2018.
An order granting the application 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 6, 2018, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants, 130 West 42nd Street, Ste. 1050, New York, NY 10036.
Christine Y. Greenlees, Senior Counsel, at (202) 551-6879, or Andrea Ottomanelli Magovern, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or an applicant using the Company name box, at
1. An Adviser will serve as the investment adviser to each Subadvised Series pursuant to an investment advisory agreement with the applicable Trust (the “Investment Management
2. Applicants request an exemption to permit the Adviser, subject to Board approval, to hire certain Sub-Advisers pursuant to Sub-Advisory Agreements and materially amend existing Sub-Advisory Agreements without obtaining the shareholder approval required under section 15(a) of the Act and rule 18f-2 under the Act.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions provide for, among other safeguards, appropriate disclosure to Subadvised Series shareholders and notification about sub-advisory changes and enhanced Board oversight to protect the interests of the Subadvised Series' shareholders.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or any rule thereunder, if such relief is necessary or appropriate in the public interest and consistent with the protection of investors and purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard because, as further explained in the application, the Investment Management Agreements will remain subject to shareholder approval while the role of the Sub-Advisers is substantially similar to that of individual portfolio managers, so that requiring shareholder approval of Sub-Advisory Agreements would impose unnecessary delays and expenses on the Subadvised Series.
Applicants believe that the requested relief from the Disclosure Requirements meets this standard because it will improve the Adviser's ability to negotiate fees paid to the Sub-Advisers that are more advantageous for the Subadvised Series.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (“Act”).
Applicants have received a temporary order (“Temporary Order”) exempting them from section 9(a) of the Act, with respect to an injunction entered against Charles Schwab & Co. Inc. (“CS&Co.”) on July 9, 2018 by the U.S. District Court for the Northern District of California (“District Court”), in connection with a consent order between CS&Co. and the Commission, until the Commission takes final action on an application for a permanent order (the “Permanent Order,” and with the Temporary Order, the “Orders”). Applicants also have applied for a Permanent Order.
CS&Co. and Charles Schwab Investment Management, Inc. (“CSIM”) (each an “Applicant” and together, the “Applicants”).
The application was filed on July 2, 2018.
An order granting the application 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 6, 2018 and should be accompanied by proof of service on Applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090; Applicants: Charles Schwab & Co. Inc.: 211 Main Street, San Francisco, CA 94105; Charles Schwab Investment
Thankam A. Varghese, Attorney-Adviser, Kyle R. Ahlgren, Senior Counsel, or Holly L. Hunter-Ceci, Assistant Chief Counsel, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a temporary order and a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or an applicant using the Company name box, at
1. CS&Co. is a California corporation registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (“Exchange Act”), and as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). CS&Co. serves as the principal underwriter for 85 open-end management investment companies registered under the Act (“Open-End Funds”). CSIM is a Delaware corporation registered as an investment adviser under the Advisers Act that serves as investment adviser to 107 Open-End Funds. A list of the funds to which CS&Co. and CSIM served as investment adviser or principal underwriter, individual adviser or sub-adviser as of June 1, 2018 (the “Funds”) is appended to the Application.
2. CS&Co. and CSIM are wholly-owned subsidiaries of The Charles Schwab Corporation (“CS”), a Delaware corporation headquartered in San Francisco, California and listed on the New York Stock Exchange. CS is a savings and loan holding company incorporated in 1986 that engages through its subsidiaries in wealth management, securities brokerage, banking, asset management, custody, and financial advisory services.
3. While no existing company of which CS&Co. is an “affiliated person” within the meaning of section 2(a)(3) of the Act (“Affiliated Person”), other than CS&Co. and CSIM (the “Fund Servicing Applicants”) currently serves as an investment adviser (as defined in section 2(a)(20) of the Act) to, or depositor of, any registered investment company under the Act, employees' securities company or investment company that has elected to be treated as a business development company under the Act, or as a principal underwriter (as defined in section 2(a)(29) of the Act) for any Open-End Fund, unit investment trust registered under the Act (“UIT”), or face-amount certificate company registered under the Act (“FACC”) (such activities, the “Fund Servicing Activities”), Applicants request that any relief granted by the Commission pursuant to the application also apply to any existing company of which CS&Co. is an Affiliated Person and to any other company of which CS&Co. may become an Affiliated Person in the future (together with the Fund Servicing Applicants, the “Covered Persons”) with respect to any activity contemplated by section 9(a) of the Act.
4. On July 2, 2018, the Commission filed a complaint in the District Court (the “Complaint”) alleging violations of section 17(a) of the Exchange Act and rule 17a-8 thereunder. CS&Co. agreed to consent to the entry of a judgment by the District Court against CS&Co. (the “Final Judgment”). The Complaint alleges that, in violation of section 17(a) of the Exchange Act and rule 17a-8 thereunder, CS&Co. failed to file Suspicious Activity Reports (“SARs”) on suspicious transactions by independent advisers that CS&Co. terminated from its custodial platform (“Advisers”). Such Advisers were not affiliated or associated with CS&Co. CS&Co. terminated the Advisers for engaging in activity CS&Co. determined violated its internal policies and presented risk to CS&Co. or its customers. The Complaint alleges that: (1) CS&Co.'s failure to file SARs during the 2012-2013 time period resulted from its inconsistent implementation of policies and procedures for identifying reportable transactions under the SAR rule (31 CFR 1023.320(a)) when CS&Co. investigated and terminated Advisers from its custodial platform; (2) although CS&Co. took steps to investigate and terminate Advisers, CS&Co. did not have clear or consistent policies for the types of activities for which SARs need to be filed; and (3) in a number of cases in which Advisers were terminated and there was reason for CS&Co. to suspect fraudulent activity, CS&Co. applied an unreasonably high standard for determining whether to file a SAR on the suspicious transactions.
5. Concurrently with the filing of the Complaint, CS&Co. presented to the District Court an executed Consent of the Defendant Charles Schwab & Co. Inc. to Entry of Final Judgment (the “Consent”), consenting to the Final Judgment. The Final Judgment permanently restrains and enjoins CS&Co from violating section 17(a) of the Exchange Act and rule 17a-8 thereunder (the “Injunction”) and ordered CS&Co. to pay a civil penalty in the amount of $2,800,000.
1. Section 9(a)(2) of the Act provides, in pertinent part, that a person may not serve or act as, among other things, an investment adviser or depositor of any registered investment company or as principal underwriter for any registered open-end investment company, UIT, or FACC, if such person “. . . by reason of any misconduct, is permanently or temporarily enjoined by order, judgment, or decree of any court of competent jurisdiction from acting as an underwriter, broker, dealer, investment adviser, municipal securities dealer, bank, transfer agent, credit rating agency or entity or person required to be registered under the Commodity Exchange Act, or as an affiliated person, salesman, or employee of any investment company, bank, insurance company, or entity or person required to be registered under the Commodity Exchange Act, or from engaging in or continuing any conduct or practice in connection with any such activity or in connection with the purchase or sale of any security.” Section 9(a)(3) of the Act makes the prohibitions of section 9(a)(2) applicable to a company, any affiliated person of which has been disqualified under the provisions of section 9(a)(2). Section 2(a)(3) of the Act defines “affiliated person” to include, among others, any person directly or indirectly controlling, controlled by, or under common control with, the other person. The Injunction would result in a disqualification of CS&Co. from acting in the capacities specified in section 9(a)(2) because CS&Co. would be permanently enjoined by the District Court from engaging in or continuing certain conduct and/or practices in connection with the offer or sale of any security. The Injunction would also result in the disqualification of CSIM under section 9(a)(3) because CS&Co. is an Affiliated Person of CSIM within the meaning of section 2(a)(3) of the Act and would be subject to an injunction described in section 9(a)(2). Other Covered Persons similarly would be disqualified pursuant to section 9(a)(3) were they to act in any of the capacities listed in section 9(a).
2. Section 9(c) of the Act provides that, upon application, the Commission shall by order grant an exemption from the disqualification provisions of
3. Applicants believe they meet the standards for exemption specified in section 9(c). Applicants assert that: (i) The scope of the misconduct was limited and did not involve any of the Fund Servicing Applicants performing Fund Service Activities, or any Fund with respect to which the Fund Servicing Applicants engaged in Fund Servicing Activities or their respective assets; (ii) application of the statutory bar would result in material economic losses, and the operations of the Funds would be disrupted as they sought to engage new underwriters, advisers and/or sub-advisers, as the case may be; (iii) the prohibitions of section 9(a), if applied to the Fund Servicing Applicants and other Covered Persons, would be unduly or disproportionately severe; and (iv) the Conduct did not constitute conduct that would make it against the public interest or protection of investors to grant the exemption from section 9(a).
4. Applicants assert that the Conduct did not implicate any Fund Servicing Activities and did not involve any Fund or the assets of any Fund with respect to which any Applicants provide Fund Servicing Activities. Applicants further note that none of the CS&Co. employees who were directly responsible for determining whether a SAR filing was required for the Advisers had any involvement in Fund Servicing Activities, and that no such person remains in the employ of any of the Fund Servicing Applicants.
5. Applicants assert that neither the protection of investors nor the public interest would be served by permitting the section 9(a) disqualifications to apply to the Fund Servicing Applicants because those disqualifications would deprive the Funds of the advisory or sub-advisory and underwriting services that shareholders expected the Funds would receive when they decided to invest in the Funds. Applicants also assert that the prohibitions of section 9(a) could operate to the financial detriment of the Funds and their shareholders, which would be an unduly and disproportionately severe consequence given that the Conduct did not implicate any of the Fund Servicing Activities. Applicants further assert that the inability of the Fund Servicing Applicants to continue providing investment advisory and underwriting services to Funds would result in the Funds and their shareholders facing other potential hardships, as described in the application.
6. Applicants assert that if the Fund Servicing Applicants were barred under section 9(a) from providing investment advisory and underwriting services to the Funds and were unable to obtain the requested exemption, the effect on their businesses and employees would be severe. Applicants represent that CS&Co. has committed capital and other resources to establish expertise in underwriting the securities of Open-End Funds and to establish distribution arrangements for Open-End Fund shares. Applicants further represent that without relief under section 9(c), CS&Co. would lose the greater part of its business, potentially leading to sales force layoffs and placing CS&Co. at a competitive disadvantage to other distributors who can offer intermediaries a full menu of products. Applicants further represent CSIM has committed substantial capital and other resources to establishing expertise in advising Funds, and that investment advisory services provided to Funds represents more than 94.9% of its assets under management (as of March 31, 2018).
7. Applicants represent that: (1) None of the current or former directors, officers or employees involved in Fund Servicing Activities of the Fund Servicing Applicants had any involvement in the Conduct; (2) none of the CS&Co. employees who were directly responsible for determining whether a SAR filing was required for the Advisers had any involvement in Fund Servicing Activities, and that no such person remains in the employ of any of the Fund Servicing Applicants; and (3) because the Conduct did not involve Fund Servicing Activities, shareholders of Funds were not affected any differently than if those Funds had received services from any other non-affiliated investment adviser or principal underwriter.
8. Applicants represent that CS&Co. has taken substantial remedial actions to address the conduct at issue in the Complaint and Final Judgment. As further detailed in the Application, such remedial actions include improving CS&Co.'s regulatory compliance program with an emphasis on SAR compliance, increasing the number of employees dedicated to anti-money laundering and fraud prevention (including employees with law enforcement backgrounds), and increasing the quantity and quality of internal AML and SAR training.
9. As a result of the foregoing, Applicants submit that granting the exemption as requested in the application is consistent with the public interest and the protection of investors.
10. To provide further assurance that the exemptive relief being requested herein would be consistent with the public interest and the protection of the investors, Applicants agree that they will, as soon as reasonably practical following the entry of the Injunction, distribute to the boards of trustees of the Funds (“Boards”) written materials describing the circumstances that led to the Injunction, as well as any impact on the Funds and the application. The written materials will include an offer to discuss the materials at an in-person meeting with the Boards, including the trustees who are not “interested persons” of the Funds as defined in section 2(a)(19) of the Act and their “independent legal counsel” as defined in rule 0-1(a)(6) under the Act. Applicants undertake to provide the Boards with all information concerning the Injunction and the application as necessary for those Funds to fulfill their disclosure and other obligations under the U.S. federal securities laws and will provide them a copy of the Final Judgment as entered by the District Court.
11. Applicants state that none of the Applicants nor any of their affiliates have previously applied for orders under section 9(c) of the Act.
Applicants agree that any order granted by the Commission pursuant to the application will be subject to the following conditions:
1. Any temporary exemption granted pursuant to the Application shall be without prejudice to, and shall not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption
2. Each Applicant and Covered Person will adopt and implement policies and procedures reasonably designed to ensure that it will comply with the terms and conditions of the Orders within 60 days of the date of the Permanent Order.
3. CS&Co. will comply with the terms and conditions of the Consent.
4. The Applicants will provide written notification to the Chief Counsel of the Commission's Division of Investment Management with a copy to the Chief Counsel of the Commission's Division of Enforcement of a material violation of the terms and conditions of the Orders and Consent within 30 days of discovery of the material violation.
The Commission has considered the matter and finds that Applicants have made the necessary showing to justify granting a temporary exemption.
Accordingly,
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the NYSE Arca Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective July 2, 2018. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to modify the Fee Schedule, effective July 2, 2018, to provide an incentive for Floor Brokers to bring business to the Trading Floor in the newly listed options on the NYSE FANG+ Index (“NYSE FANG+”), which trades under the symbol FAANG.
The Exchange proposes to introduce rebates for Floor Broker organizations that execute a certain number of FAANG contract sides on the Exchange in a calendar month, based on the highest Tier achieved (the “Rebate”).
The volume Tiers, and the associated proposed Rebate, are set forth as follows:
The Exchange believes the proposed Rebate would further the Exchange's goal of introducing new products to the marketplace by encouraging trading in this index, in particular by encouraging Floor Brokers to bring business to the Trading Floor, which would in turn, benefit all market participants through increased liquidity and more opportunities to trade.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Sections 6(b)(4) and (5) of the Act, in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers.
The Exchange believes the proposal to introduce a Floor Broker Rebate for executing a certain number of options contract sides on NYSE FANG+ is reasonable, equitable and not unfairly discriminatory for the following reasons. The Exchange believes the proposed rebates, which apply equally to all Floor Broker transactions in NYSE FANG+, regardless of account type, to
In accordance with Section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed rebates for Floor Broker organizations that achieve the proposed Rebate would not place an unfair burden on competition as it would apply to all similarly situated Floor Brokers, and is applicable to business from all account types. The Exchange also believes the proposed Rebate is procompetitive as it would further the Exchange's goal of introducing new products to the marketplace and encouraging Floor Brokers to bring business to the Trading Floor, which would in turn, benefit all market participants. Market participants that do not wish to trade in NYSE FANG+ are not obliged to do so.
The Exchange does not believe that the proposed change will impair the ability of any market participants or competing order execution venues to maintain their competitive standing in the financial markets. Further, the proposed Rebate would be applied to all similarly situated participants (
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the NYSE American Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective July 2, 2018. The proposed change is available on the Exchange's
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to modify the Fee Schedule, effective July 2, 2018, to provide an incentive for Floor Brokers to bring business to the Trading Floor in the newly listed options on the NYSE FANG+ Index (“NYSE FANG+”), which trades under the symbol FAANG.
The Exchange proposes to introduce rebates for Floor Broker organizations that execute a certain number of FAANG contract sides on the Exchange in a calendar month, based on the highest Tier achieved (the “Rebate”).
The volume Tiers, and the associated proposed Rebate, are set forth as follows:
The Exchange believes the proposed Rebate would further the Exchange's goal of introducing new products to the marketplace by encouraging trading in this index, in particular by encouraging Floor Brokers to bring business to the Trading Floor, which would in turn, benefit all market participants through increased liquidity and more opportunities to trade.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Sections 6(b)(4) and (5) of the Act, in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers.
The Exchange believes the proposal to introduce a Floor Broker Rebate for executing a certain number of options contract sides on NYSE FANG+ is reasonable, equitable and not unfairly discriminatory for the following reasons. The Exchange believes the proposed rebates, which apply equally to all Floor Broker transactions in NYSE FANG+, regardless of account type, to be reasonable and equitable because business brought to the Trading Floor may be on behalf of any market participant. In addition, such orders benefit all market participants by providing more trading opportunities, which attracts Market Makers, Customers and other participants. An increase in activity, in turn, facilitates tighter spreads, which may result in a corresponding increase in order flow from all market participants.
In accordance with Section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed rebates for Floor Broker organizations that achieve the proposed Rebate would not place an unfair burden on competition as it would apply to all similarly situated Floor Brokers, and is applicable to business from all account types. The Exchange also believes the proposed Rebate is procompetitive as it would further the Exchange's goal of introducing new products to the marketplace and encouraging Floor Brokers to bring business to the Trading Floor, which would in turn, benefit all market participants. Market participants that do not wish to trade in NYSE FANG+ are not obliged to do so.
The Exchange does not believe that the proposed change will impair the ability of any market participants or competing order execution venues to maintain their competitive standing in the financial markets. Further, the proposed Rebate would be applied to all similarly situated participants (
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on July 18, 2018 at 10:00 a.m.
The meeting will be held in the Auditorium, Room LL-002 at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will begin at 10:00 a.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Visitors will be subject to security checks. The meeting will be webcast on the Commission's website at
The subject matters of the Open Meeting will be the Commission's consideration of:
1. Whether to adopt an amendment to Securities Act Rule 701(e), as mandated by the Economic Growth, Regulatory Relief, and Consumer Protection Act.
2. Whether to issue a concept release requesting comment on potential revisions to Securities Act Rule 701 and Securities Act Form S-8.
3. Whether to propose amendments to the disclosure requirements in Rule 3-10 and Rule 3-16 of Regulation S-X.
4. Whether to adopt amendments to Rule 3a1-1 and Regulation ATS and new Form ATS-N under the Securities Exchange Act of 1934 related to certain alternative trading systems.
For further information, please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade on the Exchange options on the SPIKES
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange recently adopted generic rules relating to the listing and trading of cash-settled index options on the Exchange.
The calculation of the Index is based on the methodology developed by T3i Pty Ltd, a firm that develops proprietary indexes, including derivatives-based indexes and options-enhanced indexes. The Index will be calculated and maintained by the Exchange. The Index measures expected 30-day volatility of SPY, historically the largest and most actively traded ETF in the United States as measured by its assets under management and the value of shares traded.
Like most indices, the Index has a defined rules-based approach to selecting components—a series of options on the SPY—and weighting them to derive a single price for the Index.
Therefore, the formula for expected T-term variance is as follows:
The Index
The calculation linearly interpolates between the variances of two monthly expirations—near-term (the closest expiration more than two full days into the future) and next-term (the monthly expiration following the near-term). This expiration selection method is used to avoid using highly irregular option prices close to the options settlement date. The 30-day point is typically in between these two expirations and the Index is interpolated between the volatilities of these two terms. When the closest
SPIKES uses a proprietary “price dragging” technique to determine the ongoing price for each individual option used in the calculation of the Index (“Reference Price”), to calculate the Index, as follows:
• Initially set all prices to 0;
• If there is a trade, the price of the option is always set to the trade price;
• If there is not yet a trade, on the opening quote, the opening bid is used as the current price;
• For newly-placed ask (bid) quotes, if the ask (bid) is lower (higher) than current Reference Price, the option price is set to ask (bid).
The Exchange believes that this method should materially reduce erratic movements of the Index value as quotations on out-of-the-money (“OTM”) options are rapidly altered during times of low liquidity. The Exchange believes that this method is a material enhancement over existing calculation methodologies, and should result in improved Index stability by smoothing out options price inputs into the Index calculation, especially as options quotes are rapidly changing.
An example of the price dragging technique is given below:
The example
The price dragging technique is used to determine the Reference Price for each individual option used in the Index calculation. The Exchange believes that this technique is a material enhancement that may improve Index stability by smoothing out options price inputs into the Index calculation, especially as options quotes are rapidly changing. The price dragging technique is used for intraday calculation of the Index. The Exchange believes that the price dragging technique may be a more accurate and effective way to determine the Index value because the primary factor considered when updating the Reference Price is whether or not a trade has occurred. If a trade occurred, the Reference Price is set to the trade price. This methodology represents a Reference Price which is based on a “meeting of the minds,” or the creation of a contract. The Exchange believes that this more accurately represents the fair value at that given time, and thus will benefit investors and market participants trading options on the Index.
A competing volatility index uses an alternative method for calculating its reference price. Specifically, that competing volatility index utilizes the mid-point of the bid and ask and only updates the reference price when there is a change in the bid or ask. The
Therefore, the Exchange believes that the price dragging technique may create a more accurate and stable Index value and may better represent volatility in the market by emphasizing the actual trade price versus simply the midpoint spread. Furthermore, the Exchange believes that the enhanced feature may provide greater consistency in the marketplace because the price dragging technique results in a Reference Price that is supported by the fair market value at the time versus using the mid-point, which is not necessarily an accurate representation of the fair market value at the time.
Another key feature of SPIKES is its exclusion rule (truncation method). The exclusion rule determines how far away from the money to exclude strikes from the volatility calculation. For each of the expirations, the securities to be used in the calculation are selected by removing in-the-money and OTM options, as follows:
• To determine the ATM strike, find the intersection of the put and call linearly interpolated price curves. Select the strike closest to the value of the intersection of the curves—this becomes the ATM strike. If the intersection falls exactly in the middle of two strikes, or if the whole segments overlap (
• Use all listed puts below the ATM strike and all listed calls above the ATM strike, and both the ATM call and put. When two consecutive option prices of $0.05 or less are encountered when moving away from the ATM, exclude all the strikes beyond that level, from each of the put and call side.
A competing volatility index that uses the midpoint for its option input prices uses a different exclusion rule, which similarly moves away from the ATM, but excludes individual strikes if they have no bid, and excludes all the strikes beyond two consecutive no bid strikes. A comparison of a hypothetical list of put option inputs and the resulting inclusion decision is given below.
The purpose
As discussed previously, the price dragging method reduces the variability of the option inputs. Since the option inputs have reduced variability, and those values are used to determine which strikes make it into the index calculation, the combination of price dragging and exclusion rules work together to, in the Exchange's opinion, create a more reliable Index value.
For each term, the volatility is estimated using the variance swap approximation, with the selected options' prices weighted according to the SPIKES formula:
Each eligible option's contribution is proportional to the change in the strike (half the difference between the strike on either side of the option) and the price, and inversely proportional to the square of the option's strike. After calculating for each option, these are summed and multiplied by two times the exponential of the risk free rate times time-to-expiration. The next step is to subtract from this value, the square of, the difference between the ATM call and put prices, times the exponential of the risk free rate times time-to-expiration, divided by the ATM strike. Lastly, divide the result by the time to expiration to arrive at the final value.
Compute the 30-day weighted average of the near- and next-term variances,
SPY is the largest and most actively traded ETF in the U.S.
The Exchange believes that, in addition to the other unique and proprietary attributes associated with the Index's calculation and settlement methodology, as well as the Exchange's fully-electronic, transparent, highly-deterministic trading system, using SPY options as the components for a volatility index, in the manner proposed by the Exchange, will offer a number of significant, distinct advantages over other types of volatility indexes. The Exchange believes that the advantages of using SPY options have the potential to result in an extremely liquid volatility product with exceptionally tight spreads, and consequently would not be readily susceptible to fraudulent and manipulative acts. First, SPY options are extremely liquid (they regularly trade 4-5 million contracts a day, and have 20-30 million contracts in open interest). Second, SPY options have consistently tighter bid-ask spreads than SPX options, which are the components for the Cboe Exchange, Inc. (“Cboe”) VIX index. Since SPY options are traded on all 15 option exchanges, it allows market participants to take advantage of arbitrage opportunities across multiple venues. This is in contrast to SPX options which only trade on Cboe, and thus those arbitrage opportunities across venues are not possible. Since SPY options are traded on all 15 option exchanges, at the time of the final settlement of the SPIKES Index on the Exchange,
As set forth in Exhibit 3-1, the following are the characteristics of the Index: (i) The initial index value was 13.05 on January 10, 2005; (ii) the index value on May 14, 2018 was 13.44; (iii) the lowest index value since inception was 9.80 and occurred on July 20, 2007; and (iv) the highest index value since inception was 81.85 and occurred on November 20, 2008.
As noted above, the Index will be maintained and calculated by the Exchange. The level of the Index will reflect the current expected volatility of SPY. The Index will be updated on a real-time basis on each trading day beginning at 9:30 a.m. and ending at 4:15 p.m. (New York time). If the current published value of a component is not available, the last published value will be used in the calculation. Values of the Index will be disseminated to the Options Price Reporting Authority (“OPRA”) at least every 15 seconds during the Exchange's regular trading hours, pursuant to Exchange Rules 1802 and 1803. The Exchange is currently disseminating the cash values of the Index to OPRA under the ticker symbol `SPIKE' in at least 15 second intervals. In the event the Index ceases to be maintained or calculated, or its values are not disseminated at least every 15 seconds by a widely available source, the Exchange will not list any additional series for trading, and may, for the purpose of maintaining a fair and orderly market and protecting investors, limit transactions in certain options on the Index to closing transactions only.
On the expiration date for expiring SPIKES options, the Exchange will calculate the final settlement value of the Index for expiring SPIKES options. The expiration date for expiring SPIKES options is the same day that the final settlement value of the Index is calculated for those options. This date is the Wednesday that is thirty days prior to the third Friday of the calendar month immediately following the month in which the applicable SPIKES options expire. If that Wednesday or the Friday that is thirty days following that Wednesday is an Exchange holiday, the final settlement value shall be calculated on the business day immediately preceding that Wednesday. The exercise-settlement amount is equal to the difference between the final settlement value of the Index and the exercise price of the option, multiplied by $100. Exercise will result in the delivery of cash on the business day following expiration.
To determine the final settlement value of the Index, the Exchange will perform an Index settlement price calculation which includes all SPY options that expire 30 days after the SPIKES settlement that are included in the settlement (these options are referred to in this rule filing as the “constituent options”). In order to perform the Index settlement price calculation, each constituent option will be assigned a Settlement Reference Price or “SRP,” defined and discussed in more detail below. Each SRP will be determined through a new “SPIKES Special Settlement Auction,” which will be conducted once per month, in the constituent options traded on the Exchange, on final settlement day. The SPIKES Special Settlement Auction will utilize the Exchange's standard, existing Opening Process, as defined and fully-described in Exchange Rule 503(f), with a new proposed modification to account for situations where there remains an order imbalance
The Exchange believes that the SPIKES Special Settlement Auction would not be readily susceptible to fraudulent and manipulative acts for a number of reasons. As discussed more fully below, the Exchange's existing Opening Process runs to completion and precedes the engagement of the new SSIP. The existing Opening Process cannot occur prior to 9:30 a.m. Eastern Time and only begins following the dissemination of a quote or trade in the market for the underlying security.
As previously discussed, on the day the settlement value for the Index is calculated, the Exchange will conduct the SPIKES Special Settlement Auction, using its standard, existing Opening Process for all options on the Exchange, including the constituent options.
Pursuant to the standard, existing Opening Process, if there are no quotes or orders that lock or cross each other, the System
To calculate the opening price, the System takes into consideration all valid Exchange quotes and all valid orders, together with other exchanges' markets for the series, and identifies the price at which the maximum number of contracts can trade. If that price is within the EQR and leaves no imbalance, the Exchange will open at that price, executing marketable trading interest as long as the opening price includes only Exchange interest.
If all opening and marketable interest cannot be completely executed at or within the EQR without trading at a price inferior to the ABBO, or cannot trade at or within the quality opening market range in the absence of a valid width NBBO,
Now, where an imbalance exists in constituent options and the final imbalance process has been conducted as part of the Exchange's standard, existing Opening Process, instead of cancelling that must fill interest back to the entering Member, the Exchange is proposing to conduct the SSIP,
The SSIP is employed to satisfy all liquidity identified as must fill which is creating the imbalance, referred to as the must fill imbalance. The SSIP is an iterative process that is designed to determine a price at which all must fill imbalance interest can be satisfied.
Whether certain orders are SPIKES strategy orders for purposes of Interpretation and Policy .06 depends upon specific facts and circumstances. The Exchange may also deem order types other than those provided above as SPIKES strategy orders if the Exchange determines that to be the case based upon the applicable facts and circumstances.
These requirements are substantially similar to Cboe's requirements for “strategy orders” participating in the VIX settlement auction.
The Exchange anticipates that market participants that actively trade SPIKES options may hedge their positions with SPY option series that will also be used to calculate the SPIKES exercise settlement/final settlement value. Market participants holding hedged SPIKES options positions may trade out of their SPY option series on the relevant SPIKES expiration/final settlement date. Specifically, market participants holding short, hedged SPIKES options could liquidate that hedge by selling their SPY options series, while traders holding long, hedged SPIKES options could liquidate their hedge by buying SPY option series. In order to seek convergence with the SPIKE exercise/final settlement value, these market participants may liquidate their hedges by submitting SPIKES strategy orders in the appropriate SPY option series during the SPIKES Special Settlement Auction on the SPIKES expiration/final settlement date.
The SPIKES strategy order cut-off time exists because trades to liquidate hedges can contribute to an order imbalance during the SPIKES Special Settlement Auction in SPY option series on expiration/final settlement dates. For example, traders liquidating hedges could predominantly be on one side of the market and those market participants' orders may create buy or sell order imbalances during the SPIKES Special Settlement Auction in SPY option series on expiration/final settlement dates. As a result of having a SPIKES strategy order cut-off time in place, the Exchange has created a defined window to encourage participation in the SPIKES Special Settlement Auction among market participants who may wish to place off-setting orders against imbalances to which SPIKES strategy orders may have contributed. Additionally, by precluding the modification or cancellation of SPIKES strategy orders from occurring after the cut-off time, the Exchange is ensuring that the order book reflects bona-fide interest for execution, and is a feature designed to prevent manipulation of the final settlement price.
Following is a description of the proposed operation of the SSIP portion of the SPIKES Special Settlement Auction, as set forth in Exchange Rule 1809, proposed Interpretations and Policies .06. To begin the SSIP, the System will broadcast a system imbalance message to all subscribers of the Exchange's relevant data feed and begin an SSIP Imbalance Timer, the duration of which is to be determined by the Exchange, not to exceed ten seconds, and communicated via Regulatory Circular. During the SSIP Imbalance Timer, the System accepts all quote and order types supported during the standard Opening Process. Next, the System will evaluate the must fill imbalance and adjust the EQR by a defined amount by appending to the EQR (adding to offers or subtracting from bids) the EQR value (as previously determined by the Exchange and communicated via Regulatory Circular). During the SSIP, the allowable EQR will be increased .5 times the EQR value upon each iteration of the SSIP. The SSIP will be repeated until a price is reached at which there is no remaining must fill imbalance.
An example of a SPIKES Special Settlement Auction (which utilizes the Exchange's standard, existing Opening Process, as modified by the SSIP), for a constituent option is provided to illustrate the process.
The Exchange market for the constituent option is as follows:
The Exchange receives an SAO Order to purchase 500 SPY March 280 contracts with a “market” price. Accordingly, there are 150 contracts offered at $1.10 and a market order
The Exchange's standard Opening Process is used, and because an imbalance exists, the Exchange's Standard Opening Imbalance Process (as defined in Rule 503(f)(2)(vii)) commences. The EQR is expanded by the EQR value of $0.10,
After three iterations of the Exchange's Standard Opening Imbalance Process,
The SSIP will begin by using an EQR expanded by 1.0 times the EQR value ($0.10). Therefore, the EQR for the first iteration of SSIP is $1.02 × $1.20.
Since no responses have yet been received, a system imbalance message is broadcast to all subscribers of the Exchange's data feeds and the SSIP auction period is started: The following responses are received:
At the end of the SSIP auction period, the System evaluates the orders and responses to determine if the must fill imbalance quantity can be satisfied at, or within, the EQR.
The Exchange market for the constituent option is as follows:
The offer of 150 contracts at $1.10 remains and there are now an additional 200 contracts offered at $1.20. This results in the following:
A must fill imbalance quantity of 150 contracts priced through the EQR remains, as there are a total of 350 contracts offered and a buy order for 500 at the market.
Because an imbalance still exists, a second iteration of the SSIP will begin by expanding the side of the EQR opposite the must fill imbalance quantity quote range, from the original EQR value to the quote range plus 1.5 times the original EQR value ($0.10), becoming $1.25 ($1.10 + $0.15).
A new system imbalance message is broadcast to all subscribers of the Exchange's data feeds and a second SSIP auction period is started:
The following responses are received:
At the end of the SSIP auction period, the System evaluates the orders and responses to see if the must fill imbalance quantity can be satisfied at, or within, the EQR.
The Exchange market for the constituent option is as follows:
The offer of 150 contracts at $1.10 remains, as well as the 200 contracts offered at $1.20. In addition, there is now an offer to sell 1,000 contracts at $1.23.
In this case, the entire must fill imbalance quantity can be satisfied at $1.23. The SAO Order to purchase 500 contracts at the market price is filled in the following fashion:
Once there is no remaining must fill imbalance, SAOs, AOC Orders, AOC eQuotes, OPG Orders, and OPG eQuotes submitted into the SPIKES Special Settlement Auction are cancelled. Any unfilled day limit orders and GTC orders that are priced at the Opening Price are placed on the Book and managed by the System.
As previously discussed, the System will assign an SRP to each constituent option to facilitate the calculation of the final settlement price of the Index. If the System opens the constituent option with a trade, the System assigns the constituent option an SRP equal to the trade price in that option. If there is no locking or crossing interest and the System opens the constituent option without a trade, and the bid-ask spread is at or within a range as defined by the Exchange in an SRP opening width table and communicated via Regulatory Circular, the System assigns the constituent option an SRP equal to the midpoint of the bid and ask prices. If the bid-ask spread is not within a range as defined in the SRP opening width table, the System will conduct an additional process to determine the SRP of the constituent option, as follows.
First, the System will start a settlement reference price timer (“SRPT”) (the duration of which will be defined by the Exchange not to exceed sixty seconds and communicated via Regulatory Circular). If, during the SRPT, there is a trade on the Exchange, the System will set the SRP equal to the trade price. If, during the SRPT, the bid-ask spread changes so that it is within a range defined in the settlement price opening width table, the System will set the SRP equal to the midpoint of the bid and ask price.
If the SRPT expires, the System will set the SRP equal to the Reference Price (the current price of that option utilizing the cash index calculation formula, described above) of the constituent option if it is equal to or inside the MBBO.
The Exchange believes that this fully-electronic and fully-transparent SPIKES Special Settlement Auction process, which is accessible to all Members of the Exchange for participation, in highly liquid SPY options (which are simultaneously opening and available for trading on 14 other exchanges, thus providing real-time cross-reference prices for the SPY options included in the settlement) to settle expiring SPIKES options, offers significant advantages over other types of volatility auction processes, and will result in a robust opening process that presents arbitrage opportunities across multiple venues to drive prices into line and reach equilibrium, and thus would not be readily susceptible to fraudulent and manipulative acts.
The contract specifications for options on the Index are set forth in Exhibit 3-2. The Index is a broad-based index, as defined in MIAX Options Rule 1801(k), for the purpose of determining which of the Exchange's rules apply to options on the Index.
The trading of options on the Index will be subject to the trading halt procedures applicable to index options traded on the Exchange.
The Exchange proposes that the minimum trading increments for options on the Index shall be $0.05 for series trading below $3, and $0.10 for series trading at or above $3. This is the same pricing convention utilized by Cboe for VIX options. Accordingly, the Exchange is proposing to amend Exchange Rule 404, Series of Option Contracts Open for Trading, by adopting new Interpretations and Policies .11 to specify the minimum trading increments for options on the Index.
The Exchange proposes that there shall be no position or exercise limits for options on the Index. As noted above, the Index will settle using published prices and quotes from its corresponding SPY options. Because the size of SPY options market (as well as the underlying SPY market) is so large, the Exchange believes that there is minimal risk of manipulation by virtue of position size in SPIKES options. The Exchange notes that options on Cboe's VIX are also not subject to any position or exercise limits.
The Exchange initially proposes to list options on the Index in up to twelve (12) standard monthly expirations. This is the same number of monthly expirations that are permitted for VIX options, pursuant to Cboe Rule 24.9(a).
The Exchange proposes to set the minimum strike price interval for options on the Index at $0.50 where the strike price is less than $15, $1 or greater where the strike price is between $15 and $200, and $5 or greater where the strike price is greater than $200. The Exchange believes that $0.50 and $1 strike price intervals will provide investors with greater flexibility by allowing them to establish positions that are better tailored to meet their investment objectives. Further, as proposed, when new series of options on the Index with a new expiration date are opened for trading, or when additional series of options on the Index in an existing expiration date are opened for trading as the current value of the Index moves substantially from the exercise prices of series already opened, the exercise prices of such new or additional series shall be reasonably related to the current value of the Index at the time such series are first opened for trading.
The trading of options on the Index shall be subject to the same rules that presently govern the trading of Exchange index options, including sales practice rules, margin requirements, and trading rules. In addition, long-term option series having up to sixty months to expiration may be traded.
Chapter XIII of the Exchange's rules is designed to protect public customer trading and shall apply to trading in options on the Index. Specifically, paragraphs (a) and (b) of MIAX Options Rule 1307 prohibit Members from accepting a customer order to purchase or write an option, including options on the Index, unless such customer's account has been approved in writing by a designated Options Principal of the Member. Additionally, MIAX Options Rule 1309 regarding suitability is designed to ensure that options, including options on the Index, are only sold to customers capable of evaluating and bearing the risks associated with trading in this instrument. Further, MIAX Options Rule 1310 permits Members to exercise discretionary power with respect to trading options, including options on the Index, in a customer's account only if the Member has received prior written authorization from the customer and the account had been accepted in writing by a designated Options Principal. MIAX Options Rule 1310 also requires designated Options Principals or Representatives of a Member to approve and initial each discretionary order, including discretionary orders for options on the Index, on the day the discretionary order is entered. Finally, MIAX Options Rule 1308, Supervision of Accounts, MIAX Options Rule 1311, Confirmation to Customers, and MIAX Options Rule 1315, Delivery of Current Options Disclosure Documents and Prospectus, will also apply to trading in options on the Index.
The Exchange has an adequate surveillance program in place for options traded on the Index and intends to apply those same program procedures that it applies to the Exchange's other options products. In addition, several new surveillances related to the Index will be added to the MIAX surveillance program. The Exchange has a Regulatory Services Agreement (“RSA”) in place with the Financial Regulatory Authority (“FINRA”) to conduct cross-market surveillances on its behalf and has expanded the RSA to include a new options pattern: Index Expiration for Cash Settled, A.M.-Settled, Index Options. The purpose of this pattern is to determine whether any market participants influenced the settlement price of an a.m. cash-settled index product to benefit their expiring index option position.
In addition to the Index Expiration for Cash Settled report mentioned above, both MIAX Option Regulation and FINRA Options Regulation will manually review options activity during each monthly settlement process. After manually reviewing settlement process activity over the course of months, MIAX Options and FINRA will determine whether additional reports or enhancements to the cash settled report(s) are required.
Further, the Exchange's regulatory department conducts routine surveillance in dozens of discrete areas. Index products and their respective symbols are integrated into the Exchange's existing surveillance system architecture and are thus subject to the relevant surveillance processes. This is true for both surveillance system processing and manual processes that support the Exchange's surveillance program. Additionally, the Exchange is also a member of the Intermarket Surveillance Group (ISG) under the Intermarket Surveillance Group Agreement, dated June 20, 1994. The members of the ISG include all of the U.S. registered stock and options markets.
The Exchange represents that it has the necessary System capacity to support additional quotations and messages that will result from the listing and trading of options on the Index.
The Exchange believes that the proposed rule change is consistent with the provisions of the Act,
The proposed change will permit options trading in the Index pursuant to rules designed to prevent fraudulent and manipulative acts and practices and promote just and equitable principles of trade. In particular, the Exchange believes the proposed rule change will further the Exchange's goal of introducing new and innovative products to the marketplace. The Exchange believes that listing options on the Index will provide an opportunity for investors to hedge, or speculate on, the market risk associated with changes in volatility.
The Exchange believes that the enhanced features to the Index may serve to prevent fraudulent and manipulative acts and practices. Specifically, the Exchange believes that its price dragging technique and truncation rule, in combination with the immense liquidity of the underlying options, make the Index less susceptible to market manipulation. The price dragging technique, which is used to determine the ongoing Reference Price for each individual option used in the calculation of the Index, helps prevent market manipulation by utilizing the most recent trade price as the Reference Price. The Exchange believes that this feature may be a more accurate methodology than only using the mid-point of the bid and ask, which is the methodology utilized by a competing volatility index. The Exchange believes the price dragging technique may create a more accurate and stable index value which better represents volatility in the market by emphasizing the actual trade price versus simply the mid-point spread.
Furthermore, the Exchange believes that the enhanced feature may provide
Furthermore, the truncation method, another key enhancement in the Index, determines how far away from the money to exclude strikes from the volatility calculation. This helps to ensure that values are not being included that would skew the resulting Index value by taking into account OTM options which are too far away to be accurately priced into the Index value calculation. By excluding these options from the calculation, the Exchange believes it is able to provide a more reliable Index value. The Exchange believes that its exclusion methodology is a material enhancement over existing methodologies, and should result in a calculation outcome that better reflects the expected measure of volatility.
As discussed previously, the price dragging method reduces the variability of the option inputs (which also referred to herein as the Reference Prices). Since the option inputs have reduced variability, and those values are used to determine which strikes make it into the Index's calculation, the combination of price dragging and exclusion rules work together to, in the Exchange's opinion, create a more reliable Index value. The Exchange believes that a more reliable Index value will benefit investors and market participants trading options on the Index, will promote just and equitable principles of trade, and should serve to prevent fraudulent and manipulative acts and practices.
The Exchange believes that, in addition to the other unique and proprietary attributes associated with the Index's calculation and settlement methodology, as well as the Exchange's fully-electronic, transparent, highly-deterministic trading system, using SPY options as the components for a volatility index, in the manner proposed by the Exchange, will offer a number of significant, distinct advantages over other types of volatility indexes. The Exchange believes that the advantages of using SPY options have the potential to result in an extremely liquid volatility product with exceptionally tight spreads, and consequently would not be readily susceptible to fraudulent and manipulative acts. First, SPY options are extremely liquid (they regularly trade 4-5 million contracts a day, and have 20-30 million contracts in open interest). Second, SPY options have consistently tighter bid-ask spreads than SPX options, which are the components for Cboe's VIX index. Since SPY options are traded on all 15 option exchanges, it allows market participants to take advantage of arbitrage opportunities across multiple venues. This is in contrast to SPX options which only trade on Cboe, and thus those arbitrage opportunities across venues are not possible. Also, at the time of final settlement, there are 14 other options exchanges on which SPY options are traded, and may serve as real-time cross-reference prices for SPY options during the Exchange's SPIKES Special Settlement Auction. This is in contrast to SPX options during Cboe's VIX settlement auction, where there is no such reference market for SPX options open during the time of the VIX settlement, as SPX options are only traded on one exchange—Cboe. In terms of spreads, SPY spreads are significantly tighter and exhibit much higher consistency with a much narrower range of typical values and far fewer numbers of outliers than SPX. SPY spreads are consistently tighter than SPX spreads, both across strike prices and through time, by a factor of 2 to 4 times (this is after normalizing SPY spreads to SPX spreads, by multiplying SPY spreads by 10). Accordingly, the Exchange believes that these advantages of using SPY options in the manner proposed by the Exchange, when combined with the other features and attributes of the SPIKES Index, have the potential to result in an extremely liquid volatility product with exceptionally tight spreads, and consequently would not be readily susceptible to fraudulent and manipulative acts.
The Exchange is currently disseminating the cash values of the Index to OPRA under the ticker symbol `SPIKE' in at least 15 second intervals. The Exchange believes that disseminating updates in at least 15 second intervals will benefit investors and other market participants, as they will be better able to track the current value of the Index at any given period of time, will promote just and equitable principles of trade, and should prevent fraudulent and manipulative acts and practices.
The Exchange believes that using its fully-electronic and fully-transparent Opening Process functionality, which is accessible to all Members of the Exchange for participation, in highly liquid SPY options (which are simultaneously opening and available for trading on 14 other exchanges, thus providing real-time cross-reference prices for the SPY options included in the settlement) to conduct the SPIKES Special Settlement Auction to settle expiring SPIKES options, will offer significant advantages over other types of volatility auction processes, resulting in a robust opening process that presents arbitrage opportunities across multiple venues to drive prices into line and reach equilibrium, and thus benefiting investors and other market participants, promoting just and equitable principles of trade, and should prevent fraudulent and manipulative acts and practices.
The Exchange believes that having a SPIKES strategy order modification and cancellation cut-off time during the SPIKES Special Settlement Auction in SPY option series on expiration/final settlement date will help to ensure that the order book reflects bona-fide interest for execution, and is a feature designed to prevent manipulation of the final settlement price.
Volatility-focused products have become more prominent over the past several years, and in a number of different formats and types, including ETFs, exchange-traded notes, exchange-traded options, and exchange-traded futures. Such products offer investors the opportunity to manage their volatility risks associated with an underlying asset class. Currently, most of the products focus on underlying equity indexes or equity-based portfolios.
The Exchange proposes to introduce a cash-settled options contract on a new volatility index, which focuses on equity exposure using options on SPY. SPY is the largest and most liquid ETF in the United Sates, and the most actively traded equity option product. The Exchange believes that because the Index is derived from published SPY options prices, and given the immense liquidity found in the individual portfolio components of SPY, the concern that the Index will be subject to market manipulation is greatly reduced. Therefore, the Exchange believes that the proposed rule change to list options on the Index is appropriate.
The Exchange further notes that Exchange Rules that apply to the trading of other index options currently traded on the Exchange would also apply to the trading of options on the Index. Additionally, the trading of options on the Index would be subject to, among others, Exchange Rules governing margin requirements and trading halt procedures.
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in options on the Index. The Exchange also represents that it has the necessary systems capacity to support the new options series. Additionally, as stated in
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. . The Exchange notes that the proposed rule change will facilitate the listing and trading of a novel index option product that will enhance competition among market participants, to the benefit of investors and the marketplace.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Among other things, the Exchange believes that the use of SPY options in the manner proposed by the Exchange, when combined with the other features and attributes of the SPIKES Index, has the potential to result in an extremely liquid volatility product with exceptionally tight spreads, and consequently would not be readily susceptible to fraudulent and manipulative acts. In particular, the Commission seeks comment on the following:
• Do commenters agree with this overall assertion by the Exchange?
• Do commenters believe any proposed features (
• Do commenters believe the definition of “SPIKES strategy orders” is sufficiently clear? Why or why not?
• Do commenters believe the proposed SPIKES strategy order cut-off time is adequate to provide sufficient time to work off order imbalances during the SPIKES Special Settlement Auction in SPY option series on final settlement dates? Why or why not?
• Do commenters believe precluding the submission, modification, or cancellation of SPIKES strategy orders after the proposed cut-off time will be effective in reducing the likelihood of manipulation in the calculation of the final settlement value for the SPIKES Index? Why or why not?
• Do commenters believe the proposed exclusion rule/truncation method, which is designed to remove SPY option price inputs deemed less reliable in order to avoid a potential negative impact on the SPIKES calculation outcome, will be effective in reducing the likelihood of manipulation in the calculation of the final settlement value for the SPIKES Index? Why or why not?
• The Exchange discusses the price dragging technique used for intraday calculation of the SPIKES Index value to determine the Reference Price for each of the individual SPY options used in the calculation of the Index value. Do commenters believe that the price dragging technique would improve Index stability by smoothing out options price inputs into the Index calculation, especially as SPY options quotes are rapidly changing? Do commenters agree that the price dragging technique will result in a smoother Index price? What are commenters' views on any potential effect of the price dragging technique, in which the primary factor considered when updating the Reference Price for each of the individual SPY options is whether or not a trade has occurred, on the price efficiency of the SPIKES Index, including whether the price dragging technique may result in stale prices?
• Do commenters believe that the lack of proposed position limits on cash-settled SPIKES Index options could make the options more susceptible to manipulation?
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Tennessee, Alabama & Georgia Railway Company (TAG), a wholly owned subsidiary of Norfolk Southern Railway Company, and Chattooga & Chickamauga Railway Company (CCKY) (collectively, TAG and CCKY are referred to as Railroads) have jointly filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
The Railroads have certified that: (1) They have handled no local or overhead common carrier service over the Line for at least two years; (2) overhead traffic, if there were any, could be rerouted over other lines; (3) no formal complaint filed by a user of a rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is pending either with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to government agencies) have been met.
As a condition to these exemptions, any employee adversely affected by the discontinuances of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA)
A copy of any petition filed with Board should be sent to the Railroads' representative, William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW, Suite 300, Washington, DC 20037.
If the verified notice contains false or misleading information, the exemption is void ab initio.
Board decisions and notices are available on our website at:
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Tennessee Valley Authority.
Notice of intent.
The Tennessee Valley Authority (TVA) intends to prepare a supplemental environmental impact statement (EIS) addressing proposed changes to its Natural Resource Plan (NRP). Public comment is invited concerning the scope of the supplemental EIS, including how the plan addresses TVA's management of natural and cultural resources and the environmental issues that should be addressed in the supplemental EIS.
Comments must be received on or before August 20, 2018. To facilitate the scoping process, TVA will hold public scoping meetings in late July and early August 2018; see
Written comments should be sent to Matthew Higdon, Tennessee Valley Authority, 400 W Summit Hill Drive #WT11D, Knoxville, Tennessee 37902. Comments may also be emailed to
For information on the EIS process, contact Matthew Higdon, NEPA Specialist, by email at
This notice is provided in accordance with the Council on Environmental Quality's regulations (40 CFR parts 1500 to 1508) and TVA's procedures for implementing the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations (36 CFR part 800).
TVA is an executive branch, corporate agency and instrumentality of the United States, established by an act of Congress in 1933, to foster the social and economic welfare of the people of the Tennessee Valley region and to
In 2011, TVA completed its first Natural Resource Plan to guide its stewardship efforts for managing the waters and public lands of the Tennessee River Valley. The NRP represents TVA's high level strategy for managing its natural resources in the near- and long-term. The purpose of the plan is to integrate the goals of resource management programs, provide for the optimum public benefit, and balance sometimes conflicting resource uses. The NRP also guides TVA in achieving the objectives of its Environmental Policy for a more systematic and integrated approach to natural resource stewardship.
When planning for the 2011 NRP, TVA completed an EIS that described the potential resource management programs and activities, alternative approaches to TVA's resource management efforts, and the environmental impacts of the alternatives. In the 2011 EIS, four alternatives were analyzed: The No Action Alternative, Custodial Management, Flagship Management, and Blended Management. In August 2011, the TVA Board of Directors decided that the Blended Management alternative should be implemented as the agency's plan because the alternative aligns best with TVA's Environmental Policy, focuses on key programs that establish a baseline for future enhanced implementation efforts, and provides flexibility for the use of partnerships, volunteers, and other sources of funding to leverage programs to their full potential while working within resource and staff constraints (75 FR 57100, September 15, 2011).
In the 2011 NRP, TVA committed to reviewing the NRP every five years and updating the plan to ensure it remains relevant and current. In 2016, in advance of the first update of the NRP, TVA's Natural Resources staff began a holistic review of the NRP and determined that, after extensive discussion and consideration, the plan does not completely fulfill the purposes intended when completed in 2011. The 2011 NRP was not all encompassing of Natural Resources programs and by not being inclusive, the NRP was not comprehensive as desired. TVA concluded that the NRP was not fully serving as the guide for business and budget planning as was first envisioned, and the non-comprehensive program coverage has impacted the plan's usefulness to the Natural Resources group as a management guide.
TVA is proposing to update the NRP to improve its efficacy and is initiating an environmental review of proposed changes. TVA proposes changes to the NRP's structure and to the range of programs it identifies. TVA is seeking the public's input in determining the scope of its environmental review of these changes. The proposed update to the NRP would be consistent with the Blended Management alternative approved by the TVA Board of Directors in August 2011. TVA is considering these changes in a supplement to the 2011 EIS.
TVA proposes to update the NRP so that it is a more useful strategic document that outlines expected benefits and objectives for each of TVA's natural resource management programs. TVA proposes to reorganize the plan and its programs into ten new “focus areas” rather than the six resource areas in the 2011 plan. TVA would address additional program efforts in the NRP that were excluded from the current plan, namely: Permitting under Section 26a of the TVA Act and land use agreements; public land protection; nuisance and invasive species management; and ecotourism. TVA has extensive experience in conducting these efforts in the region and proposes to include them in the NRP to ensure that the plan addresses the entire scope of the TVA Natural Resources group's stewardship efforts.
In addition, certain programs described in the 2011 NRP would be regrouped to create focus areas that better reflect the Natural Resources' efforts in order to improve the plan's clarity and usefulness. TVA also proposes to remove some programs from its NRP because these programs are managed better by other entities (
TVA proposes to update the NRP by grouping its programs into the following ten focus areas: Land and Habitat Stewardship (Biological Resources in the current NRP); Cultural Resources Management (currently Cultural Resources in the NRP); Water Resources Stewardship (currently Water Resources in the NRP); Public Outreach and Information (currently Public Engagement in the NRP); Reservoir Lands Planning (no change); Recreation (currently Recreation Management in the NRP); Public Land Protection (new); Nuisance and Invasive Species Management (new); Ecotourism (new); and Section 26a and Land Use Agreements (new). More information about the new focus areas and the changes to specific programs can be found at
Numerous other changes proposed by TVA are administrative or procedural in nature and are unlikely to impact the environment; these changes will be included in the scope of the supplemental EIS to ensure public disclosure of how the NRP would be amended. For example, TVA is proposing to change how its NRP would be updated and how the public would be made aware of its plan implementation. In the revised NRP, TVA would eliminate the provision of the NRP that calls for periodic (5 year) updates to the plan. Alternatively, TVA proposes to inform the public of its activities and progress by publishing an Annual Report on Natural Resources' stewardship efforts and by improving the information available to the public on TVA's stewardship projects on TVA's web page. TVA would provide multiple avenues for continuous public engagement and input, including through the Public Land Information Center, by incorporating a commenting mechanism into the NRP web page and by piloting region specific focus groups that would provide input regarding local needs and trends in the recreation and natural resource fields.
To complement the strategic guidance that the updated NRP would provide, TVA's Natural Resources group would develop a 3-5 Year Action Plan to provide a tactical approach to implement the specific activities associated with each of the ten focus area programs. TVA anticipates that utilizing a short term implementation strategy (3-5 Year Action Plan) that complements the long term strategic guidance document (the updated NRP) would provide the flexibility necessary to achieve the goals and objectives of
TVA would also remove the “measures of success” for each program from the 2011 NRP, which experience has shown were too specific. The updated NRP would identify objectives for each focus area to provide high-level, overarching strategic direction for each area. The objectives for the focus areas align with the 2011 NRP resource area goals and would be substantially consistent with TVA's Blended Management approach analyzed in the 2011 EIS. Instead of “measures of success,” metrics to measure achievement of focus area objectives would be incorporated into the 3-5 Year Action Plan.
The revised NRP will be considered as an action alternative in the supplemental EIS. TVA invites the public to review the detailed description of its NRP program areas and the revisions to the NRP that is available on the TVA website during the scoping period and to submit comments, questions or suggestions on its proposal. Additional action alternative(s) may be developed based on public input submitted to TVA during the scoping period.
Public scoping is integral to the process for implementing NEPA and ensures that issues are identified early and properly studied; issues of little significance do not consume substantial time and effort; and analysis is thorough and balanced. TVA anticipates that the major environmental resource areas that will be addressed in the supplemental EIS will include water quality, water supply, aquatic and terrestrial ecology, endangered and threatened species, wetlands, prime farmlands, floodplains, recreation, aesthetics including visual resources, land use, historic and archaeological resources and socioeconomic resources.
TVA invites members of the public as well as Federal, state, and local agencies and Native American tribes to comment on the scope of the supplemental EIS. Comments on the scope should be submitted no later than the date given under the
After consideration of the public's input and analyzing the environmental consequences of alternatives, TVA will issue a draft EIS for public review and comment. TVA will notify the public of the draft EIS's availability and plans to hold public meetings during the review period. TVA expects to release the draft EIS in mid 2019 and the final EIS and NRP in early 2020.
40 CFR 1501.7.
Federal Highway Administration (FHWA), DOT.
Notice of intent to prepare an environmental impact statement (EIS).
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for a proposed transportation improvement project in Lake, Cook and McHenry Counties in Illinois.
Catherine A. Batey, Division Administrator, Federal Highway Administration, 3250 Executive Park Drive, Springfield, Illinois 62703, Phone: 217-492-4640. Paul Kovacs, Chief Engineer, Illinois Tollway, 2700 Ogden Avenue, Downers Grove, Illinois 60515, Phone 630-241-6800. Anthony Quigley, Deputy Director of Highways, Region 1 Engineer, Illinois Department of Transportation, 201 West Center Court, Schaumburg, Illinois 60196, Phone: 847-705-4401.
The FHWA, in cooperation with the Illinois Tollway and the Illinois Department of Transportation (IDOT), will prepare an environmental impact statement (EIS) for a proposed transportation improvement project in Lake County, northern portions of Cook County, and eastern portions of McHenry County. The FHWA intends to issue a single Final EIS and Record of Decision (ROD) document pursuant to the FAST Act Section 1311 requirements, unless FHWA determines statutory criteria or practicability considerations preclude issuance of a combined document.
Improvements in the project area are proposed to reduce congestion, improve reliability of travel, improve travel options connecting major origins and destinations, and improve local and regional travel efficiency. Alternatives under consideration to address these needs include (1) improvements to the existing roadway network; (2) construction on new alignment; (3) improvements to transit, including rail and bus; (3) improvements to bicycle and pedestrian facilities; (4) transportation system management/transportation demand management strategies; and (5) taking no action.
Federal approvals needed for this project may include permits under Clean Water Act Sections 402 and 404 and Section 401 water quality certification. Section 7 consultation with the US Fish and Wildlife Service may also be required. The project will comply with the Clean Air Act, Title VI of the Civil Rights Act, Section 4(f) of the U.S. Department of Transportation Act of 1966, and Executive Order 12898 “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” and other applicable state and Federal laws.
A Stakeholder Participation Group, consisting of community leaders, technical experts, and interest groups, has been formed as part of early coordination efforts to assist in the development of the purpose and need and to provide input on alternative evaluation. Additionally, all individuals and organizations expressing interest in the project will be able to participate in the process through various public outreach opportunities. These opportunities include, but are not limited to, the project website, public meetings and hearings, speakers' bureau events, and press releases.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Scoping input on the proposed project will be invited during a public informational meeting scheduled for July 25, 2018, and may also be submitted via the project website or in writing to the Illinois Tollway, 2700
23 U.S.C. 315; 23 CFR 771.123.
Federal Highway Administration (FHWA), DOT.
Notice of proposed MOU, request for comments.
The FHWA and the State of Nebraska, acting by and through its Department of Transportation (State), propose participation of the State in the Categorical Exclusion Assignment program. This program allows FHWA to assign its authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State, as specified in the proposed Memorandum of Understanding (MOU), are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act.
Comments must be received on or before August 15, 2018.
You may submit comments, identified by DOT Document Management System (DMS) Docket Number FHWA-2018-0033, by any of the methods described below. To ensure that you do not duplicate your submissions, please submit them by only one of the means below. Electronic or facsimile comments are preferred because Federal offices experience intermittent mail delays from security screening.
For access to the docket to view a complete copy of the proposed MOU, or to read background documents or comments received, go to
For FHWA: Melissa Maiefski; by email at
Internet users may reach the Office of the Federal Register's home page at:
Section 326 of Title 23 U.S. Code, creates a program that allows the Secretary of the U.S. Department of Transportation (Secretary), to assign, and a State to assume, responsibility for determining whether certain highway projects are included within classes of action that are categorically excluded (CE) from requirements for environmental assessments or environmental impact statements pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321
The FHWA would execute Nebraska's participation in this program through an MOU. Statewide decision making responsibility would be assigned for all activities within the categories listed in 23 CFR 771.117(c) and those listed as examples in 23 CFR 771.111(d), and any activities added through FHWA rulemaking to those listed in 23 CFR 771.117(c) or example activities listed in 23 CFR 771.117(d) after the date of the execution of this MOU. In addition to the NEPA CE determination responsibilities, the MOU would assign to the State the responsibility for conducting Federal environmental review, consultation, and other related activities for projects that are subject to the MOU with respect to the following Federal laws and Executive Orders:
The MOU allows the State to act in the place of FHWA in carrying out the functions described above, except with respect to government-to-government consultations with federally recognized Indian Tribes. The FHWA will retain responsibility for conducting formal government-to-government consultation with federally recognized Indian Tribes, which is required under some of the above-listed laws and Executive Orders. The State may also assist FHWA with formal consultations, with consent of a tribe, but FHWA remains responsible for the consultation.
This assignment includes transfer to the State of Nebraska the obligation to fulfill the assigned environmental responsibilities on any proposed projects meeting the criteria in Stipulation 1(B) of the MOU that were determined to be CEs prior to the effective date of the proposed MOU but that have not been completed as of the effective date of the MOU.
The FHWA will consider the comments submitted on the proposed MOU when making its decision on whether to execute this MOU. The FHWA will make the final, executed MOU publicly available.
23 U.S.C. 326; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 40 CFR 1507.3, 1508.4.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice.
On June 29, 2015 and October 5, 2016, FMCSA proposed enhancements to the Agency's Safety Measurement System (SMS) and published a preview version of the changes. However, the Fixing America's Surface Transportation Act (FAST Act) required the National Research Council of the National Academy of Sciences (NAS) to conduct a study of FMCSA's Compliance, Safety, Accountability (CSA) program and the Safety Measurement System (SMS). NAS published their report titled, “Improving Motor Carrier Safety Measurement” on June 27, 2017. This notice announces that FMCSA will not complete the enhancements previously proposed and the preview is removed from the SMS website.
Ms. Barbara Baker, Compliance Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, Telephone (202) 366-3397 or by email at
On June 29, 2015 (80 FR 37037), FMCSA proposed the SMS enhancements and requested initial comments in advance of providing motor carriers with a preview of how their safety performance data would be presented on the SMS website. The proposed changes included:
1. Changing some of the SMS Intervention Thresholds to better reflect the Behavior Analysis and Safety Improvement Categories' (BASICs) correlation to crash risk.
2. Two changes to the Hazardous Materials (HM) Compliance BASIC:
a. Segmenting the HM Compliance BASIC by Cargo Tank (CT) and non-CT carriers; and
b. Releasing motor carrier percentile rankings under the HM Compliance BASIC to the public.
3. Reclassifying violations for operating while Out of Service (OOS) under the Unsafe Driving BASIC rather than the BASIC of the underlying OOS violation.
4. Increasing the maximum Vehicle Miles Traveled used in the Utilization Factor to more accurately reflect the operations of high-utilization carriers.
The Agency's analysis and explanations were provided in the June 29, 2015, notice. Stakeholders had 30 days to submit comments. The comment period ended on July 29, 2015.
The October 5, 2016,
As a result, the preview reflected six potential changes to the SMS methodology for calculating percentiles.
1. SMS Intervention Thresholds were adjusted to better reflect correlation to crash risk.
2. Changes to the HM Compliance BASIC to segment by CT and non-CT carriers and to post motor carrier percentile rankings under the HM Compliance BASIC to the public.
3. Reclassifying violations for operating while OOS under the Unsafe Driving BASIC rather than the BASIC of the underlying OOS violation.
4. Increasing the maximum vehicle miles traveled used in the Utilization Factor to more accurately reflect the operations of high-utilization carriers.
5. Increasing the minimum number of crashes in the Crash Indicator BASIC from two to three.
6. Assigning BASIC percentiles only to carriers that have had an inspection with a violation in the past year.
Only 25 comments were received on the preview from 11 individuals, five trucking or bus companies, nine associations and one safety consultant. Eight commenters posted comments regarding determining the preventability of crashes; therefore, these comments were outside of the scope of the notice. Four other commenters made broad comments about the Agency that were not applicable to this notice. In addition, the Insurance Institute of Highway Safety provided a copy of their report titled “Crash Risk Factors for Interstate Large Trucks in North Carolina” as support for the Agency's correlation of vehicle maintenance to crashes.
Section 5221 of the FAST Act, titled “Correlation Study,” required FMCSA to commission the National Research Council of the National Academies to conduct a study of FMCSA's CSA program and SMS.
On June 27, 2017, NAS published the report titled “Improving Motor Carrier Safety Measurement.” The report is available at
As a result of the ongoing implementation of the NAS recommendations, FMCSA removed the preview from the SMS website and will not be proceeding with the proposed changes at this time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. This new request titled “Truck and Bus Maintenance Requirements and Their Impact on Safety” will allow for a study that focuses on vehicle maintenance and aims to determine the impact of vehicle maintenance requirements on overall motor carrier safety. This information collection supports the DOT Strategic Goal of Safety.
We must receive your comments on or before September 14, 2018.
You may submit comments identified by Federal Docket Management System (FDMS) Docket Number FMCSA-2018-0189 using any of the following methods:
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Quon Y. Kwan, Program Manager, Technology Division, Department of Transportation, OA, West Building 6th
In 2014, the John A. Volpe National Transportation Systems Center (Volpe) conducted a study to assess the effectiveness of SMS in identifying the highest risk motor carriers to be targeted for interventions. One finding from the study was that motor carriers targeted for intervention due to “vehicle maintenance” issues (
While these initial findings are important, they raise additional questions. One such question is prompted by the stipulation in 49 CFR 396.3(a), which states that every carrier must have a program to “systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles and intermodal equipment subject to its control.” Though this regulation provides some direction, there is no supporting definition of the word “systematic,” and because this term is subjective, it is likely to vary from one carrier to another. The lack of specificity regarding standard intervals for preventative maintenance makes it difficult for federal and state personnel to evaluate the effectiveness of and compliance with a carrier's maintenance program. Furthermore, the lack of specificity may make it difficult for carriers to ascertain and therefore comply with the regulation's intent.
The current research effort, augmented by the proposed survey, is necessary to improve FMCSA's understanding of the safety impact of preventative vehicle maintenance and to clarify the requirements of section 396.3(a). The study objectives are as follows:
1. Develop an operational definition of “systematic maintenance.”
2. Evaluate whether current regulations and the intervention process could be modified to improve compliance with vehicle maintenance requirements. Examples of such requirements are as follows: (i) Preventative maintenance intervals, (ii) preventative maintenance inspections with adequately trained/equipped mechanics, and (iii) adequacy of motor carriers' maintenance facilities. [However, the results of the survey will be used only to explore what areas of rulemaking and/or other areas, such as policy guidance and training, might be useful in the future; the results of the survey will not be used for rulemaking, per se.]
3. Gather information to assist in establishing minimum standards for inspection intervals, mechanic qualifications and training, and certification of maintenance facilities.
FMCSA is authorized to conduct this research under 49 U.S.C. 31108, Motor Carrier Research and Technology Programs. Under section 31108(a)(3)(C), FMCSA may fund research, development, and technology projects that improve the safety and efficiency of commercial motor vehicle operations through technological innovation and improvement. This information collection supports the U.S. Department of Transportation (USDOT) strategic goal of Safety.
Under contract to FMCSA, the Virginia Tech Transportation Institute (VTTI) at the Virginia Polytechnic Institute and State University (VT) will use online surveys to obtain the data required to address the study objectives. The information collection will be administered in two phases:
Phase I: Online Recruitment Survey. This voluntary, seven-question survey will screen carriers and verify their eligibility for Phase II participation. To be eligible for Phase II participation, carriers must fall into one of two groups: (a) The Recommended Practices (RP) Group, which includes carriers with the lowest Vehicle Maintenance and Crash Indicator Behavior Analysis and Safety Improvement Categories (BASIC) percentiles (
Phase II: Carrier Maintenance Management Survey. This voluntary, 106-question survey will include questions about demographics; maintenance practices, intervals, personnel, and facilities; and State and Federal inspections, among other things. The Phase II survey will employ branch logic; as such, carriers will be prompted to complete different sections based on their survey group (and for one section, carrier size). Consequently, no participating carrier will be asked to complete all 106 questions.
In the Phase II survey, carriers (of all sizes) in the RP Group will be asked to provide additional information about maintenance personnel and facilities (
Carriers in the IE Group will be asked to complete the section on intervention effects, which includes questions about the status of active interventions or investigations; results of closed interventions or investigations; interactions with State versus Federal agencies; intervention activities experienced; the accuracy of violations leading to interventions; actions taken in response to interventions; changes in
Survey responses will be summarized and reported using plots, tables, content analysis, and calculated summary statistics. Plots and tables will provide a visual comparison of multiple choice and checkbox survey responses for successful carriers (
The results of this information collection will be documented in a technical report to be delivered to and published by FMCSA. In addition, the results will be used to create a “recommended best practices” report that will outline minimum standards for inspection intervals, mechanic qualifications and training, and certification of maintenance facilities. Finally, VTTI is required under the contract with FMCSA to compile and analyze the collected information and develop a public-use data set.
This ICR is for a one-time data collection. If this data collection does not take place, the truck and bus industry would continue to operate with the uncertainty of what a “systematic maintenance” program, as currently worded in section 396.3(a), consists of. This term's ambiguous definition makes it difficult for federal and state inspectors to evaluate the effectiveness of a carrier's maintenance program or its compliance with this provision. Furthermore, this uncertainty may make it difficult for carriers to ascertain and therefore comply with the regulation's intent.
Department of Veterans Affairs.
Notice of intent.
Under the authority of the National Environmental Policy Act (NEPA) and its implementing regulations, VA intends to prepare a Programmatic Environmental Impact Statement (PEIS) to evaluate the potential direct, indirect, and cumulative environmental consequences of continued operation and administration of VA's Housing Loan Program (HLP). VA's reference to the HLP includes federal assistance, administered by the Veterans Benefits Administration (VBA), in the form of loans made, insured, or guaranteed by VA. It also includes housing benefits that can be used in conjunction with the HLP (
All written comments should be submitted by August 15, 2018.
VA invites federal, state, tribal, and local entities; non-profit organizations; businesses; interested parties; and the general public to comment on the proposed scope and content of the PEIS. VA will consider all scoping comments in developing the PEIS. VA will conduct a public scoping meeting on Thursday, August 2, 2018, from 6:00 to 8:00 p.m. at the Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, Rockville, Maryland 20852. The scoping meeting will afford the public an opportunity to learn more about the project and provide input on the environmental analysis process. During the meeting, VA will provide an overview of the project, as well as details regarding the PEIS scope, purpose, and need. VA will also outline the overall NEPA process. Additionally, VA will post a scoping presentation on a publicly available website during the 30-day scoping period. Such presentation will be available at
Proposed Actions and Alternatives: VA's Proposed Action is to continue administering the HLP and incorporating programmatic changes as necessitated by amendments to program authorities, Veteran need, market conditions, and factors not foreseen at the time of this publication.
VA's No Action Alternative refers to a scenario wherein VA operates the HLP in a manner consistent with policies
Written comments may be submitted through
Elysium Drumm, VA Housing Loan Program, at 202-632-8790 or
The most significant element of the HLP is the provision of housing benefits that assist eligible Veterans in financing the purchase, construction, repair, or improvement of a home for their personal occupancy. See 38 U.S.C. 3701
Through this PEIS, VA is using the NEPA process to evaluate the potential physical, environmental, cultural, and socioeconomic effects of the HLP; to invite public participation; and to assist with and inform future agency planning and decision making related to the HLP. The PEIS will also evaluate the HLP, which assists hundreds of thousands of Veterans each year across the United States and its territories, to ensure that VA appropriately considers the human environmental elements and effects specified in 40 CFR 1508.8 (
As part of the scoping process, VA encourages federal, state, tribal, and local entities; non-profit organizations; businesses; interested parties; and the general public to provide input on any areas of environmental concern relevant to the HLP, and suggestions regarding potential environmental impacts that should be evaluated. VA will consult with such parties during VA's preparation of the PEIS.
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 July 10, 2018, for publication.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
Veterans Health Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before September 14, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 615-9241.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA'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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administrations, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before September 14, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461-5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
Public Law 104-13; 44 U.S.C. 3501-3521.
By direction of the Secretary.
Federal Emergency Management Agency, DHS.
Notice of proposed rulemaking.
The National Flood Insurance Program (NFIP), established pursuant to the National Flood Insurance Act of 1968, as amended, is a voluntary program in which participating communities adopt and enforce a set of minimum floodplain management requirements to reduce future flood damages. This proposed rule would revise the NFIP's implementing regulations to codify certain provisions of the Biggert-Waters Flood Insurance Reform Act of 2012 and the Homeowner Flood Insurance Affordability Act of 2014 that FEMA has already implemented and to clarify certain existing NFIP rules relating to NFIP operations and the Standard Flood Insurance Policy.
Submit comments on or before September 14, 2018.
You may submit comments, identified by Docket ID: FEMA-2018-0026, by one of the following methods:
To avoid duplication, please use only one of these methods. FEMA will post all comments received without change to
Kelly Bronowicz, Director, Policyholder Services Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW, Washington, DC 20472, (202) 557-9488.
The Federal Emergency Management Agency encourages the public to participate in this rulemaking by submitting comments and related materials. The Agency will consider all comments and material received during the comment period.
When submitting a comment, identify the agency name and the docket ID for this rulemaking, indicate the specific section of this document to which each comment applies and give the reason for each comment. The public may submit comments and materials by electronic means, mail, or delivery to the address under the
Regardless of the method used for submitting comments or material, all submissions will be posted without change to the Federal e-Rulemaking Portal at
Congress created the National Flood Insurance Program (NFIP) through enactment of the National Flood Insurance Act of 1968 (NFIA) (Title XIII of Pub. L. 90-448, 82 Stat. 476), found at 42 U.S.C. 4001
The NFIP makes flood insurance available to property owners or lessees in communities that participate in the NFIP through the adoption and enforcement of community-wide floodplain management requirements. If a community adopts and enforces a floodplain management ordinance that meets certain minimum floodplain management requirements to reduce future flood risks within an area known as the Special Flood Hazard Area (SFHA) the Federal Government will make flood insurance available to property owners in that community. NFIP flood insurance indemnifies property owners from flood losses, reducing the need for Federal disaster assistance. NFIP floodplain management requirements reduce future flood damages, thus further reducing the need for Federal disaster assistance. In addition to providing flood insurance and reducing flood damages through floodplain management, the NFIP identifies and maps the nation's floodplains. FEMA disseminates maps depicting flood hazard information to create broad-based awareness of flood hazards, to provide data for rating flood insurance policies, and to apply the appropriate minimum floodplain management requirements for flood-prone areas.
Prior to enactment of the Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12), the NFIA made federally subsidized flood insurance available to property owners or lessees of buildings in NFIP-participating communities.
As discussed in more detail below, with the passage of BW-12, Congress mandated that FEMA phase out subsidies for certain pre-FIRM properties. These pre-FIRM properties include non-primary residences, business properties, severe repetitive loss properties, substantially damaged properties, substantially improved properties, and properties for which the cumulative claims payments exceed the fair market value of the property.
The Homeowner Flood Insurance Affordability Act of 2014 (Pub. L. 113-89, 128 Stat. 1020) (HFIAA) requires a phase-out of subsidies on all pre-FIRM properties at a rate of no less than 5 percent and no more than 15 percent premium increases per year, subject to certain exceptions established by statute (such as the BW-12 provisions) requiring a quicker phase-out for certain types of pre-FIRM properties. Accordingly, FEMA will likely phase out subsidies on all pre-FIRM properties within the next 12 to 17 years.
A prospective policyholder may purchase an NFIP flood insurance policy either: (1) Directly from the Federal Government through a direct servicing agent (referred to as “NFIP Direct”), or (2) from a participating private insurance company through the Write Your Own (WYO) Program. The Standard Flood Insurance Policy (SFIP) sets out the terms and conditions of insurance.
The SFIP is a single-peril (flood) policy that pays for direct physical damage to insured property. There are three forms of the SFIP: The Dwelling Form, the General Property Form, and the Residential Condominium Building Association Policy (RCBAP) Form. The Dwelling Form insures a one to four family residential building or a single-family dwelling unit in a condominium building.
In addition to coverage for building or contents losses, most NFIP policies also include Increased Cost of Compliance (ICC) coverage. ICC coverage applies when flood damages are so severe that the local government declares the building “substantially damaged,” thus requiring the building owner to bring the building up to current community standards. If a community has a repetitive loss ordinance, ICC coverage will also cover compliance requirements for a repetitive loss structure. ICC coverage provides up to $30,000 of the cost to elevate, demolish, floodproof, or relocate an insured building or any combination thereof.
FEMA publishes a Flood Insurance Manual with detailed explanations of the terms and conditions of the SFIP and relevant program policies and procedures. The Flood Insurance Manual is primarily used by insurers and agents selling and servicing Federal flood insurance. FEMA normally publishes the Flood Insurance Manual twice a year and 6 months prior to a new manual version becoming effective. The current version became effective on October 1, 2017. The current flood insurance manual, as well as previous versions, is available at
Additionally, FEMA publishes policy statements and underwriting bulletins to further explain and clarify the coverage under the SFIP. These are available at
A local community with land use authority may elect to participate in the NFIP. Communities participate under a voluntary agreement with FEMA. In order to participate in the NFIP, a community must adopt and enforce floodplain management requirements that incorporate the NFIP minimum floodplain management requirements.
Through its Flood Hazard Mapping Program, FEMA identifies flood hazards, assesses flood risks, and collaborates with States and communities to provide accurate flood hazard and risk data to guide them to mitigation actions. Congress requires FEMA to identify flood-prone areas and then subdivide them into flood risk zones. 42 U.S.C. 4101(a). FEMA then uses this data to support community floodplain management requirements and rate flood insurance policies. Mapping of flood hazards also promotes public awareness of the degree of hazard within such areas and provides for the expeditious identification and dissemination of flood hazard information. FEMA maintains and updates data through FIRMs and Flood Insurance Studies (FISs).
Congress enacted BW-12 (Title II, Subtitle A of Pub. L. 112-141, 126 Stat. 405) to extend the NFIP's authorities through September 30, 2017, and to adopt significant program reform. The law requires changes to all major components of the program, including flood insurance, flood hazard mapping, and the management of floodplains.
The provisions of BW-12 relevant to this rulemaking include the following. First, BW-12 requires FEMA to increase the maximum coverage amount for multi-family properties to the same amount as that allowed for commercial properties. Second, BW-12 establishes a minimum deductible amount for NFIP polices. Third, BW-12 prohibits FEMA from denying payment to policyholders for damage or loss to a condominium unit under the Dwelling Form based solely on the fact that the condominium association has inadequate flood insurance coverage on the entire condominium. Fourth, BW-12 requires FEMA to review, among other things, the processes and procedures for making flood in progress determinations.
Congress enacted HFIAA to address flood insurance affordability concerns related to BW-12. Accordingly, HFIAA repealed some provisions of BW-12, mostly related to establishing premium rates. HFIAA also made a number of new program changes. The provisions of HFIAA relevant to this rulemaking include a requirement in Section 8 of HFIAA that FEMA offer a high deductible option of $10,000, which FEMA discusses below.
FEMA proposes to amend parts 59, 61, and 62 of 44 CFR. These parts contain regulations implementing the NFIP. In addition, FEMA proposes to amend Appendices A(1)-A(3) of part 61, containing the three forms of the SFIP: The Dwelling Policy Form, the General Property Form, and the Residential Condominium Building Association Form. These forms are used in NFIP polices.
FEMA proposes this rulemaking for three purposes. First, it intends to make several non-substantive changes designed to improve the readability, uniformity, and clarity of the NFIP regulations. Second, FEMA proposes to make several non-substantive updates to regulations to align with the requirements of BW-12 and HFIAA. Third, FEMA proposes two substantive, albeit miniminally so, changes to its regulations codifying the requirements of BW-12 and HFIAA.
FEMA proposes to update the authority citation for Part 59 to reflect changes to FEMA's source of authority. Currently, the authority citation is 42 U.S.C. 4001
44 CFR part 59 contains general provisions applicable to the NFIP's regulations. Section 59.1 contains a list of definitions generally applicable throughout the NFIP regulations. FEMA proposes to add 13 new definitions and modify three definitions in this section to make this section consistent with its proposed rule changes to parts 61 and 62.
First, FEMA proposes to revise the definition of “act.” Currently, the regulation defines “act” to mean “statutes authorizing the National Flood Insurance Program that are incorporated in 42 U.S.C. 4001-4128.” However, the NFIA now extends to section 4131. Rather than revise the citation to “42 U.S.C. 4001-4131,” FEMA proposes to change the citation to “42 U.S.C. 4001
Second, FEMA proposes to revise the definition of “deductible.” Currently, “deductible” is defined as “the fixed amount or percentage of any loss covered by insurance which is borne by the insured prior to the insurer's liability.” FEMA proposes to revise the definition of “deductible” to mean “the amount of an insured loss that is the responsibility of the insured and that is incurred before any amounts are paid for the insured loss under the insurance policy.” While there is no substantive difference between the two definitions, FEMA believes the proposed definition is clearer and more consistent with the language in Article VI.A of the SFIP, as well as the language in proposed section 61.5, which would provide guidance on deductibles available for NFIP policies (discussed in further detail below).
Third, FEMA proposes to revise the definition of “Emergency Flood Insurance Program or emergency program.” Currently, “Emergency Flood Insurance Program or emergency program” is defined as “the Program as implemented on an emergency basis in accordance with section 1336 of the Act. It is intended as a program to provide a first layer amount of insurance on all insurable structures before the effective date of the initial FIRM.” FEMA proposes to remove “Emergency Flood Insurance Program” so the term only reads “Emergency Program,” and revise the definition to mean “the initial phase of a community's participation in the National Flood Insurance Program, as prescribed by Section 1306 of the Act.” FEMA proposes this change because although the new definition is substantively the same as the current definition, it is clearer and more consistent with the definition of this term in the SFIP.
FEMA also proposes to add definitions for several terms. These terms are: “condominium building,” “mixed use building,” “multifamily building,” “non-residential building,” “non-residential property,” “other residential building,” “other residential property” “residential building,”
The current authority citation for part 61 is 42 U.S.C. 4001
Section 61.1 describes the overall purpose of part 61. It states that part 61 describes the types of properties eligible for flood insurance coverage under the NFIP, the limits of such coverage, and the premium rates actually to be paid by insureds. It states that the specific communities eligible for coverage are designated by the Federal Insurance Administrator from time to time as applications are approved under the Emergency Program and as ratemaking studies of communities are completed prior to the regular program. Finally, it states that lists of such communities are periodically published under part 64 of this subchapter. FEMA proposes to remove the last two sentences of Section 61.1 addressing the specific communities eligible for coverage and publication of the list of communities because they provide information relevant to part 64, not part 61. Removing these sentences would therefore avoid possible confusion regarding the subjects covered in part 61.
Section 61.3 states that insurance coverage under the NFIP is available for structures and their contents, and that coverage for each may be purchased separately.
FEMA proposes to change the title of this section from “Types of coverage” to “Coverage and benefits provided under the Standard Flood Insurance Policy” because this new title provides a more accurate description of the proposed revisions to this section.
FEMA proposes to replace “structure” with “building” because in current practice the program uses the term “building” rather than “structure” throughout its guidance documents and other communications. The term “building” is a more precise and accurate term, because the SFIP insures buildings, not structures. While the term “structure” encompasses the term “building,” it also includes things that are not buildings, such as carports and gas or liquid storage tanks, and thus not insurable under the terms and conditions of the SFIP. Consistent use of this terminology will improve the overall clarity and accuracy of the regulation when viewed within the larger context of FEMA's communications and guidance documents regarding the NFIP, as “building” rather than “structure” is more commonly used outside of the CFR.
FEMA proposes to add two new provisions to this section to provide a more accurate depiction of the coverages and benefits available under the SFIP and to improve the Section's overall clarity. First, FEMA proposes to add paragraph (b) stating that in addition to building and contents coverage, each form of the SFIP provides coverage for other flood-related expenses. The Dwelling Form of the SFIP covers debris removal, loss avoidance measures, and condominium loss assessments. The General Property Form of the SFIP covers debris removal, loss avoidance measures, and pollution damage. The Residential Condominium Policy Form of the SFIP covers debris removal and loss avoidance measures. Second, FEMA proposes to add paragraph (c) stating that with the purchase of building coverage, the SFIP also covers costs associated with bringing the building into compliance with local floodplain ordinances. FEMA believes this information may be useful to a reader of the CFR.
Section 61.4 provides that coverage obtained through the NFIP is subject to the NFIA, relevant regulations, the SFIP, and each individual policy's declaration page, and the maximum limits of coverage. FEMA proposes to remove this section because it duplicates the provisions of current section 61.5(e), which provide that the SFIP “is authorized only under terms and conditions established by Federal statute, the program's regulations, the Administrator's interpretations and the express terms of the policy itself.” As section 61.5(e) conveys the same information as section 61.4, FEMA finds that section 61.4 is not necessary. (Note that FEMA proposes to move 61.5(e) to proposed 61.13, discussed below.)
Paragraph (a) of section 61.5 states that no new flood insurance or renewal of flood insurance policies shall be written for properties declared by a duly constituted State or local zoning or other authority to be in violation of any flood plain, mudslide (
Paragraph (b) of section 61.5 states that to reduce the administrative costs of the NFIP, of which the Federal Government pays a major share, payment of the full policyholder premium must be made at the time of application. FEMA proposes to reword “payment of the full policyholder premium” to state “applicants must pay the full policy premium” because premiums are associated with policies, not policyholders. No substantive change is intended.
FEMA proposes to retain the substance of paragraphs (a) and (b), but proposes to move them to their own section (proposed 61.4) but retaining the current title of the section (“Special terms and conditions”).
Paragraph (c) of section 61.5 states that because of the seasonal nature of flooding, refunds of premiums upon cancellation of coverage by the insured are permitted only if the insurer ceases to have an ownership interest in the
Similar to current section 61.4, paragraph (e) of section 61.5 states that the SFIP is authorized only under terms and conditions established by Federal statute, the program's regulations, the Administrator's interpretations and the express terms of the policy itself. Section 61.5 also states that representations regarding the extent and scope of coverage which are not consistent with the NFIA or with NFIP regulations are void, and the duly licensed property or casualty agent acts for the insured and does not act as agent for the Federal Government, the Federal Emergency Management Agency, or the servicing agent. As noted above, FEMA proposes to move 61.5(e) to proposed 61.13. The provisions appear in proposed paragraph (e) of section 61.13 (“Authorized only under terms and conditions established by the Act and Regulation”) and paragraph (f) (“Agent acts only for policyholder”). These provisions are more appropriate for proposed section 61.13 because the section contains general provisions about the SFIP, and 61.5(e) also constitutes general provisions concerning the SFIP. These changes would improve the overall organization and cohesiveness of part 61. FEMA does not intend any substantive changes with these proposed revisions.
Current paragraph (d) of section 61.5 states that optional deductibles are available in all zones for four categories of properties, and presents those categories as four tables. The Category One table lists some of the deductible options for one to four family building and contents coverage policies. The Category Two table lists some of the deductible options for one to four family building coverage only or contents coverage only policies. The Category Three table lists some of the deductible options for “other residential” (residential buildings with five or more units) and nonresidential policies. The Category Four table lists some of the deductible options for residential condominium building policies. A note to these tables indicates that policyholders may submit any other deductible combination for rating to the NFIP. This note allows FEMA to offer deductibles listed in the deductible tables in the Rating Section of Flood Insurance Manual, pages 17-18.
FEMA proposes several revisions to paragraph (d). First, FEMA proposes to remove the number for the paragraph because, as noted above, paragraphs (a) and (b) would be moved to a new section 61.4 and paragraph (c) would be incorporated into section 62.5. As a result, paragraph (d) would be the only paragraph in the section, thus making the paragraph number unnecessary.
FEMA proposes to replace the current contents of paragraph (d) (proposed unnumbered paragraph) with a requirement that FEMA must provide policyholders with deductible options in various amounts, up to and including $10,000, subject to certain minimum deductibles. FEMA proposes this change because the current regulation's listing of deductible options may give readers the impression that the list is exhaustive even though the note following the Category Four table allows for FEMA to offer deductible options not listed in the table. The proposed text would make clear that FEMA may offer various options, subject to other restrictions.
The proposed text would require FEMA to offer deductible options up to and including $10,000 to comply with the requirements of Section 1306(d) of the NFIA, as amended by section 12 of HFIAA (42 U.S.C. 4013(d)), which requires FEMA to offer deductibles up to $10,000 for residential properties. As previously explained, current regulations allow policyholders to request deductible amounts not currently listed in regulation (including the $10,000 deductible option required under HFIAA). Thus, this proposed change would clarify the regulatory text consistent with statutory requirements, but not expand or contract the deductible options offered by the NFIP under current regulations.
FEMA also proposes to limit deductible options in accordance with section 1312(b) of the NFIA, as added by section 100210 of BW-12 (42 U.S.C. 4019(b)). Per this provision, FEMA proposes to establish minimum deductibles as follows: (1) $1,500 for policies covering pre-FIRM buildings charged less than full-risk rates with building coverage amounts less than or equal to $100,000; (2) $2,000 for policies covering pre-FIRM buildings charged less than full risk rates with building coverage amounts greater than $100,000; (3) $1,000 for policies covering post-FIRM buildings and pre-FIRM buildings charged full risk rates with building coverage amounts equal to or less than $100,000; and (4) $1,250 for policies covering post-FIRM buildings and pre-FIRM buildings charged full risk rates with building coverage amounts greater than $100,000.
Overall, the proposed deductible section would provide readers with a clear understanding of available deductible options, including minimum deductibles required under Section 1312(b) of the NFIA, as added by Section 100210 of BW-12 (42 U.S.C. 4019(b)) and the $10,000 deductible option required by Section 1306(d) of the NFIA, as amended by Section 12 of HFIAA (42 U.S.C. 4013(d)). However, it would not expand or contract the deductibles available to policyholders under current law.
FEMA also proposes to rename the section heading of 61.5 to “Deductibles” because section 61.5 would only address deductible amounts.
Current section 61.6 details the maximum amounts of coverage available under the NFIA.
The current table does not have a title. FEMA proposes to entitle the table “Maximum Amounts of Coverage Available.” While the Flood Insurance Manual uses the title “Amount of insurance available,” FEMA proposes to use “coverage” instead of “insurance” to conform to the current section title of
The current table has one vertical axis that lists the different categories of occupancy applicable to both building and contents coverages. These categories are, in order: “Single Family Residential,” “Other Residential,” “Nonresidential,” and “Contents.” Although the table provides a “contents” heading on this axis, there is no corresponding label for the building coverages. FEMA proposes to add “Building Coverage” to the vertical axis to distinguish between “building coverage” and “contents coverage.” This “Building Coverage” category would encompass “Single Family Residential,” “Other Residential,” and “Nonresidential.” FEMA believes this change would prevent confusion by improving the table's overall clarity and internal consistency.
As noted above, the current table lists the different categories of occupancy applicable to each coverage—“Single Family Residential,” “Other Residential,” and “Nonresidential.” The current table further divides the “Single Family Residential” and “Other Residential” categories by whether or not a subject property is located within Hawaii, Alaska, Guam, or the U.S. Virgin Islands. It divides the “Nonresidential” category into either “Small business” or “Churches and other properties.” Similarly, the “Contents” coverage category only distinguishes between “Residential,” Small business,” and “Churches, other properties.” The proposed table would make several changes to the categorization to use standardized terminology, improve the overall design and readability of the table, and use occupancy categories that more accurately reflect statutory and program differences in available coverages.
FEMA proposes to substitute the current use of “Single Family Residential” with “Single Family Dwelling” to describe a property. FEMA proposes this change because although the two terms (“dwelling” and “residential”) are interchangeable within the NFIP, “Single Family Dwelling” is the term used most often in the NFIP, as reflected in the Rating section of the Flood Insurance Manual. The Flood Insurance Manual has used this term for many years.
Because “single family dwelling” is not currently defined, FEMA proposes to define “single family dwelling” in section 59.1 to mean “either (a) a residential single-family building in which the total floor area devoted to non-residential uses is less than 50 percent of the building's total floor area, or (b) a single-family residential unit within a two to four family building, other residential building, business, or non-residential building, in which commercial uses within the unit are limited to less than 50 percent of the unit's total floor area.” FEMA adopted this definition in the Flood Insurance Manual as early as 1978 to align with common industry practices in non-flood property insurance policies and it is the same definition found in the Definitions Section of the Flood Insurance Manual. This proposed definition reflects current NFIP practice and will not result in any substantive changes to the program.
FEMA proposes to add a new occupancy category, “two to four family building.” (The table would list the same maximum coverage amounts as those for a Single Family Dwelling, $35,000 for Emergency Program and $250,000 for the Regular Program.) FEMA proposes to include this category because it would be clearer to provide the public with a complete spectrum of occupancy categories so that the coverage limits for all occupancy types are more transparent. This does not reflect a substantive change to the program.
Because “two to four family building” is not currently defined, FEMA proposes to define it in section 59.1 to mean “a residential building, including an apartment building, containing two to four residential spaces and in which commercial uses are limited to less than 25 percent of the building's total floor area.” FEMA proposes to define “two to four family building” in this manner because it is the same definition used in the Flood Insurance Manual. This definition supports the NFIA's distinctions between residential and non-residential properties.
While FEMA proposes to maintain the “Other Residential” occupancy category that is in the current table, FEMA proposes to revise the category to read, “Other Residential Building (including Multifamily Building).” FEMA proposes to do this to make clear to the reader that “Other Residential Building” encompasses “Multifamily Buildings,” a term used in section 1305 of the NFIA, as added by section 100204 of BW-12 (42 U.S.C 4012(d)).
Because neither “other residential building” nor “multifamily building” is defined, FEMA proposes to define these in section 59.1. It proposes to define “other residential building” to mean “a residential building that is designed for use as a residential space for 5 or more families or a mixed use building in which the total floor area devoted to non-residential uses is less than 25 percent of the total floor area within the building.” It proposes to define “multifamily building” to mean “an Other Residential Building that is not a condominium building.” FEMA proposes to define these terms in this manner because the program currently defines them as such; these definitions appear in the Definitions Section of the Flood Insurance Manual. FEMA believes this definition of “Other Residential Building” fairly distinguishes the term from the “single family dwelling” and “two to four family building” occupancy categories, in terms of either residential spaces or square-footage. Defining “multifamily building” this way enables easier reference to condominium-building specific policies that will be discussed below.
FEMA proposes to add the “Condominium Building” occupancy category to the table (with maximum coverage amounts of “$250,000 times the number of units in the building” under the Regular Program, and nothing available under the Emergency Program). FEMA proposes this addition to integrate into the table information contained in current section 61.6(b). Section 61.6(b) states that “[i]n the insuring of a residential condominium building in a regular program community, the maximum limit of building coverage is $250,000 times the number of units in the building (not to exceed the building's replacement cost).” By adding the “Condominium Building” occupancy category to the table, FEMA plans to incorporate all the information in section 61.6(b) except the language in parentheses, “not to exceed the building's replacement cost.” FEMA proposes to omit this language because Article V of the RCBAP form (44 CFR 61, Appendix A(3)) already provides that FEMA will not pay beyond the replacement cost of the building.
While FEMA proposes to maintain the “Nonresidential” occupancy category, FEMA proposes to revise the category to read “Non-Residential Building.” This category would continue to have building limits of $100,000 in the Emergency Program and $500,000 in the Regular Program.
In order to provide greater clarity, FEMA proposes to incorporate the existing definition of “non-residential building” into regulation. Current regulations and statute do not define the
FEMA proposes to adjust the occupancy categories under the “Contents Coverage” portion of the coverage limits table. Currently, the table at section 61.6(a) divides the contents coverage portion amongst three categories: “Residential,” “Small business,” and “Churches, other properties.” FEMA proposes to remove the distinction between “Small business” and “Churches, and other properties,” and divide contents coverage into just two categories: “Residential Property” and “Non-Residential Property.” FEMA proposes this change to reflect the current practice of the program. Although NFIA section 1306(b)(1)(B) (42 U.S.C. 4013(b)(1)) provides a specific method for determining the maximum coverage available to small businesses, FEMA has opted to provide all other non-residential properties with the same coverage limits available to small businesses. Accordingly, while the statute may still distinguish small businesses from all other properties, current NFIP practice does not.
In addition to the adjustments to the categories of occupancy described above, FEMA proposes two changes to the footnotes. In the current table, there are two footnotes. Footnote 1 appends “Emergency program” in “Emergency Program first layer” and provides that “[o]nly [the] first layer [is] available under the emergency program.” Footnote 2 appends the “Contents” label and reads, “Per unit.”
FEMA proposes to revise footnote 1 by appending it to the title of the table, “Maximum Amount of Coverage Available,” to describe the table generally. It would read, “This Table provides the maximum coverage amounts available under the Emergency Program and the Regular Program, and the columns cannot be aggregated to exceed the limits in the Regular Program, which are established by statute. The aggregate limits for building coverage are the maximum coverage amounts allowed by statute for each building included in the relevant Occupancy Category.” FEMA proposes this revision because, as described in greater detail below in subsection iv.,
FEMA proposes to leave footnote 2 in the same place (after “Contents Coverage”—the term replacing “Contents” in the current table), but expand it from “Per unit” to instead read, “The policy limits for contents coverage are not per building. Although a single insured may not have more than one policy covering contents in a building, several insureds may have separate policies of up to the policy limits.” FEMA proposes this revision to footnote 2 to more clearly reflect the restriction that the current footnote 2 attempts to convey, which is that the coverage limits apply to each unit of the building.
For instance, the tenants of a building with two independent living units may obtain separate contents policies for each unit. Each policy could have limits up to $100,000 and a contents claim for one unit would not affect the contents claim of the other unit. However, the existing NFIP rule—not reflected in the current footnote—is that the owner of the building cannot obtain two separate contents policies themselves. Instead, they could only obtain one contents policy with coverage up to $100,000. FEMA's proposed language in footnote 2 seeks to more clearly explain NFIP statutory authority that even though the contents coverage limits are per unit rather than per building, an insured cannot have more than one policy in a building.
FEMA proposes to append a new footnote—footnote 3—to the “Residential Property” occupancy category under “Contents Coverage.” Footnote 3 would explain that “[t]he Residential Property occupancy category includes the Single Family Dwelling, Two to Four Family Building, Other Residential Building, and Condominium Building occupancies categories.” FEMA proposes appending this new footnote to help improve the overall clarity of the table by linking the building coverage occupancy categories with the contents coverage occupancy categories.
The current maximum coverage table in section 61.6(a) lists separate increased limits in the Emergency Program within the “Single Family Residential” and “Other Residential” occupancy categories for residential structures located in Hawaii, Alaska, Guam, and the U.S. Virgin Islands. This is because the NFIP provides increased building coverage to these structures pursuant to 42 U.S.C. 4013(b)(1)(A)(iii). FEMA proposes to remove these lines referencing Hawaii, Alaska, Guam, and the U.S. Virgin Islands and place them instead in asterisked footnotes. FEMA does not intend any substantive change in these limits, but believes this design will improve the overall readability of the table.
FEMA also proposes to make several clarifying, nonsubstantive changes to the horizontal axis of the table in section 61.6(a). The current table's horizontal axis is one label, “Regular program.” Under that label are three sub-labels: “Emergency program first layer,” “Second layer,” and “Total amount available.” As noted above, “Emergency program first layer” has a footnote (footnote 1) that reads, “Only first layer available under emergency program.”
FEMA's proposed replacement table would dispense with the “layer” language and use only two columns, “Emergency Program” and “Regular Program.” Each column would list the applicable coverage limit for each occupancy type under each type of program. (The values under “Emergency Program” and “Regular Program” would be independent of each other and not subject to aggregation).
FEMA proposes these simpler horizontal axis labels for two reasons. The first reason is to improve overall clarity, as the “layer” language is unclear and inaccessible to the reader. The second reason is to more accurately reflect the NFIP's intent. This is because the current table reflects a previous approach for describing the NFIP's coverage limits. The idea was that the NFIP divided the Regular Program's coverage limits into two layers. The first layer was available for all NFIP policies, whether under the Emergency Program or the Regular Program. The NFIP only made the second layer of coverage available through the Regular Program. The current table attempts to capture this by placing the “Emergency program
Moreover, it is for this reason that FEMA proposes to revise footnote 1, as described above, to clarify that the maximum coverage amounts listed for the Emergency Program and the Regular Program are not cumulative. Rather, the maximum amounts listed under the Regular Program are the maximum amounts authorized under the NFIA and include the amounts for the Emergency Program. (In other words, the amounts for the Emergency Program are not in addition to the amounts for the Regular Program).
As noted above, current paragraph (b) is being removed and its contents are being incorporated into the proposed table. FEMA proposes to add a new paragraph (b) that would state, “[c]overage and benefits payable under the SFIP pursuant to sections 61.3(b) and 61.3(c) are included in, not in addition to, the coverage limits provided by the Act or stated in paragraph (a) of this section.” The purpose of this new paragraph is to explain that the coverage limits described in the table in section 61.6(a) apply to all coverages payable under the SFIP, including mitigation, and debris removal coverage described in proposed section 61.3(b) and ICC coverage described in proposed section 61.3(c).
This revision would not make any substantive change to NFIP policy, but rather would provide a clarifying link to the coverage and benefits listed in proposed section 61.3 and how coverage limits relate to those coverages and benefits.
Overall, FEMA intends for the proposed changes to section 61.6 to improve the clarity of the Section and ensure that it uses terminology consistent with that currently used by the NFIP. The Agency does not intend for the proposed changes to 61.6 to modify the substance of the NFIP flood insurance policies or the maximum coverage limits available for buildings and contents covered under such policies.
FEMA proposes to add a new section, 61.10, entitled “Requirements for Issuance or Renewal of Flood Insurance Coverage.” The proposed section would state that FEMA will not issue or renew flood insurance unless FEMA receives: (1) The full amount due (including applicable premiums, surcharges, and fees); and (2) a complete application, including the information necessary to establish a premium rate for the policy, or submission of corrected or additional information necessary to calculate the premium for the renewal of the policy. FEMA proposes this new section because these requirements are already implicitly indicated in current sections 61.5(b) and 61.11(b), but are nowhere explicitly stated. Pursuant to section 61.5(b), “payment of the full policyholder premium must be made at the time of application.” Section 61.11(b) provides that coverage is effective at the time of loan closing, “provided the written request for the coverage is received by the NFIP and flood insurance policy is applied for and the presentment of payment of premium is made at or prior to the loan closing.” Further, the statutory 30-day waiting period begins on the “date that all obligations for [flood insurance] coverage (including completion of the application and payment of any initial premiums owed) are satisfactorily completed.” NFIA 1306(c)(1) (42 U.S.C. 4013(c)(1)). FEMA believes that explicitly stating the requirements for issuance or renewal of a policy will provide policyholders with clearer descriptions of these requirements.
Section 61.11 describes the methods for calculating the effective dates of new policies. In general, under current paragraph (c), the effective date and time of any new policy or added coverage is “12:01 a.m. (local time) on the 30th calendar day after the application date and the presentment of payment of premium.” Current paragraphs (a) and (b) provide two exceptions to this 30-day waiting period. Section 61.11(a) provides for an effective date of 12:01 a.m. on the first calendar day after application and payment for the initial purchase of flood insurance pursuant to a revision or update of floodplain areas or flood risk zones under section 1360(f) of the NFIA, if such purchase took place within 1 year of the notice of such revision or updating under section 1360(h).
FEMA proposes to add a third exception to the 30-day waiting period relating to flooding linked to post-wildfire conditions in proposed paragraph (c), and proposes to redesignate current paragraph (c) as paragraph (d). The proposed provision would allow for a next-day effective date where (1) the FEMA Administrator determines that the property was affected by flooding on Federal land as a “result of, or is exacerbated by, post-wildfire conditions,” and (2) that coverage was purchased no later than 60 calendar days after the fire containment date of the wildfire relating to the post-wildfire conditions described in clause (1). FEMA proposes adding this exception pursuant to BW-12.
As stated above, FEMA proposes to redesignate current paragraph (c) as paragraph (d). FEMA also proposes to make two minor changes to current paragraph (c). First, FEMA proposes to add a reference to new paragraph (c) to indicate that in addition to paragraphs (a) and (b), paragraph (c) is one of the exceptions to the 30-day waiting period. Second, FEMA proposes to change “shall” to “will.” FEMA proposes this change to incorporate plainer language. This change would not change the substantive meaning of the provision.
Current paragraph (d) allows policyholders to add new coverage or increase the amount of coverage in force during the term of any policy. FEMA proposes to redesignate current paragraph (d) as paragraph (e), and proposes to add the language “subject to any applicable waiting periods.” FEMA proposes adding this language to make it clear that unless the policy change qualifies under one of the exceptions in
Current paragraph (e) states that with respect to any submission of an application in connection with new business, the payment of the premium by an insured to an agent or the issuance of premium payment by the agent does not constitute payment to the NFIP. It further states that it is important that an application for flood insurance and its premium be mailed to the NFIP promptly to have the effective date of coverage based on the application date plus the waiting period.
It states that if the application and the appropriate premium payment are received at the office of the NFIP within ten (10) calendar days from the date of application, the waiting period will be calculated from the date of application. FEMA proposes to revise this paragraph slightly to state that it is important that an application for flood insurance and the “full amount due” be mailed to the NFIP promptly. FEMA proposes to change “premium” to “full amount due” in the sentence following it as well. Making this change would make clear that the policyholder must pay the full amount due at that time (including any surcharges and fees), not just a portion thereof.
FEMA proposes to redesignate current paragraph (e) as paragraph (f). Current paragraph (f) describes the method for determining the effective date when a WYO company receives a proper application, but decides to refer the application to the NFIP's Direct Servicing Agent rather than write the policy itself. FEMA proposes to remove this paragraph because it describes the business model of a WYO company that is no longer participating in the WYO Program. FEMA is not aware of any other WYO company that is using this model, and therefore the provision is unnecessary. Any new companies entering the WYO Program would need to conform their practices to the resulting regulation. Accordingly, FEMA proposes to remove these provisions to avoid confusion. Because FEMA proposes to remove this paragraph, FEMA also proposes to remove the last two clauses of the first sentence of current paragraph (e) (proposed paragraph (f)) that addresses the application of applicable waiting periods for this model, as it too would no longer be necessary. Finally, FEMA proposes to make minor revisions to current paragraph (g) to reflect the removal of current paragraph (f).
Section 61.13 describes the applicable sources of terms and conditions associated with polices issued through the NFIP, including the SFIP forms, endorsements, and applications.
FEMA proposes to add new paragraphs (e) and (f), and redesignate current paragraphs (e) and (f) as (g) and (h). FEMA's proposed new paragraph (e) would explain that flood insurance policies issued through the NFIP are subject to the NFIA, its regulations, and the terms and conditions of the SFIP. As discussed previously, similar language is in current sections 61.4(a) and (b), which FEMA proposes to remove. Moving this language into section 61.13 provides a more logical organization. Further, FEMA proposes to add additional language that any representations not consistent with these sources are void. While implicit in the current regulations, this explicit language would make clear the sources of law applicable to NFIP policies.
FEMA's proposed new paragraph (f) would specify that the property or casualty agent acts on the behalf of the policyholder and never on behalf of the Federal Government, FEMA, or the WYO company. This language is similar to that which FEMA proposes to remove from 61.5(e), but would cover WYO companies as well. FEMA intends that the proposed provision would ensure that policyholders know that the representations of agents involved in the program do not bind the NFIP. Also, while current 61.5(e) uses the word “insured,” FEMA proposes to substitute the word with “policyholder” in proposed section 61.13(f). “Policyholder” refers specifically to the individual or business named in the policy itself, whereas the word “insured” can refer to the policyholder as well as anyone who submits payment on behalf of the policyholder and/or who has the right to a claim payment under the policy (
Current paragraph (f) (proposed paragraph (h)), provides that private sector WYO property insurance companies may issue SFIPs. FEMA proposes to revise proposed paragraph (h) to provide that WYO companies will issue NFIP policies in their own name, rather than the current language providing that WYO companies may issue NFIP policies in their own name. This change would conform to the current FEMA-WYO company relationship described in Article I of Appendix A of 44 CFR part 62. Further, FEMA proposes to add language at the end of the paragraph stating that the risk of loss is borne by the NFIP, rather than the WYO company. This language would further clarify the existing relationship between FEMA and WYO companies.
Overall, the proposed changes to 61.13 would provide greater clarity to the public regarding the existing relationship between FEMA, policyholders, and WYO companies.
Appendix A(1) to part 61 contains the Dwelling Form of the SFIP. This form, as well as the other two SFIP policy forms (the General Property Form and the RCBAP), defines the relationship between FEMA or the WYO company, as the insurers, and the insured.
Throughout Appendix A(1), FEMA proposes to replace the word “covered” with the word “insured” because “covered” is a generic and undefined term that does not conform to common industry or Agency usage. The use of “insured” better conveys the application of the SFIP to property.
The prefatory paragraph states that the policy insures (1) a non-condominium residential building designed for principal use as a dwelling place of one to four families, or (2) a single-family dwelling unit in a condominium building. FEMA proposes to revise (1) to read “a one to four family residential building, not under a condominium form of ownership” because this language is clearer and more consistent with the wording used in the Definitions section for condominium buildings. FEMA proposes to add (3) “personal property in a building” to clarify that personal property is also insured under this policy. FEMA has always insured personal property under this policy, but
In the current policy, Article I “Agreement” begins after the prefatory paragraph. It states in the first paragraph that FEMA provides flood insurance under the terms of the NFIA, its amendments, and 44 CFR. It states in the second paragraph that FEMA will pay for direct physical loss by or from flood to the insured property if the insured has paid the correct premium, complied with all terms and conditions of the policy, and furnished accurate information and statements. It states in the last paragraph that FEMA has the right to review the information provided by the insured at any time and to revise the policy based on this review.
FEMA proposes to begin Article I before the prefatory paragraph, and to relabel the prefatory paragraph as Section A, current Article I's first paragraph as Section B, the second paragraph as Section C, and the third paragraph as Section D. This is to clarify that the prefatory paragraph, which is actually an initial coverage statement, is part of the policy and not just an introduction to the policy.
FEMA also proposes to modify proposed Section C (currently the second paragraph in Article I) and add three new sections to Article I (proposed sections E, F, and G) to clarify existing rules and limitations under the SFIP.
As previously described, FEMA proposes to renumber the second paragraph in Article I as Section C of Article I. This provision currently states that FEMA will pay for direct physical loss by or from flood to the insured property if (1) the insured has paid the correct premium; (2) complied with all terms and conditions of the policy; (3) and furnished accurate information and statements. FEMA proposes to modify the first prong of this statement by stating that coverage is contigent on the policyholder paying the “full amount due (including applicable premiums, surcharges, and fees)” instead of “the correct premium.” FEMA proposes this change to make clear that policyholders must pay any applicable surcharges, such as the one required under 42 U.S.C 4015a, in addition to applicable premiums.
Proposed Section E would state that the policy insures only one building. If the insured owns more than one building, coverage will apply to the single building specifically described in the Flood Insurance Application. While the SFIP's limitation on coverage to one dwelling is already implied by current Article III.A, FEMA proposes to clarify this limitation here to allow policyholders to better understand the extent of coverage, particularly where an insured may own more than one building on the same land.
Proposed Section F would state that multiple policies with building coverage cannot be issued to insure a single building to one insured or to different insureds, even if separate policies were issued through different NFIP insurers. It would also state that payment for damages may only be made under a single policy for building damages under Coverage A—Building Property. This proposed section would incorporate current Article VII.U's general language stating that there may not be more than one NFIP policy on a property. Proposed section F would be subject to the exception in proposed Section G involving condominiums, which provides that a condominium unit may be covered by an RCBAP policy and a dwelling policy.
FEMA proposes this clarification because there have been several instances where multiple persons have taken out multiple, overlapping building policies. This in turn may leave policyholders to believe they have more coverage than is allowed by the NFIA. This is most common in instances where both a building owner and a tenant obtain building policies. As described in WYO Bulletin W-15001 (Jan. 13, 2015),
FEMA proposes to add Section G, which would define the relationship between a Dwelling Form policy and an RCBAP policy that insures the same condominium unit. Section G would state that a Dwelling Form policy with building coverage may be issued to a unit owner in a condominium building that is also insured under an RCBAP. However, no more than $250,000 may be paid in combined benefits for a single unit under the Dwelling Form policy and the RCBAP. This would explicitly state FEMA's application of the statutory maximum coverage limits for one to four family residential buildings, found at 42 U.S.C. 4013(b)(2), as applied to condominium units.
FEMA proposes this section to clarify instances where a condominium unit is covered by both a Dwelling Form policy and an RCBAP policy, and to codify its current practice (pursuant to BW-12) of waiving the requirement found in current regulation to limit payments to affected policyholders. Current Article VII (“Coinsurance”) of the RCBAP policy (Appendix A(3) to Part 61) restricts payments for damage to condominium associations that insure less than 80 percent of the full replacement cost of the RCBAP insured condominium building, or less than the maximum amount of insurance available. In turn, current Article III.C.3.b.4 of the Dwelling Form policy precludes payment for a loss assessment if the reason for the shortage is application of the RCBAP's coinsurance penalty provision. Current Article VII.C.2 of the Dwelling Form policy provides that where a condominium unit is covered by both the Dwelling Form policy and an RCBAP (or other flood insurance coverage purchased by the condominium association), the Dwelling Form policy will be in excess over the RCBAP (or other insurance).
Since 2007, FEMA has issued individual waivers of these provisions' requirements to limit payments to affected policyholders. Section 100214 of BW-12 (42 U.S.C. 4019(c)) validated this policy by prohibiting FEMA from limiting payments pursuant to Article III.C.3.b.4. FEMA implemented this prohibition through a general waiver.
Proposed Section G would also state that FEMA will only pay for damage once, and items of damage paid for under an RCBAP cannot also be claimed under the Dwelling Form policy. FEMA proposes to add this language to clarify the existing rule under current Article VII.C.2 that if a single property is insured by both policies forms, the Dwelling Form will only pay what is not covered under the RCBAP policy.
FEMA proposes to remove the last sentence of the second paragraph in Article II.A which states, “The precise definitions are intended to protect you.” FEMA proposes removal of this sentence because it is an incorrect statement of the purpose of providing the definitions. The definitions are to provide clarity to the language of the
FEMA also proposes to move the definition of “flood,” which is currently in the third paragraph of Article II.A, to a separate Section B. Accordingly, FEMA also proposes to redesignate current Section B as Section C.
FEMA proposes to remove one definition, “expense constant,” from the Dwelling Form. The term describes a flat charge assessed on all policies to defray expenses to the Federal Government related to flood insurance. FEMA proposes to remove this definition because FEMA no longer charges an expense constant and FEMA does not use this term in the Dwelling Form.
FEMA proposes to add a definition of “condominium building” to mean a type of building for which the form of ownership is one in which each unit owner has an undivided interest in common elements of the building. FEMA intends for this addition to conform with the addition of the definition to 44 CFR 59.1. FEMA proposes to add this definition because it is used throughout the Dwelling Form.
FEMA also proposes to define the term “deductible” as “the fixed amount of an insured loss that is your responsibility and that is incurred by you before any amounts are paid for the insured loss under this policy.” This definition aligns with the definition of “deductible” currently proposed for 44 CFR 59.1. FEMA proposes to include this definition in the SFIP to support related provisions in Article VI.
FEMA proposes to modify several definitions currently in the Dwelling Form. First, FEMA proposes to revise the definition of “application” by striking the last sentence. FEMA proposes this change because the last sentence is not a definition, but rather a separate requirement. Further, the sentence does not align with proposed Article I.C, which states that policyholders must submit “the full amount due” which includes applicable premiums, surcharges, and fees.
FEMA proposes to revise the definition of the term “basement.” Currently, “basement” is defined as “any area of the building, including any sunken room or sunken portion of a room, having its floor below ground level (subgrade) on all sides.” FEMA proposes to replace the word “the” before the word “building” with the word “a” to correct a grammar error in the current Dwelling Form SFIP. FEMA also proposes to remove the word “subgrade” because, due to the many and varying definitions of this word, its use is causing confusion. Removal of the term “subgrade” is not intended to have any substantive effect.
FEMA proposes to revise the term “condominium.” Currently, “condominium” is defined as “that form of ownership of real property in which each unit owner has an undivided interest in common elements.” FEMA proposes to replace the term “real property” with the phrase “one or more buildings” because FEMA believes that this nonsubstantive change uses plainer language that the public can more easily understand.
Similarly, FEMA proposes to adjust the definition of “condominium association.” Currently, this term is defined as the entity made up of the unit owners responsible for the maintenance and operation of (a) common elements owned in undivided shares by unit owners; and (b) other real property in which the unit owners have use rights; where membership in the entity is a required condition of unit ownership. FEMA proposes to replace the term “real property” with “buildings” because FEMA believes that this change uses plainer language that the public can more easily understand while maintaining the substantive meaning of the definition.
FEMA proposes to revise the definition of “dwelling.” Currently, “dwelling” is defined as “a building designed for use as a residence for no more than four families or a single-family unit in a building under a condominium form of ownership.” FEMA proposes to replace the phrase “building under a condominium form of ownership” with “condominium building” to integrate the defined term “condominium building” while maintaining the substance of the current definition.
FEMA proposes to revise the definition of “emergency program.” Currently, “emergency program” is defined as the initial phase of a community's participation in the National Flood Insurance Program. The definition also states that during this phase, only limited amounts of insurance are available under the NFIA. FEMA proposes to retain this definition but add at the end the phrase “and the regulations prescribed pursuant to the Act.” FEMA proposes to add this phrase to align the SFIP definition of this term with its definition at 44 CFR 59.1.
FEMA proposes minor revisions to the definition of “improvements.” Currently, this term is defined as “fixtures, alterations, installations, or additions comprising a part of the insured dwelling or the apartment in which you reside.” FEMA proposes to remove the word “insured” because it is not necessary. It proposes to remove the word “the” from before the word “apartment” for readability.
FEMA proposes to move the definition of “principal residence” from Art. VII.V.1.a.1 (“Loss Settlement”) of the Dwelling Form to the Definitions Section (Article II). Currently, under Article VII.V.1 a principal residence means the single-family dwelling where the policyholder or the policyholder's spouse has lived for at least 80 percent of (a) the 365 days immediately preceding the time of loss; or (b) the period of ownership, if either the policyholder or policyholder's spouse owned the dwelling for less than 365 days immediately preceding the time of loss. FEMA proposes to move the substantively unchanged definition to the Definitions Section of Article II because that is the more appropriate place to define terms used in the Dwelling Form.
FEMA proposes to revise the definition for “probation premium” by replacing the defined term “probation premium” with the term “probation surcharge.” “Probation surcharge” would retain the same definition as the current definition for “probation premium,” which is a flat charge the policyholder must pay on each new or renewal policy issued covering property in a community the NFIP has placed on probation under the provisions of 44 CFR 59.24. FEMA proposes this revision because there is no such thing as a “probation premium;” this incorrect term was intended to reference the probation surcharge that is applied to policies in NFIP communities that have been placed on suspension from the NFIP.
FEMA proposes to amend the definition of “regular program.” Currently, “regular program” is defined as the final phase of a community's participation in the National Flood Insurance Program. In this phase, a Flood Insurance Rate Map is in effect and full limits of coverage are available under the NFIA. FEMA proposes to add the phrase “and the regulations prescribed pursuant to the Act” at the end to clarify, without changing the substance of the definition, that the coverage amounts for NFIP policies are
FEMA also proposes to modify the definition of “Special Flood Hazard Area” to include the appropriate acronym, “SFHA.”
FEMA proposes to revise the term “unit.” Currently, “unit” is defined as “a single-family unit you own in a condominium building.” FEMA proposes to replace the word “unit” with “residential space” so that the word “unit” would not be used to define itself.
Article III of the Dwelling Form (“Property Covered”) is divided into four sections, each addressing different types of property: Section A, “Coverage A—Building Property,” Section B, “Coverage B—Personal Property,” Section C, “Coverage C—Other Coverages,” and Section D, “Coverage D—Increased Cost of Compliance.”
Article III.A.5.b.2 describes the zones above which the lowest floor of a non-walled or roofed building under construction, alteration, or repair must be to be covered. FEMA proposes to replace “levels are” with “level is” to improve readability. FEMA also proposes to replace “and” with “or,” also to improve readability. No substantive changes are intended.
In Article III.A.6, FEMA proposes to replace the reference to “II.B.6.b and II.B.6.c” with a reference to “II.C.6” to reflect the renumbering proposed for Article II.
Article III.A.7 provides a list of items of property covered under Coverage A only. FEMA proposes to replace “covered” with “insured” because “covered” is a generic and undefined term that does not conform to common industry or Agency usage. The use of “insured” better conveys the application of the SFIP to property.
Article III.A.8 limits coverage on items of property in a building enclosure below the lowest elevated floor of an elevated post-FIRM building in specified zones. FEMA proposes to remove the phrase “in a building enclosure” to clarify that the section only insures items of property that are below the lowest elevated floor, not the building enclosure itself. This has always been the case, but removing this language would make this clearer. Removing the language would also clarify that FEMA insures any property identified in Article III.A.8 that is below the lowest elevated floor within the footprint of the building, regardless of whether such property is located in a building enclosure.
Article III.B.1 describes the conditions under which the policy covers personal property inside a building. Current Article III.B.1.b contains two unnumbered paragraphs. FEMA proposes to number these two unnumbered paragraphs as “1.” and “2.” respectively, and to renumber subsequent paragraphs accordingly, to improve readability and organization.
Article III.B.3 (renumbered B.5.in the proposed text) limits coverage for items of property in a building enclosure below the lowest elevated floor of an elevated post-FIRM building located in specified zones or a basement. FEMA proposes to remove the phrase “in a building enclosure” to clarify that the section only insures items of property that are below the lowest elevated floor, not the building enclosure itself. While FEMA has always interpreted this provision this way, removing this language would make this clearer to policyholders. In addition, this proposed change would also clarify that FEMA insures certain property identified in Article III.B.3 (proposed B.5) that is below the lowest elevated floor within the footprint of the building, regardless of whether such property is located in a building enclosure.
Article III.C describes other coverages under the SFIP, including for debris removal, property relocation, and condominium loss assessments. In III.C.2.b, FEMA proposes to number the currently unnumbered paragraphs immedietly following III.C.2.b.2 as III.C.2.b.3 and III.C.2.b.4, respectively, to improve organization and readability.
Article III.C.3.a describes the terms of coverage for condominium loss assessments. FEMA proposes to revise the first sentence of Article III.C.3.a to add the phrase “Subject to III.C.3.b below” to the beginning of the sentence to clarify that the general statement in III.C.3.a that FEMA would pay for condominium loss assessments would be limited by the restrictions established in III.C.3.b. FEMA also proposes to add “condominium” before “unit” in that sentence, for the sake of clarity. The second sentence in Article III.C.3.a states that the assessment must be made as a result of direct physical loss by or from flood during the policy term, to the building's common elements. FEMA proposes to replace “as a result of” with “because of” and “to the building's common elements” with “to the unit or to the common elements of the NFIP insured condominium building in which this unit is located.” FEMA proposes to revise this language for greater clarity and consistency with the “condominium building” definition added in Article II.
Article III.C.3.b describes scenarios where FEMA will not pay any loss assessment charged against the policyholder. Article III.C.3.b.1 provides that FEMA will not pay any loss assessment charged against the policyholder “and the condominium association by any governmental body.” FEMA proposes to relocate the phrase “charged against you” from III.C.3.b to III.C.3.b.1 to improve the sentence structure of the provision.
Article III.C.3.b.4 states that the NFIP would not insure any loss assessments on units in a condominium building that were underinsured as described in this paragraph. FEMA proposes to remove this paragraph, as these restrictions were superseded by section 100214 of BW-12, which prohibits FEMA from denying coverage for a condominium unit under a Dwelling Form policy based solely, or in part, on the flood insurance coverage of the condominium association or others on the overall property insured by the condominium association. Accordingly, to implement this requirement, FEMA proposes to remove Article III.C.3.b.4 as it prevents unit owners from recovering under the Dwelling Form policy for loss assessments charged against them because the condominium building in which the unit is located is underinsured. FEMA has waived this provision in current practice for affected individual policies. The proposed change would conform the language of the Dwelling Form to FEMA's current practice and allow FEMA to discontinue use of the individual waiver process.
Current Article III.C.3.b.5 provides that FEMA will not pay for loss assessments to the extent that payment under this policy for a condominium loss, in combination with payments under any other NFIP policies for the same building loss, exceeds the maximum amount of insurance permitted under the NFIA for that kind of building. Similarly, current section III.C.3.b.6 provides that FEMA will not pay for loss assessments to the extent that payment under this policy, in combination with any recovery available to the tenant in common under any NFIP condominium association policies for the same building loss, exceeds the amount of insurance permitted under the NFIA for a single family dwelling. FEMA proposes to renumber these subsections as (4) and
The last sentence of current III.C.3.b.6 states that “[l]oss assessment coverage does not increase the Coverage A Limit of Liability.” FEMA proposes to renumber this sentence as III.C.3.c. FEMA also proposes to revise the language so that it reads “Condominium Loss Assessment coverage does not increase the Coverage A Limit of Liability and is subject to the maximum coverage limits available for a single family dwelling under the Act, payable between all policies issued and covering the unit, under the Act.” This would clarify that the combined payments under the Dwelling Form and the RCBAP, or any other payment issued under the Dwelling Form to a unit owner where there is also an RCBAP that covers the property, are subject to the $250,000 coverage limit on the combined payments under both policies. Congress only authorized a maximum coverage of $250,000 on a single dwelling, and both the RCBAP and Dwelling Forms rely upon that single authority for establishing the available policy limits. As such, the unit owner and the condominium association each filing separate claims under their separate policies cannot circumvent the limit imposed by Congress. FEMA proposes to add this language to emphasize the point that even though a condominium unit may be insured by both a Dwelling Form policy and an RCBAP, this fact does not alter the statutory coverage limits.
Article III.D (“Increased Cost of Compliance”) describes the terms of coverage for costs associated with complying with State or local floodplain management laws or ordinances affecting repair or reconstruction of a structure suffering flood damage. FEMA proposes to revise the language in this section so that the word “structure” is replaced by the word “building” throughout the section. The reason for this change is the NFIP insures SFIP defined “buildings,” not structures. FEMA also proposes to replace the phrase “this coverage” with the phrase “Coverage D in III.D.3.d and III.D.3.e” to clarify that the coverage referred to in these provisions is Coverage D.
Article V of the Dwelling Form (“Exclusions”) provides the terms and conditions of the SFIP relating to what losses are excluded from coverage under the SFIP. Article V.B excludes coverage for losses resulting from a flood that began prior to the effective date of a policy; this is referred to as the “flood in progress” exclusion. If the SFIP covered losses for policies obtained after a flood became imminent, people could avoid paying for insurance during the times they did not need to make a claim. FEMA would then have to increase rates to compensate for the lost premiums and higher losses. This would in turn drive more people out of the program, which would require higher rates.
Currently, the exclusion specifies that FEMA will not pay for a loss that was “directly or indirectly caused by a flood that is already in progress” prior to the effective date of the policy. FEMA is proposing changes to Article V because the current language does not describe how a policyholder could determine when a flood was in progress. This ambiguous provision has historically caused significant confusion among the public. As a result, FEMA made several attempts to clarify the provision and apply it to the specific attributes of certain floods.
While these clarifications provided workable guidance on the issue, BW-12 directed the FEMA Administrator to review “the processes and procedures for determining that a flood event has commenced or is in progress for purposes of flood insurance coverage made available under the National Flood Insurance Program.” BW-12 section 10227(a)(1)(A) (42 U.S.C. 4011 note). Accordingly, FEMA now proposes to modify the Flood in Progress Exclusion to maintain its practical impact, but to provide clearer terms for its application.
FEMA proposes to revise the language of Article V.B to allow for two separate exclusions for floods in progress, depending on how the policyholder applied for the policy. If the policy became effective at the time of a loan closing, as provided by 44 CFR 61.11(b), then FEMA would not pay for losses caused by a flood that is a continuation of a flood that existed prior to coverage becoming effective. In all other circumstances, FEMA would not pay for a loss caused by a flood that is a continuation of a flood that existed on or before the day the policyholder submitted the application for coverage and paid the full amount due. This exclusion would apply to new policies subject to the 30-day waiting period, as well as those for which the overnight waiting period is applied, as provided by 42 U.S.C. 4013(c)(2)(b).
FEMA believes the proposed formulation provides a more thorough understanding of what constitutes a flood in progress, providing greater clarity to policyholders, without altering the actual effect of the provision because the proposed language captures the principles underlying the previous agency guidance. FEMA also believes the proposed language would successfully prevent a policyholder from waiting until flooding becomes imminent to apply for coverage, as well as prevent a person facing imminent flooding from obtaining a small mortgage to avoid the otherwise 30-day effective date waiting period required by 42 U.S.C. 4013(c)(1).
In article V.C.6, regarding gradual erosion, FEMA proposes to replace “insured” with “covered” because “covered” is a generic and undefined term that does not conform to common industry or Agency usage. The use of “insured” better conveys the application of the SFIP to property. Also in article V.C.6, FEMA proposes to update the reference to the definition of flood to articles II.B.1.c and II.B.2.
Article VII (“General Conditions”) provides the general terms and conditions of the Dwelling Form SFIP, such as provisions related to other insurance; amendments, waivers, and assignments; policy reformation; policy renewal; requirements if there is a loss; and loss payments.
Article VII.B (“Concealment or Fraud and Policy Avoidance”) provides the general terms and conditions of the Dwelling Form SFIP related to concealment or fraud and policy avoidance. FEMA proposes to move Article VII.B to a new Article VIII.A (“Policy Nullification for Fraud,
Article VII.C (“Other Insurance”) discusses terms related to instances where property is covered by more than one insurance policy with flood coverage. FEMA proposes to redesignate Article VII.C as Article VII.B due to FEMA's proposed removal of VII.B. Current Article VII.C.2 (proposed VII.B.2) states that where there is other insurance in the name of the policyholder's condominium association covering the same property covered by this policy, then this policy will be in excess over the other insurance. FEMA proposes to replace the word “covered” with “insured.” FEMA proposes to replace the word “covered” with the word “insured” because “covered” is a generic and undefined term that does not conform to common industry or Agency usage. The use of “insured” better conveys the application of the SFIP to property. FEMA also proposes to add the phrase “issued under the Act” directly following the phrase “other insurance” to clarify that the language referring to other insurance is referring to other NFIP insurance, not other non-NFIP insurance.
FEMA proposes to add language to Article VII.C.2 (proposed VII.B.2) to provide that the section does not apply where a condominium loss assessment to the unit owner results from a loss sustained by the condominium association that was not reimbursed under an RCBAP because the building was not insured for an amount equal to the lesser of: (a) 80 percent or more of its full replacement cost; or (b) the maximum amount of insurance permitted under the NFIA. FEMA proposes to add this exception to codify the existing implemention of section 100214 of BW-12. Under the terms and conditions of the Dwelling Form policy and the RCBAP, the RCBAP is primary, and the Dwelling Form policy acts as an excess flood insurance policy. In order to allow the Dwelling Form to respond as if the RCBAP coverage has in fact been exhausted, FEMA must revise Article VII.C.2 (proposed VII.B.2) so that it does not apply in those situations in which the coinsurance provision of the RCBAP has been triggered.
FEMA also proposes to add language to proposed Article VII.B.2 clarifying that even when a condominium unit is insured by two policies, the maximum statutory coverage limit available under the NFIA of $250,000 still applies. FEMA proposes to add this language to emphasize that the fact that a condominium unit is insured by both a Dwelling Form policy and an RCBAP does not alter or permit payments to exceed the statutory coverage limits.
Article VII.D (” Amendments, Waivers, Assignment”) provides that any amendments or waivers to the policy require express written consent of the Federal Insurance Administrator. It allows a policyholder to assign this policy when transferring title of his or her property except when the policy (1) covers only personal property, or (2) covers a structure during the course of construction. FEMA proposes to redesignate Article VII.D as Article VII.C due to the proposed removal of VII.B and subsequent renumbering discussed above. FEMA proposes to replace the phrase “structure during the course of construction” with “building under construction” both to correspond with the replacement of the word “structure” with “building” throughout Article V of the policy, and also because “building under construction” is the proper term of art, as used in Article III.A.5.a and Article VI.A. Also, FEMA proposes to replace “covers” with “insures” because “covered” is a generic and undefined term that does not conform to common industry or Agency usage. The use of “insured” better conveys the application of the SFIP to property.
Article VII.E (“Cancellation of the Policy by You”) authorizes a policyholder to cancel the policy in accordance with the applicable rules and regulations of the NFIP and provides that a policyholder who cancels may be entitled to a full or partial refund of premium. FEMA proposes to move Article VII.E to a new Article VIII discussing policy nullifications, cancellations, and non-renewals. The new Article VIII is discussed below.
Article VII.F (“Non-Renewal of the Policy by Us”) states that a policy will not be renewed if the community where the covered property is located stops participating in the NFIP, or the building has been declared ineligible under section 1316 of the NFIA. FEMA proposes to move Article VII.F to a new Article VIII discussing policy nullifications, cancellations, and non-renewals. The new Article VIII is discussed below.
Article VII.G (“Reduction and Reformation of Coverage”) describes the terms and conditions of the policy related to situations in which it is discovered that the premium paid on an annual policy, or the information used to rate the policy, is insufficient. Specifically, this section details how coverage under the policy would be reformed in such situations and the policyholder's options upon reformation.
FEMA proposes to redesignate Article VII.G as Article VII.D to conform to the relocation and redesignation of preceding sections described above. FEMA proposes to change the title of the section from “Reduction and Reformation of Coverage” to “Insufficient Premium or Rating Information.” FEMA proposes this change to the title because it is clearer than the current section title. Additionally, FEMA proposes to add the term “insufficient” before “rating information” to make it clear that this provision applies to both cases: Where the information needed to rate the policy is incomplete and where it is incorrect. With respect to the premium, the term “insufficient” applies to situations in which the premium paid is incorrect. With respect to the rating information, the term “insufficient” applies to situations in which the rating information provided for determining the premium rate is incomplete, such as when an elevation certificate is not provided or is incorrect. FEMA proposes to make corresponding language changes throughout this section to ensure that the provisions of this section are applied in both of these situations.
FEMA proposes to add a new Article VII.D.1, entitled “Applicability.” The proposed Article would state that the provisions in proposed Article VII.D, Insufficient Premium or Rating Information, apply to all instances where the premium paid on a policy is insufficient or where the rating information is insufficient, such as where an Elevation Certificate is not provided. This change reflects FEMA's current policies and would not substativently impact the NFIP.
Current Article VII.G.1 provides that if the premium received was not enough to buy the kind and amount of coverage requested, FEMA will provide only the amount of coverage that can be purchased for the premium payment received. FEMA proposes to redesignate
FEMA proposes to add three paragraphs to this section. Proposed paragraph D.2.a clarifies that, for determining whether the premium is sufficient to buy the kinds and amounts of coverage requested, FEMA will first deduct all applicable fees and surcharges. Proposed paragraph D.2.b clarifies that if the amount paid, after deducting the costs of all applicable fees and surcharges, is not sufficient to buy any amount of coverage, the Program will refund the policyholder's payment and there will be no coverage under the policy. FEMA proposes to add these clarifications because they are not explicitly stated in the current regulations, although FEMA has previously interpreted regulations to require this. Thus this is not a substantive change but merely reflects existing practice. Proposed paragraph D.2.c states that “[c]overage limits on the reformed policy will be based upon the amount of premium submitted per type of coverage, but will not exceed the amount originally requested.” FEMA proposes this paragraph to codify its current practice. When FEMA calculates the total policy cost, it knows how much of the total cost will be allocated to premium, surcharges, fees, etc. Under FEMA's current practice, it tries to preserve the ratio of building coverage to contents coverage, regardless of how much premium the policyholder intended to allocate to each type of coverage. For example, if a policyholder originally requested $200,000 in building coverage and $100,000 in contents, FEMA would try to preserve the 2 to 1 ratio when reducing the coverage through reformation. The proposed rule seeks to clarify that FEMA's practice is to reflect the policyholder's intent by considering the amount of premium the policyholder intended to allocate to each type of coverage. Using the example above, therefore, if the policyholder paid a total of $600 premium, wishing to allocate $500 for the $200,000 in building coverage and $100 for the $100,000 in contents, FEMA would provide the amount of building coverage that $500 would purchase under the reformed rate, and the amount of contents coverage that $100 would purchase under the reformed rate.
Current Article VII.G.2 discusses how a policy can be reformed to increase the amount of coverage where insufficient premium or incomplete rating information is discovered before a loss (current paragraph (a)), and where insufficient premium or incomplete rating information is discovered after a loss (current paragraph (b)). FEMA proposes to redesignate current Article VII.G.2 as VII.D.3 and to restructure it to improve organization and readability. Specifically, FEMA proposes to combine the provisions on discovery of insufficient premium or rating information before a loss and discovery of insufficient premium or rating information after a loss. To that end, the Agency proposes to title proposed Article VII.D.3 as “Discovery of Insufficient Premium or Rating Information.” The proposed subsection would state that if the Program discovers that the premium or rating information is insufficient, the Program would reform the policy as described in proposed Article VII.D.2. The proposed subsection also gives policyholders the option of increasing the amount of coverage resulting from the reformation to the amount he or she requests in accordance with the rest of the section. This does not constitute a substantive change from the current regulations and procedure; rather, it is a streamlining of the current regulations without altering the substance.
Proposed Article VII.D.3.a would be entitled “Insufficient Premium” and would address situations where FEMA discovers that the premium is insufficient. This section would retain the first sentence in current VII.G.2.a.1 providing that where FEMA discovers the policyholder has not paid enough premium, the policyholder, and any mortgagee or trustee of which the insurer has written notice, will be sent a bill for the required additional premium for the current policy term (or that portion of the current policy term following any endorsement changing the amount of coverage). From the current language, FEMA proposes to replace “enough” with “sufficient” to align with current program usage and proposes to add commas after “you” and “us” to improve readability.
The last sentence in current VII.G.2.a.1 provides that where the policyholder pays the additional premium within 30 days from the date the bill is sent, the Program will reform the policy to the originally requested amount of coverage. FEMA proposes to relocate this last sentence to its own separate subsection (proposed VII.D.3.a.1) and replace it with language stating that if it is discovered that the initial amount charged for any fees or surcharges is incorrect, the difference will be added or deducted, as applicable, to the total amount in this bill. FEMA proposes this sentence because in addition to the premium, policyholders must pay additional fees and surcharges, which can vary based on the characteristics of the property and its use; this language reflects its existing practice that FEMA adjusts the total bill for overpayment or underpayment of fees and surcharges.
As mentioned above, FEMA proposes to relocate the last sentence in current Article VII.G.2.a.1 to its own separate subsection (proposed VII.D.3.a.1). Because this language only addresses what happens if the policyholder pays the additional premium within 30 days from the date the bill is sent, FEMA proposes to add additional language (proposed VII.D.3.a.2) clarifying that if the policyholder does not pay the premium within 30 days from the date of the bill, the Program would settle any flood insurance claim based on the reduced amount of coverage (as reduced pursuant to Article VII.D.2). This is already implicitly in the current regulation and FEMA's current practice, but FEMA proposes to add it to improve the clarity of the regulation.
FEMA proposes to add a third subsection (proposed VII.D.3.a.3) allowing the policyholder the option of paying all or part of the amount due out of a claim payment based on the originally requested amount of coverage. Though not explicitly anticipated in the SFIP, FEMA currently provides this option to policyholders through coordination of disbursement of claim proceeds and additional premium collections with the insurer. FEMA proposes to incorporate this option into the SFIP to provide policyholders with a comprehensive understanding of their options after FEMA discovers a misrating after a loss.
Proposed Article VII.D.3.b would be entitled “Insufficient Rating Information” and would address situations where it is discovered that the rating information is insufficient. This section would retain the substance of the first sentence in VII.G.2.a. stating that if it is determined that the rating
Current VII.G.2.a.3 and G.2.b.3 address situations where the additional premium or information is not received by the date it is due. FEMA proposes to replace these sections with proposed VII.D.3.b.2 to state that where information is not received within 60 days of the request, no claims would be paid until the requested information is provided. Coverage would be limited to the amount of coverage that could be purchased for the payments received, as determined when the requested information is provided. The proposed provision reflects FEMA's existing interpretation of the SFIP, as reflected in the General Rules Section of the Flood Insurance Manual, page 13. FEMA proposes this provision to clearly reflect FEMA's policy.
FEMA proposes to add a new Article VII.D.4, entitled “Coverage Increases,” which would incorporate the language in current Articles VII.G.2.a.3 and VII.G.2.b.3. The proposed language states that if the policyholder does not submit the amounts requested in Article VII.D.3.a or the additional information requested in Article VII.D.3.b by the date it is due, the amount of coverage could only be increased by endorsement subject to the appropriate waiting period. However, no coverage increases would be allowed until the information requested in Article VII.D.3.b is provided. FEMA proposes this additional language to explicitly state the currently implied consequence of not providing the necessary payment or information.
Finally, FEMA proposes to redesignate current Article VII.G.3 as Article VII.D.5, which would be entitled “Falsifying Information.” Currently, this paragraph states that if the policyholder or their agent intentionally did not tell FEMA about, or falsified, any important fact or circumstance or did anything fraudulent relating to this insurance, the provisions allowing policy cancellations for fraud will apply. FEMA proposes to update the references to other policy provisions to align with the citations as revised under this proposed rule.
In section J (proposed section G) (“Requirements in Case of Loss”), section L (proposed section I) (“No Benefit to Bailee”), and section T (propsed section Q) (“Continious Lake Flooding”), FEMA proposes to replace “covers” with “insures” because “covered” is a generic and undefined term that does not conform to common industry or Agency usage. The use of “insured” better conveys the application of the SFIP to property.
As a consequence of the changes proposed above, FEMA also proposes to renumber sections H through T as sections E through Q. No other changes were made to these sections other than conforming cross-references.
Article VII.U (“Duplicate Policies Not Allowed”) currently describes restrictions on insuring property with more than one NFIP policy. FEMA proposes to remove the Section and incorporate the language into the new language at Articles I.F and VIII.D (discussed in III.C.1.ii and III.C.6.iv of this document, respectively). FEMA further proposes to redesignate all subsequent sections in Article VII, starting with section “VII.V” as “VII.R.”
Current Article VII.V (“Loss Settlement”) (proposed VII.R) describes the three methods for settling losses under the SFIP: Replacement cost loss settlement, special loss settlement, and actual cash value loss settlement. Article VII.V.1.a.1 (proposed VII.R.1.a.1) provides that replacement cost loss settlement applies to a single-family dwelling provided that it is the policyholder's principal residence within the meaning described further in the paragraph. As discussed in III.C.2, FEMA proposes to remove the definition of “principal residence” currently embedded in this provision and move it to the Definitions article of the SFIP. This change would improve readability of the provision without substantive impact.
Throughout proposed section VII.R, FEMA proposes to update internal references to this section (
FEMA proposes to redesignate the letter identifiers for the following sections due to the resdesignation of earlier sections of Article VII. The changes are as follows: Current Article VII.J (proposed VII.G), Requirements in Case of Loss; current Article VII.M (proposed VII.J), Loss Payment; current Article VII.T (proposed VII.Q), Continuous Lake Flooding; and current Article VII.V (proposed VII.R), Loss Settlement.
As discussed above, FEMA proposes to add a new Article VIII (“Policy Nullification, Cancellation, and Non-Renewal”), which would address in one place all the current reasons for which a policy may be nullified, cancelled, or non-renewed. This would consolidate the policy nullification, cancellation, and non-renewal reasons currently in the Dwelling Form at Article VII.B (“Concealment or Fraud and Policy Voidance”), VII.E (“Cancellation of the Policy by You”), and VII.F (“Non-Renewal of the Policy by Us”), and VII.U (“Duplicate Policies Not Allowed”). It would also incorporate the reasons that are being codified into regulation at 44 CFR 62.5 (discussed below). This consolidation would improve the organization and structure of the document. This new article would also improve transparency to the policyholder regarding the reasons for which a policy may be nullified, cancelled, or non-renewed.
Current Article VII.B.1-3 provides that a policy is void, has no legal force or effect, cannot be renewed, and cannot be replaced by a new NFIP policy if the policyholder (or another insured or agent) has intentionally concealed or misrepresented any material fact or circumstance, engaged in fraudulent conduct, or made false statements related to this or any other NFIP policy. It also provides that the policy would be void as of the date the wrongful acts were committed, and that fines, civil penalties, and imprisonment may also apply. FEMA proposes to move these sections to Article VIII.A, rename it “Policy Nullification for Fraud, Misrepresentation, or Making False Statements,” and reorganize it without substantive change for greater clarity.
Current Article VII.B.4 provides that the policy is void and has no legal force where the property is located in a community not participating in the NFIP on the policy's inception date and
FEMA proposes to add Article VIII.B to state that the applicant or policyholder would be entitled to a full refund of all premium, fees, and surcharges received, but if a claim was paid for a policy that is void, the claim payment must be returned to FEMA or offset from the premiums to be refunded before the refund will be processed. This reflects current agency interpretations and procedures, as reflected in the Cancellation/Nullification Section of the Flood Insurance Manual.
Current Article VII.E (“Cancellation of the Policy by You”) provides that a policyholder may cancel the policy in accordance with the NFIP's rules and regulations, in which event they may be entitled to a full or partial refund of premium under those same rules and regulations. FEMA proposes to incorporate the provisions of current Article VII.E into a new Article VIII.C, entitled “Cancellation of the Policy by You.” The proposed section C would retain the same language except for two changes. First, instead of stating “in accordance with the applicable rules and regulations of the NFIP,” it would state “in accordance with the terms and conditions of this policy and the applicable rules and regulations of the NFIP.” Second, it would replace the phrase “premium also under the applicable rules and regulations of the NFIP” with “premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.” No substantive change is intended.
FEMA proposes to establish a new Article VIII.D, entitled “Cancellation of the Policy by Us,” which would state four reasons for which a policy may be cancelled by the insurer: 1. Cancellation for underpayment of amounts owed on the policy, 2. cancellation due to lack of an insurable interest, 3. cancellation of duplicate policies, and 4. cancellation due to physical alteration of property.
The first reason for which the insurer may cancel a policy is in proposed Article VIII.D.1, entitled “Cancellation for Underpayment of Amounts Owed on Policy.” This provision would state that the insurer may cancel the policy if, pursuant to VII.D.2, it is determined that the amounts paid by the policyholder were not sufficient to buy any amount of coverage, and the policyholder did not pay the additional amount of premium owed to increase the coverage to the originally requested amount within the required time period. FEMA proposes to add this cancellation reason to align with current practice, as reflected in proposed VII.D.2, that FEMA will cancel a policy where the policyholder has paid a premium that is insufficient to buy a policy with the lowest available coverage limits.
FEMA proposes to add the second reason for which the insurer may cancel a policy in proposed Article VIII.D.2, entitled “Cancellation Due to Lack of an Insurable Interest.” Proposed Article VIII.D.2.a would state that if the policyholder no longer has an insurable interest in the insured property, the insurer will cancel the policy, and that the policyholder would cease to have an insurable interest if (1) for building coverage, the building was sold, destroyed, or removed, and (2) for contents coverage, the contents were sold or transferred ownership, or the contents were completely removed from the described location. Proposed Article III.D.2.b would state that if a policy is cancelled for these reasons, the policyholder may be entitled to a partial refund of premium under the applicable rules and regulations of the NFIP. This reflects FEMA's current practice and interpretations, as shown in the Cancellation/Nullification section of the Flood Insurance Manual, pages 1-2 (“1. Building Sold or Removed, Destroyed or Physically Altered to no Longer Meet the Definition of an Eligible Building”).
FEMA proposes to add the third reason for which the insurer may cancel a policy in proposed Article VIII.D.3, entitled “Cancellation of Duplicate Policies.” Article VIII.D.3 would have three subsections. Subsection (a) would state that except as allowed under Article I.G (
Subsection (b) would state that except as allowed under Article I.G, if the property is insured by more than one NFIP policy, all but one of the policies will be cancelled, and that the policy, or policies, will be selected for cancellation in accordance with 44 CFR 62.5 and the applicable rules and guidance of the NFIP. FEMA proposes to add this provision in conjunction with its proposed revisions to the cancellation provisions at 44 CFR 62.5 (discussed below).
Subsection (c) would state that if a policy is cancelled pursuant to VIII.D.4.b, the policyholder may be entitled to a full or partial refund of premium, surcharges, or fees. FEMA proposes to add the third subsection in conjunction with the refund rules proposed at 44 CFR 62.5.
FEMA proposes to add the fourth reason for which the insurer may cancel a policy in proposed Article VIII.D.4, entitled “Cancellation Due to Physical Alteration of Property.” The proposed provision states that the insurer may cancel the policy if the insured building has been physically altered in such a manner that it is no longer eligible for flood insurance coverage, and that if the policy is cancelled for this reason, the policyholder may be entitled to a partial refund of premium under the terms and conditions of the policy and the applicable regulations of the NFIP. This reflects current agency practice and interpretations, as shown in the Cancellation/Nullification section of the Flood Insurance Manual, pages 1-2.
Current Article VII.F (“Non-Renewal of the Policy by Us”) provides that a policy will not be renewed if the community where the covered property is located stops participating in the NFIP, or if the building has been declared ineligible under the section 1316 of the NFIA. FEMA proposes to incorporate these provisions into proposed Article VIII.E, entitled “Non-Renewal of the Policy by Us.” FEMA proposes to retain both provisions stating that the property is located in a suspended or non-participating community and the building is ineligible for NFIP coverage, but proposes to move the words “if” from the beginning of each subsection and instead put the word “if” directly after the phrase “will not be renewed”; to replace the word “covered” with “insured,” and replace the phrase “has been declared” with the phrase “is otherwise.” FEMA proposes these revisions to improve the language.
FEMA also proposes to add a new provision stating that the policy will not be renewed if the policyholder has not provided the information necessary to rate the policy within the required deadline. FEMA proposes to add this third reason for which a policy will not be renewed to clarify that a policyholder has an obligation to provide the information needed to rate the policy and that failure to provide this information within the required deadline will result in that policy not being renewed. This is implicit in the language of Article I of the SFIP and reflects FEMA's current practices, but the proposed language is a more explicit statement needed to increase the transparency and clarity of the policy.
FEMA further proposes to renumber current Articles VIII and IX as IX and X, respectively, due to the renumbering of prior articles.
Current Article IX (“What Law Governs”) describes which law applies to the SFIP. FEMA proposes to redesignate current Article IX as Article X and to add “the insurer's policy issuance” and “policy administration” to the list of insurer activities taken under the NFIP that must be governed exclusively by the National Flood Insurance Act of 1968, the regulations prescribed pursuant to the Act, and Federal common law. FEMA proposes this change to clarify that the NFIP insurer's policy issuance and policy administration operations are also governed solely by the Act, the NFIP's regulations, and Federal common law.
The Dwelling Form of the Standard Flood Insurance Policy concludes with a signing statement that references the “Federal Insurance Administration.” FEMA proposes to changes this to the “Federal Insurance and Mitigation Administration” to align with the current organizational title.
FEMA proposes to revise the General Property Form of the SFIP in a manner consistent with the revisions to the Dwelling Form of the SFIP described above. Except as indicated in the sections below, the changes FEMA is proposing to the General Property Form are identical to those in the Dwelling Form.
In the current General Property Form, the first paragraph is a prefatory statement regarding what the policy does not cover, and it is outside of Article I. As FEMA proposed above in Article I of the Dwelling Form of the SFIP, FEMA proposes to move this statement so that it is included in Article I and labeled section “A.” FEMA proposes to further revise this section in the General Property Form to include a statement about what the General Property Form does cover. FEMA proposes to add language stating that except as provided in Article I.A.2 (the current language stating what the policy does not cover), “this policy provides coverage for multifamily buildings (residential buildings designed for use by 5 or more families that is not a condominium building), non-residential buildings, and their contents.” This clear statement would help differentiate the General Property Form from the other SFIP policy forms.
In addition, the proposed General Property Form would not include the proposed Dwelling Form's Art. I.G, which provides that a building may be covered under both a Dwelling Form policy and a RCBAP. General Property Form policies may only insure non-residential buildings, while RCBAP may only insure residential condominium buildings. Accordingly, Art. I.G would not apply similarly in the General Property Form.
The definitions FEMA proposes to add, delete, or revise in Article II of the General Property Form of the SFIP, “Definitions,” would be the same as those in the Dwelling Form of the SFIP, insofar as those terms are also defined in the General Property Form, with one exception. FEMA proposes to revise the definition of “unit” in the General Property form to mean “a single-family residential or non-residential space you own in a condominium building.” Although this is different from the definition used in the Dwelling Form (the Dwelling Form covers only residential properties, whereas the General Property Form covers both residential and non-residential properties), the reason for this proposed revision is the same—to remove the word “unit” within the definition of “unit.”
Article III.A. describes the conditions under which the policy covers building property. Article III.A.2 provides that the policy covers building property at a location other than the one described on the Declarations Page according to certain conditions. FEMA proposes to replace the phrase “We also insure building property . . .” with “Building property located at another location . . .” to reduce redundancy and improve readability with the first sentence of the paragraph, which states “We insure against direct physical loss by or from flood to:”. Article III.A.6.a provides the conditions for coverage where the structure is not yet walled or roofed as described in the definition for “building.” The subsection erroneously cites to “II. 6.a.” rather than to “II.B.6.a.” as the location for the definition of “building.” FEMA proposes to add “B” to the citation to correct the typographical error.
Article III.B.1 describes the conditions under which the policy covers personal property inside a building. Current Article III.B.1.b contains an unnumbered paragraph after paragraph B.1.b. FEMA proposes to number this unnumbered paragraphs as “2”, and to renumber subsequent paragraphs accordingly, to improve readability and organization.
FEMA proposes to amend the Residential Condominium Building Association Policy (RCBAP) Form of the SFIP in a manner consistent with the revisions to the Dwelling Form of the SFIP. The changes made to the RCBAP Form would be identical to those in the Dwelling Form for all provisions that these two forms have in common. Additionally, FEMA proposes to replace reference to the “FEMA Regional
Part 62 sets forth the manner in which NFIP flood insurance is made available to the public in participating communities, prescribes the general method by which FEMA exercises its responsibility regarding the manner in which claims for losses are paid, and states reasons for which a policy may be nullified or cancelled and the associated refunds.
The current authority citation for part 62 is 42 U.S.C. 4001
Section 62.3 currently describes the Flood Insurance Administrator's authority to enter into an agreement with a servicing agent that can service policies and claims on behalf of the Agency. Paragraph (a) currently states that the Federal Insurance Administrator “has entered into the Agreement” with a servicing agent. Section 62.3(b) currently names National Con-Serv, Inc. (NCSI) as FEMA's servicing agent for its direct side policies. FEMA proposes to make a change to paragraphs (a), remove paragraph (b), and renumber paragraph (c) as paragraph (b) to better describe the present status of the direct servicing agent.
In section 62.3(a), FEMA proposes to replace the words “has entered into the Agreement” with the words “may enter into an agreement.” The current formulation states a current fact, rather than defining the Agency's powers and duties, which is a traditional role of a rule. Further, the use of “the Agreement” seems to imply that a particular agreement must be entered into with the servicing agent. However, no such standard agreement exists in regards to contracting with a direct servicing agent. FEMA contracts with servicing agents in accord with the Federal Acquisition Regulations.
FEMA proposes to remove section 62.3(b) because the current regulation lists NCSI as the NFIP Direct Servicing Agent even though this is not accurate and it is uncessary to name a government contractor in the Code of Federal Regulations. Contact information for the Direct Servicing Agent is provided to each policyholder sold NFIP flood insurance through the Direct Servicing Agent. FEMA also provides this information on its website.
After removing current paragraph (b), FEMA proposes to renumber current paragraph (c) as paragraph (b).
With respect to section 62.3(b), FEMA proposes to remove the paragraph because the named servicing agent is no longer accurate—NCSI is no longer FEMA's direct servicing agent. FEMA proposes to add a new paragraph (b) stating that FEMA will provide public notice of the name of the servicing agent in the
Section 62.5 describes reasons for which FEMA will allow cancellation of a policy. Section 62.5 currently allows a policyholder to cancel a policy for two reasons. First, the policyholder may cancel a policy that covers property for which the policyholder is no longer required to maintain flood insurance because a Letter of Map Amendment issued under part 70 has determined that the property is not located in an SFHA. Second, the policyholder may cancel a policy that is a three-year policy where the policyholder has either obtained a replacement flood insurance policy or the lender has provided the NFIP with actual notice that the mortgage has been paid off and/or the lender no longer requires the policyholder to maintain flood insurance.
In addition to section 62.5, section 61.5(c) and certain sections of the SFIP also describe the reasons for which FEMA will allow cancellation of a policy. FEMA proposes to remove current section 62.5 and replace these various regulatory provisions with a comprehensive new section 62.5 codifying all the reasons for which FEMA allows a policyholder to cancel or nullify a policy, as well as the handling of associated premium refunds. FEMA proposes to entitle section 62.5 “Nullifications, Cancellations, and Premium Refunds.” In this new section 62.5, FEMA proposes to incorporate the first policy cancellation reason (
Paragraph (a) of this new section, entitled “Nullification,” would describe all the reasons for which FEMA may terminate a policy. Subparagraph (1), entitled “Property Ineligible at Time of Application,” would state that a policy for a property that was not eligible for coverage at the time of the initial application will be considered void from commencement. This paragraph would also provide the rules and limitations governing the applicability of this nullification reason, as well as the associated premium refunds. FEMA has previously handled situations where property was ineligible for flood insurance at the time of application via NFIP procedures. FEMA proposes to codify existing practice, found at Reason Code 6 from the Nullification/Cancellation section of the Flood Insurance Manual, into regulation to ensure consistent application of the procedures and to provide a comprehensive nullification section in regulation.
Subparagraph (2), entitled “Property Later Becomes Ineligible,” would state that a policy for a property that was eligible for coverage at the time of the initial application, but later became ineligible for coverage, may not be renewed and will be void from the first renewal date after the property became ineligible. This paragraph would also
Paragraph (3), entitled “Nullification Prior to Policy Effective Date,” would clarify that in cases where a policy is nullified before it becomes effective, the NFIP will void the policy from the beginning of the policy term. Such a situation may arise where a policyholder's premium payment check is returned for insufficient balance or where a policyholder cancels his or her policy before it becomes effective. The provision would also clarify that in the rare instance where the NFIP pays a claim for a policy that was actually nullified before the policy's effective date, the policyholder would have to either return the claim payment or pay the premium using the claim payment. This paragraph would also provide the rules and limitations governing the applicability of this nullification reason, as well as the associated premium refunds. Overall, this provision will codify existing Reason Codes 5, 7, and 13 from the Nullification/Cancellation section of the Flood Insurance Manual into regulation. These reason codes are based on basic principles of insurance that the program has applied with regulatory instruction. FEMA proposes to codify these cancelation/nullification reasons in regulation to provide stakeholders with a comprehensive regulatory basis for nullification.
Section (b), entitled “Cancellation Due to Lack of an Insurable Interest,” would be taken from the current 61.5(c) and would allow policy cancellations when a policyholder ceases to have an insurable interest in the insured property (
Paragraph (c), entitled “No Insurance Coverage Requirement,” would allow cancellation in cases where the policyholder is no longer required to maintain flood insurance on the property. The new paragraph would state that a policyholder may cancel a policy if there was a requirement by a lender, loss payee, or other Federal agency to obtain and maintain flood insurance pursuant to statute, regulation, or contract, but there no longer is such a requirement. Such situatons would include where (i) the policyholder has paid off his or her mortgage, (ii) the policy was required by the mortgagee in error, or (iii) the property has been removed from the SFHA, and accordingly from the mandatory purchase requirement, through a revision or amendment to the FIRM, including the issuance of a Letter of Map Amendment (LOMA) removing a property from an SFHA.
The paragraph will further state that in such instances, FEMA would only provide a pro rata refund of the premium for the current policy year, as calculated from the date of the cancellation request. Surcharges or other fees would not be refunded. This will codify into regulation FEMA's interpretation of 44 CFR 62.5, which is currently found in Reason Codes 9, 12, 15, 18, and 19 from the Nullification/Cancellation section of the Flood Insurance Manual.
Subsection (d), entitled “Establishment of a Common Expiration Date,” would codify parts of current Article VII.U of the SFIP. The provision would allow policyholders to create duplicate policies, and then cancel the policy with the earlier effective date, to establish common expiration dates with other coverage. This paragraph would also provide the rules and limitations governing the applicability of this nullification reason, as well as the associated premium refunds. This would codify into regulation the NFIP's existing cancellation reason found under Reason Code 3 in the Nullification/Cancellation section of the Flood Insurance Manual.
Subsection (e) would be entitled “Cancellation or Nullification of Duplicate NFIP Policies.” The subsection would incorporate provisions of current Article VII.U, which allow for cancellation of duplicate NFIP policies. The proposed subsection would include two paragraphs. Paragraph (1), entitled “Generally,” would have two paragraphs. Paragraph (i) would state that if more than one policy covers the same building not in accordance with applicable regulation and SFIP terms and conditions, FEMA must nullify the policy with the later effective date. This paragraph would also provide the rules and limitations governing the applicability of this nullification reason, as well as the associated premium refunds.
Paragraph (ii) would state that if both policies have the same effective date, the policyholder may choose which policy will remain in effect, at which point the same refund rules laid out in paragraph (i) apply. This paragraph would also provide the rules and limitations governing the applicability of this nullification reason.
Paragraph (2), entitled “Exceptions,” would establish the exceptions to Paragraph (1) and would state that in certain cases, the policy with the earlier effective date may be cancelled instead of the policy with the later effective date. The first exception, contained in paragraph (i) and entitled “Earlier Policy Expired” would allow the policy with the earlier effective date to be cancelled where that policy has expired for more than 30 days. The second exception, in paragraph (ii) entitled “Group Flood Insurance Policy (GFIP)” would provide that the policy with the earlier effective date may be cancelled if that policy is a GFIP. The third exception, in paragraph (iii) entitled “Cancellations to Establish a Common Expiration Date” would provide that the policy with the earlier effective date may be cancelled pursuant to paragraph (d) of this proposed section (
Each paragraph establishing an exception would also provide the premium refunds associated with cancellations falling under the exception. This proposed section would clarify, in regulation, how FEMA has interpreted Article VII.U of the SFIP in practice. This cancellation reason is currently found in Reason Code 4 in the Nullification/Cancellation section of the Flood Insurance Manual.
Subsection (f) would be entitled “Other Cancellations and Nullifications,” and clarify the other current reasons for which a policy may be cancelled. This section would also state that the policyholder will not receive a refund of any premium, fees, or surcharges for policies cancelled pursuant to this section. Paragraph (1), entitled “Fraud,” would state that FEMA will cancel a policy for fraud committed by the policyholder or agent and may cancel a policy for misrepresentation of a material fact by the policyholder or agent. In either case, the cancellation would take effect as of the date of the fraudulent act or material misrepresentation of fact. This is taken from current Article VII.B of the SFIP, which states that fraud by the agent or the insured voids a policy. This nullification reason may be found under Reason Code 23 in the Nullification/Cancellation section of the Flood Insurance Manual.
Paragraph (2), entitled “Administrative Cancellation,” would allow a policy to be cancelled and rewritten to correct an administrative error, such as when the policy is written with the wrong effective date, and any excess premium, fees, or surcharges would be refunded. This cancellation reason may be found under Reason Code 20 in the Nullification/Cancellation section of the Flood Insurance Manual.
Paragraph (3), entitled “Nullification for Properties Ineligible Due to Physical Alteration of Property,” would state that a policy insuring a building or its contents, or both, may be cancelled if the building has been physically altered so that the building and its contents are no longer eligible for flood insurance coverage. This paragraph would also provide the rules and limitations governing the applicability of this nullification reason, as well as the associated premium refunds. This nullification may be found under Reason Codes 1 and 2 in the Nullification/Cancellation section of the Flood Insurance Manual.
Current section 62.6 contains provisions applicable to insurance agents and brokers writing NFIP policies through the NFIP Direct Services Agent. It does not apply to agents or brokers associated with WYO companies. FEMA proposes several nonsubstantive changes designed to clarify the existing section.
Currently, section 62.6 is titled, “Minimum Commissions.” FEMA proposes to revise the title of section 62.6 to “Brokers and Agents Writing NFIP Policies through the NFIP Direct Servicing Agent” because the section covers more than just commissions. FEMA believes the proposed title better reflects the contents of the section.
Currently, section 62.6(a) defines the commissions paid to agents and brokers participating in the Direct Servicing Agent (DSA) portion of the NFIP. However, it also includes a requirement that such agents and brokers are “duly licensed by a state insurance regulatory authority.” FEMA proposes to move this important requirement from within the minimum commission provision and set it out in its own paragraph. Accordingly, FEMA proposes to add a new paragraph (a) that only includes the requirement and to redesignate current paragraphs (a) and (b) as paragraphs (b) and (c), respectively. Accordingly, FEMA also proposes to make corresponding changes to proposed paragraph (b) by removing the existing references to state licensing requirements. FEMA does not intend to substantively change the licensing requirements of DSA agents, but rather intends to separate this requirement from other subject matter to improve overall clarity of the section. FEMA also proposes to change the uses of “shall” to “will” to incorporate plainer language without making substantive change.
Section 62.22 provides that actions for disallowed claims must be instituted in the U.S. District Court for the district in which the insured property was situated and describes service of process requirements. FEMA proposes to revise section 62.22 to replace references to the “Federal Insurance Administration” with the current organizational title, “Federal Insurance and Mitigation Administration.”
Executive Orders 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).
In this rule, FEMA proposes to make several nonsubstantive changes to the National Flood Insurance Program's (NFIP) regulations at Parts 59, 61, and 62, as well as the Appendices to Part 61. FEMA proposes to codify in regulation certain provisions of the Biggert Waters Flood Insurance Reform Act of 2012 (BW-12) and the Homeowner Flood Insurance Affordability Act of 2014 (HFIAA) that have already been
Overall, there are 34 identified proposed regulatory changes in this rule (itemized in Table 1 below). The vast majority of these changes are limited to nonsubtantive clarifications. The remaining provisions are considered “Codifications,” that codify in regulation either an existing practice or policy, or a process heretofore requiring special waiver by FEMA.
Following guidance in OMB Circular A-4, FEMA assesses the impacts of this rule against the no-action baseline as well as a pre-statutory baseline. The no action baseline is an assessment against what the world would be like if the proposed rule is not adopted. The pre-statutory baseline is an assessment against what the world would be like if the relevant statute(s) had not been adopted. By considering both baselines we are able to consider full costs of the action.
Under a no-action baseline, this proposed rule would carry no transfers or quantifiable costs. The proposed rulemaking would make material improvements to the language and organization of the NFIP's regulations, but such clarifications and codifications would not result in any quantifiable burden or benefit. The proposed rule also would codify certain changes pursuant to BW-12 and HFIAA that FEMA has already implemented via the Flood Insurance Manual or other related guidance documents. WYO companies would, however, incur opportunity costs as they spend time becoming familiar with the proposed changes. The proposed rule would result in cost savings associated with no longer requiring individual waivers for condominium loss assessment restrictions.
The below analysis adopts a consistent pre-statutory baseline of 2012 in order to capture the effects of the proposed rule, including those of modifications already implemented through interim actions. The summary table below (Table 1) presents the proposed rule's components based on the two categorizations above, including the related statutory mandates (BW-12, HFIAA or both), a description of their effects and their likely impact.
While the proposed rulemaking would make material improvements to the language and organization of the NFIP's regulations, such changes would not result in any quantifiable burden or benefit. WYO companies would, however, incur opportunity costs as they spend time becoming familiar with the proposed changes.
FEMA proposes to revise section 61.11 to codify an additional exception to the 30-day waiting period before coverage on a flood insurance policy takes effect. Prior to BW-12, there were only two exceptions to this 30-day waiting period. The first exception was for the initial purchase of flood insurance in connection with the making, increasing, extension, or renewal of a loan. The second exception was for the initial purchase of flood insurance pursuant to a revision or updating of floodplain areas or flood risk zones, if such purchase took place within one year of the notice of such revision.
The proposed rule would codify in regulation Section 100241 of BW-12, which amended Section 1306(c) of the NFIA (42 U.S.C. 4013(c)), by placing a third exception to the 30-day new policy waiting period in regulation. This new exception applies to situations where the flooding to an insured privately owned property is the result of flooding on Federal land that was caused or exacerbated by post-wildfire conditions, also on Federal land. FEMA implemented this new exception via bulletin.
When looking at the NFIP claim data from FEMA, since implementation of this exception in July 2012, no parties have made claims that would apply to this provision. Additionally, due to both the brief window of applicability (the 30-day waiting period after initial enrollment in the NFIP) and the narrow circumstances to which this exception applies (flood damage due to flood on Federal land caused, or exacerbated, by post-wildfire conditions), FEMA believes the exception would continue to be rarely invoked. This provision serves as an added enticement to potential enrollees of the NFIP to join the NFIP if they believe that a wildfire on Federal land may cause, or exacerbate, flooding on their property. This provision serves mostly as an added comfort to potential enrollees of the NFIP. In accordance with the data examined, there has not been and FEMA estimates that there would continue to be no additional burden on any party. This provision would ensure that FEMA's regulation concerning the application of the 30-day waiting period includes all statutory exceptions. FEMA requests comments regarding this assumption and estimated frequency of applicable occurrence.
The vast majority of provisions represent clarifications to the regulation or program documents, or remove regulations that are no longer applicable. The few non-clarifying provisions reflect in regulations certain provisions that have already been implemented through policy that streamline operations, or meet greater potential needs of policyholders (codifications). It is only with codifications where any quantifiable impacts appear. This analysis considers the following as possible benefits of this rule:
This analysis looks at the many efficiencies of the proposed rule, however, the bulk of these benefits are unquantifiable. Although they have not been quantified, they are essential to the justification of the proposed rule and should be considered as they provide significant benefits that will be seen for all stakeholders involved.
Under current conditions, the NFIP-related sections of the CFR contain inconsistencies or vague language that may cause confusion to stakeholders. The following are selected examples of proposed changes presented in Table 1 that would be introduced by the rule:
The NFIP deductible charts currently in the regulations at 44 CFR 61.5(d) show several possible deductible options, but not all the deductible options available under the program. A note to these tables indicates that policyholders may submit any other other deductible amounts not currently listed in this chart (including the $10,000 deductible option required under HFIAA). Notwithstanding this note, the current regulation's listing of
FEMA also proposes to change the language in Appendix A(1) of Part 61 to clarify that personal property is also insured under this policy. FEMA has always insured personal property under this policy, but the proposed change will make this more explicit in the initial coverage statement. Also under Appendix A(2) to Part 61, FEMA would state that the policy will only cover one building and that the building covered is the one specifically described in the Flood Insurance Application. Coverage under the SFIP has always been limited to one building, but FEMA is proposing that this language be clearly stated at the very beginning of the SFIP.
FEMA proposes to revise definitions such as “deductible,” “emergency program,” “act,” or “basement.” FEMA believes these non-substantive changes will be clearer and more consistent with the language in the Articles of the SFIP. The same can be said of the proposed changes to add acronyms for ease of repetitive use (such as that for the Special Flood Hazard Area as “SFHA”) or to remove a term or definition that is no longer used (
FEMA believes that this increased precision and consistent use of terms would increase clarity of FEMA's NFIP regulations for the insurance companies, flood insurance policyholders, academic researchers, and private citizens. This improved accuracy will help to minimize confusion.
Presently, Article III.C.3.b.4 of the SFIP, found in Appendix A(1) to Part 61, prevents payment of condominium loss assessments on a unit policy if the condominium building itself is underinsured. The SFIP also requires the coverage limits of the RCBAP policy (the primary policy) to be exhausted before the Dwelling Policy (the secondary policy). This poses a challenge in the event the primary policy was disallowed in the above circumstance. Since 2007, policyholders facing such a predicament were required to obtain a waiver from FEMA to process such claims.
As directed by Section 100214 of BW-12, the proposed changes would delete Article III.C.3.b.4 of the SFIP, which would otherwise prohibit such claim payments and necessitate the submission and processing of waivers. As a result, waivers for this prohibition would no longer be required.
To estimate the cost savings that would result from omitting this process, FEMA considered the frequency these specific circumstances have occurred. Between 2007, when FEMA began issuing the waivers, and 2013 when FEMA terminated the waiver process (following the passage and FEMA's provisional implementation of BW-12), there have been four occurrences of the aforementioned conditions. The applicable cases were reported twice in Illinois, once in Texas and once in Tennessee. Four occurrences over six years equate to an estimated frequency of 0.667 instances each year, assuming that the rate remains consistent in the future.
The reported time required for FEMA to process the resulting waiver requests is around three hours per wavier. This process is undertaken by two General Schedule (GS) Federal employees in the National Capital Region, at the GS-14 and GS-15 levels, in equal proportion. Obtaining 2018 GS scale
The per hour benefits multiplier is calculated by dividing total compensation for all workers ($35.87) by wages and salaries for all workers ($24.49), which yields a per hour benefits multiplier of 1.46. ($35.87 ÷ $24.49 = 1.46468). Fully-loaded wage rates are calculated by multiplying the per hour benefits multiplier by the applicable wage rate. GS-14: $62.23 × 1.46 = $90.85 and GS-15: $73.20 × 1.46 = $106.87.
We calculated the inflation adjustment by subtracting the July 2016 CPI-U (240.6) from the April 2018 CPI-U (250.5). We divided the result (9.9) by the July 2016 CPI-U (240.0). Calculation: (250.5−240.6)/240.6 = 0.04115. BLS CPI-U data is available at
Applying this cost to the estimated frequency of occurrence of 0.67 waivers per year and extending the avoided costs over a ten-year period would project a total undiscounted cost savings of $2,048. The ten-year total would equate to $1,799 and $1,539, when discounted at three percent and seven percent respectively.
Given that this rule has no direct compliance costs, no less burdensome alternatives to the proposed rule are available. In the absence of this proposed rule, stakeholders would continue to experience the negative repercussions of inconsistences between the statutes, regulations, and agency policy documents.
FEMA invites all interested parties to submit data and information regarding the potential economic impact that would result from adoption of the proposals in this NPRM. FEMA will consider all comments received in the public comment process.
For the 10-year period analyzed, FEMA does not anticipate any costs resulting from the selected provisions of BW-12 and HFIAA that the rule is implementing. During that same period analyzed, the estimated quantified benefits total $2,048. The present value, discounted at 7 percent, of the estimated quantified benefits is approximately $1,539 and $1,799 discounted at 3 percent. FEMA's ability to administer the NFIP in a more streamlined manner, and the public's enhanced understanding of the terms and conditions of the program would justify the proposed rule, compliant with the respective Congressional mandates.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
In accordance with the Regulatory Flexibility Act, an IFRA must contain: (1) A description of the reasons why the action by the agency is being considered; (2) A succinct statement of the objectives of, and legal basis for, the proposed rule; (3) A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply; (4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirements and the types of professional skills necessary for preparation of the report or record; (5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and (6) A description of significant alternatives to the rule.
The proposed rule would revise the NFIP implementing regulations at parts 59, 61, and 62, as well as the Appendices to part 61, to codify in regulation certain provisions of the Biggert-Waters Flood Insurance Reform Act of 2012 and the Homeowner Flood Insurance Affordability Act of 2014 that FEMA has already implemented and to clarify certain existing NFIP rules relating to NFIP operations and the SFIP.
The proposed changes to the regulation would codify FEMA's implementation of the legislative requirements of the Biggert-Waters Flood Insurance Reform Act of 2012 and the Homeowner Flood Insurance Affordability Act of 2014, and clarify existing rules. These required changes have already been implemented and this rule would conform NFIP regulations with existing policies and practices.
FEMA anticipates that this rulemaking will result in a more streamlined operation of the NFIP and enhance customer service because of greater information and clarity for policyholders and all stakeholders.
The NFIA authorizes FEMA to “enter into any contracts, agreements, or other arrangements” with private insurance companies to utilize their facilities and services in administering the NFIP, and on such terms and conditions as may be agreed upon.
“Small entity” is defined in 5 U.S.C. 601. The term “small entity” can have the same meaning as the terms “small business,” “small organization” and “small governmental jurisdiction.” Section 601(3) defines a “small business” as having the same meaning as “small business concern” under Section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) defines a “small organization” as any not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operation. Section 601(5) defines “small governmental jurisdictions” as governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000. No small organization or governmental jurisdiction is a party to the WYO program and therefore would be affected.
The SBA stipulates in its size standards the largest business may be and still be classified as a “small entity.”
There are currently 67 companies
FEMA believes that the rule would impose no burdens on any participating company because it does not consist of any substantive policy changes, but instead would make changes for clarity and to accurately reflect current FEMA policies and practices. There may be familiarization costs incurred by WYO companies as they review these changes, despite the lack of any substantive changes that would ultimately affect them. Therefore, FEMA anticipates that the rule would not have a significant economic impact on a substantial number of small entities.
There are no relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
Given that this rule has no direct compliance costs, no less burdensome alternatives to the proposed rule are available. In the absence of this proposed rule, small entities would continue to experience the negative repercussions of inconsistences between the statutes, regulations and agency policy documents.
FEMA invites all interested parties to submit data and information regarding the potential economic impact that would result from adoption of the proposals in this NPRM. FEMA will consider all comments received in the public comment process.
Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in 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, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and Tribal governments and the private sector. The proposed rule would not result in such an expenditure, and thus preparation of such a statement is not required.
Section 102 of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
Rulemaking is a major Federal action subject to NEPA. The List of exclusion categories at DHS Instruction Manual 023-01-001-01, Appendix A excludes the promulgation of rules that are of a strictly administrative or procedural nature and rules that implement, without substantive change, statutory or regulatory requirements from the preparation of an EA or EIS. (Catex A3(a) and (b)). The purpose of this rule is to implement some statutory requirements of BW-12 and HFIAA, along with making non-substantive clarifications designed to improve overall clarity and readability. These changes are administrative-related changes that are categorically excluded under Catex A3(a) and (b) of DHS Instruction Manual 023-01-001-01, Appendix A. No extraordinary circumstances exist that will trigger the need to develop an EA or EIS.
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must determine whether implementation of a proposed regulation will result in a system of records. A “record” is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
In accordance with DHS policy, FEMA has completed a Privacy Threshold Analysis (PTA) for this proposed rule. DHS/FEMA has determined that this proposed rulemaking does not affect the 1660-0006 OMB Control Number's current compliance with the E-Government Act of 2002 or the Privacy Ac of 1974, as amended. As a result, DHS/FEMA has concluded that the 1660-0006 OMB Control Number is covered by the DHS/FEMA/PIA-011—National Flood Insurance Program Information Technology Systems (NFIP ITS) Privacy Impact Assessment (PIA). Additionally, DHS/FEMA has decided that the 1660-0006 OMB Control Number is covered by the DHS/FEMA-003 National Flood Insurance Program Files, 79 FR 28747, May 19, 2014 System of Records Notice (SORN).
Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the agency obtains approval from the Office of Management and Budget (OMB) for the collection and the collection displays a valid OMB control number.
Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 FR 67249 (Nov. 9, 2000), applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects 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. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government in complying with the regulation are provided by the Federal Government or the agency consults with Tribal officials. Nor, to the extent practicable by law, may an agency promulgate a regulation that has Tribal implications and preempts Tribal law, unless the agency consults with Tribal officials. This proposed rule involves no policies that have Tribal implications under Executive Order 13175. This rulemaking makes limited changes to the comprehensive, longstanding National Flood Insurance Program regulations applicable to communities, including participating Indian Tribal governments and Tribes, which voluntarily choose to participate in the program. Because these program updates are limited, they will not have substantial direct effects on Indian Tribes, on the relationship between the national government and Indian Tribes, or the distribution of power between the Federal Government and Indian Tribes.
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” For the purposes of this Executive Order, the term States also includes local governments or other subdivisions established by the States. Under this Executive Order, Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States. Further, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless the Federal Government provides funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation, or the agency consults with State and local officials. Nor, to the extent practicable by law, may an agency promulgate a regulation that has federalism implications and preempts State law, unless the agency consults with State and local officials.
FEMA has reviewed this proposed rule under Executive Order 13132 and has determined that does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications as defined by the Executive Order. This rulemaking makes limited changes to the comprehensive, longstanding National Flood Insurance Program regulations governing the communities' participation in the program. Because these program updates are limited, they will not have substantial direct effects on the States or participating communities, on the relationship between the national government and the States or participating communities, or the distribution of power among the various levels of government.
Pursuant to Executive Order 11988, “Floodplain Management,” 42 FR 26951 (May 24, 1977), each agency must provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. In carrying out these responsibilities, each agency must evaluate the potential effects of any actions it may take in a floodplain; ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management; and prescribe procedures to implement the policies and requirements of the Executive Order.
Before promulgating any regulation, an agency must determine whether the proposed regulations will affect a floodplain(s), and if so, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain(s). If the head of the agency finds that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 is to promulgate a regulation that affects a floodplain(s), the agency must, prior to promulgating the regulation, design or modify the regulation in order to minimize potential harm to or within the floodplain, consistent with the agency's floodplain management regulations. It must also prepare and circulate a notice containing an explanation of why the action is proposed to be located in the floodplain.
The purpose of this proposed rule is to implement insurance-related administrative changes to clarify coverage, rates, and terms and conditions. The changes proposed in this rule would not have an effect on land use, floodplain management, or wetlands.
Executive Order 11990, “Protection of Wetlands,” 42 FR 26961 (May 24, 1977) sets forth that each agency must provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities. These responsibilities include (1) acquiring, managing, and disposing of Federal lands and facilities; and (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. Each agency, to the extent permitted by law, must avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding, the head of the agency may take into account economic, environmental and other pertinent factors.
In carrying out the activities described in Executive Order 11990, each agency must consider factors relevant to a proposal's effect on the survival and quality of the wetlands. These include public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; sediment and erosion; maintenance of natural systems, including conservation and long term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources. They also include other uses of wetlands in the public interest, including recreational, scientific, and cultural uses. The purpose of this proposed rule is to implement insurance-related administrative changes to clarify coverage, rates, and terms and conditions. The changes proposed in this rule would not have an effect on land use, floodplain management, or wetlands.
Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 59 FR 7629 (Feb. 16, 1994), as amended by Executive Order 12948, 60 FR 6381, (Feb. 1, 1995), FEMA incorporates environmental justice into its policies and programs. The Executive Order requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in programs, denying
This rulemaking will not have a disproportionately high or adverse effect on human health or the environment, nor will it exclude persons from participation in FEMA programs, deny persons the benefits of FEMA programs, or subject persons to discrimination because of race, color, or national origin.
Before a rule can take effect, the Congressional Review of Agency Rulemaking Act (CRA), 5 U.S.C. 801-808, requires the Federal agency promulgating the rule to submit to Congress and to the Government Accountability Office (GAO) a copy of the rule, a concise general statement relating to the rule, including whether it is a major rule, the proposed effective date of the rule, a copy of any cost-benefit analysis, descriptions of the agency's actions under the Regulatory Flexibility Act and the Unfunded Mandates Reform Act, and any other information or statements required by relevant Executive orders.
FEMA will send this rule to the Congress and to GAO pursuant to the CRA if the rule is finalized. This proposed rule is not a “major rule” within the meaning of the CRA. It will not have an annual effect on the economy of $100,000,000 or more or result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will it have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Flood insurance, Reporting and recordkeeping requirements.
Claims, Flood insurance, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, FEMA proposes to amend 44 CFR Chapter I as follows:
42 U.S.C. 4001
42 U.S.C. 4001
This part describes the types of properties eligible for flood insurance coverage under the Program, the limits of such coverage, and the premium rates actually to be paid by insureds.
(a) Insurance coverage under the Program is available for buildings and their contents. Coverage for each may be purchased separately.
(b) In addition to building and contents coverage, the Dwelling Form of the Standard Flood Insurance Policy (SFIP) covers debris removal, loss avoidance measures, and condominium loss assessments. The General Property Form of the SFIP covers debris removal, loss avoidance measures, and pollution damage. The Residential Condominium Policy Form of the SFIP covers debris removal and loss avoidance measures.
(c) With the purchase of building coverage, the Standard Flood Insurance Policy covers the costs associated with bringing the building into compliance with local floodplain ordinances.
(a) No new flood insurance or renewal of flood insurance policies will be written for properties declared by a duly constituted State or local zoning or other authority to be in violation of any flood plain, mudslide (
(b) In order to reduce the administrative costs of the Program, of which the Federal Government pays a major share, applicants must pay the full policy premium at the time of application.
FEMA must provide policyholders with deductible options in various amounts, up to and including $10,000, subject to the following minimum deductible amounts:
(a) The minimum deductible for policies covering pre-FIRM buildings charged less than full-risk rates with building coverage amounts less than or equal to $100,000 is $1,500.
(b) The minimum deductible for policies covering pre-FIRM buildings charged less than full-risk rates with building coverage amounts greater than $100,000 is $2,000.
(c) The minimum deductible for policies covering post-FIRM buildings and pre-FIRM buildings charged full risk rates, with building coverage amounts equal to or less than $100,000 is $1,000.
(d) The minimum deductible for policies covering post-FIRM buildings and pre-FIRM buildings charged full risk rates, with building coverage amounts greater than $100,000 is $1,250
(a) Pursuant to section 1306 of the Act, the following are the limits of coverage available under the emergency program and under the regular program.
(b) Coverage and benefits payable under the SFIP pursuant to § 61.3(b) and § 61.3(c) are included in, not in addition to, the coverage limits provided by the Act or stated in paragraph (a) of this section.
FEMA will not issue or renew flood insurance unless FEMA receives:
(a) The full amount due (including applicable premiums, surcharges, and fees); and
(b) A complete application, including the information necessary to establish a premium rate for the policy, or submission of corrected or additional information necessary to calculate the premium for the renewal of the policy.
(c) Where the following conditions are met, the effective date and time of any initial purchase of flood insurance coverage for any privately-owned property will be 12:01 a.m. (local time) on the first calendar day after the application date and the presentment of payment of premium or initial installment payment:
(1) The Administrator has determined that the property is affected by flooding on Federal land that is a result of, or is exacerbated by, post-wildfire conditions, after consultation with an authorized employee of the Federal agency that has jurisdiction of the land on which the wildfire that caused the post-wildfire conditions occurred; and
(2) The flood insurance coverage was purchased not later than 60 calendar days after the fire containment date, as determined by the appropriate Federal employee, relating to the wildfire that caused the post-wildfire conditions described in clause (1).
(d) Except as provided by paragraphs (a), (b), and (c) of this section, the effective date and time of any new policy or added coverage or increase in the amount of coverage will be 12:01 a.m. (local time) on the 30th calendar day after the application date and the presentment of payment of premium; for example, a flood insurance policy applied for with the payment of the premium on May 1 will become effective at 12:01 a.m. on May 31.
(e) Adding new coverage or increasing the amount of coverage in force is permitted during the term of any policy,
(f) With respect to any submission of an application in connection with new business, the payment by an insured to an agent or the issuance of premium payment by the agent does not constitute payment to the NFIP. Therefore, it is important that an application for flood insurance, as well as the full amount due, be mailed to the NFIP promptly in order to have the effective date of the coverage based on the application date plus the waiting period. If the application and the full amount due are received at the office of the NFIP within ten (10) calendar days from the date of application, the waiting period will be calculated from the date of application. Also, as an alternative, in those cases where the application and premium payment are mailed by certified mail within four (4) calendar days from the date of application, the waiting period will be calculated from the date of application even though the application and full amount due are received at the office of the NFIP after ten (10) calendar days following the date of application. Thus, if the application and premium payment are received after ten (10) calendar days from the date of the application or are not mailed by certified mail within four (4) calendar days from the date of application, the waiting period will be calculated from the date of receipt at the office of the NFIP. To determine the effective date of any coverage added by endorsement to a flood insurance policy already in effect, substitute the term
(g) The rules set forth in paragraphs (a) through (f) of this section apply to Write Your Own (WYO) companies, except that agents must mail the premium payments and accompanying applications and endorsements to the WYO company and the WYO company must receive the applications and endorsements, rather than the NFIP.
(e)
(f)
(g)
(h) The Standard Flood Insurance Policy and endorsements may be issued by private sector Write Your Own (WYO) property insurance companies, based upon flood insurance applications and renewal forms, all of which instruments of flood insurance may bear the name, as Insurer, of the issuing WYO company. In the case of any Standard Flood Insurance Policy, and its related forms, issued by a WYO company, wherever the names “Federal Emergency Management Agency” and “Federal Insurance and Mitigation Administration” appear, a WYO company must substitute its own name therefor. Standard Flood Insurance Policies issued by WYO companies may be executed by the issuing WYO company as Insurer, in the place and stead of the Federal Insurance Administrator, but the risk of loss is borne by the National Flood Insurance Fund, not the WYO company.
Please read the policy carefully. The flood insurance provided is subject to limitations, restrictions, and exclusions.
A. This policy covers the following types of property only:
1. A one to four family residential building, not under a condominium form of ownership;
2. A single family dwelling unit in a condominium building; and
3. Personal property in a building.
B. The Federal Emergency Management Agency (FEMA) provides flood insurance under the terms of the National Flood Insurance Act of 1968 and its amendments, and Title 44 of the Code of Federal Regulations.
C. We will pay you for direct physical loss by or from flood to your insured property if you:
1. Have paid the full amount due (including applicable premiums, surcharges, and fees);
2. Comply with all terms and conditions of this policy; and
3. Have furnished accurate information and statements.
D. We have the right to review the information you give us at any time and revise your policy based on our review.
E. This policy insures only one building. If you own more than one building, coverage will apply to the single building specifically described in the Flood Insurance Application.
F. Subject to the exception in I.G below, multiple policies with building coverage cannot be issued to insure a single building to one insured or to different insureds, even if separate policies were issued through different NFIP insurers. Payment for damages may only be made under a single policy for building damages under Coverage A—Building Property.
G. A Dwelling Form policy with building coverage may be issued to a unit owner in a condominium building that is also insured under a Residential Condominium Building Association Policy (RCBAP). However, no more than $250,000 may be paid in combined benefits for a single unit under the Dwelling Form policy and the RCBAP. We will only pay for damage once. Items of damage paid for under an RCBAP cannot also be claimed under the Dwelling Form policy.
A. In this policy, “you” and “your” refer to the named insured(s) shown on the Declarations Page of this policy and the spouse of the named insured, if a resident of the same household. Insured(s) also includes: Any mortgagee and loss payee named in the Application and Declarations Page, as well as any other mortgagee or loss payee determined to exist at the time of loss, in the order of precedence. “We,” “us,” and “our” refer to the insurer.
Some definitions are complex because they are provided as they appear in the law or regulations, or result from court cases.
B.
1. A general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or of two or more properties (one of which is your property) from:
a. Overflow of inland or tidal waters,
b. Unusual and rapid accumulation or runoff of surface waters from any source,
c. Mudflow.
2. Collapse or subsidence of land along the shore of a lake or similar body of water as a result of erosion or undermining caused by waves or currents of water exceeding
C. The following are the other key definitions we use in this policy:
1.
2.
3.
4.
5.
6.
a. A structure with two or more outside rigid walls and a fully secured roof that is affixed to a permanent site;
b. A manufactured home, also known as a mobile home, is a structure: built on a permanent chassis, transported to its site in one or more sections, and affixed to a permanent foundation); or
c. A travel trailer without wheels, built on a chassis and affixed to a permanent foundation, that is regulated under the community's floodplain management and building ordinances or laws.
7.
8.
9.
a. Common elements owned in undivided shares by unit owners; and
b. Other buildings in which the unit owners have use rights; where membership in the entity is a required condition of ownership.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
a. This printed form;
b. The application and Declarations Page;
c. Any endorsement(s) that may be issued; and
d. Any renewal certificate indicating that coverage has been instituted for a new policy and new policy term. Only one dwelling, which you specifically described in the application, may be insured under this policy.
23.
24.
25.
26.
27.
28.
29.
30.
We insure against direct physical loss by or from flood to:
1. The dwelling at the described location, or for a period of 45 days at another location as set forth in III.C.2.b, Property Removed to Safety.
2. Additions and extensions attached to and in contact with the dwelling by means of a rigid exterior wall, a solid load-bearing interior wall, a stairway, an elevated walkway, or a roof. At your option, additions and extensions connected by any of these methods may be separately insured. Additions and extensions attached to and in contact with the building by means of a common interior wall that is not a solid load-bearing wall are always considered part of the dwelling and cannot be separately insured.
3. A detached garage at the described location. Coverage is limited to no more than 10 percent of the limit of liability on the dwelling. Use of this insurance is at your option but reduces the building limit of liability. We do not cover any detached garage used or held for use for residential (
4. Materials and supplies to be used for construction, alteration, or repair of the dwelling or a detached garage while the materials and supplies are stored in a fully enclosed building at the described location or on an adjacent property.
5. A building under construction, alteration, or repair at the described location.
a. If the structure is not yet walled or roofed as described in the definition for building (
(1) Only while such work is in progress; or
(2) If such work is halted, only for a period of up to 90 continuous days thereafter.
b. However, coverage does not apply until the building is walled and roofed if the
(1) Below the base flood elevation in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, AR/A, AR/AO; or
(2) Below the base flood elevation adjusted to include the effect of wave action in Zones VE or V1-V30.
The lowest floor level is based on the bottom of the lowest horizontal structural member of the floor in Zones VE or V1-V30 or the top of the floor in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, AR/A, and AR/AO.
6. A manufactured home or a travel trailer, as described in the II.C.6. If the manufactured home or travel trailer is in a special flood hazard area, it must be anchored in the following manner at the time of the loss:
a. By over-the-top or frame ties to ground anchors; or
b. In accordance with the manufacturer's specifications; or
c. In compliance with the community's floodplain management requirements unless it has been continuously insured by the NFIP at the same described location since September 30, 1982.
7. The following items of property which are insured under Coverage A only:
a. Awnings and canopies;
b. Blinds;
c. Built-in dishwashers;
d. Built-in microwave ovens;
e. Carpet permanently installed over unfinished flooring;
f. Central air conditioners;
g. Elevator equipment;
h. Fire sprinkler systems;
i. Walk-in freezers;
j. Furnaces and radiators;
k. Garbage disposal units;
l. Hot water heaters, including solar water heaters;
m. Light fixtures;
n. Outdoor antennas and aerials fastened to buildings;
o. Permanently installed cupboards, bookcases, cabinets, paneling, and wallpaper;
p. Plumbing fixtures;
q. Pumps and machinery for operating pumps;
r. Ranges, cooking stoves, and ovens;
s. Refrigerators; and
t. Wall mirrors, permanently installed.
8. Items of property below the lowest elevated floor of an elevated post-FIRM building located in Zones A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a basement, regardless of the zone. Coverage is limited to the following:
a. Any of the following items, if installed in their functioning locations and, if necessary for operation, connected to a power source:
(1) Central air conditioners;
(2) Cisterns and the water in them;
(3) Drywall for walls and ceilings in a basement and the cost of labor to nail it, unfinished and unfloated and not taped, to the framing;
(4) Electrical junction and circuit breaker boxes;
(5) Electrical outlets and switches;
(6) Elevators, dumbwaiters and related equipment, except for related equipment installed below the base flood elevation after September 30, 1987;
(7) Fuel tanks and the fuel in them;
(8) Furnaces and hot water heaters;
(9) Heat pumps;
(10) Nonflammable insulation in a basement;
(11) Pumps and tanks used in solar energy systems;
(12) Stairways and staircases attached to the building, not separated from it by elevated walkways;
(13) Sump pumps;
(14) Water softeners and the chemicals in them, water filters, and faucets installed as an integral part of the plumbing system;
(15) Well water tanks and pumps;
(16) Required utility connections for any item in this list; and
(17) Footings, foundations, posts, pilings, piers, or other foundation walls and anchorage systems required to support a building.
b. Clean-up.
1. If you have purchased personal property coverage, we insure against direct physical loss by or from flood to personal property inside a building at the described location, if:
a. The property is owned by you or your household family members; and
b. At your option, the property is owned by guests or servants.
2. Personal property is also insured for a period of 45 days at another location as set forth in III.C.2.b, Property Removed to Safety.
3. Personal property in a building that is not fully enclosed must be secured to prevent flotation out of the building. If the personal property does float out during a flood, it will be conclusively presumed that it was not reasonably secured. In that case, there is no coverage for such property.
4. Coverage for personal property includes the following property, subject to B.1 above, which is insured under Coverage B only:
a. Air conditioning units, portable or window type;
b. Carpets, not permanently installed, over unfinished flooring;
c. Carpets over finished flooring;
d. Clothes washers and dryers;
e. “Cook-out” grills;
f. Food freezers, other than walk-in, and food in any freezer; and
g. Portable microwave ovens and portable dishwashers.
5. Coverage for items of property below the lowest elevated floor of an elevated post-FIRM building located in Zones A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a basement, regardless of the zone, is limited to the following items, if installed in their functioning locations and, if necessary for operation, connected to a power source:
a. Air conditioning units, portable or window type;
b. Clothes washers and dryers; and
c. Food freezers, other than walk-in, and food in any freezer.
6. If you are a tenant and have insured personal property under Coverage B in this policy, we will cover such property, including your cooking stove or range and refrigerator. The policy will also cover improvements made or acquired solely at your expense in the dwelling or apartment in which you reside, but for not more than 10 percent of the limit of liability shown for personal property on the Declarations Page. Use of this insurance is at your option but reduces the personal property limit of liability.
7. If you are the owner of a unit and have insured personal property under Coverage B in this policy, we will also cover your interior walls, floor, and ceiling (not otherwise insured under a flood insurance policy purchased by your condominium association) for not more than 10 percent of the limit of liability shown for personal property on the Declarations Page. Use of this insurance is at your option but reduces the personal property limit of liability.
8. Special Limits. We will pay no more than $2,500 for any one loss to one or more of the following kinds of personal property:
a. Artwork, photographs, collectibles, or memorabilia, including but not limited to, porcelain or other figures, and sports cards;
b. Rare books or autographed items;
c. Jewelry, watches, precious and semi-precious stones, or articles of gold, silver, or platinum;
d. Furs or any article containing fur that represents its principal value; or
e. Personal property used in any business.
9. We will pay only for the functional value of antiques.
1.
a. We will pay the expense to remove non-owned debris that is on or in insured property and debris of insured property anywhere.
b. If you or a member of your household perform the removal work, the value of your work will be based on the Federal minimum wage.
c. This coverage does not increase the Coverage A or Coverage B limit of liability.
2.
a. Sandbags, Supplies, and Labor.
(1) We will pay up to $1,000 for costs you incur to protect the insured building from a flood or imminent danger of flood, for the following:
(a) Your reasonable expenses to buy:
(i) Sandbags, including sand to fill them;
(ii) Fill for temporary levees;
(iii) Pumps; and
(iv) Plastic sheeting and lumber used in connection with these items.
(b) The value of work, at the Federal minimum wage, that you or a member of your household perform.
(2) This coverage for Sandbags, Supplies and Labor only applies if damage to insured property by or from flood is imminent and the threat of flood damage is apparent enough to lead a person of common prudence to anticipate flood damage. One of the following must also occur:
(a) A general and temporary condition of flooding in the area near the described location must occur, even if the flood does not reach the building; or
(b) A legally authorized official must issue an evacuation order or other civil order for the community in which the building is located calling for measures to preserve life and property from the peril of flood.
This coverage does not increase the Coverage A or Coverage B limit of liability.
b. Property Removed to Safety.
(1) We will pay up to $1,000 for the reasonable expenses you incur to move insured property to a place other than the described location that contains the property in order to protect it from flood or the imminent danger of flood. Reasonable expenses include the value of work, at the Federal minimum wage, you or a member of your household perform.
(2) If you move insured property to a location other than the described location that contains the property, in order to protect it from flood or the imminent danger of flood, we will cover such property while at that location for a period of 45 consecutive days from the date you begin to move it there. The personal property that is moved must be placed in a fully enclosed building or otherwise reasonably protected from the elements.
(3) Any property removed, including a moveable home described in II.6.b and c, must be placed above ground level or outside of the special flood hazard area.
(4) This coverage does not increase the Coverage A or Coverage B limit of liability.
3.
a. Subject to III.C.3.b below, if this policy insures a condominium unit, we will pay, up to the Coverage A limit of liability, your share of loss assessments charged against you by the condominium association in accordance with the condominium association's articles of association, declarations and your deed.
The assessment must be made because of direct physical loss by or from flood during the policy term, to the unit or to the common elements of the NFIP insured condominium building in which this unit is located.
b. We will not pay any loss assessment:
(1) Charged against you and the condominium association by any governmental body;
(2) That results from a deductible under the insurance purchased by the condominium association insuring common elements;
(3) That results from a loss to personal property, including contents of a condominium building,
(4) In which the total payment combined under all policies exceeds the maximum amount of coverage available under the Act for a single unit in a condominium building where the unit is insured under both a Dwelling Policy and a RCBAP.
(5) On any item of damage that has already been paid under a RCBAP where a single unit in a condominium building is insured by both a Dwelling Policy and a RCBAP.
c. Condominium Loss Assessment coverage does not increase the Coverage A Limit of Liability and is subject to the maximum coverage limits available for a single family dwelling under the Act, payable between all policies issued and covering the unit, under the Act.
1.
This policy pays you to comply with a State or local floodplain management law or ordinance affecting repair or reconstruction of a building suffering flood damage. Compliance activities eligible for payment are: Elevation, floodproofing, relocation, or demolition (or any combination of these activities) of your building. Eligible floodproofing activities are limited to:
a. Non-residential buildings.
b. Residential buildings with basements that satisfy FEMA's standards published in the Code of Federal Regulations [44 CFR 60.6(b) or (c)].
2.
We will pay you up to $30,000 under this Coverage D—Increased Cost of Compliance, which only applies to policies with building coverage (Coverage A). Our payment of claims under Coverage D is in addition to the amount of coverage which you selected on the application and which appears on the Declarations Page. But the maximum you can collect under this policy for both Coverage A—Building Property and Coverage D—Increased Cost of Compliance cannot exceed the maximum permitted under the Act. We do not charge a separate deductible for a claim under Coverage D.
3.
a. A building covered under Coverage A—Building Property sustaining a loss caused by a flood as defined by this policy must:
(1) Be a “repetitive loss building.” A repetitive loss building is one that meets the following conditions:
(a) The building is insured by a contract of flood insurance issued under the NFIP.
(b) The building has suffered flood damage on two occasions during a 10-year period which ends on the date of the second loss.
(c) The cost to repair the flood damage, on average, equaled or exceeded 25 percent of the market value of the building at the time of each flood loss.
(d) In addition to the current claim, the NFIP must have paid the previous qualifying claim, and the State or community must have a cumulative, substantial damage provision or repetitive loss provision in its floodplain management law or ordinance being enforced against the building; or
(2) Be a building that has had flood damage in which the cost to repair equals or exceeds 50 percent of the market value of the building at the time of the flood. The State or community must have a substantial damage provision in its floodplain management law or ordinance being enforced against the building.
b. This Coverage D pays you to comply with State or local floodplain management laws or ordinances that meet the minimum standards of the National Flood Insurance Program found in the Code of Federal Regulations at 44 CFR 60.3. We pay for compliance activities that exceed those standards under these conditions:
(1) 3.a.1 above.
(2) Elevation or floodproofing in any risk zone to preliminary or advisory base flood elevations provided by FEMA which the State or local government has adopted and is enforcing for flood-damaged buildings in such areas. (This includes compliance activities in B, C, X, or D zones which are being changed to zones with base flood elevations. This also includes compliance activities in zones where base flood elevations are being increased, and a flood-damaged building must comply with the higher advisory base flood elevation.) Increased Cost of Compliance coverage does not apply to situations in B, C, X, or D zones where the community has derived its own elevations and is enforcing elevation or floodproofing requirements for flood-damaged buildings to elevations derived solely by the community.
(3) Elevation or floodproofing above the base flood elevation to meet State or local “free-board” requirements,
c. Under the minimum NFIP criteria at 44 CFR 60.3(b)(4), States and communities must require the elevation or floodproofing of buildings in unnumbered A zones to the base flood elevation where elevation data is obtained from a Federal, State, or other source. Such compliance activities are eligible for Coverage D.
d. Coverage D will pay for the incremental cost, after demolition or relocation, of elevating or floodproofing a building during its rebuilding at the same or another site to meet State or local floodplain management laws or ordinances, subject to Coverage D Exclusion 5.g below.
e. Coverage D will pay to bring a flood-damaged building into compliance with State or local floodplain management laws or ordinances even if the building had received a variance before the present loss from the applicable floodplain management requirements.
4.
a. When a building insured under Coverage A—Building Property sustains a loss caused by a flood, our payment for the loss under this Coverage D will be for the increased cost to elevate, floodproof, relocate, or demolish (or any combination of these activities) caused by the enforcement of current State or local floodplain management ordinances or laws. Our payment for eligible demolition activities will be for the cost to demolish and clear the site of the building debris or a portion thereof caused by the enforcement of current State or local floodplain management ordinances or laws. Eligible activities for the cost of clearing the site will include those necessary to discontinue utility service to the site and ensure proper abandonment of on-site utilities.
b. When the building is repaired or rebuilt, it must be intended for the same occupancy as the present building unless otherwise required by current floodplain management ordinances or laws.
5.
Under this Coverage D (Increased Cost of Compliance), we will not pay for:
a. The cost to comply with any floodplain management law or ordinance in communities participating in the Emergency Program.
b. The cost associated with enforcement of any ordinance or law that requires any
c. The loss in value to any insured building due to the requirements of any ordinance or law.
d. The loss in residual value of the undamaged portion of a building demolished as a consequence of enforcement of any State or local floodplain management law or ordinance.
e. Any Increased Cost of Compliance under this Coverage D:
(1) Until the building is elevated, floodproofed, demolished, or relocated on the same or to another premises; and
(2) Unless the building is elevated, floodproofed, demolished, or relocated as soon as reasonably possible after the loss, not to exceed two years.
f. Any code upgrade requirements,
g. Any compliance activities needed to bring additions or improvements made after the loss occurred into compliance with State or local floodplain management laws or ordinances.
h. Loss due to any ordinance or law that you were required to comply with before the current loss.
i. Any rebuilding activity to standards that do not meet the NFIP's minimum requirements. This includes any situation where the insured has received from the State or community a variance in connection with the current flood loss to rebuild the property to an elevation below the base flood elevation.
j. Increased Cost of Compliance for a garage or carport.
k. Any building insured under an NFIP Group Flood Insurance Policy.
l. Assessments made by a condominium association on individual condominium unit owners to pay increased costs of repairing commonly owned buildings after a flood in compliance with State or local floodplain management ordinances or laws.
6.
a. Increased Cost of Compliance coverage will not be included in the calculation to determine whether coverage meets the 80 percent insurance-to-value requirement for replacement cost coverage as set forth in Art. VII.R (“Loss Settlement”) of this policy.
b. All other conditions and provisions of this policy apply.
We do not insure any of the following:
1. Personal property not inside a building;
2. A building, and personal property in it, located entirely in, on, or over water or seaward of mean high tide if it was constructed or substantially improved after September 30, 1982;
3. Open structures, including a building used as a boathouse or any structure or building into which boats are floated, and personal property located in, on, or over water;
4. Recreational vehicles other than travel trailers described in the Definitions section (see II.B.6.c) whether affixed to a permanent foundation or on wheels;
5. Self-propelled vehicles or machines, including their parts and equipment. However, we do cover self-propelled vehicles or machines not licensed for use on public roads that are:
a. Used mainly to service the described location or
b. Designed and used to assist handicapped persons, while the vehicles or machines are inside a building at the described location;
6. Land, land values, lawns, trees, shrubs, plants, growing crops, or animals;
7. Accounts, bills, coins, currency, deeds, evidences of debt, medals, money, scrip, stored value cards, postage stamps, securities, bullion, manuscripts, or other valuable papers;
8. Underground structures and equipment, including wells, septic tanks, and septic systems;
9. Those portions of walks, walkways, decks, driveways, patios and other surfaces, all whether protected by a roof or not, located outside the perimeter, exterior walls of the insured building or the building in which the insured unit is located;
10. Containers, including related equipment, such as, but not limited to, tanks containing gases or liquids;
11. Buildings or units and all their contents if more than 49 percent of the actual cash value of the building is below ground, unless the lowest level is at or above the base flood elevation and is below ground by reason of earth having been used as insulation material in conjunction with energy efficient building techniques;
12. Fences, retaining walls, seawalls, bulkheads, wharves, piers, bridges, and docks;
13. Aircraft or watercraft, or their furnishings and equipment;
14. Hot tubs and spas that are not bathroom fixtures, and swimming pools, and their equipment, such as, but not limited to, heaters, filters, pumps, and pipes, wherever located;
15. Property not eligible for flood insurance pursuant to the provisions of the Coastal Barrier Resources Act and the Coastal Barrier Improvement Act and amendments to these Acts;
16. Personal property you own in common with other unit owners comprising the membership of a condominium association.
A. We only pay for direct physical loss by or from flood, which means that we do not pay you for:
1. Loss of revenue or profits;
2. Loss of access to the insured property or described location;
3. Loss of use of the insured property or described location;
4. Loss from interruption of business or production;
5. Any additional living expenses incurred while the insured building is being repaired or is unable to be occupied for any reason;
6. The cost of complying with any ordinance or law requiring or regulating the construction, demolition, remodeling, renovation, or repair of property, including removal of any resulting debris. This exclusion does not apply to any eligible activities we describe in Coverage D—Increased Cost of Compliance; or
7. Any other economic loss you suffer.
B.
C. We do not insure for loss to property caused directly by earth movement even if the earth movement is caused by flood. Some examples of earth movement that we do not cover are:
1. Earthquake;
2. Landslide;
3. Land subsidence;
4. Sinkholes;
5. Destabilization or movement of land that results from accumulation of water in subsurface land area; or
6. Gradual erosion.
We do, however, pay for losses from mudflow and land subsidence as a result of erosion that are specifically insured under our definition of flood (
D. We do not insure for direct physical loss caused directly or indirectly by any of the following:
1. The pressure or weight of ice;
2. Freezing or thawing;
3. Rain, snow, sleet, hail, or water spray;
4. Water, moisture, mildew, or mold damage that results primarily from any condition:
a. Substantially confined to the dwelling; or
b. That is within your control, including but not limited to:
(1) Design, structural, or mechanical defects;
(2) Failure, stoppage, or breakage of water or sewer lines, drains, pumps, fixtures, or equipment; or
(3) Failure to inspect and maintain the property after a flood recedes;
5. Water or water-borne material that:
a. Backs up through sewers or drains;
b. Discharges or overflows from a sump, sump pump or related equipment; or
c. Seeps or leaks on or through the insured property; unless there is a flood in the area and the flood is the proximate cause of the sewer or drain backup, sump pump discharge or overflow, or the seepage of water;
6. The pressure or weight of water unless there is a flood in the area and the flood is the proximate cause of the damage from the pressure or weight of water;
7. Power, heating, or cooling failure unless the failure results from direct physical loss by or from flood to power, heating, or cooling equipment on the described location;
8. Theft, fire, explosion, wind, or windstorm;
9. Anything you or any member of your household do or conspire to do to deliberately cause loss by flood; or
10. Alteration of the insured property that significantly increases the risk of flooding.
E. We do not insure for loss to any building or personal property located on land leased from the Federal Government, arising from or incident to the flooding of the land by the Federal Government, where the lease expressly holds the Federal Government harmless under flood insurance issued under any Federal Government program.
F. We do not pay for the testing for or monitoring of pollutants unless required by law or ordinance.
A. When a loss is insured under this policy, we will pay only that part of the loss that exceeds your deductible amount, subject to the limit of liability that applies. The deductible amount is shown on the Declarations Page.
However, when a building under construction, alteration, or repair does not have at least two rigid exterior walls and a fully secured roof at the time of loss, your deductible amount will be two times the deductible that would otherwise apply to a completed building.
B. In each loss from flood, separate deductibles apply to the building and personal property insured by this policy.
C. The deductible does NOT apply to:
1. III.C.2. Loss Avoidance Measures;
2. III.C.3. Condominium Loss Assessments; or
3. III.D. Increased Cost of Compliance.
In case of loss to an article that is part of a pair or set, we will have the option of paying you:
1. An amount equal to the cost of replacing the lost, damaged, or destroyed article, minus its depreciation, or
2. The amount that represents the fair proportion of the total value of the pair or set that the lost, damaged, or destroyed article bears to the pair or set.
1. If a loss insured by this policy is also insured by other insurance that includes flood coverage not issued under the Act, we will not pay more than the amount of insurance you are entitled to for lost, damaged, or destroyed property insured under this policy subject to the following:
a. We will pay only the proportion of the loss that the amount of insurance that applies under this policy bears to the total amount of insurance covering the loss, unless VII.B.1.b or c immediately below applies.
b. If the other policy has a provision stating that it is excess insurance, this policy will be primary.
c. This policy will be primary (but subject to its own deductible) up to the deductible in the other flood policy (except another policy as described in VII.B.1.b above). When the other deductible amount is reached, this policy will participate in the same proportion that the amount of insurance under this policy bears to the total amount of both policies, for the remainder of the loss.
2. If there is other insurance issued under the Act in the name of your condominium association covering the same property insured by this policy, then this policy will be in excess over the other insurance, except where a condominium loss assessment to the unit owner results from a loss sustained by the condominium association that was not reimbursed under a flood insurance policy written in the name of the association under the Act because the building was not, at the time of loss, insured for an amount equal to the lesser of:
a. 80 percent or more of its full replacement cost; or
b. The maximum amount of insurance permitted under the Act;
The combined coverage payment under the other NFIP insurance and this policy cannot exceed the maximum coverage available under the Act, of $250,000 per single unit.
This policy cannot be changed, nor can any of its provisions be waived, without the express written consent of the Federal Insurance Administrator. No action we take under the terms of this policy constitutes a waiver of any of our rights. You may assign this policy in writing when you transfer title of your property to someone else except under these conditions:
a. When this policy insures only personal property; or
b. When this policy insures a building under construction.
1. Applicability. The following provisions apply to all instances where the premium paid on this policy is insufficient or where the rating information is insufficient, such as where an Elevation Certificate is not provided.
2. Reforming the Policy with Reduced Coverage. Except as otherwise provided in VII.D.1, if the premium we received from you was not sufficient to buy the kinds and amounts of coverage you requested, we will provide only the kinds and amounts of coverage that can be purchased for the premium payment we received.
a. For the purpose of determining whether your premium payment is sufficient to buy the kinds and amounts of coverage you requested, we will first deduct the costs of all applicable fees and surcharges.
b. If the amount paid, after deducting the costs of all applicable fees and surcharges, is not sufficient to buy any amount of coverage, your payment will be refunded. Unless the policy is reformed to increase the coverage amount to the amount originally requested pursuant to VII.D.3, this policy will be cancelled, and no claims will be paid under this policy.
c. Coverage limits on the reformed policy will be based upon the amount of premium submitted per type of coverage, but will not exceed the amount originally requested.
3. Discovery of Insufficient Premium or Rating Information. If we discover that your premium payment was not sufficient to buy the requested amount of coverage, the policy will be reformed as described in VII.D.2. You have the option of increasing the amount of coverage resulting from this reformation to the amount you requested as follows:
a. Insufficient Premium. If we discover that your premium payment was not sufficient to buy the requested amount of coverage, we will send you, and any mortgagee or trustee known to us, a bill for the required additional premium for the current policy term (or that portion of the current policy term following any endorsement changing the amount of coverage). If it is discovered that the initial amount charged to you for any fees or surcharges is incorrect, the difference will be added or deducted, as applicable, to the total amount in this bill.
(1) If you or the mortgagee or trustee pays the additional premium amount due within 30 days from the date of our bill, we will reform the policy to increase the amount of coverage to the originally requested amount, effective to the beginning of the current policy term (or subsequent date of any endorsement changing the amount of coverage).
(2) If you or the mortgagee or trustee do not pay the additional amount due within 30 days of the date of our bill, any flood insurance claim will be settled based on the reduced amount of coverage.
(3) As applicable, you have the option of paying all or part of the amount due out of a claim payment based on the originally requested amount of coverage.
b. Insufficient Rating Information. If we determine that the rating information we have is insufficient and prevents us from calculating the additional premium, we will ask you to send the required information. You must submit the information within 60 days of our request.
(1) If we receive the information within 60 days of our request, we will determine the amount of additional premium for the current policy term, and follow the procedure in VII.D.3.a above.
(2) If we do not receive the information within 60 days of our request, no claims will be paid until the requested information is provided. Coverage will be limited to the amount of coverage that can be purchased for the payments we received, as determined when the requested information is provided.
4. Coverage Increases. If we do not receive the amounts requested in VII.D.3.a or the additional information requested in VII.D.3.b by the date it is due, the amount of coverage under this policy can only be increased by endorsement subject to the appropriate waiting period. However, no coverage increases will be allowed until you have provided the information requested in VII.D.3.b.
5. Falsifying Information. However, if we find that you or your agent intentionally did not tell us, or falsified any important fact or circumstance or did anything fraudulent relating to this insurance, the provisions of VIII.A apply.
1. This policy will expire at 12:01 a.m. on the last day of the policy term.
2. We must receive the payment of the appropriate renewal premium within 30 days of the expiration date.
3. If we find, however, that we did not place your renewal notice into the U.S. Postal Service, or if we did mail it, we made a mistake,
a. If you or your agent notified us, not later than one year after the date on which the payment of the renewal premium was due, of non-receipt of a renewal notice before the due date for the renewal premium, and we determine that the circumstances in the preceding paragraph apply, we will mail a second bill providing a revised due date, which will be 30 days after the date on which the bill is mailed.
b. If we do not receive the premium requested in the second bill by the revised due date, then we will not renew the policy. In that case, the policy will remain an expired policy as of the expiration date shown on the Declarations Page.
4. In connection with the renewal of this policy, we may ask you during the policy term to recertify, on a Recertification Questionnaire we will provide to you, the rating information used to rate your most recent application for or renewal of insurance.
We are not liable for loss that occurs while there is a hazard that is increased by any means within your control or knowledge.
In case of a flood loss to insured property, you must:
1. Give prompt written notice to us;
2. As soon as reasonably possible, separate the damaged and undamaged property, putting it in the best possible order so that we may examine it;
3. Prepare an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss. Attach all bills, receipts, and related documents;
4. Within 60 days after the loss, send us a proof of loss, which is your statement of the amount you are claiming under the policy signed and sworn to by you, and which furnishes us with the following information:
a. The date and time of loss;
b. A brief explanation of how the loss happened;
c. Your interest (for example, “owner”) and the interest, if any, of others in the damaged property;
d. Details of any other insurance that may cover the loss;
e. Changes in title or occupancy of the insured property during the term of the policy;
f. Specifications of damaged buildings and detailed repair estimates;
g. Names of mortgagees or anyone else having a lien, charge, or claim against the insured property;
h. Details about who occupied any insured building at the time of loss and for what purpose; and
i. The inventory of damaged personal property described in G.3 above.
5. In completing the proof of loss, you must use your own judgment concerning the amount of loss and justify that amount.
6. You must cooperate with the adjuster or representative in the investigation of the claim.
7. The insurance adjuster whom we hire to investigate your claim may furnish you with a proof of loss form, and she or he may help you complete it. However, this is a matter of courtesy only, and you must still send us a proof of loss within 60 days after the loss even if the adjuster does not furnish the form or help you complete it.
8. We have not authorized the adjuster to approve or disapprove claims or to tell you whether we will approve your claim.
9. At our option, we may accept the adjuster's report of the loss instead of your proof of loss. The adjuster's report will include information about your loss and the damages you sustained. You must sign the adjuster's report. At our option, we may require you to swear to the report.
Options we may, in our sole discretion, exercise after loss include the following:
1. At such reasonable times and places that we may designate, you must:
a. Show us or our representative the damaged property;
b. Submit to examination under oath, while not in the presence of another insured, and sign the same; and
c. Permit us to examine and make extracts and copies of:
(1) Any policies of property insurance insuring you against loss and the deed establishing your ownership of the insured real property;
(2) Condominium association documents including the Declarations of the condominium, its Articles of Association or Incorporation, Bylaws, rules and regulations, and other relevant documents if you are a unit owner in a condominium building; and
(3) All books of accounts, bills, invoices and other vouchers, or certified copies pertaining to the damaged property if the originals are lost.
2. We may request, in writing, that you furnish us with a complete inventory of the lost, damaged or destroyed property, including:
a. Quantities and costs;
b. Actual cash values or replacement cost (whichever is appropriate);
c. Amounts of loss claimed;
d. Any written plans and specifications for repair of the damaged property that you can reasonably make available to us; and
e. Evidence that prior flood damage has been repaired.
3. If we give you written notice within 30 days after we receive your signed, sworn proof of loss, we may:
a. Repair, rebuild, or replace any part of the lost, damaged, or destroyed property with material or property of like kind and quality or its functional equivalent; and
b. Take all or any part of the damaged property at the value that we agree upon or its appraised value.
No person or organization, other than you, having custody of insured property will benefit from this insurance.
1. We will adjust all losses with you. We will pay you unless some other person or entity is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss (or within 90 days after the insurance adjuster files the adjuster's report signed and sworn to by you in lieu of a proof of loss) and:
a. We reach an agreement with you;
b. There is an entry of a final judgment; or
c. There is a filing of an appraisal award with us, as provided in VII.M.
2. If we reject your proof of loss in whole or in part you may:
a. Accept our denial of your claim;
b. Exercise your rights under this policy; or
c. File an amended proof of loss as long as it is filed within 60 days of the date of the loss.
You may not abandon to us damaged or undamaged property insured under this policy.
We may permit you to keep damaged property insured under this policy after a loss, and we will reduce the amount of the loss proceeds payable to you under the policy by the value of the salvage.
If you and we fail to agree on the actual cash value or, if applicable, replacement cost of your damaged property to settle upon the amount of loss, then either may demand an appraisal of the loss. In this event, you and we will each choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the insured property is located. The appraisers will separately state the actual cash value, the replacement cost, and the amount of loss to each item. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of actual cash value and loss, or if it applies, the replacement cost and loss.
Each party will:
1. Pay its own appraiser; and
2. Bear the other expenses of the appraisal and umpire equally.
1. The word “mortgagee” includes trustee.
2. Any loss payable under Coverage A—Building Property will be paid to any mortgagee of whom we have actual notice, as well as any other mortgagee or loss payee determined to exist at the time of loss, and
3. If we deny your claim, that denial will not apply to a valid claim of the mortgagee, if the mortgagee:
a. Notifies us of any change in the ownership or occupancy, or substantial change in risk of which the mortgagee is aware;
b. Pays any premium due under this policy on demand if you have neglected to pay the premium; and
c. Submits a signed, sworn proof of loss within 60 days after receiving notice from us of your failure to do so.
4. All of the terms of this policy apply to the mortgagee.
5. The mortgagee has the right to receive loss payment even if the mortgagee has started foreclosure or similar action on the building.
6. If we decide to cancel or not renew this policy, it will continue in effect for the benefit of the mortgagee only for 30 days after we notify the mortgagee of the cancellation or non-renewal.
7. If we pay the mortgagee for any loss and deny payment to you, we are subrogated to all the rights of the mortgagee granted under the mortgage on the property. Subrogation will not impair the right of the mortgagee to recover the full amount of the mortgagee's claim.
You may not sue us to recover money under this policy unless you have complied with all the requirements of the policy. If you do sue, you must start the suit within one year after the date of the written denial of all or part of the claim, and you must file the suit in the United States District Court of the district in which the insured property was located at the time of loss. This requirement applies to any claim that you may have under this policy and to any dispute that you may have arising out of the handling of any claim under the policy.
Whenever we make a payment for a loss under this policy, we are subrogated to your right to recover for that loss from any other person. That means that your right to recover for a loss that was partly or totally caused by someone else is automatically transferred to us, to the extent that we have paid you for the loss. We may require you to acknowledge this transfer in writing. After the loss, you may not give up our right to recover this money or do anything that would prevent us from recovering it. If you make any claim against any person who caused your loss and recover any money, you must pay us back first before you may keep any of that money.
1. If an insured building has been flooded by rising lake waters continuously for 90 days or more and it appears reasonably certain that a continuation of this flooding will result in an insured loss to the insured building equal to or greater than the building policy limits plus the deductible or the maximum payable under the policy for any one building loss, we will pay you the lesser of these two amounts without waiting for the further damage to occur if you sign a release agreeing:
a. To make no further claim under this policy;
b. Not to seek renewal of this policy;
c. Not to apply for any flood insurance under the Act for property at the described location;
d. Not to seek a premium refund for current or prior terms.
If the policy term ends before the insured building has been flooded continuously for 90 days, the provisions of this paragraph Q.1 will apply when the insured building suffers a covered loss before the policy term ends.
2. If your insured building is subject to continuous lake flooding from a closed basin lake, you may elect to file a claim under either paragraph Q.1 above or Q.2 (A “closed basin lake” is a natural lake from which water leaves primarily through evaporation and whose surface area now exceeds or has exceeded one square mile at any time in the recorded past. Most of the nation's closed basin lakes are in the western half of the United States where annual evaporation exceeds annual precipitation and where lake levels and surface areas are subject to considerable fluctuation due to wide variations in the climate. These lakes may overtop their basins on rare occasions.) Under this paragraph Q.2, we will pay your claim as if the building is a total loss even though it has not been continuously inundated for 90 days, subject to the following conditions:
a. Lake floodwaters must damage or imminently threaten to damage your building.
b. Before approval of your claim, you must:
(1) Agree to a claim payment that reflects your buying back the salvage on a negotiated basis; and
(2) Grant the conservation easement described in FEMA's “Policy Guidance for Closed Basin Lakes” to be recorded in the office of the local recorder of deeds. FEMA, in consultation with the community in which the property is located, will identify on a map an area or areas of special consideration (ASC) in which there is a potential for flood damage from continuous lake flooding. FEMA will give the community the agreed-upon map showing the ASC. This easement will only apply to that portion of the property in the ASC. It will allow certain agricultural and recreational uses of the land. The only structures it will allow on any portion of the property within the ASC are certain simple agricultural and recreational structures. If any of these allowable structures are insurable buildings under the NFIP and are insured under the NFIP, they will not be eligible for the benefits of this paragraph Q.2. If a U.S. Army Corps of Engineers certified flood control project or otherwise certified flood control project later protects the property, FEMA will, upon request, amend the ASC to remove areas protected by those projects. The restrictions of the easement will then no longer apply to any portion of the property removed from the ASC; and
(3) Comply with paragraphs Q.1.a through Q.1.d above.
c. Within 90 days of approval of your claim, you must move your building to a new location outside the ASC. FEMA will give you an additional 30 days to move if you show there is sufficient reason to extend the time.
d. Before the final payment of your claim, you must acquire an elevation certificate and a floodplain development permit from the local floodplain administrator for the new location of your building.
e. Before the approval of your claim, the community having jurisdiction over your building must:
(1) Adopt a permanent land use ordinance, or a temporary moratorium for a period not to exceed 6 months to be followed immediately by a permanent land use ordinance that is consistent with the provisions specified in the easement required in paragraph Q.2.b above.
(2) Agree to declare and report any violations of this ordinance to FEMA so that under Section 1316 of the National Flood Insurance Act of 1968, as amended, flood insurance to the building can be denied; and
(3) Agree to maintain as deed-restricted, for purposes compatible with open space or agricultural or recreational use only, any affected property the community acquires an interest in. These deed restrictions must be consistent with the provisions of paragraph Q.2.b above, except that, even if a certified project protects the property, the land use restrictions continue to apply if the property was acquired under the Hazard Mitigation Grant Program or the Flood Mitigation Assistance Program. If a non-profit land trust organization receives the property as a donation, that organization must maintain the property as deed-restricted, consistent with the provisions of paragraph Q2.b above.
f. Before the approval of your claim, the affected State must take all action set forth in FEMA's “Policy Guidance for Closed Basin Lakes.”
g. You must have NFIP flood insurance coverage continuously in effect from a date established by FEMA until you file a claim under paragraph Q.2. If a subsequent owner buys NFIP insurance that goes into effect within 60 days of the date of transfer of title, any gap in coverage during that 60-day period will not be a violation of this continuous coverage requirement. For the purpose of honoring a claim under this paragraph Q.2, we will not consider to be in effect any increased coverage that became effective after the date established by FEMA. The exception to this is any in-creased coverage in the amount suggested by your insurer as an inflation adjustment.
h. This paragraph Q.2 will be in effect for a community when the FEMA Regional Administrator for the affected region provides to the community, in writing, the following:
(1) Confirmation that the community and the State are in compliance with the conditions in paragraphs Q.2.e and Q.2.f above, and
(2) The date by which you must have flood insurance in effect.
This policy provides three methods of settling losses: Replacement Cost, Special Loss Settlement, and Actual Cash Value. Each method is used for a different type of property, as explained in paragraphs a-c below.
a. Replacement Cost Loss Settlement, described in R.2 below, applies to a single family dwelling provided:
(1) It is your principal residence and (2) At the time of loss, the amount of insurance in this policy that applies to the dwelling is 80 percent or more of its full replacement cost immediately before the loss, or is the maximum amount of insurance available under the NFIP.
b. Special Loss Settlement, described in R.3 below, applies to a single family dwelling that is a manufactured or mobile home or a travel trailer.
c. Actual Cash Value loss settlement applies to a single family dwelling not subject to replacement cost or special loss settlement, and to the property listed in R.4 below.
The following loss settlement conditions apply to a single-family dwelling described in R.1.a above:
a. We will pay to repair or replace the damaged dwelling after application of the deductible and without deduction for depreciation, but not more than the least of the following amounts:
(1) The building limit of liability shown on your Declarations Page;
(2) The replacement cost of that part of the dwelling damaged, with materials of like kind and quality and for like use; or
(3) The necessary amount actually spent to repair or replace the damaged part of the dwelling for like use.
b. If the dwelling is rebuilt at a new location, the cost described above is limited to the cost that would have been incurred if the dwelling had been rebuilt at its former location.
c. When the full cost of repair or replacement is more than $1,000, or more than 5 percent of the whole amount of insurance that applies to the dwelling, we will not be liable for any loss under R.2.a above or R.4.a.2 below unless and until actual repair or replacement is completed.
d. You may disregard the replacement cost conditions above and make claim under this policy for loss to dwellings on an actual cash value basis. You may then make claim for any additional liability according to R.2.a, b, and c above, provided you notify us of your intent to do so within 180 days after the date of loss.
e. If the community in which your dwelling is located has been converted from the Emergency Program to the Regular Program during the current policy term, then we will consider the maximum amount of available NFIP insurance to be the amount that was available at the beginning of the current policy term.
a. The following loss settlement conditions apply to a single family dwelling that:
(1) is a manufactured or mobile home or a travel trailer, as defined in II.C.6.b and c,
(2) is at least 16 feet wide when fully assembled and has an area of at least 600 square feet within its perimeter walls when fully assembled, and
(3) is your principal residence as specified in R.1.a.1 above.
b. If such a dwelling is totally destroyed or damaged to such an extent that, in our judgment, it is not economically feasible to repair, at least to its pre-damage condition, we will, at our discretion pay the least of the following amounts:
(1) The lesser of the replacement cost of the dwelling or 1.5 times the actual cash value, or
(2) The building limit of liability shown on your Declarations Page.
c. If such a dwelling is partially damaged and, in our judgment, it is economically feasible to repair it to its pre-damage condition, we will settle the loss according to the Replacement Cost conditions in R.2 above.
The types of property noted below are subject to actual cash value (or in the case of R.4.a.2., below, proportional) loss settlement.
a. A dwelling, at the time of loss, when the amount of insurance on the dwelling is both less than 80 percent of its full replacement cost immediately before the loss and less than the maximum amount of insurance available under the NFIP. In that case, we will pay the greater of the following amounts, but not more than the amount of insurance that applies to that dwelling:
(1) The actual cash value, as defined in II.C.2, of the damaged part of the dwelling; or
(2) A proportion of the cost to repair or replace the damaged part of the dwelling, without deduction for physical depreciation and after application of the deductible.
This proportion is determined as follows: If 80 percent of the full replacement cost of the dwelling is less than the maximum amount of insurance available under the NFIP, then the proportion is determined by dividing the actual amount of insurance on the dwelling by the amount of insurance that represents 80 percent of its full replacement cost. But if 80 percent of the full replacement cost of the dwelling is greater than the maximum amount of insurance available under the NFIP, then the proportion is determined by dividing the actual amount of insurance on the dwelling by the maximum amount of insurance available under the NFIP.
b. A two-, three-, or four-family dwelling.
c. A unit that is not used exclusively for single-family dwelling purposes.
d. Detached garages.
e. Personal property.
f. Appliances, carpets, and carpet pads.
g. Outdoor awnings, outdoor antennas or aerials of any type, and other outdoor equipment.
h. Any property insured under this policy that is abandoned after a loss and remains as debris anywhere on the described location.
i. A dwelling that is not your principal residence.
5. Amount of Insurance Required
To determine the amount of insurance required for a dwelling immediately before the loss, we do not include the value of:
a. Footings, foundations, piers, or any other structures or devices that are below the undersurface of the lowest basement floor and support all or part of the dwelling;
b. Those supports listed in R.5.a above, that are below the surface of the ground inside the foundation walls if there is no basement; and
c. Excavations and underground flues, pipes, wiring, and drains.
The Coverage D—Increased Cost of Compliance limit of liability is not included in the determination of the amount of insurance required.
1. With respect to all insureds under this policy, this policy is void and has no legal force and effect if at any time, before or after a loss, you or any other insured or your agent have, with respect to this policy or any other NFIP insurance:
a. Concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements.
2. Policies voided under A.1 cannot be renewed or replaced by a new NFIP policy.
3. Policies are void as of the date the acts described in A.1 above were committed.
4. Fines, civil penalties, and imprisonment under applicable Federal laws may also apply to the acts of fraud or concealment described above.
1. This policy is void from its inception, and has no legal force or effect, if:
a. The property listed on the application is located in a community that was not participating in the NFIP on this policy's inception date and did not join or reenter the program during the policy term and before the loss occurred;
b. The property listed on the application is otherwise not eligible for coverage under the NFIP at the time of the initial application;
c. You never had an insurable interest in the property listed on the application;
d. You provided an agent with an application and payment, but the payment did not clear; or
e. We receive notice from you, prior to the policy effective date, that you have determined not to take the policy and you are not subject a requirement to obtain and maintain flood insurance pursuant to any statute, regulation, or contract.
2. In such cases, you will be entitled to a full refund of all premium, fees, and surcharges received. However, if a claim was paid for a policy that is void, the claim payment must be returned to FEMA or offset from the premiums to be refunded before the refund will be processed.
1. You may cancel this policy in accordance with the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
2. If you cancel this policy, you may be entitled to a full or partial refund of premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
1. Cancellation for Underpayment of Amounts Owed on Policy. This policy will be cancelled, pursuant to VII.D.2, if it is determined that the premium amount you paid is not sufficient to buy any amount of coverage, and you do not pay the additional amount of premium owed to increase the coverage to the originally requested amount within the required time period.
2. Cancellation Due to Lack of an Insurable Interest.
a. If you no longer have an insurable interest in the insured property, we will cancel this policy. You will cease to have an insurable interest if:
(1) For building coverage, the building was sold, destroyed, or removed.
(2) For contents coverage, the contents were sold or transferred ownership, or the contents were completely removed from the described location.
b. If your policy is cancelled for this reason, you may be entitled to a partial refund of premium under the applicable rules and regulations of the NFIP.
3. Cancellation of Duplicate Policies.
a. Except as allowed under Article I.G, your property may not be insured by more than one NFIP policy, and payment for damages to your property will only be made under one policy.
b. Except as allowed under Article I.G, if the property is insured by more than one NFIP policy, we will cancel all but one of the policies. The policy, or policies, will be selected for cancellation in accordance with 44 CFR 62.5 and the applicable rules and guidance of the NFIP.
c. If this policy is cancelled pursuant to VIII.D.4.b, you may be entitled to a full or partial refund of premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
4. Cancellation Due to Physical Alteration of Property.
a. If the insured building has been physically altered in such a manner that it is no longer eligible for flood insurance coverage, we will cancel this policy.
b. If your policy is cancelled for this reason, you may be entitled to a partial refund of premium under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
Your policy will not be renewed if:
1. The community where your insured property is located is suspended or stops participating in the NFIP;
2. Your building is otherwise ineligible for flood insurance under the Act;
3. You have failed to provide the information we requested for the purpose of rating the policy within the required deadline.
If we make a change that broadens your coverage under this edition of our policy, but does not re-quire any additional premium, then that change will automatically apply to your insurance as of the date we implement the change, provided that this implementation date falls within 60 days before or during the policy term stated on the Declarations Page.
This policy and all disputes arising from the insurer's policy issuance, policy administration, or the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001,
Administrator, Federal Insurance and Mitigation Administration
Please read the policy carefully. The flood insurance provided is subject to limitations, restrictions, and exclusions.
A. Coverage Under This Policy.
1. Except as provided in I.A.2, this policy provides coverage for multifamily buildings (residential buildings designed for use by 5 or more families that are not condominmum buildings), non-residential buildings, and their contents.
2. There is no coverage for a residential condominium building in a regular program community, except for personal property coverage for a unit in a condominium building.
B. The Federal Emergency Management Agency (FEMA) provides flood insurance under the terms of the National Flood Insurance Act of 1968 and its amendments, and Title 44 of the Code of Federal Regulations.
C. We will pay you for direct physical loss by or from flood to your insured property if you:
1. Have paid the full amount due (including applicable premiums, surcharges, and fees);
2. Comply with all terms and conditions of this policy; and
3. Have furnished accurate information and statements.
D. We have the right to review the information you give us at any time and revise your policy based on our review.
E. This policy insures only one building. If you own more than one building, coverage will apply to the single building specifically described in the Flood Insurance Application.
F. Multiple policies with building coverage cannot be issued to insure a single building to one insured or to different insureds, even if issued through different NFIP insurers. Payment for damages may only be made under a single policy for building damages under Coverage A—Building Property.
A. In this policy, “you” and “your” refer to the named insured(s) shown on the Declarations Page of this policy and the spouse of the named insured, if a resident of the same household. Insured(s) also includes: Any mortgagee and loss payee named in the Application and Declarations Page, as well as any other mortgagee or loss payee determined to exist at the time of loss, in the order of precedence. “We,” “us,” and “our” refer to the insurer.
Some definitions are complex because they are provided as they appear in the law or regulations, or result from court cases.
B.
1. A general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or of two or more properties (one of which is your property) from:
a. Overflow of inland or tidal waters,
b. Unusual and rapid accumulation or runoff of surface waters from any source,
c. Mudflow
2. Collapse or subsidence of land along the shore of a lake or similar body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels that result in a flood as defined in B.1.a above.
C. The following are the other key definitions we use in this policy:
1.
2.
3.
4.
5.
6.
a. A structure with two or more outside rigid walls and a fully secured roof, that is affixed to a permanent site;
b. A manufactured home, also known as a mobile home, is a structure built on a permanent chassis, transported to its site in one or more sections, and affixed to a permanent foundation); or
c. A travel trailer without wheels, built on a chassis and affixed to a permanent
7.
8.
9.
a. Common elements owned in undivided shares by unit owners; and
b. Other buildings in which the unit owners have use rights where membership in the entity is a required condition of unit ownership.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
a. This printed form;
b. The application and Declarations Page;
c. Any endorsement(s) that may be issued; and
d. Any renewal certificate indicating that coverage has been instituted for a new policy and new policy term. Only one building, which you specifically described in the application, may be insured under this policy.
22.
23.
24.
25.
26.
27.
28.
a. Parts and equipment for self-propelled vehicles;
b. Furnishings and equipment for watercraft;
c. Spas and hot-tubs, including their equipment; and
d. Swimming pool equipment.
29.
30.
We insure against direct physical loss by or from flood to:
1. The building described on the Declarations Page at the described location. If the building is a condominium building and the named insured is the condominium association, Coverage A includes all units within the building and the improvements within the units, provided the units are owned in common by all unit owners.
2. Building property located at another location for a period of 45 days at another location, as set forth in III.C.2.b, Property Removed to Safety.
3. Additions and extensions attached to and in contact with the building by means of a rigid exterior wall, a solid load-bearing interior wall, a stairway, an elevated walkway, or a roof. At your option, additions and extensions connected by any of these methods may be separately insured. Additions and extensions attached to and in contact with the building by means of a common interior wall that is not a solid load-bearing wall are always considered part of the building and cannot be separately insured.
4. The following fixtures, machinery, and equipment, which are insured under Coverage A only:
a. Awnings and canopies;
b. Blinds;
c. Carpet permanently installed over unfinished flooring;
d. Central air conditioners;
e. Elevator equipment;
f. Fire extinguishing apparatus;
g. Fire sprinkler systems;
h. Walk-in freezers;
i. Furnaces;
j. Light fixtures;
k. Outdoor antennas and aerials attached to buildings;
l. Permanently installed cupboards, bookcases, paneling, and wallpaper;
m. Pumps and machinery for operating pumps;
n. Ventilating equipment; and
o. Wall mirrors, permanently installed;
p. In the units within the building, installed:
(1) Built-in dishwashers;
(2) Built-in microwave ovens;
(3) Garbage disposal units;
(4) Hot water heaters, including solar water heaters;
(5) Kitchen cabinets;
(6) Plumbing fixtures;
(7) Radiators;
(8) Ranges;
(9) Refrigerators; and
(10) Stoves.
5. Materials and supplies to be used for construction, alteration, or repair of the insured building while the materials and supplies are stored in a fully enclosed building at the described location or on an adjacent property.
6. A building under construction, alteration, or repair at the described location.
a. If the structure is not yet walled or roofed as described in the definition for building (
(1) Only while such work is in progress; or
(2) If such work is halted, only for a period of up to 90 continuous days thereafter.
b. However, coverage does not apply until the building is walled and roofed if the lowest floor, including the basement floor, of a non-elevated building or the lowest elevated floor of an elevated building is:
(1) Below the base flood elevation in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, AR/A, AR/AO; or
(2) Below the base flood elevation adjusted to include the effect of wave action in Zones VE or V1-V30.
The lowest floor level is based on the bottom of the lowest horizontal structural member of the floor in Zones VE or V1-V30 or the top of the floor in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, AR/A, and AR/AO.
7. A manufactured home or a travel trailer, as described in the II.C.6. If the manufactured home or travel trailer is in a special flood hazard area, it must be anchored in the following manner at the time of the loss:
a. By over-the-top or frame ties to ground anchors; or
b. In accordance with the manufacturer's specifications; or
c. In compliance with the community's floodplain management requirements unless it has been continuously insured by the NFIP at the same described location since September 30, 1982.
8. Items of property below the lowest elevated floor of an elevated post-FIRM building located in zones A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a basement, regardless of the zone. Coverage is limited to the following:
a. Any of the following items, if installed in their functioning locations and, if necessary for operation, connected to a power source:
(1) Central air conditioners;
(2) Cisterns and the water in them;
(3) Drywall for walls and ceilings in a basement and the cost of labor to nail it, unfinished and unfloated and not taped, to the framing;
(4) Electrical junction and circuit breaker boxes;
(5) Electrical outlets and switches;
(6) Elevators, dumbwaiters, and related equipment, except for related equipment installed below the base flood elevation after September 30, 1987;
(7) Fuel tanks and the fuel in them;
(8) Furnaces and hot water heaters;
(9) Heat pumps;
(10) Nonflammable insulation in a basement;
(11) Pumps and tanks used in solar energy systems;
(12) Stairways and staircases attached to the building, not separated from it by elevated walkways;
(13) Sump pumps;
(14) Water softeners and the chemicals in them, water filters, and faucets installed as an integral part of the plumbing system;
(15) Well water tanks and pumps;
(16) Required utility connections for any item in this list; and
(17) Footings, foundations, posts, pilings, piers, or other foundation walls and anchorage systems required to support a building.
b. Clean-up.
1. If you have purchased personal property coverage, we insure, subject to B.2-4 below, against direct physical loss by or from flood to personal property inside the fully enclosed insured building:
a. Owned solely by you, or in the case of a condominium, owned solely by the condominium association and used exclusively in the conduct of the business affairs of the condominium association; or
b. Owned in common by the unit owners of the condominium association.
2. We also insure such personal property for 45 days while stored at a temporary location, as set forth in III.C.2.b, Property Removed to Safety.
3. When this policy covers personal property, coverage will be either for household personal property or other than household personal property, while within the insured building, but not both.
a. If this policy covers household personal property, it will insure household personal property usual to a living quarters, that:
(1) Belongs to you, or a member of your household, or at your option:
(a) Your domestic worker;
(b) Your guest; or
(2) You may be legally liable for.
b. If this policy covers other than household personal property, it will insure your:
(1) Furniture and fixtures;
(2) Machinery and equipment;
(3) Stock; and
(4) Other personal property owned by you and used in your business, subject to IV, Property Not Covered.
4. Coverage for personal property includes the following property, subject to B.1.a and B.1.b above, which is insured under Coverage B, only:
a. Air conditioning units, portable or window type;
b. Carpets, not permanently installed, over unfinished flooring;
c. Carpets over finished flooring;
d. Clothes washers and dryers;
e. “Cook-out” grills;
f. Food freezers, other than walk-in, and food in any freezer;
g. Outdoor equipment and furniture stored inside the insured building;
h. Ovens and the like; and
i. Portable microwave ovens and portable dishwashers.
5. Coverage for items of property below the lowest elevated floor of an elevated post-FIRM building located in Zones A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a basement, regardless of the zone, is limited to the following items, if installed in their functioning locations and, if necessary for operation, connected to a power source:
a. Air conditioning units, portable or window type;
b. Clothes washers and dryers; and
c. Food freezers, other than walk-in, and food in any freezer.
6. Special Limits. We will pay no more than $2,500 for any loss to one or more of the following kinds of personal property:
a. Artwork, photographs, collectibles, or memorabilia, including but not limited to, porcelain or other figures, and sports cards;
b. Rare books or autographed items;
c. Jewelry, watches, precious and semi-precious stones, or articles of gold, silver, or platinum;
d. Furs or any article containing fur that represents its principal value.
7. We will pay only for the functional value of antiques.
8. If you are a tenant, you may apply up to 10 percent of the Coverage B limit to improvements:
a. Made a part of the building you occupy; and
b. You acquired, or made at your expense, even though you cannot legally remove.
This coverage does not increase the amount of insurance that applies to insured personal property.
9. If you are a condominium unit owner, you may apply up to 10 percent of the Coverage B limit to cover loss to interior:
a. Walls,
b. floors, and
c. ceilings,
This coverage does not increase the amount of insurance that applies to insured personal property.
10. If you are a tenant, personal property must be inside the fully enclosed building.
a. We will pay the expense to remove non-owned debris that is on or in insured property and debris of insured property anywhere.
b. If you or a member of your household perform the removal work, the value of your work will be based on the Federal minimum wage.
c. This coverage does not increase the Coverage A or Coverage B limit of liability.
(1) We will pay up to $1,000 for costs you incur to protect the insured building from a flood or imminent danger of flood, for the following:
(a) Your reasonable expenses to buy:
(i) Sandbags, including sand to fill them;
(ii) Fill for temporary levees;
(iii) Pumps; and
(iv) Plastic sheeting and lumber used in connection with these items.
(b) The value of work, at the Federal minimum wage, that you perform.
(2) This coverage for Sandbags, Supplies and Labor only applies if damage to insured property by or from flood is imminent and the threat of flood damage is apparent enough to lead a person of common prudence to anticipate flood damage. One of the following must also occur:
(a) A general and temporary condition of flooding in the area near the described
(b) A legally authorized official must issue an evacuation order or other civil order for the community in which the building is located calling for measures to preserve life and property from the peril of flood.
This coverage does not increase the Coverage A or Coverage B limit of liability.
(1) We will pay up to $1,000 for the reasonable expenses you incur to move insured property to a place other than the described location that contains the property in order to protect it from flood or the imminent danger of flood. Reasonable expenses include the value of work, at the Federal minimum wage, you or a member of your household perform.
(2) If you move insured property to a location other than the described location that contains the property, in order to protect it from flood or the imminent danger of flood, we will cover such property while at that location for a period of 45 consecutive days from the date you begin to move it there. The personal property that is moved must be placed in a fully enclosed building or otherwise reasonably protected from the elements.
(3) Any property removed, including a moveable home described in II.6, must be placed above ground level or outside of the special flood hazard area.
(4) This coverage does not increase the Coverage A or Coverage B limit of liability.
We will pay for damage caused by pollutants to covered property if the discharge, seepage, migration, release, or escape of the pollutants is caused by or results from flood. The most we will pay under this coverage is $10,000. This coverage does not increase the Coverage A or Coverage B limits of liability. Any payment under this provision when combined with all other payments for the same loss cannot exceed the replacement cost or actual cash value, as appropriate, of the covered property. This coverage does not include the testing for or monitoring of pollutants unless required by law or ordinance.
This policy pays you to comply with a State or local floodplain management law or ordinance affecting repair or reconstruction of a building suffering flood damage. Compliance activities eligible for payment are: Elevation, floodproofing, relocation, or demolition (or any combination of these activities) of your building. Eligible floodproofing activities are limited to:
a. Non-residential buildings.
b. Residential buildings with basements that satisfy FEMA's standards published in the Code of Federal Regulations [44 CFR 60.6(b) or (c)].
We will pay you up to $30,000 under this Coverage D (Increased Cost of Compliance), which only applies to policies with building coverage (Coverage A). Our payment of claims under Coverage D is in addition to the amount of coverage which you selected on the application and which appears on the Declarations Page. However, the maximum you can collect under this policy for both Coverage A (Building Property) and Coverage D (Increased Cost of Compliance) cannot exceed the maximum permitted under the Act. We do NOT charge a separate deductible for a claim under Coverage D.
a. A building covered under Coverage A (Building Property) sustaining a loss caused by a flood as defined by this policy must:
(1) Be a “repetitive loss building.” A repetitive loss building is one that meets the following conditions:
(a) The building is insured by a contract of flood insurance issued under the NFIP.
(b) The building has suffered flood damage on two occasions during a 10-year period which ends on the date of the second loss.
(c) The cost to repair the flood damage, on average, equaled or exceeded 25 percent of the market value of the building at the time of each flood loss.
(d) In addition to the current claim, the NFIP must have paid the previous qualifying claim, and the State or community must have a cumulative, substantial damage provision or repetitive loss provision in its floodplain management law or ordinance being enforced against the building; or
(2) Be a building that has had flood damage in which the cost to repair equals or exceeds 50 percent of the market value of the building at the time of the flood. The State or community must have a substantial damage provision in its floodplain management law or ordinance being enforced against the building.
b. This Coverage D pays you to comply with State or local floodplain management laws or ordinances that meet the minimum standards of the National Flood Insurance Program found in the Code of Federal Regulations at 44 CFR 60.3. We pay for compliance activities that exceed those standards under these conditions:
(1) 3.a.1 above.
(2) Elevation or floodproofing in any risk zone to preliminary or advisory base flood elevations provided by FEMA which the State or local government has adopted and is enforcing for flood-damaged buildings in such areas. (This includes compliance activities in B, C, X, or D zones which are being changed to zones with base flood elevations. This also includes compliance activities in zones where base flood elevations are being increased, and a flood-damaged building must comply with the higher advisory base flood elevation.) Increased Cost of Compliance coverage does not apply to situations in B, C, X, or D zones where the community has derived its own elevations and is enforcing elevation or floodproofing requirements for flood-damaged buildings to elevations derived solely by the community.
(3) Elevation or floodproofing above the base flood elevation to meet State or local “free-board” requirements,
c. Under the minimum NFIP criteria at 44 CFR 60.3(b)(4), States and communities must require the elevation or floodproofing of buildings in unnumbered A zones to the base flood elevation where elevation data is obtained from a Federal, State, or other source. Such compliance activities are also eligible for Coverage D.
d. This coverage will pay for the incremental cost, after demolition or relocation, of elevating or floodproofing a building during its rebuilding at the same or another site to meet State or local floodplain management laws or ordinances, subject to the exclusion at III.D.5.g.
e. This coverage will pay to bring a flood-damaged building into compliance with State or local floodplain management laws or ordinances even if the building had received a variance before the present loss from the applicable floodplain management requirements.
a. When a building insured under Coverage A—Building Property sustains a loss caused by a flood, our payment for the loss under this Coverage D will be for the increased cost to elevate, floodproof, relocate, or demolish (or any combination of these activities) caused by the enforcement of current State or local floodplain management ordinances or laws. Our payment for eligible demolition activities will be for the cost to demolish and clear the site of the building debris or a portion thereof caused by the enforcement of current State or local floodplain management ordinances or laws. Eligible activities for the cost of clearing the site will include those necessary to discontinue utility service to the site and ensure proper abandonment of on-site utilities.
b. When the building is repaired or rebuilt, it must be intended for the same occupancy as the present building unless otherwise required by current floodplain management ordinances or laws.
Under this Coverage D (Increased Cost of Compliance), we will not pay for:
a. The cost to comply with any floodplain management law or ordinance in communities participating in the Emergency Program.
b. The cost associated with enforcement of any ordinance or law that requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants.
c. The loss in value to any insured building due to the requirements of any ordinance or law.
d. The loss in residual value of the undamaged portion of a building demolished as a consequence of enforcement of any State or local floodplain management law or ordinance.
e. Any Increased Cost of Compliance under this Coverage D:
(1) Until the building is elevated, floodproofed, demolished, or relocated on the same or to another premises; and
(2) Unless the building is elevated, floodproofed, demolished, or relocated as soon as reasonably possible after the loss, not to exceed two years.
f. Any code upgrade requirements,
g. Any compliance activities needed to bring additions or improvements made after the loss occurred into compliance with State or local floodplain management laws or ordinances.
h. Loss due to any ordinance or law that you were required to comply with before the current loss.
i. Any rebuilding activity to standards that do not meet the NFIP's minimum requirements. This includes any situation where the insured has received from the State or community a variance in connection with the current flood loss to rebuild the property to an elevation below the base flood elevation.
j. Increased Cost of Compliance for a garage or carport.
k. Any building insured under an NFIP Group Flood Insurance Policy.
l. Assessments made by a condominium association on individual condominium unit owners to pay increased costs of repairing commonly owned buildings after a flood in compliance with State or local floodplain management ordinances or laws.
All other conditions and provisions of the policy apply.
We do not insure any of the following property:
1. Personal property not inside the fully enclosed building;
2. A building, and personal property in it, located entirely in, on, or over water or seaward of mean high tide if it was constructed or substantially improved after September 30, 1982;
3. Open structures, including a building used as a boathouse or any structure or building into which boats are floated, and personal property located in, on, or over water;
4. Recreational vehicles other than travel trailers described in the II.C.6.c, whether affixed to a permanent foundation or on wheels;
5. Self-propelled vehicles or machines, including their parts and equipment. However, we do cover self-propelled vehicles or machines not licensed for use on public roads and are:
a. Used mainly to service the described location; or
b. Designed and used to assist handicapped persons, while the vehicles or machines are inside a building at the described location;
6. Land, land values, lawns, trees, shrubs, plants, growing crops, or animals;
7. Accounts, bills, coins, currency, deeds, evidences of debt, medals, money, scrip, stored value cards, postage stamps, securities, bullion, manuscripts, or other valuable papers;
8. Underground structures and equipment, including wells, septic tanks, and septic systems;
9. Those portions of walks, walkways, decks, driveways, patios, and other surfaces, all whether protected by a roof or not, located outside the perimeter, exterior walls of the insured building;
10. Containers, including related equipment, such as, but not limited to, tanks containing gases or liquids;
11. Buildings or units and all their contents if more than 49 percent of the actual cash value of the building is below ground, unless the lowest level is at or above the base flood elevation and is be-low ground by reason of earth having been used as insulation material in conjunction with energy efficient building techniques;
12. Fences, retaining walls, seawalls, bulkheads, wharves, piers, bridges, and docks;
13. Aircraft or watercraft, or their furnishings and equipment;
14. Hot tubs and spas that are not bathroom fixtures, and swimming pools, and their equipment, such as, but not limited to, heaters, filters, pumps, and pipes, wherever located;
15. Property not eligible for flood insurance pursuant to the provisions of the Coastal Barrier Resources Act and the Coastal Barrier Improvement Act and amendments to these Acts;
16. Personal property owned by or in the care, custody or control of a unit owner, except for property of the type and under the circumstances set forth under III. Coverage B—Personal Property of this policy;
17. A residential condominium building located in a Regular Program community.
A. We only pay for “direct physical loss by or from flood,” which means that we do not pay you for:
1. Loss of revenue or profits;
2. Loss of access to the insured property or described location;
3. Loss of use of the insured property or described location;
4. Loss from interruption of business or production;
5. Any additional living expenses incurred while the insured building is being repaired or is unable to be occupied for any reason;
6. The cost of complying with any ordinance or law requiring or regulating the construction, demolition, remodeling, renovation, or repair of property, including removal of any resulting debris. This exclusion does not apply to any eligible activities we describe in Coverage D—Increased Cost of Compliance; or
7. Any other economic loss you suffer.
B.
C. We do not insure for loss to property caused directly by earth movement even if the earth movement is caused by flood. Some examples of earth movement that we do not cover are:
1. Earthquake;
2. Landslide;
3. Land subsidence;
4. Sinkholes;
5. Destabilization or movement of land that results from accumulation of water in subsurface land areas; or
6. Gradual erosion.
We do, however, pay for losses from mudflow and land subsidence as a result of erosion that are specifically insured under our definition of flood (
D. We do not insure for direct physical loss caused directly or indirectly by:
1. The pressure or weight of ice;
2. Freezing or thawing;
3. Rain, snow, sleet, hail, or water spray;
4. Water, moisture, mildew, or mold damage that results primarily from any condition:
a. Substantially confined to the insured building; or
b. That is within your control including, but not limited to:
(1) Design, structural, or mechanical defects;
(2) Failures, stoppages, or breakage of water or sewer lines, drains, pumps, fixtures, or equipment; or
(3) Failure to inspect and maintain the property after a flood recedes;
5. Water or water-borne material that:
a. Backs up through sewers or drains;
b. Discharges or overflows from a sump, sump pump or related equipment; or
c. Seeps or leaks on or through the insured property; unless there is a flood in the area and the flood is the proximate cause of the sewer or drain backup, sump pump discharge or overflow, or the seepage of water;
6. The pressure or weight of water unless there is a flood in the area and the flood is the proximate cause of the damage from the pressure or weight of water;
7. Power, heating, or cooling failure unless the failure results from direct physical loss by or from flood to power, heating, or cooling equipment on the described location;
8. Theft, fire, explosion, wind, or windstorm;
9. Anything you or any member of your household do or conspires to do to deliberately cause loss by flood; or
10. Alteration of the insured property that significantly increases the risk of flooding.
E. We do not insure for loss to any building or personal property located on land leased from the Federal Government, arising from or incident to the flooding of the land by the Federal Government, where the lease expressly holds the Federal Government harmless under flood insurance issued under any Federal Government program.
A. When a loss is insured under this policy, we will pay only that part of the loss that exceeds your deductible amount, subject to the limit of liability that applies. The deductible amount is shown on the Declarations Page.
However, when a building under construction, alteration, or repair does not have at least two rigid exterior walls and a fully secured roof at the time of loss, your deductible amount will be two times the
B. In each loss from flood, separate deductibles apply to the building and personal property insured by this policy.
C. The deductible does NOT apply to:
1. III.C.2. Loss Avoidance Measures; or
2. III.D. Increased Cost of Compliance.
In case of loss to an article that is part of a pair or set, we will have the option of paying you:
1. An amount equal to the cost of replacing the lost, damaged, or destroyed article, minus its depreciation, or
2. The amount that represents the fair proportion of the total value of the pair or set that the lost, damaged, or destroyed article bears to the pair or set.
1. If a loss insured by this policy is also insured by other insurance that includes flood coverage not issued under the Act, we will not pay more than the amount of insurance that you are entitled to for lost, damaged, or destroyed property insured under this policy subject to the following:
a. We will pay only the proportion of the loss that the amount of insurance that applies under this policy bears to the total amount of insurance covering the loss, unless VII.B.1.b or c below applies.
b. If the other policy has a provision stating that it is excess insurance, this policy will be primary.
c. This policy will be primary (but subject to its own deductible) up to the deductible in the other flood policy (except another policy as described in VII.B.1.b above). When the other deductible amount is reached, this policy will participate in the same proportion that the amount of insurance under this policy bears to the total amount of both policies, for the remainder of the loss.
2. Where this policy covers a condominium association and there is a National Flood Insurance Program flood insurance policy in the name of a unit owner that insures the same loss as this policy, then this policy will be primary.
This policy cannot be changed, nor can any of its provisions be waived, without the express written consent of the Federal Insurance Administrator. No action that we take under the terms of this policy can constitute a waiver of any of our rights. You may assign this policy in writing when you transfer title of your property to someone else except under these conditions:
1. When this policy covers only personal property; or
2. When this policy covers a building under construction.
1. Applicability. The following provisions apply to all instances where the premium paid on this policy is insufficient or where the rating information is insufficient, such as where an Elevation Certificate is not provided.
2. Reforming the Policy with Reduced Coverage. Except as otherwise provided in VII.D.1 and VII.D.4, if the premium we received from you was not sufficient to buy the kinds and amounts of coverage you requested, we will provide only the kinds and amounts of coverage that can be purchased for the premium payment we received.
a. For the purpose of determining whether your premium payment is sufficient to buy the kinds and amounts of coverage you requested, we will first deduct the costs of all applicable fees and surcharges.
b. If the amount paid, after deducting the costs of all applicable fees and surcharges, is not sufficient to buy any amount of coverage, your payment will be refunded. Unless the policy is reformed to increase the coverage amount to the amount originally requested pursuant to VII.D.3, this policy will be cancelled, and no claims will be paid under this policy.
c. Coverage limits on the reformed policy will be based upon the amount of premium submitted per type of coverage, but will not exceed the amount originally requested.
3. Discovery of Insufficient Premium or Rating Information. If we discover that your premium payment was not sufficient to buy the requested amount of coverage, the policy will be reformed as described in VII.D.2. You have the option of increasing the amount of coverage resulting from this reformation to the amount you requested as follows:
a. Insufficient Premium. If we discover that your premium payment was not sufficient to buy the requested amount of coverage, we will send you, and any mortgagee or trustee known to us, a bill for the required additional premium for the current policy term (or that portion of the current policy term following any endorsement changing the amount of coverage). If it is discovered that the initial amount charged to you for any fees or surcharges is incorrect, the difference will be added or deducted, as applicable, to the total amount in this bill.
(1) If you or the mortgagee or trustee pay the additional amount due within 30 days from the date of our bill, we will reform the policy to increase the amount of coverage to the originally requested amount, effective to the beginning of the current policy term (or subsequent date of any endorsement changing the amount of coverage).
(2) If you or the mortgagee or trustee do not pay the additional amount due within 30 days of the date of our bill, any flood insurance claim will be settled based on the reduced amount of coverage.
(3) As applicable, you have the option of paying all or part of the amount due out of a claim payment based on the originally requested amount of coverage.
b. Insufficient Rating Information. If we determine that the rating information we have is insufficient and prevents us from calculating the additional premium, we will ask you to send the required information. You must submit the information within 60 days of our request.
(1) If we receive the information within 60 days of our request, we will determine the amount of additional premium for the current policy term and follow the procedure in VII.D.3.a above.
(2) If we do not receive the information within 60 days of our request, no claims will be paid until the requested information is provided. Coverage will be limited to the amount of coverage that can be purchased for the payments we received, as determined when the requested information is provided.
4. Coverage Increases. If we do not receive the amounts requested in VII.D.3.a or the additional information requested in VII.D.3.b by the date it is due, the amount of coverage under this policy can only be increased by endorsement subject to the appropriate waiting period. However, no coverage increases will be allowed until you have provided the information requested in VII.D.3.b is provided.
5. Falsifying Information. However, if we find that you or your agent intentionally did not tell us, or falsified, any important fact or circumstance or did anything fraudulent relating to this insurance, the provisions of VIII.A apply.
1. This policy will expire at 12:01 a.m. on the last day of the policy term.
2. We must receive the payment of the appropriate renewal premium within 30 days of the expiration date.
3. If we find, however, that we did not place your renewal notice into the U.S. Postal Service, or if we did mail it, we made a mistake,
a. If you or your agent notified us, not later than one year after the date on which the payment of the renewal premium was due, of non-receipt of a renewal notice before the due date for the renewal premium, and we determine that the circumstances in the preceding paragraph apply, we will mail a second bill providing a revised due date, which will be 30 days after the date on which the bill is mailed.
b. If we do not receive the premium requested in the second bill by the revised due date, then we will not renew the policy. In that case, the policy will remain as an expired policy as of the expiration date shown on the Declarations Page.
4. In connection with the renewal of this policy, we may ask you during the policy term to recertify, on a Recertification Questionnaire that we will provide to you, the rating information used to rate your most recent application for or renewal of insurance.
We are not liable for loss that occurs while there is a hazard that is increased by any means within your control or knowledge.
In case of a flood loss to insured property, you must:
1. Give prompt written notice to us;
2. As soon as reasonably possible, separate the damaged and undamaged property, putting it in the best possible order so that we may examine it;
3. Prepare an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss. Attach all bills, receipts, and related documents;
4. Within 60 days after the loss, send us a proof of loss, which is your statement of the amount you are claiming under the policy signed and sworn to by you, and which furnishes us with the following information:
a. The date and time of loss;
b. A brief explanation of how the loss happened;
c. Your interest (for example, “owner”) and the interest, if any, of others in the damaged property;
d. Details of any other insurance that may cover the loss;
e. Changes in title or occupancy of the insured property during the term of the policy;
f. Specifications of damaged buildings and detailed repair estimates;
g. Names of mortgagees or anyone else having a lien, charge, or claim against the insured property;
h. Details about who occupied any insured building at the time of loss and for what purpose; and
i. The inventory of damaged personal property described in G.3 above.
5. In completing the proof of loss, you must use your own judgment concerning the amount of loss and justify that amount.
6. You must cooperate with the adjuster or representative in the investigation of the claim.
7. The insurance adjuster whom we hire to investigate your claim may furnish you with a proof of loss form, and she or he may help you complete it. However, this is a matter of courtesy only, and you must still send us a proof of loss within 60 days after the loss even if the adjuster does not furnish the form or help you complete it.
8. We have not authorized the adjuster to approve or disapprove claims or to tell you whether we will approve your claim.
9. At our option, we may accept the adjuster's report of the loss instead of your proof of loss. The adjuster's report will include information about your loss and the damages you sustained. You must sign the adjuster's report. At our option, we may require you to swear to the report.
Options we may, in our sole discretion, exercise after loss include the following:
1. At such reasonable times and places that we may designate, you must:
a. Show us or our representative the damaged property;
b. Submit to examination under oath, while not in the presence of another insured, and sign the same; and
c. Permit us to examine and make extracts and copies of:
(1) Any policies of property insurance insuring you against loss and the deed establishing your ownership of the insured real property;
(2) Condominium association documents including the Declarations of the condominium, its Articles of Association or Incorporation, Bylaws, rules and regulations, and other relevant documents if you are a unit owner in a condominium building; and
(3) All books of accounts, bills, invoices and other vouchers, or certified copies pertaining to the damaged property if the originals are lost.
2. We may request, in writing, that you furnish us with a complete inventory of the lost, damaged or destroyed property, including:
a. Quantities and costs;
b. Actual cash values or replacement cost (whichever is appropriate);
c. Amounts of loss claimed;
d. Any written plans and specifications for repair of the damaged property that you can reasonably make available to us; and
e. Evidence that prior flood damage has been repaired.
3. If we give you written notice within 30 days after we receive your signed, sworn proof of loss, we may:
a. Repair, rebuild, or replace any part of the lost, damaged, or destroyed property with material or property of like kind and quality or its functional equivalent; and
b. Take all or any part of the damaged property at the value that we agree upon or its appraised value.
No person or organization, other than you, having custody of insured property will benefit from this insurance.
1. We will adjust all losses with you. We will pay you unless some other person or entity is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss (or within 90 days after the insurance adjuster files the adjuster's report signed and sworn to by you in lieu of a proof of loss) and:
a. We reach an agreement with you;
b. There is an entry of a final judgment; or
c. There is a filing of an appraisal award with us, as provided in VII.M.
2. If we reject your proof of loss in whole or in part you may:
a. Accept our denial of your claim;
b. Exercise your rights under this policy; or
c. File an amended proof of loss as long as it is filed within 60 days of the date of the loss.
You may not abandon damaged or undamaged insured property to us.
We may permit you to keep damaged insured property after a loss, and we will reduce the amount of the loss proceeds payable to you under the policy by the value of the salvage.
If you and we fail to agree on the actual cash value of the damaged property so as to determine the amount of loss, either may demand an appraisal of the loss. In this event, you and we will each choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the insured property is located. The appraisers will separately state the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of actual cash value and loss.
Each party will:
1. Pay its own appraiser; and
2. Bear the other expenses of the appraisal and umpire equally.
1. The word “mortgagee” includes trustee.
2. Any loss payable under Coverage A—Building Property will be paid to any mortgagee of whom we have actual notice, as well as any other mortgagee or loss payee determined to exist at the time of loss, and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages.
3. If we deny your claim, that denial will not apply to a valid claim of the mortgagee, if the mortgagee:
a. Notifies us of any change in the ownership or occupancy, or substantial change in risk of which the mortgagee is aware;
b. Pays any premium due under this policy on demand if you have neglected to pay the premium; and
c. Submits a signed, sworn proof of loss within 60 days after receiving notice from us of your failure to do so.
4. All terms of this policy apply to the mortgagee.
5. The mortgagee has the right to receive loss payment even if the mortgagee has started foreclosure or similar action on the building.
6. If we decide to cancel or not renew this policy, it will continue in effect for the benefit of the mortgagee only for 30 days after we notify the mortgagee of the cancellation or non-renewal.
7. If we pay the mortgagee for any loss and deny payment to you, we are subrogated to all the rights of the mortgagee granted under the mortgage on the property. Subrogation will not impair the right of the mortgagee to recover the full amount of the mortgagee's claim.
You may not sue us to recover money under this policy unless you have complied with all the requirements of the policy. If you do sue, you must start the suit within one year of the date of the written denial of all or part of the claim, and you must file the suit in the United States District Court of the district in which the insured property was located at the time of loss. This requirement applies to any claim that you may have under this policy and to any dispute that you may have arising out of the handling of any claim under the policy.
Whenever we make a payment for a loss under this policy, we are subrogated to your
1. If an insured building has been flooded by rising lake waters continuously for 90 days or more and it appears reasonably certain that a continuation of this flooding will result in an insured loss to the insured building equal to or greater than the building policy limits plus the deductible or the maximum payable under the policy for any one building loss, we will pay you the lesser of these two amounts without waiting for the further damage to occur if you sign a release agreeing:
a. To make no further claim under this policy;
b. Not to seek renewal of this policy;
c. Not to apply for any flood insurance under the Act for property at the described location;
d. Not to seek a premium refund for current or prior terms.
If the policy term ends before the insured building has been flooded continuously for 90 days, the provisions of this paragraph Q.1 will apply when the insured building suffers a covered loss before the policy term ends.
2. If your insured building is subject to continuous lake flooding from a closed basin lake, you may elect to file a claim under either paragraph Q.1 above or Q.2 (A “closed basin lake” is a natural lake from which water leaves primarily through evaporation and whose surface area now exceeds or has exceeded one square mile at any time in the recorded past. Most of the nation's closed basin lakes are in the western half of the United States where annual evaporation exceeds annual precipitation and where lake levels and surface areas are subject to considerable fluctuation due to wide variations in the climate. These lakes may overtop their basins on rare occasions.) Under this paragraph Q.2, we will pay your claim as if the building is a total loss even though it has not been continuously inundated for 90 days, subject to the following conditions:
a. Lake floodwaters must damage or imminently threaten to damage your building.
b. Before approval of your claim, you must:
(1) Agree to a claim payment that reflects your buying back the salvage on a negotiated basis; and
(2) Grant the conservation easement described in FEMA's “Policy Guidance for Closed Basin Lakes” to be recorded in the office of the local recorder of deeds. FEMA, in consultation with the community in which the property is located, will identify on a map an area or areas of special consideration (ASC) in which there is a potential for flood damage from continuous lake flooding. FEMA will give the community the agreed-upon map showing the ASC. This easement will only apply to that portion of the property in the ASC. It will allow certain agricultural and recreational uses of the land. The only structures it will allow on any portion of the property within the ASC are certain simple agricultural and recreational structures. If any of these allowable structures are insurable buildings under the NFIP and are insured under the NFIP, they will not be eligible for the benefits of this paragraph Q.2. If a U.S. Army Corps of Engineers certified flood control project or otherwise certified flood control project later protects the property, FEMA will, upon request, amend the ASC to remove areas protected by those projects. The restrictions of the easement will then no longer apply to any portion of the property removed from the ASC; and
(3) Comply with paragraphs Q.1.a through Q.1.d above.
c. Within 90 days of approval of your claim, you must move your building to a new location outside the ASC. FEMA will give you an additional 30 days to move if you show there is sufficient reason to extend the time.
d. Before the final payment of your claim, you must acquire an elevation certificate and a floodplain development permit from the local floodplain administrator for the new location of your building.
e. Before the approval of your claim, the community having jurisdiction over your building must:
(1) Adopt a permanent land use ordinance, or a temporary moratorium for a period not to exceed 6 months to be followed immediately by a permanent land use ordinance that is consistent with the provisions specified in the easement required in paragraph Q.2.b above.
(2) Agree to declare and report any violations of this ordinance to FEMA so that under Section 1316 of the National Flood Insurance Act of 1968, as amended, flood insurance to the building can be denied; and
(3) Agree to maintain as deed-restricted, for purposes compatible with open space or agricultural or recreational use only, any affected property the community acquires an interest in. These deed restrictions must be consistent with the provisions of paragraph Q.2.b above, except that, even if a certified project protects the property, the land use restrictions continue to apply if the property was acquired under the Hazard Mitigation Grant Program or the Flood Mitigation Assistance Program. If a non-profit land trust organization receives the property as a donation, that organization must maintain the property as deed-restricted, consistent with the provisions of paragraph Q2.b. above.
f. Before the approval of your claim, the affected State must take all action set forth in FEMA's “Policy Guidance for Closed Basin Lakes.”
g. You must have NFIP flood insurance coverage continuously in effect from a date established by FEMA until you file a claim under paragraph Q.2. If a subsequent owner buys NFIP insurance that goes into effect within 60 days of the date of transfer of title, any gap in coverage during that 60-day period will not be a violation of this continuous coverage requirement. For the purpose of honoring a claim under this paragraph Q.2, we will not consider to be in effect any increased coverage that became effective after the date established by FEMA. The exception to this is any in-creased coverage in the amount suggested by your insurer as an inflation adjustment.
h. This paragraph Q.2 will be in effect for a community when the FEMA Regional Administrator for the affected region provides to the community, in writing, the following:
(1) Confirmation that the community and the State are in compliance with the conditions in paragraphs Q.2.e and Q.2.f above, and
(2) The date by which you must have flood insurance in effect.
We will pay the least of the following amounts after application of the deductible:
1. The applicable amount of insurance under this policy;
2. The actual cash value; or
3. The amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss.
1. With respect to all insureds under this policy, this policy is void and has no legal force and effect if at any time, before or after a loss, you or any other insured or your agent have, with respect to this policy or any other NFIP insurance:
a. Concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements.
2. Policies voided under A.1 cannot be renewed or replaced by a new NFIP policy.
3. Policies are void as of the date the acts described in A.1 above were committed.
4. Fines, civil penalties, and imprisonment under applicable Federal laws may also apply to the acts of fraud or concealment described above.
1. This policy is void from its inception, and has no legal force or effect, if:
a. The property listed on the application is located in a community that was not participating in the NFIP on this policy's inception date and did not join or reenter the program during the policy term and before the loss occurred;
b. The property listed on the application is otherwise not eligible for coverage under the NFIP at the time of the initial application;
c. You never had an insurable interest in the property listed on the application;
d. You provided an agent with an application and payment, but the payment did not clear; or
e. We receive notice from you, prior to the policy effective date, that you have
2. In such cases, you will be entitled to a full refund of all premium, fees, and surcharges received. However, if a claim was paid for a policy that is void, the claim payment must be returned to FEMA or offset from the premiums to be refunded before the refund will be processed.
1. You may cancel this policy in accordance with the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
2. If you cancel this policy, you may be entitled to a full or partial refund of premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
1. Cancellation for Underpayment of Amounts Owed on Policy. This policy will be cancelled, pursuant to VII.D.2, if it is determined that the premium amount you paid is not sufficient to buy any amount of coverage, and you do not pay the additional amount of premium owed to increase the coverage to the originally requested amount within the required time period.
2. Cancellation Due to Lack of an Insurable Interest.
a. If you no longer have an insurable interest in the insured property, we will cancel this policy. You will cease to have an insurable interest if:
(1) For building coverage, the building was sold, destroyed, or removed.
(2) For contents coverage, the contents were sold or transferred ownership, or the contents were completely removed from the described location.
b. If your policy is cancelled for this reason, you may be entitled to a partial refund of premium under the applicable rules and regulations of the NFIP.
3. Cancellation of Duplicate Policies.
a. Your property may not be insured by more than one NFIP policy, and payment for damages to your property will only be made under one policy.
b. If the property is insured by more than one NFIP policy, we will cancel all but one of the policies. The policy, or policies, will be selected for cancellation in accordance with 44 CFR 62.5 and the applicable rules and guidance of the NFIP.
c. If this policy is cancelled pursuant to VIII.D.4.b, you may be entitled to a full or partial refund of premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
4. Cancellation Due to Physical Alteration of Property.
a. If the insured building has been physically altered in such a manner that it is no longer eligible for flood insurance coverage, we will cancel this policy.
b. If your policy is cancelled for this reason, you may be entitled to a partial refund of premium under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
Your policy will not be renewed if:
1. The community where your insured property is located is suspended or stops participating in the NFIP;
2. Your building is otherwise ineligible for flood insurance under the Act;
3. You have failed to provide the information we requested for the purpose of rating the policy within the required deadline.
If we make a change that broadens your coverage under this edition of our policy, but does not re-quire any additional premium, then that change will automatically apply to your insurance as of the date we implement the change, provided that this implementation date falls within 60 days before or during the policy term stated on the Declarations Page.
This policy and all disputes arising from the insurer's policy issuance, policy administration, or the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001,
Please read the policy carefully. The flood insurance provided is subject to limitations, restrictions, and exclusions.
A. This policy covers only a residential condominium building in a regular program community. If the community reverts to emergency program status during the policy term and remains as an emergency program community at time of renewal, this policy cannot be renewed.
B. The Federal Emergency Management Agency (FEMA) provides flood insurance under the terms of the National Flood Insurance Act of 1968 and its amendments, and Title 44 of the Code of Federal Regulations.
C. We will pay you for direct physical loss by or from flood to your insured property if you:
1. Have paid the full amount due (including applicable premiums, surcharges, and fees);
2. Comply with all terms and conditions of this policy; and
3. Have furnished accurate information and statements.
D. We have the right to review the information you give us at any time and revise your policy based on our review.
E. This policy insures only one building. If you own more than one building, coverage will apply to the single building specifically described in the Flood Insurance Application.
F. Subject to the exception in Section I.G below, multiple policies with building coverage cannot be issued to insure a single building to one insured or to different insureds, even if issued through different NFIP insurers. Payment for damages may only be made under a single policy for building damages under Coverage A—Building Property.
G. A Dwelling Form policy with building coverage may be issued to a unit owner in a condominium building that is also insured under a Residential Condominium Building Association Policy (RCBAP). However, no more than $250,000 may be paid in combined benefits for a single unit under the Dwelling Form and the RCBAP. We will only pay for damage once. Items of damage paid for under a RCBAP cannot also be claimed under the Dwelling Form policy.
A. In this policy, “you” and “your” refer to the named insured(s) shown on the Declarations Page of this policy. The named insured must also include the building owner if building coverage is purchased. Insured(s) includes: Any mortgagee and loss payee named in the Application and Declarations Page, as well as any other mortgagee or loss payee determined to have an existing interest at the time of loss, in the order of precedence. “We,” “us,” and “our” refer to the insurer.
Some definitions are complex because they are provided as they appear in the law or regulations, or result from court cases.
B.
1. A general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or of two or more properties (one of which is your property) from:
a. Overflow of inland or tidal waters,
b. Unusual and rapid accumulation or runoff of surface waters from any source,
c. Mudflow.
2. Collapse or subsidence of land along the shore of a lake or similar body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels which result in a flood as defined in B.1.a above.
C. The following are the other key definitions we use in this policy:
1.
2.
3.
4.
5.
6.
a. A structure with two or more outside rigid walls and a fully secured roof that is affixed to a permanent site;
b. A manufactured home, also known as a mobile home, is a structure built on a permanent chassis, transported to its site in one or more sections, and affixed to a permanent foundation); or
c. A travel trailer without wheels, built on a chassis and affixed to a permanent foundation, that is regulated under the community's floodplain management and building ordinances or laws.
7.
8.
9.
a. Common elements owned in undivided shares by unit owners; and
b. Other buildings in which the unit owners have use rights; where membership in the entity is a required condition of ownership.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
a. This printed form;
b. The application and Declarations Page;
c. Any endorsement(s) that may be issued; and
d. Any renewal certificate indicating that coverage has been instituted for a new policy and new policy term. Only one building, which you specifically described in the application, may be insured under this policy.
22.
23.
24.
25.
26.
27.
28.
29.
We insure against direct physical loss by or from flood to:
1. The residential condominium building described on the Declarations Page at the described location, including all units within the building and the improvements within the units.
2. We also insure such building property for a period of 45 days at another location, as set forth in III.C.2.b, Property Removed to Safety.
3. Additions and extensions attached to and in contact with the building by means of a rigid exterior wall, a solid load-bearing interior wall, a stairway, an elevated walkway, or a roof. At your option, additions and extensions connected by any of these methods may be separately insured. Additions and extensions attached to and in contact with the building by means of a common interior wall that is not a solid load-bearing wall are always considered part of the building and cannot be separately insured.
4. The following fixtures, machinery and equipment, including its units, which are insured under Coverage A only:
a. Awnings and canopies;
b. Blinds;
c. Carpet permanently installed over unfinished flooring;
d. Central air conditioners;
e. Elevator equipment;
f. Fire extinguishing apparatus;
g. Fire sprinkler systems;
h. Walk-in freezers;
i. Furnaces;
j. Light fixtures;
k. Outdoor antennas and aerials fastened to buildings;
l. Permanently installed cupboards, bookcases, paneling, and wallpaper;
m. Pumps and machinery for operating pumps;
n. Ventilating equipment;
o. Wall mirrors, permanently installed; and
p. In the units within the building, installed:
(1) Built-in dishwashers;
(2) Built-in microwave ovens;
(3) Garbage disposal units;
(4) Hot water heaters, including solar water heaters;
(5) Kitchen cabinets;
(6) Plumbing fixtures;
(7) Radiators;
(8) Ranges;
(9) Refrigerators; and
(10) Stoves.
5. Materials and supplies to be used for construction, alteration or repair of the insured building while the materials and supplies are stored in a fully enclosed building at the described location or on an adjacent property.
6. A building under construction, alteration, or repair at the described location.
a. If the structure is not yet walled or roofed as described in the definition for building (
(1) Only while such work is in progress; or
(2) If such work is halted, only for a period of up to 90 continuous days thereafter.
b. However, coverage does not apply until the building is walled and roofed if the lowest floor, including the basement floor, of a non-elevated building or the lowest elevated floor of an elevated building is:
(1) Below the base flood elevation in Zones AH, AE, A1-30, AR, AR/AE, AR/AH, AR/A1-30, AR/A, AR/AO; or
(2) Below the base flood elevation adjusted to include the effect of wave action in Zones VE or V1-30.
The lowest floor level is based on the bottom of the lowest horizontal structural member of the floor in Zones VE or V1-V30 or top of the floor in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, AR/A, and AR/AO.
7. A manufactured home or a travel trailer, as described in the II.C.6. If the manufactured home is in a special flood hazard area, it must be anchored in the following manner at the time of the loss:
a. By over-the-top or frame ties to ground anchors; or
b. In accordance with the manufacturer's specifications; or
c. In compliance with the community's floodplain management requirements unless it has been continuously insured by the NFIP at the same described location since September 30, 1982.
8. Items of property below the lowest elevated floor of an elevated post-FIRM building located in zones A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a basement, regardless of the zone. Coverage is limited to the following:
a. Any of the following items, if installed in their functioning locations and, if necessary for operation, connected to a power source:
(1) Central air conditioners;
(2) Cisterns and the water in them;
(3) Drywall for walls and ceilings in a basement and the cost of labor to nail it, unfinished and unfloated and not taped, to the framing;
(4) Electrical junction and circuit breaker boxes;
(5) Electrical outlets and switches;
(6) Elevators, dumbwaiters, and related equipment, except for related equipment installed below the base flood elevation after September 30, 1987;
(7) Fuel tanks and the fuel in them;
(8) Furnaces and hot water heaters;
(9) Heat pumps;
(10) Nonflammable insulation in a basement;
(11) Pumps and tanks used in solar energy systems;
(12) Stairways and staircases attached to the building, not separated from it by elevated walkways;
(13) Sump pumps;
(14) Water softeners and the chemicals in them, water filters, and faucets installed as an integral part of the plumbing system;
(15) Well water tanks and pumps;
(16) Required utility connections for any item in this list; and
(17) Footings, foundations, posts, pilings, piers, or other foundation walls and anchorage systems required to support a building.
b. Clean-up.
1. If you have purchased personal property coverage, we insure, subject to B.2 and B.3 below, against direct physical loss by or from flood to personal property that is inside the fully enclosed insured building and is:
a. Owned by the unit owners of the condominium association in common, meaning property in which each unit owner has an undivided ownership interest; or
b. Owned solely by the condominium association and used exclusively in the conduct of the business affairs of the condominium association.
2. We also insure such personal property for 45 days while stored at a temporary location, as set forth in III.C.2.b, Property Removed to Safety.
3. Coverage for personal property includes the following property, subject to B.1. above, which is covered under Coverage B only:
a. Air conditioning units, portable or window type;
b. Carpets, not permanently installed, over unfinished flooring;
c. Carpets over finished flooring;
d. Clothes washers and dryers;
e. “Cook-out” grills;
f. Food freezers, other than walk-in, and food in any freezer;
g. Outdoor equipment and furniture stored inside the insured building;
h. Ovens and the like; and
i. Portable microwave ovens and portable dishwashers.
4. Coverage for items of property in a building enclosure below the lowest elevated floor of an elevated post-FIRM building located in zones A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a basement, regardless of the zone, is limited to the following items, if installed in their functioning locations and, if necessary for operation, connected to a power source:
a. Air conditioning units, portable or window type;
b. Clothes washers and dryers; and
c. Food freezers, other than walk-in, and food in any freezer.
5. Special Limits. We will pay no more than $2,500 for any one loss to one or more of the following kinds of personal property:
a. Artwork, photographs, collectibles, or memorabilia, including but not limited to, porcelain or other figures, and sports cards;
b. Rare books or autographed items;
c. Jewelry, watches, precious and semi-precious stones, or articles of gold, silver, or platinum;
d. Furs or any article containing fur which represents its principal value.
6. We will pay only for the functional value of antiques.
1. Debris Removal.
a. We will pay the expense to remove non-owned debris that is on or in insured property and debris of insured property anywhere.
b. If you or a member of your household perform the removal work, the value of your work will be based on the Federal minimum wage.
c. This coverage does not increase the Coverage A or Coverage B limit of liability.
2. Loss Avoidance Measures.
a. Sandbags, Supplies, and Labor.
(1) We will pay up to $1,000 for costs you incur to protect the insured building from a flood or imminent danger of flood, for the following:
(a) Your reasonable expenses to buy:
(i) Sandbags, including sand to fill them;
(ii) Fill for temporary levees;
(iii) Pumps; and
(iv) Plastic sheeting and lumber used in connection with these items.
(b) The value of work, at the Federal minimum wage, that you perform.
(2) This coverage for Sandbags, Supplies and Labor only applies if damage to insured property by or from flood is imminent and the threat of flood damage is apparent enough to lead a person of common prudence to anticipate flood damage. One of the following must also occur:
(a) A general and temporary condition of flooding in the area near the described location must occur, even if the flood does not reach the building; or
(b) A legally authorized official must issue an evacuation order or other civil order for the community in which the building is located calling for measures to preserve life and property from the peril of flood.
b. Property Removed to Safety.
(1) We will pay up to $1,000 for the reasonable expenses you incur to move insured property to a place other than the described location that contains the property in order to protect it from flood or the imminent danger of flood. Reasonable expenses include the value of work, at the Federal minimum wage, you or a member of your household perform.
(2) If you move insured property to a location other than the described location that contains the property, in order to protect it from flood or the imminent danger of flood, we will cover such property while at that location for a period of 45 consecutive days from the date you begin to move it there.
(3) The personal property that is moved must be placed in a fully enclosed building or otherwise reasonably protected from the elements. Any property removed, including a moveable home described in II.6.b and c, must be placed above ground level or outside of the special flood hazard area
(4) This coverage does not increase the Coverage A or Coverage B limit of liability.
1.
This policy pays you to comply with a State or local floodplain management law or ordinance affecting repair or reconstruction of a building suffering flood damage. Compliance activities eligible for payment are: elevation, floodproofing, relocation, or demolition (or any combination of these activities) of your building. Eligible floodproofing activities are limited to:
a. Non-residential buildings.
b. Residential buildings with basements that satisfy FEMA's standards published in
2.
We will pay you up to $30,000 under this Coverage D (Increased Cost of Compliance), which only applies to policies with building coverage (Coverage A). Our payment of claims under Coverage D is in addition to the amount of coverage which you selected on the application and which appears on the Declarations Page. But, the maximum you can collect under this policy for both Coverage A—Building Property and Coverage D—Increased Cost of Compliance cannot exceed the maximum permitted under the Act. We do not charge a separate deductible for a claim under Coverage D.
3.
a. A building covered under Coverage A (Building Property) sustaining a loss caused by a flood as defined by this policy must:
(1) Be a “repetitive loss building.” A repetitive loss building is one that meets the following conditions:
(a) The building is insured by a contract of flood insurance issued under the NFIP.
(b) The building has suffered flood damage on two occasions during a 10-year period which ends on the date of the second loss.
(c) The cost to repair the flood damage, on average, equaled or exceeded 25 percent of the market value of the building at the time of each flood loss.
(d) In addition to the current claim, the NFIP must have paid the previous qualifying claim, and the State or community must have a cumulative, substantial damage provision or repetitive loss provision in its floodplain management law or ordinance being enforced against the building; or
(2) Be a building that has had flood damage in which the cost to repair equals or exceeds 50 percent of the market value of the building at the time of the flood. The State or community must have a substantial damage provision in its floodplain management law or ordinance being enforced against the building.
b. This Coverage D pays you to comply with State or local floodplain management laws or ordinances that meet the minimum standards of the National Flood Insurance Program found in the Code of Federal Regulations at 44 CFR 60.3. We pay for compliance activities that exceed those standards under these conditions:
(1) 3.a.1 above.
(2) Elevation or floodproofing in any risk zone to preliminary or advisory base flood elevations provided by FEMA which the State or local government has adopted and is enforcing for flood-damaged buildings in such areas. (This includes compliance activities in B, C, X, or D zones which are being changed to zones with base flood elevations. This also includes compliance activities in zones where base flood elevations are being increased, and a flood-damaged building must comply with the higher advisory base flood elevation.) Increased Cost of Compliance coverage does not apply to situations in B, C, X, or D zones where the community has derived its own elevations and is enforcing elevation or floodproofing requirements for flood-damaged buildings to elevations derived solely by the community.
(3) Elevation or floodproofing above the base flood elevation to meet State or local “freeboard” requirements,
c. Under the minimum NFIP criteria at 44 CFR 60.3(b)(4), States and communities must require the elevation or floodproofing of buildings in unnumbered A zones to the base flood elevation where elevation data is obtained from a Federal, State, or other source. Such compliance activities are also eligible for Coverage D.
d. Coverage D will pay for the incremental cost, after demolition or relocation, of elevating or floodproofing a building during its rebuilding at the same or another site to meet State or local floodplain management laws or ordinances, subject to Exclusion D.5.g below relating to improvements.
e. Coverage D will pay to bring a flood-damaged building into compliance with State or local floodplain management laws or ordinances even if the building had received a variance before the present loss from the applicable floodplain management requirements.
4.
a. When a building covered under Coverage A—Building Property sustains a loss caused by a flood, our payment for the loss under this Coverage D will be for the increased cost to elevate, floodproof, relocate, or demolish (or any combination of these activities) caused by the enforcement of current State or local floodplain management ordinances or laws. Our payment for eligible demolition activities will be for the cost to demolish and clear the site of the building debris or a portion thereof caused by the enforcement of current State or local floodplain management ordinances or laws. Eligible activities for the cost of clearing the site will include those necessary to discontinue utility service to the site and ensure proper abandonment of on-site utilities.
b. When the building is repaired or rebuilt, it must be intended for the same occupancy as the present building unless otherwise required by current floodplain management ordinances or laws.
5.
Under this Coverage D (Increased Cost of Compliance) we will not pay for:
a. The cost to comply with any floodplain management law or ordinance in communities participating in the Emergency Program.
b. The cost associated with enforcement of any ordinance or law that requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants.
c. The loss in value to any insured building due to the requirements of any ordinance or law.
d. The loss in residual value of the undamaged portion of a building demolished as a consequence of enforcement of any State or local floodplain management law or ordinance.
e. Any Increased Cost of Compliance under this Coverage D:
(1) Until the building is elevated, floodproofed, demolished, or relocated on the same or to another premises; and
(2) Unless the building is elevated, floodproofed, demolished, or relocated as soon as reasonably possible after the loss, not to exceed two years.
f. Any code upgrade requirements,
g. Any compliance activities needed to bring additions or improvements made after the loss occurred into compliance with State or local floodplain management laws or ordinances.
h. Loss due to any ordinance or law that you were required to comply with before the current loss.
i. Any rebuilding activity to standards that do not meet the NFIP's minimum requirements. This includes any situation where the insured has received from the State or community a variance in connection with the current flood loss to rebuild the property to an elevation below the base flood elevation.
j. Increased Cost of Compliance for a garage or carport.
k. Any building insured under an NFIP Group Flood Insurance Policy.
l. Assessments made by a condominium association on individual condominium unit owners to pay increased costs of repairing commonly owned buildings after a flood in compliance with State or local floodplain management ordinances or laws.
6.
a. Increased Cost of Compliance coverage will not be included in the calculation to determine whether coverage meets the coinsurance requirement for replacement cost coverage under Art. VIII.R. (“Loss Settlement”).
b. All other conditions and provisions of this policy apply.
We do not insure any of the following:
1. Personal property not inside a building;
2. A building, and personal property in it, located entirely in, on, or over water or seaward of mean high tide if it was constructed or substantially improved after September 30, 1982;
3. Open structures, including a building used as a boathouse or any structure or building into which boats are floated, and personal property located in, on, or over water;
4. Recreational vehicles other than travel trailers described in the Definitions section (see II.C.6.c) whether affixed to a permanent foundation or on wheels;
5. Self-propelled vehicles or machines, including their parts and equipment. However, we do cover self-propelled vehicles or machines not licensed for use on public roads that are:
a. Used mainly to service the described location or
b. Designed and used to assist handicapped persons, while the vehicles or machines are inside a building at the described location;
6. Land, land values, lawns, trees, shrubs, plants, growing crops, or animals;
7. Accounts, bills, coins, currency, deeds, evidences of debt, medals, money, scrip, stored value cards, postage stamps, securities, bullion, manuscripts, or other valuable papers;
8. Underground structures and equipment, including wells, septic tanks, and septic systems;
9. Those portions of walks, walkways, decks, driveways, patios, and other surfaces, all whether protected by a roof or not, located outside the perimeter, exterior walls of the insured building;
10. Containers, including related equipment, such as, but not limited to, tanks containing gases or liquids;
11. Buildings and all their contents if more than 49 percent of the actual cash value of the building is below ground, unless the lowest level is at or above the base flood elevation and is below ground by reason of earth having been used as insulation material in conjunction with energy efficient building techniques;
12. Fences, retaining walls, seawalls, bulkheads, wharves, piers, bridges, and docks;
13. Aircraft or watercraft, or their furnishings and equipment;
14. Hot tubs and spas that are not bathroom fixtures, and swimming pools, and their equipment such as, but not limited to, heaters, filters, pumps, and pipes, wherever located;
15. Property not eligible for flood insurance pursuant to the provisions of the Coastal Barrier Resources Act and the Coastal Barrier Improvements Act of 1990 and amendments to these Acts;
16. Personal property used in connection with any incidental commercial occupancy or use of the building.
A. We only pay for “direct physical loss by or from flood,” which means that we do not pay you for:
1. Loss of revenue or profits;
2. Loss of access to the insured property or described location;
3. Loss of use of the insured property or described location;
4. Loss from interruption of business or production;
5. Any additional living expenses incurred while the insured building is being repaired or is unable to be occupied for any reason;
6. The cost of complying with any ordinance or law requiring or regulating the construction, demolition, remodeling, renovation, or repair of property, including removal of any resulting debris. This exclusion does not apply to any eligible activities we describe in Coverage D—Increased Cost of Compliance; or
7. Any other economic loss you suffer.
B.
C. We do not insure for loss to property caused directly by earth movement even if the earth movement is caused by flood. Some examples of earth movement that we do not cover are:
1. Earthquake;
2. Landslide;
3. Land subsidence;
4. Sinkholes;
5. Destabilization or movement of land that results from accumulation of water in subsurface land areas; or
6. Gradual erosion.
We do, however, pay for losses from mudflow and land subsidence as a result of erosion that are specifically covered under our definition of flood (
D. We do not insure for direct physical loss caused directly or indirectly by:
1. The pressure or weight of ice;
2. Freezing or thawing;
3. Rain, snow, sleet, hail, or water spray;
4. Water, moisture, mildew, or mold damage that results primarily from any condition:
a. Substantially confined to the insured building; or
b. That is within your control including, but not limited to:
(1) Design, structural, or mechanical defects;
(2) Failures, stoppages, or breakage of water or sewer lines, drains, pumps, fixtures, or equipment; or
(3) Failure to inspect and maintain the property after a flood recedes;
5. Water or water-borne material that:
a. Backs up through sewers or drains;
b. Discharges or overflows from a sump, sump pump or related equipment; or
c. Seeps or leaks on or through the insured property;
unless there is a flood in the area and the flood is the proximate cause of the sewer or drain backup, sump pump discharge or overflow, or the seepage of water;
6. The pressure or weight of water unless there is a flood in the area and the flood is the proximate cause of the damage from the pressure or weight of water;
7. Power, heating, or cooling failure unless the failure results from direct physical loss by or from flood to power, heating, or cooling equipment on the described location;
8. Theft, fire, explosion, wind, or windstorm;
9. Anything you or your agents do or conspire to do to cause loss by flood deliberately; or
10. Alteration of the insured property that significantly increases the risk of flooding.
E. We do not insure for loss to any building or personal property located on land leased from the Federal Government, arising from or incident to the flooding of the land by the Federal Government, where the lease expressly holds the Federal Government harmless under flood insurance issued under any Federal Government program.
F. We do not pay for the testing for or monitoring of pollutants unless required by law or ordinance.
A. When a loss is insured under this policy, we will pay only that part of the loss that exceeds your deductible amount, subject to the limit of liability that applies. The deductible amount is shown on the Declarations Page.
However, when a building under construction, alteration, or repair does not have at least two rigid exterior walls and a fully secured roof at the time of loss, your deductible amount will be two times the deductible that would otherwise apply to a completed building.
B. In each loss from flood, separate deductibles apply to the building and personal property insured by this policy.
C. No deductible applies to:
1. III.C.2. Loss Avoidance Measures; or
2. III.D. Increased Cost of Compliance.
A. This Coinsurance Section applies only to coverage on the building.
B. We will impose a penalty on loss payment unless the amount of insurance applicable to the damaged building is:
1. At least 80 percent of its replacement cost; or
2. The maximum amount of insurance available for that building under the NFIP, whichever is less.
C. If the actual amount of insurance on the building is less than the required amount in accordance with the terms of VII.B above, then loss payment is determined as follows (subject to all other relevant conditions in this policy, including those pertaining to valuation, adjustment, settlement, and payment of loss):
1. Divide the actual amount of insurance carried on the building by the required amount of insurance.
2. Multiply the amount of loss, before application of the deductible, by the figure determined in C.1 above.
3. Subtract the deductible from the figure determined in C.2 above.
We will pay the amount determined in C.3 above, or the amount of insurance carried, whichever is less. The amount of insurance carried, if in excess of the applicable maximum amount of insurance available under the NFIP, is reduced accordingly.
We will pay no more than $134,500. The remaining $15,500 is not covered due to the coinsurance penalty ($15,000) and application of the deductible ($500).
In this example there is no coinsurance penalty, because the actual amount of insurance carried meets the required amount. We will pay no more than $199,500 ($200,000 amount of loss minus the $500 deductible).
D. In calculating the full replacement cost of a building:
1. The replacement cost value of any covered building property will be included;
2. The replacement cost value of any building property not covered under this policy will not be included; and
3. Only the replacement cost value of improvements installed by the condominium association will be included.
In case of loss to an article that is part of a pair or set, we will have the option of paying you:
1. An amount equal to the cost of replacing the lost, damaged, or destroyed article, minus its depreciation, or
2. The amount that represents the fair proportion of the total value of the pair or set that the lost, damaged, or destroyed article bears to the pair or set.
1. If a loss insured by this policy is also insured by other insurance that includes flood coverage not issued under the Act, we will not pay more than the amount of insurance that you are entitled to for lost, damaged, or destroyed property insured under this policy subject to the following:
a. We will pay only the proportion of the loss that the amount of insurance that applies under this policy bears to the total amount of insurance covering the loss, unless VIII.B.1.b or c immediately below applies.
b. If the other policy has a provision stating that it is excess insurance, this policy will be primary.
c. This policy will be primary (but subject to its own deductible) up to the deductible in the other flood policy (except another policy as described in VIII.B.1.b. above). When the other deductible amount is reached, this policy will participate in the same proportion that the amount of insurance under this policy bears to the total amount of both policies, for the remainder of the loss.
2. If there is a National Flood Insurance Program flood insurance policy in the name of a unit owner that covers the same loss as this policy, then this policy will be primary.
This policy cannot be changed, nor can any of its provisions be waived, without the express written consent of the Federal Insurance Administrator. No action we take under the terms of this policy constitutes a waiver of any of our rights. You may assign this policy in writing when you transfer title of your property to someone else except under these conditions:
1. When this policy insures only personal property; or
2. When this policy insures a building under construction.
1. Applicability. The following provisions apply to all instances where the premium paid on this policy is insufficient or where the rating information is insufficient, such as where an Elevation Certificate is not provided.
2. Reforming the Policy with Reduced Coverage. Except as otherwise provided in VIII.D.1 and VIII.D.4, if the premium we received from you was not sufficient to buy the kinds and amounts of coverage you requested, we will provide only the kinds and amounts of coverage that can be purchased for the premium payment we received.
a. For the purpose of determining whether your premium payment is sufficient to buy the kinds and amounts of coverage you requested, we will first deduct the costs of all applicable fees and surcharges.
b. If the amount paid, after deducting the costs of all applicable fees and surcharges, is not sufficient to buy any amount of coverage, your payment will be refunded. Unless the policy is reformed to increase the coverage amount to the amount originally requested pursuant to VIII.E.3, this policy will be cancelled, and no claims will be paid under this policy.
c. Coverage limits on the reformed policy will be based upon the amount of premium submitted per type of coverage, but will not exceed the amount originally requested.
3. Discovery of Insufficient Premium or Rating Information. If we discover that your premium payment was not sufficient to buy the requested amount of coverage, the policy will be reformed as described in VIII.D.2. You have the option of increasing the amount of coverage resulting from this reformation to the amount you requested as follows:
a. Insufficient Premium. If we discover that your premium payment was not sufficient to buy the requested amount of coverage, we will send you, and any mortgagee or trustee known to us, a bill for the required additional premium for the current policy term (or that portion of the current policy term following any endorsement changing the amount of coverage). If it is discovered that the initial amount charged to you for any fees or surcharges is incorrect, the difference will be added or deducted, as applicable, to the total amount in this bill.
(1) If you or the mortgagee or trustee pay the additional amount due within 30 days from the date of our bill, we will reform the policy to increase the amount of coverage to the originally requested amount, effective to the beginning of the current policy term (or subsequent date of any endorsement changing the amount of coverage).
(2) If you or the mortgagee or trustee do not pay the additional amount due within 30 days of the date of our bill, any flood insurance claim will be settled based on the reduced amount of coverage.
(3) As applicable, you have the option of paying all or part of the amount due out of a claim payment based on the originally requested amount of coverage.
b. Insufficient Rating Information. If we determine that the rating information we have is insufficient and prevents us from calculating the additional premium, we will ask you to send the required information. You must submit the information within 60 days of our request.
(1) If we receive the information within 60 days of our request, we will determine the amount of additional premium for the current policy term and follow the procedure in VIII.D.3.a above.
(2) If we do not receive the information within 60 days of our request, no claims will be paid until the requested information is provided. Coverage will be limited to the amount of coverage that can be purchased for the payments we received, as determined when the requested information is provided.
4. Coverage Increases. If we do not receive the amount requested in VIII.D.3.a or VIII.D.4.a, or the additional information requested in VIII.D.3.b or VIII.D.4.b by the date it is due, the amount of coverage under this policy can only be increased by endorsement subject to the appropriate waiting period. However, no coverage increases will be allowed until you have provided the information requested in VIII.D.3.b or VIII.D.4.b.
5. Falsifying Information. However, if we find that you or your agent intentionally did not tell us, or falsified, any important fact or circumstance or did anything fraudulent relating to this insurance, the provisions of IX.A apply.
1. This policy will expire at 12:01 a.m. on the last day of the policy term.
2. We must receive the payment of the appropriate renewal premium within 30 days of the expiration date.
3. If we find, however, that we did not place your renewal notice into the U.S. Postal Service, or if we did mail it, we made a mistake,
a. If you or your agent notified us, not later than one year after the date on which the payment of the renewal premium was due, of non-receipt of a renewal notice before the due date for the renewal premium, and we determine that the circumstances in the preceding paragraph apply, we will mail a second bill providing a revised due date, which will be 30 days after the date on which the bill is mailed.
b. If we do not receive the premium requested in the second bill by the revised due date, then we will not renew the policy. In that case, the policy will remain as an expired policy as of the expiration date shown on the Declarations Page.
c. In connection with the renewal of this policy, we may ask you during the policy term to recertify, on a Recertification Questionnaire that we will provide you, the rating information used to rate your most recent application for or renewal of insurance.
We are not liable for loss that occurs while there is a hazard that is increased by any means within your control or knowledge.
In case of a flood loss to insured property, you must:
1. Give prompt written notice to us;
2. As soon as reasonably possible, separate the damaged and undamaged property, putting it in the best possible order so that we may examine it;
3. Prepare an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss. Attach all bills, receipts, and related documents;
4. Within 60 days after the loss, send us a proof of loss, which is your statement of the amount you are claiming under the policy signed and sworn to by you, and which furnishes us with the following information:
a. The date and time of loss;
b. A brief explanation of how the loss happened;
c. Your interest (for example, “owner”) and the interest, if any, of others in the damaged property;
d. Details of any other insurance that may cover the loss;
e. Changes in title or occupancy of the insured property during the term of the policy;
f. Specifications of damaged buildings and detailed repair estimates;
g. Names of mortgagees or anyone else having a lien, charge, or claim against the insured property;
h. Details about who occupied any insured building at the time of loss and for what purpose; and
i. The inventory of damaged personal property described in G.3 above.
5. In completing the proof of loss, you must use your own judgment concerning the amount of loss and justify that amount.
6. You must cooperate with the adjuster or representative in the investigation of the claim.
7. The insurance adjuster whom we hire to investigate your claim may furnish you with a proof of loss form, and she or he may help you complete it. However, this is a matter of courtesy only, and you must still send us a proof of loss within 60 days after the loss even if the adjuster does not furnish the form or help you complete it.
8. We have not authorized the adjuster to approve or disapprove claims or to tell you whether we will approve your claim.
9. At our option, we may accept the adjuster's report of the loss instead of your proof of loss. The adjuster's report will include information about your loss and the damages you sustained. You must sign the adjuster's report. At our option, we may require you to swear to the report.
Options we may, in our sole discretion, exercise after loss include the following:
1. At such reasonable times and places that we may designate, you must:
a. Show us or our representative the damaged property;
b. Submit to examination under oath, while not in the presence of another insured, and sign the same; and
c. Permit us to examine and make extracts and copies of:
(1) Any policies of property insurance insuring you against loss and the deed establishing your ownership of the insured real property;
(2) Condominium association documents including the Declarations of the condominium, its Articles of Association or Incorporation, Bylaws, and rules and regulations; and
(3) All books of accounts, bills, invoices and other vouchers, or certified copies pertaining to the damaged property if the originals are lost.
2. We may request, in writing, that you furnish us with a complete inventory of the lost, damaged, or destroyed property, including:
a. Quantities and costs;
b. Actual cash values or replacement cost (whichever is appropriate);
c. Amounts of loss claimed;
d. Any written plans and specifications for repair of the damaged property that you can reasonably make available to us; and
e. Evidence that prior flood damage has been repaired.
3. If we give you written notice within 30 days after we receive your signed, sworn proof of loss, we may:
a. Repair, rebuild, or replace any part of the lost, damaged, or destroyed property with material or property of like kind and quality or its functional equivalent; and
b. Take all or any part of the damaged property at the value that we agree upon or its appraised value.
No person or organization, other than you, having custody of insured property will benefit from this insurance.
1. We will adjust all losses with you. We will pay you unless some other person or entity is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss (or within 90 days after the insurance adjuster files the adjuster's report signed and sworn to by you in lieu of a proof of loss) and:
a. We reach an agreement with you;
b. There is an entry of a final judgment; or
c. There is a filing of an appraisal award with us, as provided in VIII.M.
2. If we reject your proof of loss in whole or in part you may:
a. Accept our denial of your claim;
b. Exercise your rights under this policy; or
c. File an amended proof of loss as long as it is filed within 60 days of the date of the loss.
You may not abandon damaged or undamaged insured property to us.
We may permit you to keep damaged insured property after a loss, and we will reduce the amount of the loss proceeds payable to you under the policy by the value of the salvage.
If you and we fail to agree on the actual cash value or, if applicable, replacement cost of the damaged property so as to determine the amount of loss, then either may demand an appraisal of the loss. In this event, you and we will each choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the insured property is located. The appraisers will separately state the actual cash value, the replacement cost, and the amount of loss to each item. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of actual cash value and loss, or if it applies, the replacement cost and loss.
Each party will:
1. Pay its own appraiser; and
2. Bear the other expenses of the appraisal and umpire equally.
1. The word “mortgagee” includes trustee.
2. Any loss payable under Coverage A—Building Property will be paid to any mortgagee of whom we have actual notice, as well as any other mortgagee or loss payee determined to exist at the time of loss, and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages.
3. If we deny your claim, that denial will not apply to a valid claim of the mortgagee, if the mortgagee:
a. Notifies us of any change in the ownership or occupancy, or substantial change in risk of which the mortgagee is aware;
b. Pays any premium due under this policy on demand if you have neglected to pay the premium; and
c. Submits a signed, sworn proof of loss within 60 days after receiving notice from us of your failure to do so.
4. All terms of this policy apply to the mortgagee.
5. The mortgagee has the right to receive loss payment even if the mortgagee has started foreclosure or similar action on the building.
6. If we decide to cancel or not renew this policy, it will continue in effect for the benefit of the mortgagee only for 30 days after we notify the mortgagee of the cancellation or non-renewal.
7. If we pay the mortgagee for any loss and deny payment to you, we are subrogated to all the rights of the mortgagee granted under the mortgage on the property. Subrogation will not impair the right of the mortgagee to recover the full amount of the mortgagee's claim.
You may not sue us to recover money under this policy unless you have complied with all the requirements of the policy. If you do sue, you must start the suit within one year of the date of the written denial of all or part of the claim, and you must file the suit in the United States District Court of the district in which the insured property was located at the time of loss. This requirement applies to any claim that you may have under this policy and to any dispute that you may have arising out of the handling of any claim under the policy.
Whenever we make a payment for a loss under this policy, we are subrogated to your right to recover for that loss from any other person. That means that your right to recover for a loss that was partly or totally caused by someone else is automatically transferred to us, to the extent that we have paid you for the loss. We may require you to acknowledge this transfer in writing. After the loss, you may not give up our right to recover this money or do anything that would prevent us from recovering it. If you make any claim against any person who caused your loss and recover any money, you must pay us back first before you may keep any of that money.
1. If an insured building has been flooded by rising lake waters continuously for 90 days or more and it appears reasonably certain that a continuation of this flooding will result in an insured loss to the insured building equal to or greater than the building policy limits plus the deductible or the maximum payable under the policy for any one building loss, we will pay you the lesser of these two amounts without waiting for the further damage to occur if you sign a release agreeing:
a. To make no further claim under this policy;
b. Not to seek renewal of this policy;
c. Not to apply for any flood insurance under the Act for property at the described location;
d. Not to seek a premium refund for current or prior terms.
If the policy term ends before the insured building has been flooded continuously for 90 days, the provisions of this paragraph Q.1 will apply when the insured building suffers a covered loss before the policy term ends.
2. If your insured building is subject to continuous lake flooding from a closed basin lake, you may elect to file a claim under either paragraph Q.1 above or this paragraph Q.2 (A “closed basin lake” is a natural lake from which water leaves primarily through evaporation and whose surface area now exceeds or has exceeded one square mile at any time in the recorded past. Most of the nation's closed basin lakes are in the western half of the United States where annual evaporation exceeds annual precipitation and where lake levels and surface areas are subject to considerable fluctuation due to wide variations in the climate. These lakes may overtop their basins on rare occasions.) Under this paragraph Q.2, we will pay your claim as if the building is a total loss even though it has not been continuously inundated for 90 days, subject to the following conditions:
a. Lake floodwaters must damage or imminently threaten to damage your building.
b. Before approval of your claim, you must:
(1) Agree to a claim payment that reflects your buying back the salvage on a negotiated basis; and
(2) Grant the conservation easement contained in FEMA's “Policy Guidance for Closed Basin Lakes,” to be recorded in the office of the local recorder of deeds. FEMA, in consultation with the community in which the property is located, will identify on a map an area or areas of special consideration (ASC) in which there is a potential for flood damage from continuous lake flooding. FEMA will give the community the agreed-upon map showing the ASC. This easement will only apply to that portion of the property in the ASC. It will allow certain agricultural and recreational uses of the land. The only structures that it will allow on any portion of the property within the ASC are certain simple agricultural and recreational structures. If any of these allowable structures are insurable buildings under the NFIP and are insured under the NFIP, they will not be eligible for the benefits of this paragraph Q.2. If a U.S. Army Corps of Engineers certified flood control project or otherwise certified flood control project later protects the property, FEMA will, upon request, amend the ASC to remove areas protected by those projects. The restrictions of the easement will then no longer apply to any portion of the property removed from the ASC; and
(3) Comply with paragraphs Q.1.a through Q.1.d above.
c. Within 90 days of approval of your claim, you must move your building to a new location outside the ASC. FEMA will give you an additional 30 days to move if you show there is sufficient reason to extend the time.
d. Before the final payment of your claim, you must acquire an elevation certificate and a floodplain development permit from the local floodplain administrator for the new location of your building.
e. Before the approval of your claim, the community having jurisdiction over your building must:
(1) Adopt a permanent land use ordinance, or a temporary moratorium for a period not to exceed 6 months to be followed immediately by a permanent land use ordinance, that is consistent with the provisions specified in the easement required in paragraph Q.2.b above;
(2) Agree to declare and report any violations of this ordinance to FEMA so that under Section 1316 of the National Flood Insurance Act of 1968, as amended, flood insurance to the building can be denied; and
(3) Agree to maintain as deed-restricted, for purposes compatible with open space or agricultural or recreational use only, any affected property the community acquires an interest in. These deed restrictions must be consistent with the provisions of paragraph Q.2.b above, except that even if a certified project protects the property, the land use restrictions continue to apply if the property was acquired under the Hazard Mitigation Grant Program or the Flood Mitigation Assistance Program. If a non-profit land trust organization receives the property as a donation, that organization must maintain the property as deed-restricted, consistent with the provisions of paragraph Q.2.b above.
f. Before the approval of your claim, the affected State must take all action set forth in FEMA's “Policy Guidance for Closed Basin Lakes.”
g. You must have NFIP flood insurance coverage continuously in effect from a date established by FEMA until you file a claim under this paragraph Q.2. If a subsequent owner buys NFIP insurance that goes into effect within 60 days of the date of transfer of title, any gap in coverage during that 60-day period will not be a violation of this continuous coverage requirement. For the purpose of honoring a claim under this paragraph Q.2, we will not consider to be in effect any increased coverage that became effective after the date established by FEMA. The exception to this is any increased coverage in the amount suggested by your insurer as an inflation adjustment.
h. This paragraph Q.2 will be in effect for a community when the FEMA Regional Administrator for the affected region provides to the community, in writing, the following:
(1) Confirmation that the community and the State are in compliance with the conditions in paragraphs Q2.e and Q.2.f above, and
(2) The date by which you must have flood insurance in effect.
This policy provides three methods of settling losses: Replacement Cost, Special Loss Settlement, and Actual Cash Value. Each method is used for a different type of property, as explained in a-c below.
a. Replacement Cost Loss, Settlement described in R.2 below applies to buildings other than manufactured homes or travel trailers.
b. Special Loss Settlement, described in R.3 below applies to a residential condominium building that is a travel trailer or a manufactured home.
c. Actual Cash Value loss settlement applies to all other property covered under this policy, as outlined in R.4. below.
a. We will pay to repair or replace a damaged or destroyed building, after application of the deductible and without deduction for depreciation, but not more than the least of the following amounts:
(1) The amount of insurance in this policy that applies to the building;
(2) The replacement cost of that part of the building damaged, with materials of like kind and quality, and for like occupancy and use; or
(3) The necessary amount actually spent to repair or replace the damaged part of the building for like occupancy and use.
b. We will not be liable for any loss on a Replacement Cost Coverage basis unless and
c. If a building is rebuilt at a location other than the described location, we will pay no more than it would have cost to repair or rebuild at the described location, subject to all other terms of Replacement Cost Loss Settlement.
a. The following loss settlement conditions apply to a residential condominium building that is:
(1) A manufactured home or travel trailer, as defined in II.C.6.b and c, and
(2) at least 16 feet wide when fully assembled and has at least 600 square feet within its perimeter walls when fully assembled.
b. If such a building is totally destroyed or damaged to such an extent that, in our judgment, it is not economically feasible to repair, at least to its pre-damaged condition, we will, at our discretion, pay the least of the following amounts:
(1) The lesser of the replacement cost of the manufactured home or travel trailer or 1.5 times the actual cash value; or
(2) The Building Limit of liability shown on your Declarations Page.
c. If such a manufactured home or travel trailer is partially damaged and, in our judgment, it is economically feasible to repair it to its pre-damaged condition, we will settle the loss according to the Replacement Cost Loss Settlement conditions in R.2 above.
a. The types of property noted below are subject to actual cash value loss settlement:
(1) Personal property;
(2) Insured property abandoned after a loss and that remains as debris at the described location;
(3) Outside antennas and aerials, awning, and other outdoor equipment;
(4) Carpeting and pads;
(5) Appliances; and
(6) A manufactured home or mobile home or a travel trailer as defined in II.C.6.b or c that does not meet the conditions for special loss settlement in R.3 above.
b. We will pay the least of the following amounts:
(1) The applicable amount of insurance under this policy;
(2) The actual cash value, as defined in II.C.2; or
(3) The amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss.
1. With respect to all insureds under this policy, this policy is void and has no legal force and effect if at any time, before or after a loss, you or any other insured or your agent have, with respect to this policy or any other NFIP insurance:
a. Concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements.
2. Policies voided under A.1 cannot be renewed or replaced by a new NFIP policy.
3. Policies are void as of the date the acts described in A.1.above were committed.
4. Fines, civil penalties, and imprisonment under applicable Federal laws may also apply to the acts of fraud or concealment described above.
1. This policy is void from its inception, and has no legal force or effect, if:
a. The property listed on the application is located in a community that was not participating in the NFIP on this policy's inception date and did not join or reenter the program during the policy term and before the loss occurred;
b. The property listed on the application is otherwise not eligible for coverage under the NFIP at the time of the initial application;
c. You never had an insurable interest in the property listed on the application;
d. You provided an agent with an application and payment, but the payment did not clear; or
e. We receive notice from you, prior to the policy effective date, that you have determined not to take the policy and you are not subject a requirement to obtain and maintain flood insurance pursuant to any statute, regulation, or contract.
2. In such cases, you will be entitled to a full refund of all premium, fees, and surcharges received. However, if a claim was paid for a policy that is void, the claim payment must be returned to FEMA or offset from the premiums to be refunded before the refund will be processed.
1. You may cancel this policy in accordance with the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
2. If you cancel this policy, you may be entitled to a full or partial refund of premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
1. Cancellation for Underpayment of Amounts Owed on This Policy. This policy will be cancelled, pursuant to VIII.D.2, if it is determined that the premium amount you paid is not sufficient to buy any amount of coverage, and you do not pay the additional amount of premium owed to increase the coverage to the originally requested amount within the required time period.
2. Cancellation Due to Lack of an Insurable Interest.
a. If you no longer have an insurable interest in the insured property, we will cancel this policy. You will cease to have an insurable interest if:
(1) For building coverage, the building was sold, destroyed, or removed.
(2) For contents coverage, the contents were sold or transferred ownership, or the contents were completely removed from the described location.
b. If your policy is cancelled for this reason, you may be entitled to a partial refund of premium under the applicable rules and regulations of the NFIP.
3. Cancellation of Duplicate Policies.
a. Except as allowed under Article I.F, your property may not be insured by more than one NFIP policy, and payment for damages to your property will only be made under one policy.
b. Except as allowed under Article I.G, if the property is insured by more than one NFIP policy, we will cancel all but one of the policies. The policy, or policies, will be selected for cancellation in accordance with 44 CFR 62.5 and the applicable rules and guidance of the NFIP.
c. If this policy is cancelled pursuant to VIII.D.3.a, you may be entitled to a full or partial refund of premium, surcharges, or fees under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
4. Cancellation Due to Physical Alteration of Property.
a. If the insured building has been physically altered in such a manner that it is no longer eligible for flood insurance coverage, we will cancel this policy.
b. If your policy is cancelled for this reason, you may be entitled to a partial refund of premium under the terms and conditions of this policy and the applicable rules and regulations of the NFIP.
Your policy will not be renewed if:
1. The community where your insured property is located is suspended or stops participating in the NFIP;
2. Your building is otherwise ineligible for flood insurance under the Act;
3. You have failed to provide the information we requested for the purpose of rating the policy within the required deadline.
If we make a change that broadens your coverage under this edition of our policy, but does not require any additional premium, then that change will automatically apply to your insurance as of the date we implement the change, provided that this implementation date falls within 60 days before or during the policy term stated on the Declarations Page.
This policy and all disputes arising from the insurer's policy issuance, policy administration, or the handling of any claim under the policy are governed exclusively by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001,
Administrator, Federal Insurance and Mitigation Administration
42 U.S.C. 4001
(a) Pursuant to sections 1345 and 1346 of the Act, the Federal Insurance Administrator may enter into an agreement with a servicing agent to authorize it to assist in issuing flood insurance policies under the Program in communities designated by the Federal Insurance Administrator and to accept responsibility for delivery of policies and payment of claims for losses as prescribed by and at the discretion of the Federal Insurance Administrator.
(b) The servicing agent will arrange for the issuance of flood insurance to any person qualifying for such coverage under parts 61 and 64 of this subchapter who submits an application to the servicing agent in accordance with the terms and conditions of the contract between the Agency and the servicing agent.
(a) Nullification.
(1) Property Ineligible at Time of Application. FEMA will void a policy for a property that was not eligible for coverage at the time of the initial application from the commencement of the policy. FEMA must pay the policyholder a refund of all premium, fees, and surcharges paid from the date of commencement of the policy, but no more than 5 years prior to the date of date of receipt of verifiable evidence that the property was ineligible for coverage at the time of the initial application. If FEMA paid a claim for an ineligible property, the policyholder must return the claim payment to FEMA, or offset the payment from the premiums to be refunded, before FEMA will process the refund.
(2) Property Later Becomes Ineligible. FEMA may not renew a policy for a property that was eligible for coverage at the time of the initial application, but later became ineligible for coverage. In such instances, the FEMA must nullify the policy from the first renewal date after the property became ineligible. FEMA must refund all premium, fees, and surcharges paid from the first renewal date after the property became ineligible, but no more than 5 years prior to the date of receipt of verifiable evidence that the property was eligible for coverage at the time of the initial application, but later became ineligible for coverage. If FEMA paid a claim for a property after it became ineligible for coverage, the policyholder must return the claim payment to FEMA or FEMA must offset the amount of claim payment from the premiums to be refunded before FEMA may process the refund.
(3) Nullification Prior to Policy Effective Date. If FEMA nullifies a policy prior to the policy effective date, that policy will be void from the commencement of the nullified policy term. In such case, FEMA will refund all premium, fees, and surcharges paid for the current policy term only. If FEMA paid a claim for a policy that was improperly issued, the policyholder must return the claim payment to FEMA or FEMA must offset the amount of claim payment from the premiums to be refunded before the NFIP may process the refund.
(b) Cancellation Due to Lack of an Insurable Interest. If the policyholder had an insurable interest, but no longer has an insurable interest, in the insured property, FEMA must cancel the policy on the insured property. If FEMA cancels a policy for this reason, FEMA must refund the policyholder a pro rata share of the premium from the date the policyholder lost an insurable interest in the property, but no more than 5 years prior to the date of the cancellation request. FEMA must pay the policyholder a refund of all fees or surcharges for any full policy term during which the policyholder had no insurable interest in the insured property, but no more than 5 years prior to the date of the cancellation request. A policyholder ceases to have an insurable interest if:
(1) For building coverage, the building was sold, destroyed, or removed.
(2) For contents coverage, the contents were sold or transferred ownership, or the contents were completely removed from the described location.
(c) No Insurance Coverage Requirement. A policyholder may cancel a policy if the policyholder was subject to a requirement by a lender, loss payee, or other Federal agency to obtain and maintain flood insurance pursuant to statute, regulation, or contract, but there is no longer such a requirement. The policyholder will receive a refund of a pro rata share of the premium for the current policy term only, calculated from the date of the cancellation request, but will not receive a refund of any fees or surcharges.
(d) Establishment of a Common Expiration Date. A policyholder may purchase a new policy and cancel an existing policy in order to establish a common expiration date between flood insurance coverage and other coverage. The policyholder will receive a refund of a pro rata share of the premium calculated from the effective date of the new policy to the end date of the previous policy. The policyholder will not receive a refund of any fees or surcharges. In order to rewrite and cancel the policy, the following conditions must apply:
(1) The new policy must be written with the same company for the same or higher amount of coverage. If the policy is written for a higher amount or different type of coverage, the waiting period in § 61.11 will apply.
(2) The other insurance coverage for which the common expiration date is being established must be for coverage on the same building that is insured by the flood policy being cancelled and rewritten.
(3) The coverage for the new policy must be effective prior to the cancelling the existing policy.
(e) Cancelation or Nullification of Duplicate NFIP Policies.
(1) Generally.
(i) Except as described in 44 CFR 62.5(e)(2), if an insured property is covered by more than one NFIP policy not in accordance with applicable regulations and the Standard Flood Insurance Policy, FEMA must nullify the policy with the later effective date. The policy with the earlier effective date will continue. The policyholder will receive a pro rata refund of all premium for the nullified policy from the effective date of the nullified policy, but no more than 5 years prior to the date of receipt of verifiable evidence that the insured property is covered by more than one NFIP policy. The policyholder will receive a refund of all fees or surcharges for any full policy term during which the policyholder was covered by more than one policy, but no more than 5 years prior to the date of receipt of verifiable evidence that the insured property is covered by more than one NFIP policy.
(ii) If both polices have the same policy effective date, the policyholder may choose which policy will remain in effect, and the policyholder will receive a refund of all premium, fees, and surcharges for the cancelled policy from the effective date of the cancelled policy, but no more than 5 years prior to the date of receipt of verifiable evidence that the insured property is covered by more than one NFIP policy.
(2) Exceptions. In the following cases, the policyholder may maintain the policy with the later policy effective
(i) Earlier Policy Expired—The policy with the earlier effective date has expired for more than 30 days. In such cases, the policyholder will receive a refund of a pro rata share of the premium, calculated from the effective date of the policy with the later effective date to the end date of the policy with the earlier effective date, but no more than 5 years prior to the date of cancellation. The policyholder will also receive a refund of all fees and surcharges for any full policy terms during which the insured property is covered by both policies, but no more than 5 years prior to the date of the cancellation request.
(ii) Group Flood Insurance Policy (GFIP)—The policy with the earlier policy effective date is a Group Flood Insurance Policy. In such cases, there will be no refund of any premium, fees, or surcharges.
(iii) Cancellations to Establish a Common Expiration Date—The policy with the earlier effective date is cancelled to establish a common policy expiration date pursuant to paragraph (d) of this section. In such cases, refunds will be provided in accordance with paragraph (d) of this section.
(iv) Force-Placed Policy—The policy with the earlier effective date was force placed pursuant to 42 U.S.C. 4012a using the NFIP's Mortgage Portfolio Protection Program. In such cases, the policyholder will receive a refund of the pro rata share of the premium calculated from the policy effective date of the new policy to the expiration date of the cancelled policy. There will be no refund of any fees or surcharges.
(v) Condominium Unit Covered by a Dwelling Form Policy and an RCBAP—The policy with the earlier effective date is a Dwelling Form Policy with building coverage on a condominium unit that is also covered by a Residential Condominium Building Association Policy (RCBAP) that is issued at the statutory maximum coverage limit for buildings. In such cases, the policyholder will receive a refund of a pro rata share of the premium for the building coverage issued under the Dwelling Form policy, as calculated from the effective date of the RCBAP policy to the end date of the Dwelling Form policy. The policyholder will also receive a refund of all fees and surcharges for any full policy terms during which the condominium unit is covered by both a Dwelling Form policy and an RCBAP in which the coverage equals the statutory maximum coverage limits for buildings, but no more than 5 years prior to the date of the cancellation request.
(f) Other Cancellations and Nullifications. Except as indicated below, FEMA will not refund premiums, assessments, fees, or surcharges if FEMA cancels a policy for any of the following reasons:
(1) Fraud. FEMA will cancel a policy for fraud committed by the policyholder or the agent. FEMA may cancel a policy for misrepresentation of a material fact by the policyholder or agent. Such cancellations will take effect as of the date of the fraudulent act or material misrepresentation of fact.
(2) Administrative Cancellation. FEMA may cancel and rewrite a policy to correct an administrative error, such as when the policy is written with the wrong policy effective date. In such cases, FEMA will apply any premium, assessments, fees, or surcharges to the new policy. FEMA will refund any excess premium, fees, surcharges, or assessments paid.
(3) Nullification for Properties Ineligible Due to Physical Alteration of Property. A policy insuring a building or its contents, or both, may be cancelled if the building has been physically altered in such a manner that the building and its contents are no longer eligible for flood insurance coverage. The policyholder will receive a refund of a pro rata share of the premium for the current policy term only, but the policyholder will not receive a refund of any fees or surcharges.
(a) A broker or agent selling policies of flood insurance placed with the NFIP at the offices of its servicing agent must be duly licensed by the state insurance regulatory authority in the state in which the property is located.
(b) The earned commission which will be paid to any property or casualty insurance agent or broker, with respect to each policy or renewal the agent duly procures on behalf of the insured, in connection with policies of flood insurance placed with the NFIP at the offices of its servicing agent, but not with respect to policies of flood insurance issued pursuant to Subpart C of this Part, will not be less than $10 and is computed as follows:
Federal Transit Administration (FTA), DOT.
Notice.
This notice provides priorities for programs in fiscal year (FY) 2018, announces the full-year apportionments and allocations for grant programs, provides contract authority, and describes plans for several competitive programs.
For general information about this notice contact Kimberly Sledge, Director, Office of Transit Programs, at (202) 366-2053. Please contact the appropriate FTA Regional Office for any specific requests for information or technical assistance. FTA Regional Office contact information is available on FTA's website:
This document contains important information about FTA programs, statutes (49 U.S.C. 5301,
For each FTA program, FTA has provided information on the FY 2018 authorized funding levels, the basis for apportionment or allocation of funds, requirements specific to the program, the period of availability of funds, and other program information. A separate section provides information on pre-award authority as well as other requirements and guidance applicable to FTA programs and grant administration. Finally, the notice includes a reference to tables on FTA's website that show new contract authority apportioned and made available through September 30, 2018.
Information in this document includes references to the existing FTA program guidance and circulars. Some information in FTA's guidance documents and circulars may have been superseded by new provisions in the Fixing America's Surface Transportation (FAST) Act, but these guidance documents and circulars remain a resource for program management in most areas. FTA intends to revise the guidance and circulars, as appropriate.
Division L-Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2018 (Pub. L. 115-141) (“Consolidated Appropriations Act, 2018”) makes funding available through September 30, 2018. Current funding availability for each program is identified in section IV of this notice and in Table 1 located on FTA's FY 2018 Apportionment web page:
49 U.S.C. 5338(f) (all subsequent statutory references are to title 49, United States Code) provides for the following oversight takedowns of FTA programs: 0.5 percent of Metropolitan and Statewide Planning funds, 0.75 percent of Urbanized Area Formula Grant funds, 1 percent of Fixed Guideway Capital Investment Grants funds, 0.5 percent of Formula Grants for the Enhanced Mobility of Seniors and Individuals with Disabilities funds, 0.5 percent of Formula Grants for Rural Areas funds, 1 percent of State of Good Repair Formula Grants funds, 0.75 percent for Grants for Buses and Bus Facilities funds, and 1 percent of Capital and Preventive Maintenance Projects for grants to the Washington Metropolitan Area Transit Authority. The funds are used to provide necessary oversight activities, such as oversight of the construction of any major capital project receiving Federal transit assistance; to conduct State Safety Oversight, drug and alcohol, civil rights, procurement systems, management, planning certification, and financial management
FTA publishes apportionment tables on its website for each program that reflect the funding level in the full-year appropriations act less oversight take-downs, as applicable. Tables displaying the funds available to eligible states, tribes, and urbanized areas have been posted to
Consistent with past practices, the calculations for Sections 5307, 5311, including 5311(j) (Tribal Transit), 5329, 5337, and 5339 rely on the most-recent transit service data reported to the NTD, which for FY 2018 is the 2016 report year. In some cases, where an apportionment is based on the age of the system, the age is calculated as of September 30, 2017, the last day before FY 2018 began. Recipients or beneficiaries of either Section 5307 or 5311 funds are required to report to the NTD. Additionally, several transit operators report to the FTA's NTD on a voluntary basis. For the 2016 report year, the NTD includes data from 953 reporters in urbanized areas, 925 of which reported operating transit service. The NTD also includes data from 1,478 providers of rural transit service, which includes 126 Indian Tribes providing transit service.
The 2010 Census data is used to determine population and population density for Sections 5303, 5305, 5307 and 5339 as well as rural population and rural land area for the 5311 program. The formulas for Sections 5307, 5311, and 5311(j) include tiers where funding is allocated based on the number of persons living in poverty, and the Section 5310 formula program allocates funding based on the population of older adults and people with disabilities. The Census Bureau no longer publishes decennial census data on persons living in poverty and persons with disabilities. As a result, since FY 2013, FTA has used the data for these populations available via the Census' American Community Survey (ACS). The NTD and Census data that FTA used to calculate the apportionments associated with this notice can be found on FTA's website:
The FY 2018 apportionments use data on low-income persons, persons with disabilities, and older adults from the 2011-2015 ACS five-year data set, which was published in December 2016. This data represents the most recent five-year ACS estimates that are available as of October 1 for the year being apportioned. As was the case in prior years, data on low-income persons comes from ACS Table B17024, “Age by Ratio of Income to Poverty in the Last Twelve Months,” and data on people with disabilities under 65 years old comes from ACS Table S1810, “Disability Characteristics.” Data on older adults (over 65 years old) comes from ACS Table B01001, “Sex by Age.”
This past year FTA has reviewed its existing regulations and guidance and other agency actions to evaluate their continued necessity and determine whether they are crafted effectively to solve current problems. FTA's review was based on the principle that there should be no more requirements than necessary, and those requirements should be straightforward, clear, and designed to minimize burdens. Once issued, these requirements should be reviewed periodically and revised to ensure that they continue to meet the needs for which they originally were designed, remain cost-effective, and remain cost-justified. As a part of this review, FTA also considered input from external stakeholders that was provided in response to the Department's Notice of Review of Policy, Guidance and Regulation (82 FR 26734 (June 8, 2017)) and Notification of Regulatory Review (82 FR 45750 (Oct. 2, 2017)). Because of these reviews and external input, FTA has implemented the following:
Beginning on October 1, 2017, FTA implemented a risk-based policy on how frequently recipients must submit milestone progress reports (MPRs) and Federal Financial Reports (FFRs) for awarded grants. Under the new policy, all grants of $2 million or less that are awarded to recipients located in urbanized areas over 200,000 in population should be reported annually rather than quarterly unless a specific risk is identified for that grant. FTA has identified the awards that meet this criterion and has switched them from a quarterly to an annual reporting cycle. As FTA reviews new draft applications in FY 2018, we will assign a quarterly or an annual reporting cycle for the award based on this criterion. This policy change will reduce the grant reporting burden by approximately 13,000 reports for FTA recipients while allowing FTA to prioritize reviewing MPRs and FFRs for higher risk grants.
All real property transactions must be undertaken in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Uniform Act or URA), 42 U.S.C. 4601
For FY 2018, FTA has made updates and process changes to its Triennial and State Management Reviews. These changes are based on feedback received from our recipients, review contractors, and colleagues and are also part of FTA's ongoing commitment to improve consistency and transparency in its oversight reviews. We anticipate that these changes will result in a more efficient review process that provides our recipients with a clearer understanding of what is expected during a Triennial or State Management Review, how FTA reviewers determine compliance, and why a finding of deficiency is made.
The Grantee Information Request (GIR) package is now called the Recipient Information Request (RIR) package. The FTA has redesigned the RIR to significantly reduce the level of effort required for completion by the recipient. The updated RIR package consists of:
The FTA undertook a “back to basics” exercise with the Triennial and State Management Review Guide, known as the Comprehensive Review Guide, to identify the minimum compliance requirements and the optimal methods for assessing compliance. The key to this effort was ensuring that all questions were directly related to specific, citable, written requirements. This new guide clearly articulates what is expected of recipients and exactly how FTA will determine compliance. The guide can be accessed at
The current definition of a “Federal” project is defined in the FAST Act, Public Law 114-94 as, “any highway project, public transportation capital project, or multimodal project that, if implemented as proposed by the project sponsor, would require approval by any operating administration or secretarial office within the Department of Transportation.” The FTA is now examining how it defines “Federal” project and the effects of that definition on project implementation. To learn more, the FTA is conducting an online dialogue to help identify potential opportunities to expedite investments in transit infrastructure through the exclusion of certain projects or project elements from potentially burdensome Federal requirements. FTA intends to review the relevant thresholds for defining whether a project or project element qualifies as federally funded, which determines whether it is subject to various Federal requirements, reviews, and oversight.
Through this online dialogue, the FTA will pose a series of questions and invite States, transit agencies, transit operators, and other stakeholders to submit comments and responses on this topic.
The online dialogue will be open through August 15, 2018. FTA will provide a link to the online dialogue through email, social media, and its website.
On February 2, 2018 FTA announced the establishment of an Emergency Relief Docket for calendar year 2018. See
As part of FTA's ongoing review of requirements, FTA has identified several circulars that should be cancelled. Information in these circulars is either no longer applicable or found in other guidance documents.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an agency may waive the normal notice and comment procedure if it finds, for good cause, that it would be impracticable, unnecessary, or contrary to the public interest. Additionally, 5 U.S.C. 553(d) provides that an agency may waive the 30-day delayed effective date upon finding of good cause.
Circulars 2710.6 and 2710.7 are interpretations of the uniform system of accounts and records and reporting system required by Section 15 of the Urban Mass Transportation Act of 1964 (UMTA Act), as amended, that was replaced by the Uniform Systems of Accounts (USOA). FTA finds, for good cause, that notice and comment for cancelling this guidance is unnecessary because the USOA was subject to notice and comment at 81 FR 70260. Further, the delayed effective date is unnecessary because the cancellation was already made effective by the adoption of the USOA.
Circular 4715.1A provides guidance on applying for Federal financial assistance and managing projects awarded under Section 20 of the UMTA Act, which was codified under the FAST Act at 49 U.S.C. 5314. FTA is
Circular 7008.1A defines the basis upon which FTA will make the determination of financial capacity of grantees required under 49 U.S.C. 5309 and in reviewing Transportation Improvement Plans (TIPs). Additionally, the circular provides guidance for grantees making the required self-certifications of financial capacity under 49 U.S.C. 5307. FTA is cancelling this circular because these programs are now covered under Circular 9030.1E, Urbanized Area Formula Program: Program Guidance and Application Instructions, which was published on January 16, 2014 (79 FR 2930) and addressed comments received during the development of the circular. FTA finds, for good cause, that notice and comment for cancelling this circular is unnecessary because it was replaced by guidance that was subject to notice and comment. Further, the delayed effective date is unnecessary because the cancellation was already made effective by the publication of the notice of availability in the
Circular 7020.1 sets forth cross-border leasing guidelines, which allow grantees to lease FTA-funded transit equipment from a foreign entity. However, the American Jobs Creation Act of 2004 eliminated the tax benefits associated with such transactions, thereby rendering the vast majority of cross-border leases unprofitable. Thus, FTA is cancelling this circular, which is no longer utilized. FTA finds, for good cause, that notice and comment for cancelling this circular is unnecessary because it is outdated and unutilized. Similarly, the delayed effective date is unnecessary because the circular is no longer in use.
Circulars 9045.1 and 9050.1 include guidance and application instructions for the New Freedom Program and the Job Access and Reverse Commute Program. Both programs were repealed by MAP-21. Therefore, FTA is cancelling the corresponding circulars. FTA finds, for good cause, that notice and comment for cancelling these circulars is unnecessary because these programs are no longer authorized. The statutory language does not require interpretation to carry out its intent, and comments cannot alter the guidance given the explicit mandate. Further, the delayed effective date is unnecessary because the cancelation of the circulars was already made effective by statute.
Accordingly, FTA finds good cause under 5 U.S.C. 553(b)(3)(B) and (d)(3) to waive notice and opportunity for comment and the delayed effective date for all cancelled circulars.
As FTA implements its programs, it is particularly focused on the following policy priority areas.
Federal transit law requires States with rail transit systems operating within their jurisdictions to establish a State Safety Oversight (SSO) program that must be certified by the FTA by April 15, 2019 (49 U.S.C. 5329(e)). The FTA is prohibited by law (49 U.S.C. 5329(e)(3)) from obligating any funds to any transit agency within a State that fails to obtain certification by the deadline. The FTA recommends that States submit their complete SSO program certification applications no later than September 30, 2018. For more information on the certification requirements, please visit the FTA website:
On May 31, 2017, FTA and the Federal Railroad Administration (FRA) jointly announced the allocation of $197 million for projects to install positive train control (PTC) systems on commuter railroads and other passenger-rail related facilities. As authorized under Section 3028 of the Fixing America's Surface Transportation (FAST) Act, these funds are available to assist in financing the installation of PTC systems required under 49 U.S.C. 20157. All funding allocated under this program has been obligated ahead of the September 30, 2018 statutory deadline. Costs associated with the installation of PTC are also eligible under FTA's formula programs, including the Urbanized Area Formula Program (49 U.S.C. 5307) and the State of Good Repair Program (49 U.S.C. 5337).
Transit automation is a critical area of emerging technology with the capability to enhance and transform public transportation. FTA is developing a transit automation research initiative as one of the mobility innovation projects to explore the value and challenges of transit automation innovative technologies. FTA is currently exploring the use of automation technologies in transit bus operations. Key research activities include developing a transit automation strategic plan; growing stakeholder partnerships/engagements to increase understanding of transit automation use cases; fielding demonstrations to identify promising solutions; and exploring the human factors associated with adoption of transit automation approaches. Potential benefits of transit bus automation may include: Increased passenger/operator safety; operational efficiencies; expanded transit capacity; fuel efficiencies; service effectiveness; and rider satisfaction. More information on Shared Mobility can be found at:
Current law includes a definition of “value capture” to mean “recovering the increased property value to property located near public transportation resulting from investments in public transportation.” (49 U.S.C. 5302(24)). Value capture financing strategies include, but are not limited to, land value taxes, tax increment financing, special assessment districts, transportation utility fees, development impact fees, negotiated extractions, transit-oriented development, air rights, and joint development. FTA encourages the use of value capture strategies that contribute to the operation, maintenance, or expansion of public transportation services. Revenue generated by value capture is considered by FTA as local funding and can be used as the local share towards the funding of capital projects and operating costs eligible under Chapter 53 of title 49, United States Code. FTA is updating its program circulars and website to include additional guidance on the use of value capture financing strategies.
A transit provider's initial Transit Asset Management (TAM) plan must be completed no later than October 1, 2018. A provider may submit in writing to FTA a request to extend this deadline. FTA must receive a request to extend the deadline before the deadline occurs and will consider all requests on a case-by-case basis. See 49 CFR part
The Federal Transit Administration (FTA) is required to maintain a bus testing facility to test bus models purchased with Federal funding assistance. Any new model of a vehicle/bus to be used in public transportation revenue service and purchased with FTA funds must be tested at this bus testing facility. Fees for bus testing are shared: FTA funds 80 percent of the fees and the entity having the vehicle tested pays 20 percent of the fees.
In 2016, FTA issued a regulation to implement minimum performance standards, a scoring system, and a pass/fail threshold for new model transit buses procured with FTA financial assistance authorized under 49 U.S.C. Chapter 53 (49 CFR part 655). The standards and scoring system address the following categories: Structural integrity, safety, maintainability, reliability, fuel economy, emissions, noise, and performance. Buses must meet a minimum performance standard in each of these categories to receive an overall passing score and be eligible for purchase using FTA financial assistance. Buses can achieve higher scores with higher performance in each category, and the final rule establishes a numerical scoring system based on a 100-point scale so that buyers can more effectively compare vehicles.
The Consolidated Appropriations Act, 2018 provides $5 million for the operation and maintenance of the bus testing facility authorized under 49 U.S.C. 5318. This is a $2 million increase over previous annual appropriation amounts. Additionally, the Act provides an additional $2 million for certain grantees receiving funds under 49 U.S.C. 5312(h) to operate and maintain a facility to conduct the testing of low or no emission vehicle new bus models using the standards established pursuant to section 5318.
FTA's website has additional information, resources, and a link to sign up for email notices about the Bus Testing Program at:
FTA's competitive grants programs and the FY 2018 authorized funding levels are identified in the chart below. FTA selects projects for funding after issuance of a Notice of Funding Opportunity. Additional information about each competitive program is in Section III of this notice.
Section 5305(d) authorizes Federal funding to support a cooperative, continuous, and comprehensive planning program for transportation investment decision-making at the metropolitan area level. The specific requirements of metropolitan transportation planning are set forth in 49 U.S.C. 5303 and further explained in 23 CFR part 450, as incorporated by reference in 49 CFR part 613, Planning Assistance and Standards. The State DOTs are the designated recipients of Metropolitan Planning Programs (MPP) and State Planning and Research Program (SPRP) funds allocated by FTA, which are then sub-allocated to Metropolitan Planning Organizations (MPOs) for planning activities that support the economic vitality of the metropolitan area. The Secretary has the discretion to award MPP and SPRP assistance to States, authorities of States, (MPOs), and local governmental authorities.
Each MPO must establish specific performance targets against system performance measures issued by U.S. DOT), and use these in tracking progress towards attaining critical outcomes. The MPO must coordinate with States and transit providers in setting these targets. MPOs must provide a system performance report that evaluates progress in meeting the performance targets in comparison with the system performance identified in prior reports.
MPP funding must support work resulting in balanced and comprehensive intermodal transportation planning for the movement of people and goods in the metropolitan area. Comprehensive transportation planning is not limited to transit planning or surface transportation planning, but also encompasses the relationships among land use and all transportation modes, without regard to the programmatic source of Federal assistance. MPP funds may be used for studies relating to management, mobility management, planning, operations, capital requirements, economic feasibility, performance-based planning, safety, and transit asset management. Funds may also be used to develop or update the metropolitan planning agreements. Funds may also be used to evaluate previously funded projects or to conduct peer reviews and exchanges of technical data, information, or assistance, among MPOs and other transportation planners. Funds may be also used for planning for multimodal transportation access to transit facilities; system planning: Scenario planning; corridor-level alternative analysis; development of federally required documents; safety, security and emergency transportation planning; coordinated public transit human services transportation planning; and public participation in the transportation planning, including the development of the Public Participation Plan. An exhaustive list of eligible work activities is provided in FTA Circular 8100.1C, Program Guidance for Metropolitan Planning and State Planning and Research Program Grants, dated September 1, 2008.
Federal transit law authorizes $112,664,897 in FY 2018 to provide financial assistance for metropolitan planning needs under Section 5305.
In FY 2018 under the Consolidated Appropriations Act, 2018, $112,664,897 is available to the Metropolitan Planning Program (Section 5305(d)) to support metropolitan transportation planning activities set forth in Section 5303. The total amount apportioned for the Metropolitan Planning Program to States for use by MPOs in urbanized areas (UZAs) is $112,101,573 as shown in the table below, after the deduction for oversight (authorized by Section 5338).
Of the amounts authorized in Section 5305, 82.72 percent is made available to the Metropolitan Planning Program. As a subset of the Metropolitan Planning Program funds, FTA apportions eighty percent to the states by statutory formula based on the most recent decennial Census for each State's UZA population. The remaining 20 percent is provided to the States based on an FTA administrative formula to address planning needs in larger, more complex UZAs. The amount published for each State includes this supplemental allocation.
The States allocate Metropolitan Planning funds to MPOs in UZAs or portions thereof to provide funds for planning projects included in a one or two-year program of planning work activities (the Unified Planning Work Program, or UPWP) that includes multimodal systems planning activities spanning both highway and transit planning topics. Each State has either reaffirmed or developed, in consultation with its MPOs, an allocation formula among MPOs within the State, based on the 2010 Census. The allocation formula among MPOs in each State may be changed annually, but any change requires approval by the FTA Regional Office before grant approval. Program guidance for the Metropolitan Planning Program is found in FTA Circular 8100.1C,
The Metropolitan Planning program funds apportioned in this notice are available for obligation during FY 2018 plus three additional fiscal years. Funds apportioned in FY 2018 must be obligated in grants by September 30, 2021. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2021, will revert to FTA for reapportionment under the Metropolitan Planning Program.
The planning programs provide funding and procedural requirements to metropolitan areas and States for multimodal transportation planning that is cooperative, continuous, and comprehensive, resulting in long-range plans and short-range programs of projects that reflect transportation investment priorities. The planning programs are jointly administered by FTA and the Federal Highway Administration (FHWA), which provides additional funding. Several changes established by the FAST Act to Sections 5303 and 5304 are noted below:
New emphasis is placed on intercity transportation, including intercity buses and intermodal facilities that support intercity transportation, and commuter vanpool providers. The selection and role of the transit representation on MPO policy boards in large urbanized areas is clarified. MPOs in urbanized areas designated as transportation management areas must include officials of agencies that administer or operate major modes of transportation, as well as representatives of public transit operators, on MPO policy boards.
The representative of public transit shall be selected per the bylaws or enabling legislation of the MPO, and the representative of public transit may also serve as a representative of a local municipality on the MPO board. For additional information please reference the Final Rule on Statewide and Nonmetropolitan Transportation Planning and Metropolitan Transportation Planning (81 FR 34050, May 27, 2016).
The scope of the planning process adds two new planning factors, in addition to the eight pre-existing factors established under prior law. The two new factors are: (1) Improve the resiliency and reliability of the transportation system, and reduce the vulnerability of the existing transportation infrastructure to natural disasters, and (2) enhance travel and tourism. MPOs and State DOTs should provide public ports, intercity bus operators and employer-based commuting programs with a reasonable opportunity to comment on transportation plans. Plans must place greater emphasis on the congestion management process. MPOs that serve a Transportation Management Areas (TMAs) with a population of 1 million or more must prepare a congestion management performance plan, while TMAs with a population less than 1 million may prepare a congestion management plan. MPOs that serve transportation management areas must address congestion management through a process that provides for safe and effective integrated management and operation of the multimodal transportation system based on cooperatively developed metropolitan-wide strategies.
The long-range statewide transportation plan and metropolitan transportation plan must include a description of the performance measures and performance targets. State DOTs and MPOs are also required to provide a system performance report evaluating the condition and performance of the transportation system.
In the Final Rule on Statewide and Nonmetropolitan Transportation Planning and Metropolitan Transportation Planning (81 FR 34050), FHWA and FTA make the statewide, metropolitan, and nonmetropolitan transportation planning regulations consistent with current statutory requirements. The final rule establishes the following: (1) A new mandate for States and MPOs to take a performance-based approach to planning and programming; (2) a new emphasis on the nonmetropolitan transportation planning process, by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing a process for the creation of Regional Transportation Planning Organizations (RTPOs); (3) implementation of the aforementioned statutory requirement for a structural change to the membership of the larger MPOs; (4) a new framework for voluntary scenario planning; (5) a new authority for the integration of the planning and environmental review processes; and (6) a process for programmatic mitigation plans.
Among the most significant changes is the new mandate for a performance-based planning process: MPOs and State DOTs must establish performance targets that address forthcoming U.S. DOT-issued national performance
This program provides financial assistance to States for statewide transportation planning and other technical assistance activities, including supplementing the technical assistance program provided through the Metropolitan Planning program and planning support for non-urbanized areas. The specific requirements of Statewide transportation planning are set forth in 49 U.S.C. 5304 and further explained in 23 CFR part 450 as referenced in 49 CFR part 613, Planning Assistance and Standards. State DOTs are required to reference performance measures and performance targets within the Statewide Planning process. This funding must support work resulting in balanced and comprehensive intermodal transportation planning for the movement of people and goods and has the same eligibilities as MPP funds.
Federal transit law authorizes $23,535,414 in FY 2018, to provide financial assistance for statewide planning and other technical assistance activities under Section 5305. As specified in law, this represents the 17.28 percent of the amounts available for Section 5305 that are allocated to the Statewide Planning and Research program.
In FY 2018 under the Consolidated Appropriations Act, 2018, $23,535,414 is for the State Planning and Research Program (Section 5305(e)). The total amount apportioned for the State Planning and Research Program (SPRP) is $23,417,737 as shown in the table below, after the deduction for oversight (authorized by Section 5338).
States' apportionments for this program are displayed in Table 2.
Of the amount authorized for Section 5305, 17.28 percent is allocated to the State Planning and Research program. FTA apportions funds to States by a statutory formula that is based on the most recent decennial Census data available, specifically, the State's UZA population as compared to the UZA population of all States.
Funds are provided to States for Statewide transportation planning programs. These funds may be used for a variety of purposes such as planning, technical studies and assistance, performance-based planning, demonstrations, and management training. In addition, a State may authorize a portion of these funds to be used to supplement Metropolitan Planning funds allocated by the State to its UZAs, as the State deems appropriate. Program guidance for the State Planning and Research program is found in FTA Circular 8100.1C,
The State Planning and Research program funds apportioned in this notice are available for obligation during FY 2018 plus three additional fiscal years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2021. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2021 will revert to FTA for reapportionment under the State Planning and Research program.
The Urbanized Area Formula Program provides financial assistance to designated recipients in urbanized areas (UZAs) for capital investments in public transportation systems, planning, job access and reverse commute projects, and, in some cases, operating assistance. FTA apportions funds for this program through a statutory formula. Of the amount authorized for Section 5307 each year, $30 million is set aside for the competitive Passenger Ferry Grant Program (Ferry program), as authorized under 49 U.S.C. 5307(h). The Ferry program offers financial assistance to public ferry systems in urbanized areas for capital projects. Projects are selected annually through a funding competition. Additionally, 0.5 percent will be apportioned to eligible States for State Safety Oversight (SSO) Program grants, and 0.75 percent will be set aside for program oversight. Further information on the 0.5 percent apportionment to States for the State Safety Oversight Program is provided in section IV.M. of this notice.
Federal transit law authorizes $5,279,690,721 in FY 2018 to provide financial assistance for urbanized areas under Section 5307.
In FY 2018 under the Consolidated Appropriations Act, 2018, $5,279,690,721 is available for the Urbanized Area Formula program. The total amount apportioned to urbanized areas (UZAs) is $5,228,378,222, which includes the addition of amounts apportioned to UZAs pursuant to the Section 5340 Growing States and High-Density States Formula factors. This amount to UZAs excludes the set-aside of $30 million for the Ferry program, apportionments under the State Safety Oversight Program, and oversight (authorized by Section 5338), as shown in the table below:
FTA apportions Urbanized Area Formula Program funds based on statutory formulas. Congress established four separate formulas to apportion available funding: The Section 5307 Urbanized Area Formula Program formula, the Small Transit Intensive Cities (STIC) formula, the Growing States and High Density States formula, and a formula based on low-income population.
Consistent with prior apportionment notices, Table 3 shows a total Section 5307 apportionment for each UZA, which includes amounts apportioned under each of these formulas. Detailed information about the formulas is provided in Table 4. For technical assistance purposes, the UZAs that receive STIC funds are listed in Table 6. FTA will provide breakouts of the funding allocated to each UZA under these formulas upon request to the FTA Regional Office.
FTA has calculated dollar unit values for the formula factors used in the Urbanized Area Formula Program apportionment calculations. These values represent the amount of money each unit of a factor is worth in this year's apportionment. The unit values change each year, based on all data used to calculate the apportionments, as well as the amount appropriated by Congress for the apportionment. The dollar unit values for FY 2018 are displayed in Table 5. To replicate the basic formula component of a UZA's apportionment, multiply the dollar unit value by the appropriate formula factor (
For UZAs between 50,000 and 199,999 in population, the Urbanized Area Formula is primarily based on population and population density. For UZAs with populations of 200,000 or more, the formula is based on population and population density, as well as a combination of bus revenue vehicle miles, bus passenger miles, bus operating costs, fixed guideway vehicle revenue miles, and fixed guideway route miles, either within the UZA or attributable to the UZA. The Urbanized Area Formula is defined in 49 U.S.C. 5336. Consistent with Section 5336(b), FTA has included 27 percent of the fixed guideway directional route miles and vehicle revenue miles from eligible urbanized area transit systems, but which were attributable to rural areas outside of the urbanized areas from which the system receives funds.
Under the STIC formula, FTA apportions 1.5 percent of the funds made available for Section 5307 to UZAs that are under 200,000 in population and have public transportation service that operates at a level equal to or above the industry average for UZAs with a population of at least 200,000, but not more than 999,999. STIC funds are apportioned based on six performance categories: Passenger miles traveled per vehicle revenue mile, passenger miles traveled per vehicle revenue hour, vehicle revenue miles per capita, vehicle revenue hours per capita, passenger miles traveled per capita, and passengers per capita. In FY 2019, the STIC set aside will increase from 1.5 percent to 2 percent.
The data used to determine a UZA's eligibility under the STIC formula and to calculate the STIC apportionments was obtained from the NTD for the 2016 reporting year. Because performance data change with each year's NTD reports, the UZAs eligible for STIC funds and the amount each receives may vary each year. UZAs that received funding through the STIC formula for FY 2018 are listed in Table 6.
FTA also apportions funds to qualifying UZAs and States according to the Section 5340 Growing States and High Density States formula, as shown in Table 3. More information on this program and its formula is found in Section IV.P. of this notice.
Of the amount authorized and appropriated for the Urbanized Area Formula Program in each year, 3.07 percent is apportioned based on low income population. As specified in statute, FTA apportions 75 percent of the available funds to UZAs with a population of 200,000 or more. Funds are apportioned based on the ratio of the number of low income individuals in each UZA to the total number of low income individuals in all urbanized areas of that size. FTA apportions the remainder of the funds (25 percent) to UZAs with populations of less than 200,000, per an equivalent formula. The low-income populations used for this calculation were based on the American Community Survey (ACS) data set for 2011-2015. This information is updated by the Census Bureau annually.
To comply with or maintain compliance with the Clean Air Act (CAA) or the Americans with Disabilities Act (ADA) of 1990, the maximum Federal share for the Urbanized Area Formula Program, including the Passenger Ferry Program, is 85 percent for the net project cost of acquiring vehicles (including clean-fuel or alternative fuel). The maximum Federal share is 90 percent of the net project cost for acquiring vehicle-related equipment or facilities (including clean-fuel or alternative-fuel vehicle-related equipment or facilities) for complying with or maintaining compliance with the CAA or ADA.
Program guidance for the Urbanized Area Formula Program is found in FTA Circular 9030.1E, Urbanized Area Formula Program: Program Guidance and Application Instructions, dated January 16, 2014, and is supplemented by additional information and changes provided in this notice and that may be posted to the Urbanized Area Formula Grants program web page. FTA is in the process of updating the program circular to incorporate changes resulting from FAST Act amendments to 49 U.S.C. 5307.
Funds made available under the Urbanized Area Formula Program are available for obligation during the year of apportionment plus five additional years. Accordingly, funds apportioned in FY 2018 must be obligated by September 30, 2023. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2023 will revert to FTA for reapportionment under the Urbanized Area Formula Program.
Funds allocated under the Passenger Ferry program follow the same period of availability as Section 5307. Accordingly, funds allocated in FY 2018 must be obligated by September 30, 2023. Any of the funds allocated in FY 2018 that remain unobligated at the close of business on September 30, 2023 will revert to FTA for reallocation under the Passenger Ferry program.
The Capital Investment Grants (CIG) Program includes four types of eligible projects: New Starts projects, Small Starts projects, Core Capacity Improvement projects, and Programs of Inter-related Projects. Funding is provided for construction of: (1) New fixed guideway systems or extensions to existing fixed guideway systems such as rapid rail (heavy rail), commuter rail, light rail, trolleybus (using overhead catenary), cable car, passenger ferries, and bus rapid transit operating on an exclusive transit lane for the majority of the corridor length during peak periods that also includes features that emulate the services provided by rail fixed guideway, including defined stations, traffic signal priority for public transit vehicles, and short headway bi-directional service for a substantial part of weekdays and weekends; (2) corridor-based bus rapid transit service that does not operate on an exclusive transit lane but includes features that emulate the services provided by rail fixed guideway, including defined stations, traffic signal priority for public transit vehicles, and short headway bi-directional services for a substantial part of weekdays; (3) projects that expand the capacity by at least 10 percent in an existing fixed guideway corridor that is at capacity today or will be in five years; and (4) programs of two or more interrelated projects as described above that have logical connectivity with one another and will all begin construction in a reasonable timeframe.
Federal transit law authorizes $2,301,785,760 in FY 2018, to provide financial assistance under Section 5309.
In FY 2018 under the Consolidated Appropriations Act, 2018, $2,650,010,000 is available to the Fixed Guideway Capital Investment Grants Program. The Consolidated Appropriations Act, 2018 requires of the amounts made available, $2,252,508,586 to be obligated by December 31, 2019. The funds are allocated in the following manner: $1,506,910,000 for New Starts projects; $715,700,000 for Core Capacity projects; $400,900,000 for Small Starts projects; and $26,500,000 for Oversight. These amounts are based on allocating the $2.64 billion in new budget authority and $5.05 million from recovered and unobligated Section 5309 Bus and Bus Facilities funds that were appropriated from FY 2000 thru FY 2005. The total amount available for projects is $2,623,509,990 as shown in the table below, after the deduction for oversight (authorized by Section 5338).
Funds are allocated on a competitive basis and subject to program evaluation.
Projects become candidates for funding under the Capital Investment Grant Program by successfully completing steps in the process defined in Section 5309 and obtaining a satisfactory rating under the statutorily-defined criteria. For New Starts and Core Capacity Improvement projects, the steps in the process include project development, engineering, and construction. For Small Starts projects, the steps in the process include project development and construction. For programs of interrelated projects, the steps in the process depend on the combination of project types included.
The Fixed Guideway Capital Investment Grant program funds apportioned in this notice are available for obligation during FY 2018 plus three additional fiscal years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2021, except $2,252,508,586 that must be obligated by December 31, 2019. All funds must be disbursed by the recipient by September 30, 2026.
The Section 5310 Enhanced Mobility of Seniors and Individuals with Disabilities Program provides formula funding to states and urbanized areas for meeting the transportation needs of older adults and people with disabilities when the public transportation service provided is unavailable, insufficient, or inappropriate to meet these needs. The program aims to improve mobility for seniors and individuals with disabilities by removing barriers to transportation service and expanding transportation mobility options. The Pilot Program for Innovative Coordinated Access and Mobility Program (Pilot Program)—was established by Section 3006(b) of the FAST Act. The purpose of the program is to assist in financing innovative projects for the transportation disadvantaged that improve the coordination of transportation services and non-emergency medical transportation (NEMT) services, including, for example, the deployment of coordination technology, and projects that create or increase access to community One-Call/One-Click Centers.
Federal transit law authorizes $273,840,764 in FY 2018 to provide formula funding to states for meeting the transportation needs of older adults and people with disabilities. The law also authorizes $3.25 million for the competitive Pilot Program.
In FY 2018 under the Consolidated Appropriations Act, 2018, $127,772,132 is available for projects under the Section 5310 formula program after the oversight deduction as shown in the table below.
Sixty percent of the funds are apportioned among designated recipients for urbanized areas with a population of 200,000 or more individuals. Twenty percent of the funds are apportioned among the States for urbanized areas with a population of at least 50,000 but less than 200,000.
Under the Section 5310 formula, funds are allocated using Census data on older adults (
At least 55 percent of program funds must be used on traditional Section 5310 projects such as buses and vans; wheelchair lifts, ramps, and securement devices; or transit-related information technology systems including scheduling/routing/one-call systems. Mobility management programs are also defined as capital projects for purposes of this provision. The acquisition of transportation services under a contract, lease, or other arrangement is also eligible; both the capital and operating costs associated with contracted service are eligible capital expenses for purposes of this provision. The capital eligibility of acquisition of services is limited to the Section 5310 program. The remaining 45 percent of a recipient's 5310 funds may be used for capital expenses or operating assistance.
Eligible recipients include States for rural and small urban areas and designated recipients chosen by the Governor of the State for large urban areas; or a State or local governmental entity that operates a public transportation service. For urbanized areas less than 200,000 in population and in the rural areas, the State is the designated recipient for Section 5310. Current Section 5310 designations remain in effect until changed by the Governor of a State by officially notifying the appropriate FTA Regional Administrator of re-designation. A State or local governmental entity that operates a public transportation service may be a direct recipient for Section 5310 funds.
For urbanized areas over 200,000 in population, the recipient charged with administering the Section 5310 Program must be officially designated in accordance with the planning process, by the Governor of a State, responsible local officials, and publicly owned operators of public transportation prior to grant award (See the definition of designated recipient, 49 U.S.C. 5302(4)). Designated recipients are responsible for administering the program. Eligible subrecipients include State or local governmental authorities, private nonprofit agencies, and operators of public transportation that receive a grant indirectly through a recipient. For the 55 percent of funds that must be used for capital projects, eligible subrecipients include private nonprofit organizations as well as State or local governmental authorities that are either approved by the State to coordinate services for seniors and people with disabilities, or which certify to the Governor that no nonprofit organizations are readily available in the area to provide the service.
Capital assistance is provided at 80 percent Federal share; 20 percent local share. Operating assistance requires a 50 percent local match. Funds provided under other Federal programs (other than those of the DOT, except for the Federal Lands Transportation Program) may be used as local match for funds provided under Section 5310, and revenue from service contracts may be used as local match.
The coordinated planning provision requires that all projects be included in the local coordinated human service-public transportation plan. The plan must be developed and adopted with representation from seniors, individuals with disabilities, representatives of public, private, nonprofit transportation and human services providers, and other members of the public.
States, designated recipients, and State or local governmental entities that operate a public transportation service that are responsible for implementing the Section 5310 program are required to document their approach to managing the program. The Management Plans serve as the basis for FTA management reviews of the program, and provide public information on the administration of the programs.
Designated recipients are required to develop a Program of Projects (POP) with the grant application and submit it to the FTA Regional Office. The POP should be developed with respect to the coordinated plan, long range plan, and the transportation improvement plan. For additional guidance in developing the required POP, see Chapter IV of the FTA Circular 9070.1G,
The Enhanced Mobility of Seniors and Individuals with Disabilities program funds apportioned in this notice are available for obligation during FY 2018 plus two additional fiscal years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2020. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2020, will revert to FTA for reapportionment among the States and urbanized areas.
A State may transfer apportioned funds between small urbanized areas and rural areas if it can certify that the needs are being met in the area to which the funds were originally apportioned. The State can transfer the funds (rural and small urbanized area) to any area within the state if a statewide program for Section 5310 is established. Section 5310 funds may not be transferred to other FTA programs. However, Section 5310 funds apportioned to large urbanized areas may not be transferred to other areas. Section 5310 program recipients may partner with meal delivery programs such as the Older Americans Act (OAA)-funded meal programs (to find local programs, visit:
Program Guidance is found in FTA Circular 9070.1G,
The Formula Grants for Rural Areas program provides formula funding to States and Indian tribes for supporting public transportation in areas with a population of less than 50,000. Funding may be used for capital, operating, planning, job access and reverse commute projects, and State administration expenses. Eligible sub-recipients include State and local governmental authorities, Indian Tribes, private non-profit organizations, and private intercity bus companies. Indian Tribes are also eligible direct recipients under the Formula Grants for Rural Areas program, both for funds apportioned to the States and for projects apportioned or selected to be funded with funds set aside from the Tribal Transit Program.
Federal transit law authorizes $577,721,886 in FY 2018 to provide financial assistance for rural areas under the Formula Grants for Rural Areas program, including funds for Section 5340 Growing States.
In FY 2018 under the Consolidated Appropriations Act, 2018, $577,721,886 is for the Rural Area Programs. The total amount apportioned to the program is $659,737,385 as shown in the table below, after the additional appropriation of $85,243,672 for the Section 5340 Growing States and oversight deduction (authorized by Section 5338).
FTA apportions the Formula Grants for Rural Areas program funds to states by a statutory formula using the latest available U.S. decennial census data. Most of the Formula Grants for Formula Grants for Rural Areas program funds (83.15 percent) are apportioned based on land area and population factors. In the first tier, no state may receive more than 5 percent of the amount apportioned based on land area. The remaining funds (16.85 percent) are apportioned based on land area, vehicle revenue miles, and low-income individual factors. In the second tier, no state may receive more than 5 percent of the amount apportioned based on land area, or more than 5 percent of the amounts apportioned for vehicle revenue miles. In addition to funds made available under Section 5311, FTA adds amounts apportioned based on rural population per the growing states formula factors of 49 U.S.C. 5340 to the amounts apportioned to the states under the Section 5311 formula. Before FTA apportions Section 5311 funds to the states, FTA subtracts funding from the total available amounts for the Appalachian Development Transportation Assistance Program, the Tribal Transit Program, the Rural Transportation Assistance Program (RTAP), and FTA oversight activities.
Data from the National Transit Database (NTD) 2016 Report Year was used for this apportionment, including data from directly-reporting Indian tribes. Data from public transportation systems that reported as urbanized area systems, but that was not attributable to an urbanized area, was also included. The Formula Grants for Rural Areas program includes three takedowns: The Appalachian Development Public Transportation Assistance Program; the Rural Transit Assistance Program (RTAP); and the Tribal Transit Program. These separate programs are described in the sections that follow.
The Formula Grants for Rural Areas program provides funding for capital, operating, planning, job access and reverse commute projects, and administration expenses for public transit service in rural areas under 50,000 in population. The planning activities undertaken with Formula Grants for Rural Areas program funds are in addition to those awarded to the State under Section 5305 and must be used specifically for the needs of rural areas.
Each State must spend no less than 15 percent of its annual Formula Grants for Rural Areas program apportionment for the development and support of intercity bus transportation, unless it can certify, after consultation with affected intercity bus service providers, that the intercity bus service needs of the State are adequately met. FTA encourages consultation with other stakeholders, such as communities affected by loss of intercity service. The cost of an unsubsidized portion of privately provided intercity bus service that connects feeder service, including all operating and capital costs of such service whether offset by revenue from such service may be used as in-kind local match for the intercity bus projects. FTA is updating the Formula Grants for Rural Areas program circular to include this change.
States may elect to use up to 10 percent of their apportionment at 100 percent Federal share to administer the Formula Grants for Rural Areas program and provide technical assistance to subrecipients. Technical assistance includes project planning, program and management development, public transportation coordination activities, and research the State considers appropriate to promote effective delivery of public transportation to rural areas.
The Federal share for capital assistance is 80 percent and for operating assistance is 50 percent, except that States eligible for the sliding scale match under FHWA programs may use that match ratio for Formula Grants for Rural Areas program capital projects and 62.5 percent of the sliding scale capital match ratio for operating projects.
Each State prepares an annual program of projects, which must provide for fair and equitable distribution of funds within the States, including Indian reservations, and must provide for maximum feasible coordination with transportation services assisted by other Federal sources.
Additional program guidance for the Formula Grants for Rural Areas program is found in FTA Circular 9040.1G,
The Formula Grants for Rural Areas program funds apportioned in this notice are available for obligation during FY 2018 plus two additional fiscal years. Accordingly, funds apportioned
Revenue from the sale of advertising and concessions may be used as local match.
This program provides funding to assist in the design and implementation of training and technical assistance projects, research, and other support services tailored to meet the needs of transit operators in rural areas.
There is a two percent takedown from the funds made available for RTAP. Of the two percent takedown, 15 percent is reserved for the National RTAP program. The remainder is available for allocation to the States.
Federal Transit Law authorizes $12,912,692 in FY 2018 to provide technical assistance.
Under the Consolidated Appropriations Act, 2018 $12,912,692 is available for the RTAP Program. The total amount apportioned for RTAP is $10,975,788 as shown in the table below, after the deduction for National RTAP.
FTA allocates RTAP funds to the States by an administrative formula. First, FTA allocates $65,000 to each State ($10,000 to each territory), and then allocates the balance based on rural population in the 2010 census.
Eligible RTAP expenses include the design and implementation of training and technical assistance projects, research, and other support services tailored to meet the needs of transit operators in rural areas. States may use the funds to undertake research, training, technical assistance, and other support services to meet the needs of transit operators in rural areas. These funds are to be used in conjunction with a State's administration of the Formula Grants for Rural Areas program, but also may support the rural components of the Section 5310 program.
The RTAP funds apportioned in this notice are available for obligation during FY 2018 plus two additional fiscal years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2020.
The National RTAP project is administered by cooperative agreement and re-competed at five-year intervals. In July of 2014, FTA awarded a cooperative agreement to the Neponset Valley Transportation Management Association to administer the National RTAP Program. The National RTAP projects are guided by a project review board that consists of managers of rural transit systems and State DOT RTAP programs. National RTAP resources also support the biennial Transportation Research Board National Conference on Rural Public and Intercity Bus Transportation and other research and technical assistance projects of a national scope.
This program is a take-down under the Formula Grants for Rural Areas program to provide additional funding to support public transportation in the Appalachian region. There are sixteen eligible States that receive an allocation under this provision. The State allocations are shown in the Formula Grants for Rural Areas program table posted on FTA's website on the FY 2018 Apportionments page.
Federal transit law authorizes $20 million in each of FY 2016 through FY 2020 as a take-down under the Formula Grants for Rural Areas program to support public transportation in the Appalachian region.
Under the Consolidated Appropriations Act, 2018, $20 million is available.
FTA apportions the funds using percentages established under Section 9.5(b) of the Appalachian Regional Commission Code (subtitle IV of title 40). Allocations are based in general on each State's remaining estimated need to complete eligible sections of the Appalachian Development Highway System as determined from the latest percentages of available cost estimates for completion of the System. Such cost estimates are produced at approximate five-year intervals. Allocations contain upper and lower limits in amounts determined by the Commission and are made in accordance with legislative instructions.
Funds apportioned under this program may be used for purposes consistent with the Formula Grants for Rural Areas program to support public transportation in the Appalachian region. Funds can be applied for in the State's annual Formula Grants for Rural Areas program grant.
Appalachian program funds that cannot be used for operating may be used for a highway project under certain circumstances. States should contact their regional office if they intend to request a transfer. Additional information about the requirements for this section can be found in Chapter VII of FTA Circular 9040.1G,
The Appalachian program funds apportioned in this notice are available for obligation during FY 2018 plus two additional fiscal years, consistent with that established for the Formula Grants for Rural Areas program.
The Public Transportation on Indian Reservations Program, or Tribal Transit Program (TTP), totals $35 million, of
Federal transit law authorizes $35 million in FY 2018 ($30 million for formula and $5 million for the competitive program) to provide assistance to the tribes. Under the Consolidated Appropriations Act, 2018, $30 million is available through September 30, 2018 for the formula program and $5 million for the competitive program.
In FY 2018, $30 million is for the formula program as shown below.
Funding is allocated by formula and distributed to eligible Indian tribes providing public transportation on tribal lands. The formula apportionment shown in Table 10 is based on a statutory formula which includes three tiers. Tiers 1 and 2 are based on data reported to NTD by Indian tribes; Tier 3 is based on 2010-2014 American Community Survey data. The three tiers for the formula are: Tier 1—50 percent based on vehicle revenue miles reported to the NTD; Tier 2—25 percent provided in equal shares to Indian tribes reporting at least 200,000 vehicle revenue miles to the NTD; Tier 3—25 percent based on Indian tribes providing public transportation on tribal lands (American Indian Areas, Alaska Native Areas, and Hawaiian Home Lands) on which more than 1,000 low income individuals reside. If more than one eligible tribe provides public transportation services on tribal lands in a single Tribal Statistical Area, and the tribes cannot determine how to allocate Tier 3 funds, FTA will allocate the funds based on the relative portion of transit (as defined by unlinked passenger trips) operated by each tribe, as reported to the National Transit Database.
Formula funds apportioned under this program can be used for purposes consistent with the Formula Grants for Rural Areas program to support public transportation on Indian Reservations in rural areas. Funds allocated under the competitive program must be used consistent with the tribe's proposal and the allocation notice published in the
Section 5335 requires NTD reporting for all recipients of Section 5311 funds. This reporting requirement continues to apply to the Tribal Transit Program. Tribes that provide public transportation in rural areas are reminded to report annually so they are included in the TTP formula apportionments. To be considered in the FY 2018 formula apportionments, tribes should have submitted their reports to the NTD no later than April 30, 2016; voluntary reporting to the NTD is also encouraged. Additionally, to be considered for the FY 2019 formula apportionment funds, tribes need to submit their reports to the NTD no later than April 30, 2017. Tribes needing assistance with reporting to the NTD should contact the NTD Helpline at 1-888-252-0936 or
The TTP program funds apportioned in this notice are available for obligation during FY 2018 plus two additional fiscal years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2020. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2020, will revert to FTA for reapportionment under the TTP program.
Section 207 of title 23, United States Code establishes a Tribal Transportation Self-Governance Program (Self Governance Program). The Self Governance Program will establish specific criteria for determining eligibility for a tribe to participate in the program. A Negotiated Rulemaking to implement this program in consultation with tribal representatives and other interested stakeholders is under development.
The funds set aside for the TTP are not meant to replace or reduce funds that Indian tribes receive from States through the Formula Grants for Rural Areas program but are to be used to enhance public transportation on Indian reservations and transit serving tribal communities. Funds allocated to Indian tribes by the States may be included in the State's Formula Grants for Rural Areas program application or maybe awarded by FTA in a grant directly to the Indian tribe. FTA encourages Indian tribes intending to apply to FTA as direct recipients to contact the appropriate FTA Regional Office at the earliest opportunity.
All TTP grantees must comply with all applicable Federal statutes, regulations, executive orders, FTA circulars, and other Federal requirements in carrying out the project supported by the FTA grant. To assist tribes with understanding these requirements, FTA regularly conducts Tribal Transit Technical Assistance Workshops. FTA has also expanded its technical assistance to tribes receiving funds under this program. In FY 2015, FTA implemented the Tribal Transit Technical Assistance Assessments initiative. Through these assessments, FTA collaborates with tribal transit leaders to review processes and identify areas in need of improvement and then assist with solutions to address these needs—all in a supportive and mutually beneficial manner. These assessments include discussions of compliance areas pursuant to the Master Agreement, a site visit, promising practices reviews, and technical assistance from FTA and its contractors. FTA will post information about upcoming workshops to its website and will disseminate information about the reviews through
Public Transportation Innovation is FTA's research program with the overarching statutory goal to improve public transportation. The law specifies research focus areas, including providing more effective and efficient public transportation service; mobility management; system capacity; advanced vehicle design; asset maintenance; construction and project management; environment and energy efficiency; and safety improvements. FTA may make grants, enter contracts, cooperative agreements, and other agreements to carry out the research, development, demonstration, and deployment projects, including research and technology of national significance to public transportation.
Within this section are three distinct programs: (a) A Research, Development, Demonstration, Deployment, & Evaluation program (49 U.S.C. 5312(b-e)); (b) a Low or No Emission Vehicle Component Assessment Program (LoNo-CAP) (49 U.S.C. 5312(h)); and (c) a Transit Cooperative Research Program (49 U.S.C. 5312(i)). Eligible recipients can be departments, agencies, and governmental agencies, including Federal Laboratories; state and local entities; providers of public transportation; private or non-profit organizations; institutions of higher education; and technical community colleges—each program area has specific requirements relating to the type of organization that may receive a grant or enter an agreement.
The types of research eligible for funding are broad, and include opportunities to enhance public transportation operational effectiveness and efficiency; improve services; leverage new types of vehicle technologies; utilize transformative technologies to improve public transportation; field new mobility models; and support increased safety.
Federal transit law authorizes $28 million in contract authority for FY 2018 for the Public Transportation Innovation program and an $20 million subject to congressional additional appropriations.
In FY 2018 under the Consolidated Appropriations Act, 2018, $28,000,000 is for the Public Transportation Innovation program. The total amounts apportioned to each subcomponent of the program is shown below in the table.
Public Transportation Innovation funds are allocated according to the authorized purposes and amounts described above, and then remaining amounts are subject to competitive allocations where not specifically authorized. The Secretary may make grants and enter contracts, cooperative agreements, and other agreements for research, development, demonstration, and deployment projects, and evaluation of research and technology of national significance to public transportation, that the Secretary determines will improve public transportation. For FY 2018, FTA intends to fund projects and activities consistent with its research priorities of mobility innovation, infrastructure, and safety. Projects may be selected through Notices of Funding Opportunity (NOFO), or Requests for Proposals (RFPs), or sole-sourced. FTA awards to a diverse set of recipients and issues different types of research agreements, including grants, cooperative agreements, contracts, or interagency agreements. Potential recipients can register to receive notification of funding availability under this program on
FTA awards an annual cooperative agreement to the National Academies of Science to administer the TCRP. FTA solicited proposals for the LoNo-CAP in Fall 2016. Awards were made to Auburn University and The Ohio State University in September 2017 for $1.5 million each. Both facilities expect to begin testing in the late December 2018/January 2019 timeframe.
Per the statute, FTA only considered proposals from “institutions of higher education” as defined in section 1002 of title 20, U.S.C., the Higher Education Act of 1965. Eligible institution(s) of higher education must have capacity to carry out transportation-related advanced component testing and evaluation, with laboratories capable of testing and evaluation, and direct access to or a partnership with a testing facility capable of emulating real-world circumstances to test low or no emission components.
LoNo-CAP differs from the Bus Testing Program (Section 5318) in that LoNo-CAP testing is voluntary with a 50/50 shared fee structure (FTA pays 50 percent of the testing fees, the entity requesting the testing pays 50 percent of the fees). Additionally, LoNo-CAP will only test components, and it will not assign passing or failing scores. The LONO component testing performed under LoNo-CAP complements the Section 5318 Bus Testing Program, under which FTA will continue to test complete buses as a condition of eligibility for FTA grant funding. Eligible activities under LoNo-CAP include testing and assessing voluntarily submitted LoNo components for transit buses, publishing the results of these LoNo component assessments, and preparing an annual report to Congress summarizing the results of the component assessments. For more information on the LoNo-CAP program, visit
Eligible expenses include activities involving (a) research, innovation, development, demonstration, deployment, evaluation; (b) low or no emission vehicle component testing; and (c) transit cooperative research.
The Federal share of the cost of a project carried out under FTA's Research, Innovation, Development, Deployment, and Demonstration program shall not exceed 80 percent; the remaining 20 percent of the costs can be met with in-kind resources. In some cases, FTA may require a higher non-Federal share if FTA determines a recipient would obtain a clear and direct financial benefit from the project, or if the non-Federal share is an evaluation factor under a competitive selection process.
However, for the LoNo-CAP, the Government share is 50 percent; the remaining 50 percent of the costs will be paid by amounts recovered through the fees established by the testing facilities. There is no match requirement for the TCRP.
Application instructions and program management guidelines are set forth in FTA Circular C 6100.1E, Technology Development and Deployment, “Research, Technical Assistance and Training Program: Application Instructions and Program Management Guidelines” dated May 11, 2015.
All research recipients are required to work with FTA to develop approved Statements of Work. FTA will be updating the Circular for the Research Program.
FTA establishes the period in which the funds must be obligated to each project. If the funds are not obligated within that period of time, they revert to FTA for reallocation under the program.
FTA publishes an annual Research Report on projects, evaluations, and benefits of its research portfolio. The FY2017 report can be accessed on FTA's website at
For the new LoNo-CAP (5312(h)), FTA solicited proposals in Fall 2016, finalized selections, and made two awards in 2017. LoNo-CAP differs from the Bus Testing Program (Section 5318) in that LoNo-CAP testing is voluntary; it will only test components, and it will not assign passing or failing scores. The LoNo component testing performed under LoNo-CAP complements the Section 5318 Bus Testing Program, under which FTA will continue to test complete buses as a condition of eligibility for FTA grant funding. Eligible activities under LoNo-CAP include testing and assessing voluntarily submitted Lo-No components for transit buses, publishing the results of these LoNo component assessments, and preparing an annual report to Congress summarizing the results of the component assessments.
TCRP is a cooperative effort of three organizations: FTA; the National Academies, acting through the Transportation Research Board (TRB); and the Transit Development Corporation, Inc. (TDC), a nonprofit educational and research organization established by the American Public Transportation Association (APTA). FTA funds the TCRP through a cooperative agreement. The TCRP is governed by an independent board, the TCRP Oversight and Project Selection (TOPS) Committee. The TOPS Committee sets priorities to decide what research studies will be undertaken and annually selects projects. The FY 2018 selected projects can be found at
Pursuant to the Small Business Innovation Development Act, a portion of the 5312 funds must be set aside for the Department's Small Business Innovation Research Program (SBIR) to address high priority research that will demonstrate innovative, economic, accurate, and durable technologies, devices, applications, or solutions to significantly improve current transit-related service, including transit vehicle operation, safety, infrastructure and environmental sustainability, mobility, rider experience, or broadband communication. Information on current and past SBIR projects can be found on the DOT SBIR website:
The Technical Assistance and Workforce Development program, 49 U.S.C. 5314, has three types of programs: Technical assistance and standards development; human resources and training; and the National Transit Institute. FTA funds projects across these areas to achieve statutory goals to assist the public transportation industry to more effectively and efficiently provide public transportation service; development standards and best practices; provide specific technical assistance in several areas, including complying with the Americans with Disabilities Act and human services transportation coordination as well as meeting the transportation needs of older adults. Key focus areas for human resources and training are employment training; outreach to aid in recruiting public transportation workers, especially to increase employment for certain targeted groups; frontline workforce development; and advanced training for new and emerging technology areas such as low and no emission bus maintenance. The National Transit Institute's goal is to develop and conduct training and educational programs for Federal, State, and local transportation employees and others engaged in public transportation work.
Federal Transit law authorizes $9 million in contract authority for the Technical Assistance and Workforce Development Program and an additional $5 million subject to congressional appropriations.
In FY 2018 under the Consolidated Appropriations Act, 2018, $14 million is for the Technical Assistance and Workforce Development program as shown in the table below.
Under the Technical Assistance and Workforce Development Program, funds are available for the NTI and to support the FTA and USDOT strategic plan for technical assistance, standards development, and workforce development. Projects may be selected through sole source, Notices of Funding Opportunity (NOFO) or Requests for Proposals (RFPs). Potential recipients can register to receive notification of funding availability under this program on
Eligible expenses include activities involving: (a) Technical assistance; (b) standards development; and (c) human resources and training, including workforce development programs and activities. Eligible technical assistance activities may include activities to support: (a) Compliance with the ADA; (b) compliance with coordinating planning and human services transportation; (c) meeting the transportation needs of elderly individuals; (d) increasing transit ridership in coordination with MPOs and other entities, particularly around
Eligible standards development activities include the development of voluntary and consensus-based standards and best practices by the industry including those needed for safety, fare collection, intelligent transportation systems, accessibility, procurement, security, asset management, operations, maintenance, vehicle propulsion, communications, and vehicle electronics.
Eligible human resources and training activities include (a) employment training programs; (b) outreach programs to increase employment for veterans, females, individuals with disabilities, and minorities in public transportation; (c) research on public transportation personnel and training needs; (d) training and assistance for veteran and minority business opportunities; and (e) consensus-based national training standards and certifications in partnership with industry stakeholders. FTA funding directly allocated for these eligible purposes must be done through a competitive frontline workforce development program as required by Section 5314. Should FTA allocate funds for these purposes, it will advertise the available funding in a Notice of Funding Opportunity (NOFO) on
The Government's share of the cost of a project carried out using a grant under this section shall not exceed 80 percent. However, for the human resources and training, including the Innovative Public Transportation Frontline Workforce Development Program, the Government's share cannot exceed 50 percent. The Federal share for other types of awards will be stated in the agreement. In some cases, FTA may require a higher non-Federal share if FTA determines a recipient would obtain a clear and direct financial benefit from the project, or if the non-Federal share is an evaluation factor under a competitive selection process.
The non-Government share of the cost of a project carried out under these sections (Technical Assistance and Standards and Technical Assistance and Training) may be derived from in-kind contributions as defined in the most current version of FTA Circular 5010, “Award Management Guidelines” found on FTA's Circular web page at
All recipients of Section 5314 funds are required to work with FTA to develop approved statements of work. There is no match requirement for the National Transit Institute.
FTA establishes the period in which the funds must be obligated to each project. If the funds are not obligated within that time, they revert to FTA for reallocation under the program. However, the $5 million of general funds for technical assistance and training funds appropriated by congress in the consolidated appropriations Act, 2018 must be obligated by September 30, 2018 or no longer available and returned to the U.S. Treasury.
FTA publishes an annual report to Congress on the technical assistance and standards activities that receive assistance under this section. Additionally, FTA must report annually on the Frontline Workforce Development Program. FTA reports can be found on FTA's web page at
FTA's Emergency Relief (ER) Program is authorized to provide funding for public transportation expenses incurred because of an emergency or major disaster. The Further Additional Supplemental Appropriations for Disaster Relief Requirements Act, 2018 (Division B, Subdivision 1 of Pub. L. 115-123) provides $330 million for this program for transit systems affected by Hurricanes Harvey, Irma, and Maria in 2017. FTA will provide more information about the allocation of these funds under a separate
Funds appropriated for this program are used to assist in responding to a publicly declared emergency or disaster. Eligible expenses include emergency operating expenses, such as evacuations, rescue operations, and expenses incurred to protect assets in advance of a disaster, as well as capital projects to protect, repair, reconstruct, or replace equipment and facilities of a public transportation system that the Secretary determines is in danger of suffering serious damage or has suffered serious damage because of an emergency. Additionally, transit agencies in the affected areas may request relief from certain FTA administrative and regulatory requirements for costs incurred in support of evacuations, rescue efforts, and the efficient shut down and resumption of transit services during and after the storm. Requests for relief from these requirements may be submitted to FTA's Emergency Relief Docket at
FTA also encourages transit agencies in affected areas to become familiar with FTA's Emergency Relief Program Manual, available at
Recipients of FTA funding affected by a declared emergency or disaster are also authorized to use funds apportioned under Sections 5307 and 5311 for emergency purposes under the provisions of FTA's Emergency Relief Program. Recipients are advised that formula funds disbursed to a grantee for emergency purposes will not be replaced or restored if funding is subsequently made available through FTA under the ER Program or by the Federal Emergency Management Agency (FEMA).
In the event of a disaster affecting a public transportation system, the affected recipient should contact its FTA Regional Office as soon as practicable to determine whether Emergency Relief Program funds are available, and to notify FTA that it plans to seek reimbursement for emergency operations and/or repairs that have already taken place or are in process. If Emergency Relief funds are unavailable, the recipient may seek reimbursement
More information on the Emergency Relief Program and FTA's response to Hurricane Sandy is available on the FTA website at
The State Safety Oversight Formula Program provides funding to support States with rail fixed guideway public transportation systems (rail transit systems) to develop and carry out State Safety Oversight (SSO) Programs consistent with the requirements of 49 U.S.C. 5329. Federal transit law requires States with rail transit systems operating within their jurisdictions to establish a State Safety Oversight (SSO) program that must be certified by the Federal Transit Administration (FTA) by April 15, 2019. The FTA is prohibited by law from awarding any funds to any transit agency within a State that fails to obtain certification by the deadline. The FTA recommends that States submit their complete SSO program certification applications no later than September 30, 2018. For more information on the certification requirements, please visit the FTA Web:
Federal transit law authorizes $23,634,536 in FY 2018 to provide funding to support States in developing and carrying out the SSO Program.
In FY 2018 under the Consolidated Appropriations Act, 2018, $23,634,536 is available for the State Safety Oversight (SSO) Formula program as shown in the table below.
FTA will continue to allocate funds to the States by an administrative formula, which is detailed in the
FTA requires each applicant to demonstrate in its grant application that its proposed grant activities will develop, lead to, or carry out a State Safety Oversight program that meets the requirements under 49 U.S.C. 5329(e). Grant funds may be used for program operational and administrative expenses, including employee training activities. Please see the
SSO Formula Grant Program funds are available for the year of apportionment plus two additional years. Any FY 2018 funds that remain unobligated at the close of business on September 30, 2020 will revert to FTA for reapportionment under the SSO Formula Grant Program.
Section 5329 authorizes FTA to temporarily assume oversight of a rail transit safety system, under certain circumstances. FTA also has the authority to issue restrictions and prohibitions to address unsafe conditions or practices. On August 11, 2016, FTA published a final rule to set procedures for FTA's administration of the Public Transportation Safety Program. The final rule provides procedures whereby FTA may: (1) Require a recipient to use Chapter 53 funds to correct safety violations identified by the Administrator or a State Safety Oversight Agency before such funds are used for any other purpose, or (2) withhold up to 25 percent of funds apportioned under 49 U.S.C. 5307 from a recipient when the Administrator has evidence that the recipient has engaged in a pattern or practice of serious safety violations, or has otherwise refused to comply with the Public Transportation Safety Program, or any regulation or directive issued under those laws for which the Administrator exercises enforcement authority for safety.
The State of Good Repair Program provides financial assistance to designated recipients in Urbanized Areas (UZAs) with fixed guideway and high intensity motorbus systems for capital investments that maintain, rehabilitate, and replace aging transit assets and bring fixed guideway and high intensity motorbus systems into a state of good repair. FTA apportions funds for this program through a statutory formula using data reported to the National Transit Database (NTD).
Federal transit law authorizes $2,593,703,558 in FY 2018 for the State of Good Repair Program.
In FY 2018 under the Consolidated Appropriations Act, 2018, $2,993,703,558 is for the State of Good Repair Program. This amount includes additional funds appropriated in the amount of $400 million. The total amount apportioned is $2,963,766,522 after the deduction for oversight as shown in the table below.
FTA apportions State of Good Repair Program funds per a statutory formula. Funds are apportioned to urbanized areas with fixed guideway or high intensity motorbus systems that have been in operation for at least seven years. This means that only segments of fixed guideway and high intensity motorbus systems that entered revenue service on or before September 30, 2010
In addition to the program guidance found in the FTA Circular 5300.1, “State of Good Repair Grants Program: Guidance and application Instructions,” all recipients must comply with the regulation at 49 CFR part 625, issued under the authority of Section 5326 for the Transit Asset Management plan (TAM).
The State of Good Repair Program funds apportioned in this notice are available for obligation during FY 2018 plus three additional years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2021. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2021 will revert to FTA for reappointment under the State of Good Repair Program.
In July 2016, FTA published a Final Rule (49 CFR part 625) for Transit Asset Management (81 FR 48890, July 26, 2016). Grantees must have a TAM plan in place by October 1, 2018. Beginning in FY 2019 all projects funded under the State of Good Repair Program must appear in the investment prioritization of the grantee's TAM plan.
The Grants for Buses and Bus Facilities Program provides financial assistance to states, local governmental entities that operate fixed route bus service, and designated recipients for capital investments in public transportation systems to replace, rehabilitate, lease, and purchase buses and related equipment and to construct bus-related facilities, including technological changes or innovations to modify low or no emission vehicles or facilities. Funding is provided through Section 5339(a) formula allocations and Section 5339(b) competitive grants. A sub-program, the Section 5339(c) Low- or No-Emission Vehicle Program, provides competitive grants for bus and bus facility projects that support low and zero-emission vehicles.
Federal transit law authorizes, $445,519,476 for the formula program, $246,514,000 for the Bus competitive program, and $55,000,000 for the Low or No Emissions program in FY 2018 to provide financial assistance for the Grants for Buses and Bus Facilities Program.
In FY 2018 under the Consolidated Appropriations Act, 2018, $654,623,476 is available for the Grants for Buses and Bus Facilities Formula Program, $84,450,000 for the Low or No Emission Grants (competitive) Program, and $407,960,000 for the Grants for Buses and Bus Facilities (competitive) Program. These amounts represent additional funds appropriated in the amount of $209,104,000; $29,450,000; and $161,446,000, respectively. The amounts apportioned after the 0.75 percent take-down for oversight are shown in the table below.
Section 5339(a) Buses and Bus Facilities Program formula funds are apportioned to States, territories, and designated recipients based on a statutory formula. Under the National Distribution, each State is allocated $3.5 million and each territory is allocated $1 million for use anywhere in the State or territory for fiscal years 2018. The remainder of the available funding is then apportioned to UZAs based on population, vehicle revenue miles, and passenger miles using the same apportionment formula and allocation process as the Urbanized Area Formula Program. Funds for UZAs under 200,000 in population are apportioned to the State for allocation to eligible recipients within such areas of the State at the Governor's discretion. Funds for UZAs with populations of 200,000 or more are apportioned directly to one or more designated recipient(s) within each UZA for allocation to eligible projects and recipients within the UZA.
FTA allocates funds under the competitive Section 5339(b) and 5339(c) programs on an annual basis based on a notice of funding opportunity, which contains detailed guidance on applicant eligibility, project eligibility, evaluation criteria, and application requirements.
Eligible recipients for Section 5339(a) formula grants include: (1) designated recipients that allocate funds to fixed route bus operators, and (2) States and local governmental entities that operate fixed route bus service. Eligible subrecipients include public agencies or private nonprofit organizations engaged
Under prior law, only designated recipients were eligible direct recipients of Section 5339(a) funds. Given that State and local government entities that operate fixed route service are now eligible direct recipients of Section 5339(a) funds, FTA does not require designated recipients to maintain program management plans (PMPs) if they do not manage any sub-awards of Section 5339 funds.
For additional program requirements, refer to FTA Circular 5100, “Buses and Bus Facilities Formula Program: Guidance and Application Instructions.”
The Bus and Bus Facilities Program formula funds apportioned in this notice are available for obligation during FY 2018 plus three additional years. Accordingly, funds apportioned in FY 2018 must be obligated in grants by September 30, 2021. Any FY 2018 apportioned funds that remain unobligated at the close of business on September 30, 2021 will revert to FTA for reapportionment under the Buses and Bus Facilities Formula Program. Competitive program funds authorized under Sections 5339(b) and 5339(c) follow the same period of availability and reapportionment policy.
Although it does not provide additional funding, as authorized under Section 5339(a)(9), FTA has established a pilot program to allow designated recipients in urbanized areas between 200,000 and 1 million in population to elect to pool their Buses and Bus Facilities Program formula allocations with other designated recipients within their respective states. The purpose of this provision is to allow for the transfer of formula funding within a State in a manner that supports the transit asset management plans of the participating designated recipients. A State that intends to participate in this pilot program beginning in FY 2019 (October 1, 2018) must submit a request to establish a State Pool to its FTA Regional Office by August 31, 2018. The request must identify the urbanized areas that will participate in the pool for FY 2019, and must include a letter from each urbanized area's participating designated recipient, and from any affected eligible recipients of Section 5339(a) funds within the urbanized area, indicating their intention to participate in this pooling provision for FY 2019. An urbanized area that participates in a State Pool must contribute its entire Section 5339(a) apportionment for the fiscal years in which it participates in the pool. For a multi-state area, designated recipient for a multistate area may participate in only one State Pool. FY 2019 is the last year that a State may establish a State Pool. For FY 2019, the request must specify the proposed distribution of the pooled funding and must provide a detailed explanation of how this distribution will support the transit asset management plans of each participating designated recipient, including any eligible recipients to which the designated recipient will allocate funding. Upon approval, FTA will make the requested amounts of program funding available to the urbanized areas as directed in the request. A State that elects to participate in this pilot program will be required to develop an allocation plan for the period of fiscal years 2019 and 2020 that ensures that a designated recipient participating in the State's pool receives under the program an amount of funds that equals the amount of funds that would have otherwise been available to the designated recipient for that period pursuant to the formulas provided. The amounts in the State Pool will be apportioned separately from funds apportioned to the State under the Governor's Apportionment for urbanized areas under 200,000 in population, and will be made available directly by FTA to the participating urbanized areas, as directed in the approved allocation plan. An allocation plan may be revised for future fiscal years, if it remains compliant with the requirement to ensure equity over the period the pool is in effect. Approved requests to establish a State Pool for the specified UZAs will remain in effect until cancelled at the request of the State or one or more designated recipients. If a State or designated recipient elects to end its participation in this pooling provision in any future fiscal year, FTA will adjust the formula allocations so that the total amount that each affected urbanized area has received over the fiscal years in which it participated, plus the following apportionment, equals the amount it would have received over this period had it not participated in the State pool. Adjustments will be made using the formula apportionment factors used for each of the affected fiscal years. After the pools are determined, FTA will publish a supplementary table showing the participating UZAs, the State total, and the amounts for each UZA for FY 2019. In future years, the States must provide the amounts determined by August 31 (in an updated allocation plan), so that FTA can publish the breakdowns and make the funds available in the Apportionment Notice.
Federal transit law authorizes the use of formula factors to distribute additional funds to the Section 5307 Urbanized Area Formula program and Section 5311 Formula Grants for Rural Areas program programs for growing states and high density states. FTA will continue to publish single urbanized and rural apportionments that show the total amount for Section 5307 and 5311 programs that includes Section 5340 apportionments for these programs.
Federal transit law authorizes $552,783,547 for apportionment in FY 2018 for the Growing States and High Density States Formula factors.
Under the Consolidated Appropriations Act, 2018, $582,783,547 is for the Growing States and High Density States formula. This amount represents additional appropriated funds in the amount of $30 million.
Under the Growing States portion of the Section 5340 formula, FTA projects each State's 2025 population by comparing each State's apportionment year population (as determined by the Census Bureau) to the State's 2010 Census population and extrapolating to 2025 based on each State's rate of population growth between 2010 and the apportionment year. Each State receives a share of Growing States funds
Once each State's share is calculated, funds attributable to that State are divided into an urbanized area allocation and a non-urbanized area allocation on the basis of the percentage of each State's 2010 Census population that resides in urbanized and non-urbanized areas. Urbanized Areas receive portions of their State's urbanized area allocation based on the 2010 Census population in that urbanized area relative to the total 2010 Census population in all urbanized areas in the State. These amounts are added to the Urbanized Area's Section 5307 apportionment.
The States' rural area allocation is added to the allocation that each State receives under the Formula Grants for Rural Areas program.
The High Density States portion of the Section 5340 formula are allocated to urbanized areas in States with a population density equal to or greater than 370 persons per square mile. Based on this threshold and 2010 Census data, the States that qualify are Maryland, Delaware, Massachusetts, Connecticut, Rhode Island, New York and New Jersey. The amount of funds provided to each of these seven States is allocated on the basis of the population density of the individual State relative to the population density of all seven States. Once funds are allocated to each State, funds are then allocated to urbanized areas within the States based on an individual urbanized area's population relative to the population of all urbanized areas in that State.
Section 601 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) authorized an aggregate amount of $1.5 billion to be available in increments over 10 fiscal years beginning in fiscal year 2009 to assist the Washington Metropolitan Transit Authority (WMATA) in implementing its Capital Improvement Program and preventive maintenance projects.
Section 601 of PRIIA authorizes $150,000,000 in FY 2018.
Under the Consolidated Appropriations Act, 2018, $150,000,000 is available. The total amount available is $ 148,500,000 after the deduction for oversight as shown in the table below.
The funding is authorized under Section 601, Authorization for Capital and Preventive Maintenance Projects for Washington Metropolitan Area Transit Authority, of the Passenger Rail Investment and Improvement Act of 2008, (Pub. L. 110-432) Division B, Title VI.
Grants may be provided for capital and preventive maintenance expenditures for WMATA after it has been determined that WMATA has placed the highest priority on investments that will improve the safety of the system, including, but not limited, to fixing the track signal system, replacing 1000 series railcars, installing guarded turnouts, buying equipment for wayside worker protection, and installing rollback protection on cars that are not equipped with the safety feature. FTA will communicate further program requirements directly to WMATA. The maximum Federal share for each project shall be for 50 percent of the net project cost of the project, and matching funds shall be provided in cash from sources other than Federal funds or revenues from the operation of public transportation systems.
Funds appropriated for WMATA under Section 601 PRIIA shall remain available until expended.
While FTA provides pre-award authority to incur expenses before grant award for formula programs, it recommends that first-time grant recipients NOT utilize this automatic pre-award authority without verifying with the appropriate FTA Regional Office that all pre-requisite requirements have been met. Commonly, a new grantee may misunderstand pre-award authority conditions and be unaware of all of the applicable FTA requirements that must be met in order to be reimbursed for project expenditures incurred in advance of grant award. FTA programs have specific statutory requirements that are often different from those for other Federal grant programs with which new grantees may be familiar. If funds are expended for an ineligible project or activity, or for an eligible activity but at an inappropriate time (
FTA provides pre-award authority to incur expenses before grant award for certain program areas described below. This pre-award authority allows grantees to incur certain project costs before grant approval and retain the eligibility of those costs for subsequent reimbursement after grant approval. The grantee assumes all risk and is responsible for ensuring that all conditions are met to retain eligibility. This pre-award spending authority permits an eligible grantee to incur costs on an eligible transit capital, operating, planning, or administrative project without prejudice to possible future Federal participation in the cost of the project. In this notice, FTA provides pre-award authority through the authorization period of the FAST Act (October 1, 2015 through September 30, 2020) for capital assistance under all formula programs, so long as the conditions described below are met. FTA provides pre-award authority for planning and operating assistance under the formula programs without regard to the period of the authorization. All pre-award authority is subject to conditions and triggers stated below:
FTA does not impose additional conditions on pre-award authority for operating, planning, or administrative assistance under the formula grant programs. Grantees may be reimbursed for expenses incurred before grant award so long as funds have been expended in accordance with all Federal requirements, would have been allowable if incurred after the date of award, and the grantee is otherwise eligible to receive the funding. In addition to cross-cutting Federal grant
For transit capital projects, the date that costs may be incurred varies depending on the type of activity and its potential to have a significant impact on the human and natural environment as described under conditions in section 3 below. Before an applicant may incur costs when pre-award authority has not been granted, it must first obtain a written Letter of No Prejudice (LONP) from FTA. To obtain an LONP, a grantee must submit a written request accompanied by adequate information and justification to the appropriate FTA regional office, as described in section 4 below.
Unless provided for in an announcement of project selections, pre-award authority does not apply to Public Transportation Innovation projects or Section 5314 Technical Assistance and Workforce Development projects. Before an applicant may incur costs for activities under these programs, it must first obtain a written Letter of No Prejudice (LONP) from FTA. To obtain an LONP, a grantee must submit a written request accompanied by adequate information and justification to the appropriate FTA headquarters office. Information about LONP procedures may be obtained from the appropriate headquarters office.
The conditions under which pre-award authority may be utilized are specified below:
All Federal environmental grant requirements must be met at the appropriate time for the project to remain eligible for Federal funding. Designated recipients may incur costs for design and environmental review activities for all projects from the date of the authorization of formula funds or the date of the announcement of the competitive allocations of funds for the project.
For projects that qualify for a categorical exclusion (CE) pursuant to 23 CFR 771.118(c), designated recipients may start activities and incur costs for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials from the date of the authorization of formula funds or the date of the announcement of the competitive allocation of funds for the project. FTA recommends that a grant applicant considering a (CE) pursuant to 23 CFR 771.118(c) contact FTA's Regional Office for assistance in determining the appropriate environmental review process and level of documentation necessary before incurring costs for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials. If FTA subsequently finds that a project does not qualify for this CE, it will be ineligible for FTA assistance. FTA encourages grant applicants to contact FTA's Regional Office before exercising pre-award authority for projects to which it believes a CE at 23 CFR 771.118(c)(8), (9), (10), (12), or (13) applies.
For all other non-Capital Investment Grant projects that do not qualify for a CE under 23 CFR 771.118(c), grant applicants may take action and incur costs for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials from the date that FTA completes the environmental review process required by NEPA and its implementing regulations, 23 U.S.C. 139, and other environmental laws by its issuance of a Section 771.118(d) categorical exclusion determination, a Finding of No Significant Impact (FONSI), or a Record of Decision (ROD).
Formula funds must be authorized or appropriated and earmarked project allocations published or announced before pre-award authority can be considered.
The requirement that a project be included in a locally-adopted Metropolitan Transportation Plan, the metropolitan transportation improvement program and federally-approved statewide transportation improvement program (23 CFR part 450) must be satisfied before the grantee may advance the project beyond planning and preliminary design with non-federal funds under pre-award authority. If the project is located within an EPA-designated non-attainment or maintenance area for air quality, the conformity requirements of the Clean Air Act, 40 CFR part 93, must also be met before the project may be advanced into implementation-related activities under pre-award authority triggered by the completion of the NEPA process. For a planning project to have pre-award authority, the planning project must be included in a MPO-approved Unified Planning Work Program (UPWP) that has been coordinated with the State.
Before incurring costs, grantees are strongly encouraged to consult with the appropriate FTA Regional office regarding the eligibility of the project for future FTA funds and for questions on environmental requirements, or any other Federal requirements that must be met.
Projects proposed for Section 5309 Capital Investment Grant (CIG) program funds are required to follow a multi-step, multi-year process defined in law. For New Starts and Core Capacity projects, this process includes three phases: project development (PD), engineering, and construction. For Small Starts projects, this process includes two phases: PD and construction. After receiving a letter from the project sponsor requesting entry into the PD phase, FTA must respond in writing within 45 days whether the information was sufficient for entry. If FTA's correspondence indicates the information was sufficient and the New Starts, Small Starts or Core Capacity project enters PD, FTA extends pre-award authority to the project sponsor to incur costs for PD activities. PD activities include the work necessary to complete the environmental review process and as much engineering and design activities as the project sponsor believes are necessary to support the environmental review process. Upon completion of the environmental review process with a ROD, FONSI, or CE determination by FTA for a New Starts, Small Starts, or Core Capacity Improvement project, FTA extends pre-award authority to project sponsors to incur costs for as much engineering and design as needed to develop a reasonable cost estimate and financial plan for the project, utility relocation, and real property acquisition and associated relocations for any property acquisitions not already accomplished as a separate project for hardship or protective purposes or right-of-way under 49 U.S.C. 5323(q).
For Small Starts projects, upon completion of the environmental review process and confirmation from FTA that the overall project rating is at least a Medium, FTA extends pre-award authority for vehicle purchases. Upon receipt of a letter notifying a New Starts or Core Capacity project sponsor of the project's approval into the engineering phase, FTA extends pre-award authority for vehicle purchases as well as any remaining engineering and design, demolition, and procurement of long lead items for which market conditions play a significant role in the acquisition price. The long lead items include, but are not limited to, procurement of rails, ties, and other specialized equipment, and commodities.
Please contact the FTA Regional Office for a determination of activities not listed here, but which meet the intent described above. FTA provides this pre-award authority in recognition of the long-lead time and complexity involved with purchasing vehicles as well as their relationship to the “critical path” project schedule. FTA cautions grantees that do not currently operate the type of vehicle proposed in the project about exercising this pre-award authority. FTA encourages these sponsors to wait until later in the process when project plans are more fully developed. FTA reminds project sponsors that the procurement of vehicles must comply with all Federal requirements, including, but not limited to, competitive procurement practices, the Americans with Disabilities Act, Disadvantaged Business Enterprise program requirements and Buy America. FTA encourages project sponsors to discuss the procurement of vehicles with FTA in regard to Federal requirements before exercising pre-award authority. Because there is not a formal engineering phase for Small Starts projects, FTA does not extend pre-award authority for demolition and procurement of long lead items. Instead, this work must await receipt of a construction grant award or an expedited grant agreement.
As noticed above, FTA extends pre-award authority for the acquisition of real property and real property rights for fixed Guideway Capital Investment Grant projects (New or Small Starts or Core Capacity) upon completion of the environmental review process for that project. The environmental review process is completed when FTA signs an environmental Record of Decision (ROD) or Finding of No Significant Impact (FONSI), or makes a Categorical Exclusion (CE) determination. With the limitations and caveats described below, real estate acquisition may commence, at the project sponsor's risk. For FTA-assisted projects, any acquisition of real property or real property rights must be conducted in accordance with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA) and its implementing regulations, 49 CFR part 24. This pre-award authority is strictly limited to costs incurred: (i) To acquire real property and real property rights in accordance with the URA regulation; and (ii) to provide relocation assistance in accordance with the URA regulation. This pre-award authority is limited to the acquisition of real property and real property rights that are explicitly identified in the final environmental impact statement (FEIS), environmental assessment (EA), or CE document, as needed for the selected alternative that is the subject of the FTA-signed ROD or FONSI, or CE determination. This pre-award authority regarding property acquisition that is granted at the completion of the environmental review process does not cover site preparation, demolition, or any other activity that is not strictly necessary to comply with the URA, with one exception—namely when a building that has been acquired, has been emptied of its occupants, and awaits demolition poses a potential fire safety hazard or other hazard to the community in which it is located, or is susceptible to reoccupation by vagrants. Demolition of the building is also covered by this pre-award authority upon FTA's written agreement that the adverse condition exists. Pre-award authority for property acquisition is also provided when FTA makes a CE determination for a protective buy or hardship acquisition in accordance with 23 CFR 771.117(d)(12). Pre-award authority for property acquisition is also provided when FTA completes the environmental review process for the acquisition of right-of-way as a separate project in accordance with 49 U.S.C. 5323(q). When a tiered environmental review in accordance with 23 CFR 771.111(g) is used, pre-award authority is NOT provided upon completion of the first-tier environmental document except when the Tier-1 ROD or FONSI signed by FTA explicitly provides such pre-award authority for a particular identified acquisition. Project sponsors should use pre-award authority for real
Although FTA provides pre-award authority for property acquisition, long lead items, demolition, utility relocation, and vehicle purchases upon completion of the environmental review process, FTA does not award Federal funding for these activities conducted under pre-award authority until the project receives a Capital Investment Grants program construction grant. This is to ensure that Federal funds are not risked on a project whose advancement into construction is not yet assured.
NEPA requires that certain projects proposed for FTA funding assistance be subjected to a public and interagency review of the need for the project, its environmental and community impacts, and alternatives to avoid and reduce adverse impacts. Projects of more limited scope also need a level of environmental review (to determine whether there are significant environmental impacts) or confirmation that a categorical exclusion (CE) applies. FTA's regulation titled “Environmental Impact and Related Procedures,” at 23 CFR part 771 states that the costs incurred by a grant applicant for the preparation of environmental documents requested by FTA are eligible for FTA financial assistance (23 CFR 771.105(e)). Accordingly, FTA extends pre-award authority for costs incurred to comply with NEPA regulations and to conduct NEPA-related activities, effective as of the earlier of the following two dates: (1) The date of the Federal approval of the relevant STIP or STIP amendment that includes the project or any phase of the project, or that includes a project grouping under 23 CFR 450.216(j) that includes the project; or (2) the date that FTA approves the project into the project development phase of the CIG program. The grant applicant must notify the FTA Regional Office to initiate the Federal environmental review process in accordance with the “Dear Colleague” letter from the FTA Administrator dated February 24, 2011. NEPA-related activities include, but are not limited to, public involvement activities, historic preservation reviews, Section 4(f) evaluations, wetlands evaluations, endangered species consultations, and biological assessments. This pre-award authority is strictly limited to costs incurred to conduct the NEPA process and associated engineering, and to prepare environmental, historic preservation and related documents. When a New Starts, Small Starts, or Core Capacity project is granted pre-award authority for the environmental review process, the reimbursement for NEPA activities conducted under pre-award authority may be sought at any time through Section 5307 (Urbanized Area Formula Program) or the flexible highway programs (STP and CMAQ). Reimbursement from the Section 5309 CIG program for NEPA activities conducted under pre-award authority is provided only for expenses incurred after entry into the project development phase and only once a construction grant agreement is signed. As with any pre-award authority, FTA reimbursement for costs incurred is not guaranteed.
Except as discussed in paragraphs i through iii above, a CIG project sponsor must obtain a written LONP from FTA before incurring costs for any activity not covered by pre-award authority. To obtain an LONP, an applicant must submit a written request accompanied by adequate information and justification to the appropriate FTA Regional Office, as described in B below.
LONP authority allows an applicant to incur costs on a project utilizing non-Federal resources, with the understanding that the costs incurred subsequent to the issuance of the LONP may be reimbursable as eligible expenses or eligible for credit toward the local match should FTA approve the project at a later date. LONPs are applicable to projects and project activities not covered by automatic pre-award authority. The majority of LONPs will be for Section 5309 Capital Investment Grants program projects undertaking activities not covered under automatic pre-award authority. LONPs may be issued for formula funds beyond the life of the current authorization or FTA's extension of automatic pre-award authority; however, the LONP is limited to a five-year period, unless otherwise authorized in the LONP. Receipt of Federal funding under any program is not implied or guaranteed by an LONP.
The conditions and requirements for pre-award authority specified in section V.4.ii and V.4.iii above apply to all LONPs. Because project implementation activities may not be initiated before completion of the environmental review process, FTA will not issue an LONP for such activities until the environmental review process has been completed with a ROD, FONSI, or CE determination.
Before incurring costs for project activities not covered by automatic pre-award authority, the project sponsor must first submit a written request for an LONP, accompanied by adequate information and justification, to the appropriate regional office and obtain written approval from FTA. FTA approval of an LONP is determined on a case-by-case basis. Federal funding under the Fixed Guideway Capital Investment Grants program is not implied or guaranteed by an LONP. Specifically, when requesting an LONP, the applicant shall provide the following items:
The FY 2018 Certifications and Assurances and Master Agreement must be used for all grants and cooperative agreements awarded in FY 2018. All recipients with active projects are required to sign the FY 2018 Certifications and Assurances within 90 days of publication.
Recipients must carry out provisions of the Americans with Disabilities act (ADA) of 1990, Section 504 of the Rehabilitation Act of 1973, as amended, and the U.S. DOT's implementing regulations at 49 CFR parts 27, 37, 38, and 39. FTA's ADA Circular (4710.1) provides guidance for carrying out the
Recipients in urbanized areas of 200,000 or more in population and with 50 or more fixed-route vehicles in peak service must conduct a service equity analysis for all service changes that meet the recipient's definition of “major service change” prior to implementing the service change. A service equity analysis is also required for all New Start, Small Start, or other new fixed guideway capital projects, and must be completed six months prior to implementing revenue service. Recipients also must conduct a fare equity analysis for all fare increases or decreases prior to implementing a fare change and for changes to fare media, such as a transition to a cashless fare system. Recipients that do not meet the abovementioned threshold of 200,000 or more in population and 50 fixed route vehicles in peak service (
Recipients exercising pre-award authority are expected to comply with the Disadvantaged Business Enterprise (DBE) regulations. The Department of Transportation's DBE program helps small businesses owned by socially and economically disadvantaged individuals to compete in the marketplace, and is designed to support the people who create jobs—our nation's entrepreneurs. When procuring vehicles, 49 CFR 26.49(a) requires that transit vehicle manufacturers “must establish and submit for FTA's approval an annual overall percentage goal” and “may make the certification required by this section if you have submitted the goal this section requires and FTA has approved it or not disapproved it.”
Recipients are advised that it is not sufficient to accept a certification stating that “FTA has not disapproved” of a TVMs DBE goal. Rather, Recipients must ensure that the TVM has submitted a goal to FTA and FTA has either approved it or not disapproved it. A recipient may request from FTA verification that a TVM has submitted a DBE goal to FTA for its review. Please email your Regional Civil Rights Officer regarding your request and FTA will respond via email within five business days. Furthermore, to assist with TVM certification compliance, FTA maintains a web posting of all certified TVMs located at
Finally, FTA takes the position that failure by a Recipient to verify a TVM's eligibility to bid on an FTA-assisted contract prior to award cannot be cured after award of the contract and will likely result in FTA declining to provide Federal funding for the vehicle procurement.
Furthermore, recipients are also reminded of the requirement in 49 CFR 26.49(a)(4), which states that “FTA recipients are required to submit within 30 days of making an award, the name of the successful bidder, and the total dollar value of the contract in the manner prescribed in the grant agreement.” Recipients are to report to FTA all vehicle purchases, post-production alterations, and retrofit procurements within the 30 days of award. Vehicles purchased solely for personal use and/or purchased “off the lot” do not need to be reported.
FTA and FHWA planning funds under both the Metropolitan Planning and State Planning and Research Programs can be consolidated into a single consolidated planning grant, awarded by either FTA or FHWA. The Consolidated Planning Grants (CPG) eliminate the need to monitor individual fund sources, if several have been used, and ensures that the oldest funds will always be used first.
Under the CPG, States can report metropolitan planning program expenditures (to comply with the Uniformed Guidance 2 CFR 200, subpart F) for both FTA and FHWA under the Catalogue of Federal Domestic Assistance number for FTA's Metropolitan Planning Program (20.505). Additionally, for States with an FHWA Metropolitan Planning (PL) fund-matching ratio greater than 80 percent, the State can waive the 20 percent local share requirement, with FTA's concurrence, to allow FTA funds used for metropolitan planning in a CPG to be granted at the higher FHWA rate. For some States, this Federal match rate can exceed 90 percent.
States interested in transferring planning funds between FTA and FHWA should contact the FTA Regional Office or FHWA Division Office for more detailed procedures. The FHWA Order 4551.1 dated August 12, 2013, on “Funding Transfers to Other Agencies and Among Title 23 Programs” provides guidance and more detailed information.
All applications for FTA funds should be submitted to the appropriate FTA Regional Office. All applications are filed electronically. FTA continues to award and manage grants and cooperative agreements using the Transit Award Management System (TrAMS). Information on accessing and using TrAMS, including a list of FTA points of contact for the system, can be found on FTA's website at
FTA regional staff are responsible for working with grantees to review and process grant applications. For an application to be considered complete and ready for FTA to assign a Federal Award Identification Number (FAIN), enabling submission in TrAMS, and submission to the Department of Labor (when applicable), the following requirements must be met:
After October 1, 2018, the grantee has a Transit Asset Management plan in place that meets the requirements of 49 CFR part 625, or is covered by a compliant Group Plan.
Before FTA can award grants for competitive projects and activities, notification must be provided to the House and Senate authorizing and appropriations committees. Other important issues that impact FTA grant processing activities are discussed below.
Each applicant or recipient of Federal Funds is required to: (1) Be registered in SAM before submitting its application; (2) have a valid DUNS number; and (3) continue to maintain an active SAM registration with current information at all times during which it has an active award or an application or plan under consideration by the Federal Transit Administration (FTA). FTA will not make an award to an applicant until the applicant has complied with all applicable DUNS and SAM requirements and, if an applicant has not fully complied with the requirements by the time the FTA is ready to make a Federal award, FTA may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.
The System for Award Management (SAM)
FTA uses the Scope and Activity Line Item (ALI) Codes in the award budgets to track disbursements, monitor program trends, report to Congress, and to respond to requests from the Inspector General and the Government Accountability Office (GAO), as well as to manage grants. The accuracy of the data is dependent on the careful and correct use of codes.
For its formula programs, FTA primarily apportions funds to the designated recipient in the large UZAs (areas over 200,000), or for areas under 200,000 (small UZAs and rural areas), it apportions the funds to the Governor, or its designee (
For the programs in which FTA may make grants to eligible direct recipients, other than the designated recipient(s), recipients are reminded that documentation must be on file to support: (1) The status of the recipient either as a designated recipient or direct recipient; and (2) the allocation of funds to the direct recipient.
Documentation to support existing designated recipients for the UZA must also be on file at the time of the first application in FY 2018. Further, split letters and/or suballocation letters (Governor's Apportionment letters), must also be on file to support grant applications from direct recipients. Once suballocation letters for FY 2018 funding are finalized they should be uploaded into TrAMS.
The Direct Recipient is required to upload to TrAMS a copy of the suballocation letter (Letter) indicating their allocation of funding [for the appropriate fund program] when the applicant transmits their application for initial review. The letter must be signed by the Designated Recipient, or as applicable in accordance with their planning requirements. If there are two Designated Recipients, both entities must sign the Letter. The Letter must: (1) Indicate the allocations to the respective Direct Recipients listed in the letter; (2) incorporate language above the signatories to reflect this agreement; and (3) make clear that the Direct Recipient will assume any/all responsibility associated with the award for the funds. When drafting the letter, Designated Recipients may use the template language below:
“As identified in this Letter, the Designated Recipient(s) authorize the reassignment/reallocation of [enter fund source;
Once a grant has been awarded and executed, requests for payment can be processed. To process payments, FTA uses ECHO-Web, an internet accessible system that provides grantees the capability to submit payment requests on-line, as well as receive user-IDs and passwords via email. New applicants should contact the appropriate FTA
FTA is responsible for conducting oversight activities to help ensure that grants recipients use FTA Federal financial assistance in a manner consistent with its intended purpose and in compliance with regulatory and statutory requirements. FTA conducts periodic oversight reviews to assess grantee compliance with applicable Federal requirements. Each Urbanized Area Formula Program recipient is reviewed every three years, (also known as FTA's Triennial Review); and States and state-wide public transportation agencies are reviewed periodically to assess the management practices and program implementation of FTA state-wide programs (
As noted throughout the notice, FTA continues to rely on several of the existing program circulars for general program guidance. FTA is continuing to update the program circulars, with an opportunity for notice and comment (where warranted), to reflect amendments to chapter 53 of title 49, U.S.C. made by the FAST Act. In the meantime, if you have any questions, please do not hesitate to contact FTA. FTA headquarters and regional staff will be pleased to answer your questions and provide any technical assistance you may need to apply for FTA program funds and manage the grants you receive. At its discretion, FTA may also use program oversight consultants to provide technical assistance to grantees on a case by case basis. This notice and the program guidance circulars previously identified in this document may be accessed via the FTA website at
Recipients of FTA funds are reminded that all FTA grantees are required to report on their grants. It is critical to ensure reports demonstrate that reasonable progress is being made on projects. At a minimum, all awards require a Federal Financial Report (FFR) and a Milestone Progress Report (MPR) on an annual basis. Some reports are required quarterly depending on the recipient and the type of projects funded under the grant and FTA's risk-based reporting policy that went into effect on October 1, 2017. The requirements for these reports and other reporting requirements can be found in the latest version of FTA Circular 5010. FTA staff, auditors, and contractors rely on the information provided in the FFR and MPR to review and report on the status of both financial and project-level activities contained in the grant. It is critical that recipients provide accurate and complete information in these reports and submit them by the required due date. Failure to report and/or demonstrate reasonable progress on projects can result in suspension or premature close-out of a grant.
In FY 2018 FTA will continue to focus on identifying and working with recipients to close inactive grants. If appropriate, FTA will act to close out and deobligate funds from these grants if reasonable progress is not made. The efficient use of funds will further FTA's fulfillment of its mission to provide efficient and effective public transportation systems for the nation. As inactive grants continue to be an audit finding within the DOT, FTA must act to ensure its grants do not prevent the DOT from receiving a “clean audit” opinion on its annual financial statements.
In October 2017, FTA identified a list of grants that were awarded on or prior to September 30, 2014 and have had no funds disbursed since September 30, 2016 or have never had a disbursement. FTA Regional Offices will be contacting grant recipients with grants that meet these criteria to notify them that FTA intends to close the grant and deobligate any remaining funds unless the grantee can provide information that demonstrates that the projects funded by the grant remain active and the grantee has a realistic schedule to expedite completion of the projects funded in the grant.
In addition, FTA will work to identify any grants that may be subject to Grants Oversight and New Efficiency (GONE) Act reporting in October 2018. The GONE Act requires Federal agencies to report active awards whose period of performance end date is two or more years prior to the end of the fiscal year. For FY 2018, this means any active award with a period of performance end date on September 30, 2016 or prior. FTA plans to work with recipients whose awards are in this category to close the awards or modify the award to extend the period of performance, as necessary.
Issued in Washington, DC.
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations related to the medical use of byproduct material. The final rule will amend the NRC regulations related to the medical use of byproduct material. This rule amends the reporting and notification requirements for a medical event (ME) for permanent implant brachytherapy. This rule also amends the training and experience (T&E) requirements to remove from multiple sections the requirement to obtain a written attestation for an individual who is certified by a specialty board whose certification process has been recognized by the NRC or an Agreement State; and address a request filed in a petition for rulemaking (PRM), PRM-35-20, to exempt certain board-certified individuals from certain T&E requirements (
This final rule is effective on January 14, 2019.
Please refer to Docket ID NRC-2008-0175 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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Kimyata Morgan-Butler, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-0733, email:
The NRC is amending its regulations related to the medical use of byproduct material. These regulations were last amended in their entirety in 2002. Over the last 14 years, stakeholders and members of the medical community have identified certain issues in implementing these regulations. As a result, the NRC is updating its regulations to address technological advances and changes in medical procedures. The amended rule would also enhance patient safety. The NRC is revising parts 30, 32, and 35 of title 10 of the
• The final rule establishes separate requirements for identifying and reporting MEs involving permanent implant brachytherapy. These new regulations require reporting of an event in which there is actual or potential harm to a patient resulting from an ME. Additionally, licensees are required to develop, implement, and maintain procedures for determining if an ME has occurred, including procedures for verifying certain aspects of a permanent implant brachytherapy treatment within 60 days from the date the treatment was performed. Note that the terms “ME,” “ME definition,” “ME criteria,” and “ME reporting criteria” are used interchangeably in the Executive Summary and the Discussion sections of this document.
• Training and experience requirements are amended in multiple sections to remove the requirement to obtain a written attestation for an individual who is certified by a specialty board whose certification process has been recognized by the NRC or an Agreement State. The NRC has determined that certification by a specialty board, coupled with meeting the recentness of training requirements, is sufficient to demonstrate that an individual seeking authorization on a license has met the T&E requirements and has the requisite current knowledge and, therefore, additional attestation by a preceptor is unnecessary. Individuals who are not board certified will still need to obtain a written attestation; however, the language of the attestation is modified. Additionally, residency program directors will be allowed to provide these written attestations. Note that the terms “written attestation,” “attestation,” “preceptor statement,” and “preceptor attestation” are used interchangeably in the Executive Summary and the Discussion sections of this document.
• The rule addresses the issues raised in a petition for rulemaking (PRM-35-20) that was submitted to the NRC in 2006. The petition requested that experienced board-certified Radiation Safety Officers (RSOs) and medical physicists not named on a license who had practiced certain modalities prior to October 24, 2005, be exempt from the specific T&E requirements in §§ 35.50 and 35.51, respectively. In effect, they will be “grandfathered” for these training requirements for the modalities that they practiced as of October 24, 2005. This petition is discussed in detail in Section II., Petition for Rulemaking, PRM-35-20, of this document.
• The requirements for measuring the molybdenum-99 (Mo-99) concentration for elutions of Mo-99/Technetium-99m (Tc-99m) generators are changed and requirements are added for reporting and notification of a generator eluate exceeding permissible Mo-99, strontium-82 (Sr-82), or strontium-85 (Sr-85) concentrations. The occurrence of generator eluate exceeding permissible concentrations is also referred to as “breakthrough.” The current requirement to measure the Mo-99 concentration after the first eluate is changed to require that the Mo-99 concentration be measured in each eluate. This requirement is changed in
• Additionally, licensees will be allowed to appoint a qualified individual with expertise in certain uses of byproduct material to be named on a license to serve as an ARSO. This will make it easier for an individual to become an RSO on other medical licenses and will increase the number of individuals who are available to serve as preceptors for individuals seeking to be appointed as RSOs or ARSOs.
The NRC has not established a quantitative cutoff for defining an economically significant regulatory action for the purposes of the Congressional Review Act. The NRC assumes “significant” impact if the ratio of annualized costs to estimated annual gross revenues for a licensee exceeds 1 percent. The final rule will have an estimated $7.8 million implementation cost for the medical community. This cost will be spread over the 7,418 impacted licensees for an average implementation cost of approximately $1,100 per licensee. The NRC assumes that all affected licensees have annual revenues greater than $110,000. Therefore, the estimated cost impacts do not exceed the 1 percent criterion for “significant” impacts, and the final rule is not considered an economically significant regulatory action. It will cost the NRC approximately $65,000 to implement this rule.
The benefits of this final rule are associated with reducing unnecessary radiation exposure to patients, removing the requirement to obtain a written attestation for an individual who is certified by a specialty board whose certification process has been recognized by the NRC or an Agreement State, and affording greater flexibility to licensees. This final rule also updates, clarifies, and strengthens the existing regulatory requirements, and, thereby, promotes public health and safety.
A regulatory analysis has been developed for this rulemaking and is discussed in Section VIII., Regulatory Analysis, of this document.
The NRC published a final rule in the
In implementing the current regulations in 10 CFR part 35, the NRC staff, stakeholders, and the Advisory Committee on the Medical Uses of Isotopes (ACMUI) have identified numerous issues that need to be addressed through the rulemaking process. As a result, the NRC is amending its regulations in 10 CFR part 35 to address these issues. This final rule modifies the written directive (WD) requirements in § 35.40 and the ME reporting requirements in § 35.3045 to establish separate ME reporting criteria for permanent implant brachytherapy. This final rule also modifies the requirements for procedures for administrations requiring a WD in § 35.41 to require licensees to develop written procedures for determining if an ME has occurred as a result of any administrations requiring a WD, including permanent implant brachytherapy. The NRC's purpose for requiring licensees to report MEs is to allow the NRC to follow up on incidents and determine if other licensees might be making the same or similar mistakes, or experiencing the same or similar challenges. When the NRC identifies similarities in the problems reported from multiple facilities, it can provide information that may help prevent additional incidents. The information collected is also valuable in assessing trends or patterns, identifying generic issues, and recognizing any inadequacies or unreliability of specific equipment or procedures.
Currently, the ME criteria for brachytherapy implants in § 35.3045, “Report and notification of a medical event,” are based on the dose administered to the patient. The ME criteria amendments establish separate ME criteria for permanent implant brachytherapy in terms of the total source strength administered (activity-based) rather than the dose delivered (dose-based). The ME criteria amendments in this final rule are based on the NRC staff recommendations contained in SECY-12-0053, “Recommendations on Regulatory Changes for Permanent Implant Brachytherapy Programs,” and the comments received on the proposed rule “Medical Use of Byproduct Material—Medical Event Definitions, Training and Experience, and Clarifying Amendments,” published in the
On August 6, 2008, the NRC published a proposed rule, “Medical Use of Byproduct Material—Amendments/Medical Event Definitions,” in the
In SECY-10-0062, “Re-proposed Rule: Medical Use of Byproduct Material—Amendments/Medical Event Definitions,” dated May 18, 2010, the NRC staff requested that the Commission approve for publication the draft re-proposed rule for public comment. Prior to a Commission decision on the re-proposed rule, on July 8, 2010, a Commission briefing was held on the draft re-proposed rule. The
In the Staff Requirements Memorandum (SRM) for SECY-10-0062, dated August 10, 2010, the Commission disapproved the NRC staff's recommendation to publish the draft re-proposed rule. The Commission directed the staff to work closely with the ACMUI and the broader medical and stakeholder community to develop ME definitions that would protect the interests of patients and allow physicians the flexibility to take actions that they deem medically necessary, while continuing to enable the agency to detect failures in process, procedure, and training, as well as any misapplication of byproduct materials by authorized users (AUs). The SRM also directed the NRC staff to hold a series of stakeholder workshops to discuss issues associated with the ME definition. For more information, including public comments submitted on the proposed rule published on August 6, 2008, (see Docket ID NRC-2008-0071 on
Following Commission direction, the NRC conducted two workshops in the summer of 2011. These facilitated workshops were held in New York, New York, in June 2011, and in Houston, Texas, in August 2011. The NRC staff also requested the ACMUI to prepare a report on ME definitions for permanent implant brachytherapy. In February 2012, the ACMUI submitted its final revised report to the NRC. The NRC staff used the recommendations in the ACMUI revised final report, along with the substantial input from stakeholders, to develop the recommendations in SECY-12-0053. The recommendations in SECY-12-0053, along with public comments received on the proposed rule published on July 21, 2014 (79 FR 42410), provided the regulatory basis for the ME reporting criteria in this final rule.
In addition to revising the ME definitions for permanent implant brachytherapy, the NRC is amending its regulations in 10 CFR part 35 to: Revise the preceptor attestation requirements; require increased frequency of testing for measuring Mo-99 concentration in a Mo-99/Tc-99m generator; require reporting and notification when a generator eluate exceeds permissible Mo-99, Sr-82, or Sr-85 concentrations; allow ARSOs to be named on a medical use license; extend the 5-year inspection frequency for a gamma stereotactic radiosurgery unit to 7 years; and make several clarifying amendments.
Finally, this final rule addresses issues that were raised in PRM-35-20 filed by E. Russell Ritenour, Ph.D., on behalf of the AAPM on September 13, 2006. The petition requested that the training requirements for experienced RSOs and medical physicists in § 35.57 be amended to recognize board-certified physicists and RSOs as “grandfathered” for the modalities that they practiced as of October 24, 2005. The petition is discussed in detail in Section II., Petition for Rulemaking, PRM-35-20, of this document. This final rule completes action on PRM-35-20.
The NRC has incorporated into this rulemaking the resolution of PRM-35-20 filed by E. Russell Ritenour, Ph.D. (the petitioner), dated September 10, 2006, on behalf of the AAPM (Ritenour Petition). A notice of receipt and request for public comments on this petition was published in the
The petitioner requested that § 35.57, “Training for experienced Radiation Safety Officer, teletherapy or medical physicist, authorized medical physicist, authorized user, nuclear pharmacist, and authorized nuclear pharmacist,” be revised to: (1) Recognize medical physicists certified by either the American Board of Radiology or the American Board of Medical Physics on or before October 24, 2005, as “grandfathered” for the modalities that they practiced as of October 24, 2005, regardless of whether a medical physicist was named on an NRC or an Agreement State license as of October 24, 2005; and (2) recognize all individuals certified by the named boards in former subpart J of 10 CFR part 35, which was removed from 10 CFR part 35 in a rulemaking dated March 30, 2005 (70 FR 16336), as RSOs who have relevant timely work experience (even if they have not been formally named as an RSO). The petitioner requested that experienced board-certified RSOs and medical physicists not named on a license who had practiced certain modalities prior to October 24, 2005, be exempted from the specific T&E requirements in §§ 35.50 and 35.51, respectively. In effect, they would be “grandfathered” for these training requirements for the modalities that they practiced on or before October 24, 2005. The petitioner was concerned that as a result of the amendments to the T&E regulations in 2005, an individual could become authorized on a license only if he or she had been certified by a specialty board whose certification process was recognized under this regulation by the NRC or an Agreement State or was already identified on an existing NRC or Agreement State license. If the individual had been certified prior to the effective date for recognition of the certifying board but had not been listed on a license, he or she would not be “grandfathered,” and would have to obtain training through the so-called “alternate pathway,” which establishes specific training requirements for non-certified individuals. The petitioner did not believe that it was the intent of the Commission to deny recognition to individuals currently practicing or to minimize the importance of certification by a certifying board. The NRC received 168 comments from professional organizations and individuals on the petition. The majority of the commenters supported the petition.
The NRC reviewed the petitioner's request and comments received on the petition and concluded that revisions made to the regulations in 2005 may have inadvertently affected a group of board-certified individuals. This group of board-certified individuals may now have to use the alternate pathway option to demonstrate that they meet the T&E requirements in 10 CFR part 35 rather than the certification pathway for recognition on an NRC license as an RSO or an authorized medical physicist (AMP). Therefore, the NRC concluded that the issues raised in the petition would be considered in the rulemaking process if a regulatory basis could be developed to support a rulemaking (73 FR 27773; May 14, 2008).
In October 2008, the NRC staff sent letters to all of the certifying boards whose certification processes are currently recognized by the NRC and to certifying boards previously named in the former 10 CFR part 35, subpart J, whose certification processes currently are not recognized by the NRC. To determine the scope of the medical community that might be negatively impacted by the amendments to the T&E regulations in 2005, the NRC asked each organization to provide the number and percentage of its currently active diplomates who are not grandfathered
The NRC believes that these individuals should be eligible for grandfathering for the modalities that they practiced on or before October 24, 2005, because their previously-acceptable qualifications for authorized status should continue to be adequate and acceptable from a health and safety standpoint and thus they should be allowed to continue to practice using the same modalities. This final rule, in response to the petition, amends § 35.57 to recognize all individuals who were previously certified by boards recognized under the previous 10 CFR part 35, subpart J, as RSOs, teletherapy or medical physicists, AMPs, AUs, nuclear pharmacists, and ANPs for the modalities that they practiced on or before October 24, 2005.
In his support for grandfathering the RSOs who have relevant work experience and were not formally named on an NRC or an Agreement State license or permit as an RSO, the petitioner stated that these individuals will be required to provide preceptor attestations. In this rulemaking, the NRC has eliminated the requirement for preceptor attestations for individuals certified by NRC- or Agreement State-recognized boards. The NRC believes that attestations are not necessary in this particular situation because the provisions of § 35.59, “Recentness of training,” require that the T&E must have been obtained within the 7 years preceding the date of application, or the individual must have had related continuing education and experience since the required T&E was completed. The “grandfathered” individuals will fall under the provisions of § 35.59 and will need to provide evidence of continued education and experience. Therefore, the NRC believes that preceptor attestations are not necessary for these “grandfathered” individuals as long as the provisions of § 35.59 are met, and the individual only requests authorizations for the modalities the individual practiced on or before October 24, 2005.
In implementing the current regulations in 10 CFR part 35, the NRC staff, stakeholders, and the ACMUI identified numerous issues that need to be addressed through the rulemaking process. The NRC published a proposed rule on July 21, 2014 (79 FR 42410), for a 120-day public comment period to address these issues. The NRC developed this final rule based on the comments received on the proposed rule. The comments are discussed in Section V., Public Comment Analysis, of this document.
The final rule clarifies the current regulations and provides greater flexibility to licensees without compromising patient, worker, or public health and safety. The amendments in this final rule include:
1. Adding separate ME definitions for permanent implant brachytherapy;
2. amending preceptor attestation requirements;
3. grandfathering certain board-certified individuals, as discussed in Section II., Petition for Rulemaking, PRM-35-20, of this document;
4. requiring increased frequency of testing to measure Mo-99 breakthrough;
5. requiring reporting and notification when a generator eluate exceeds permissible concentrations of Mo-99, Sr-82, Sr-85;
6. allowing ARSOs to be named on a medical use license; and
7. additional issues and clarifications.
The major revisions are:
This final rule establishes separate ME definitions and reporting requirements for permanent implant brachytherapy. The staff has concluded that dose-based criteria are problematic for permanent implant brachytherapy because absorbed dose can be challenging to calculate resulting in clinically acceptable therapies being reported as medical events. In addition, moving to activity-based criteria should allow for recognition of medical events earlier than dose-based criteria, thus allowing timelier corrective actions. As explained in Section I, Background, of this document, these amendments are based on the recommendations developed in close cooperation with the ACMUI, with substantial input from various stakeholders, and from public comments received on the proposed rule. During its meeting in March 2004, the ACMUI discussed the inadequacy of the definition of MEs as applied to permanent implant brachytherapy. The ACMUI explained that for these implants, the plus or minus 20 percent variance from the WD criteria in the existing rule was only appropriate if both the WD and the variance could be expressed in units of activity, rather than in units of dose. The ACMUI explained that there is no suitable clinically used dose metric available for judging the occurrence of MEs for permanent implant brachytherapy. In June 2005, the ACMUI recommended that new language be developed to define MEs for permanent implant brachytherapy.
Based on the recommendations from the ACMUI, the NRC staff submitted a paper to the Commission, SECY-05-0234, “Adequacy of Medical Event Definitions in § 35.3045, and Communicating Associated Risks to the Public,” dated December 27, 2005. In this paper, the NRC staff recommended that the Commission approve, for permanent implant brachytherapy, the NRC staff's plan to revise the ME definitions in § 35.3045 and the associated requirements for WDs in § 35.40 to be activity-based, instead of dose-based. In the SRM for SECY-05-0234, dated February 15, 2006, the Commission directed the NRC staff to proceed directly with the development of a proposed rule to modify both the WD requirements in § 35.40(b)(6) and the ME reporting requirements in § 35.3045 for permanent implant brachytherapy medical use, to convert from dose-based to activity-based ME criteria.
As discussed in Section I., Background, of this document, a proposed rule was published in the
Subsequently, during the ACMUI meeting held on October 20, 2010, the ACMUI unanimously approved its interim report, “Advisory Committee on Medical Uses of Isotopes Permanent Implant Brachytherapy Interim Report,” dated October 20, 2010. The ACMUI meeting held in April 2011 was devoted to issues associated with the ME definition. The meeting was webcast, providing an opportunity for further public involvement on this issue.
The ACMUI submitted its final report on permanent implant brachytherapy, dated October 18, 2011, to the NRC following the ACMUI October 18, 2011, public teleconference meeting. The final report reflected the principal positions and recommendations provided by participants during the NRC public workshops. In particular, the report included the recommendation to change from dose-based ME criteria for the treatment site to source-strength based criteria. The final report included a quantitative metric, the “octant approach,” for determining that a distribution of implanted sources was irregular enough (
However, in a letter to the Chairman of the ACMUI dated November 30, 2011, the American Society for Radiation Oncology (ASTRO) expressed criticism of the ACMUI final report. The ASTRO considered the ME definition recommended by the ACMUI to be complex, difficult to regulate, and likely to cause confusion in practice. Subsequently, the ACMUI issued a revised final report, “Advisory Committee on Medical Use of Isotopes (ACMUI) Permanent Implant Brachytherapy Revised Final Report,” dated February 7, 2012. The ACMUI simplified the ME criteria for the treatment site, removing the “octant approach” and direct reference to absorbed dose to the treatment site. The revised final report was, with minor modifications, approved by the ACMUI during its public teleconference meeting held on February 7, 2012. The ASTRO, in a letter to the Chairman of the ACMUI, characterized this report as an improvement on the earlier report.
The NRC staff used the recommendations in the ACMUI revised final report dated February 7, 2012, along with the substantial input from stakeholders gathered in the two facilitated public workshops and the three ACMUI public meetings in 2011 and early 2012 (discussed earlier in this section), to develop the recommendations submitted to the Commission on April 6, 2012, in SECY-12-0053, “Recommendations on Regulatory Changes for Permanent Implant Brachytherapy Programs.” In a Commission meeting held April 24, 2012, participating representatives from ACMUI, ASTRO, and the American Brachytherapy Society (ABS) endorsed the recommendations in SECY-12-0053 for modification of the requirements in §§ 35.40 and 35.3045. The NRC notes that ASTRO and ABS representatives suggested eliminating the recommended criterion for ME reporting that would have required reporting of excessive dose to normal tissue structures within the treatment site. However, this ACMUI-recommended ME reporting criterion for normal tissue structures located within the treatment site was retained in SECY-12-0053 because the ACMUI and the NRC staff determined that there should be some form of ME reporting criterion for overdosing of normal tissue structures located within the treatment site. In the SRM for SECY-12-0053, dated August 13, 2012, the Commission approved the NRC staff recommendations. The recommendations are applicable to all permanent implant brachytherapy procedures using radioactive sources for all treatment sites.
The proposed rule published on July 21, 2014 (79 FR 42410) also included ME criteria in § 35.3045(a)(2)(iii) and (iv) as follows: For normal-tissue structures, an ME has occurred if: (a) For structures located outside of the treatment site (for example, the bladder or rectum for prostate implant treatments), the dose to the maximally exposed 5 contiguous cubic centimeters of tissue exceeds 150 percent of the absorbed dose prescribed to the treatment site in the pre-implantation portion of the WD; or (b) for intra-target normal structures, the maximum absorbed dose to any 5 contiguous cubic centimeters of tissue exceeds 150 percent of the dose the tissue would have received based on the approved pre-implantation dose distribution. The size of the normal tissue, 5 cubic centimeters, was based on an ACMUI recommendation in its October 20, 2010, report. In its recommendation, the ACMUI stated that the 5 contiguous cubic centimeters dose-volume specification avoids the high variation in dose sometimes seen in point doses and the ACMUI cited literature to support 5 cubic centimeters as being a relevant quantity for toxicity. In the proposed rule, the NRC specifically invited comments on the selection of the specified volume of the normal tissues located both outside and within the treatment site in defining MEs.
The NRC received numerous comments expressing concern about the proposed ME criteria related to the absorbed dose to normal tissues located outside and within the treatment site. The commenters expressed concerns that they would have technical difficulties assessing dose to normal tissues located outside and within the treatment site. They stated that their treatment planning systems are not equipped to make such assessments. They believed the regulators may not be able to inspect such requirements. They stated that these requirements may cause confusion and result in licensees not performing permanent implant brachytherapy treatments. The comments are discussed in Section V., Public Comment Analysis, of this document.
Based on public comments and recommendations from the ACMUI, the ME criteria in this final rule for permanent implant brachytherapy in § 35.3045(a)(2) do not include absorbed doses to normal tissues located outside of or within the treatment site. Instead, the ME criteria in the final rule for permanent implant brachytherapy are:
(1) An ME has occurred if the total source strength administered differs by 20 percent or more from the total source strength documented in the post-implantation portion of the WD;
(2) An ME has occurred if the total source strength administered outside of the treatment site exceeds 20 percent of the total source strength documented in the post-implantation portion of the WD; or
(3) An ME has occurred if an administration involves: (a) Using the wrong radionuclide, (b) delivery to the wrong individual or human research subject, (c) sealed source(s) implanted directly into a location discontiguous from the treatment site as documented in the post-implantation portion of the WD (as discussed in this document, discontiguous means a location that is not physically adjacent to the treatment site), or (d) a leaking sealed source resulting in a dose that exceeds 0.5 Sv (50 rem) to an organ or tissue.
In supporting these recommendations, the NRC believes that source strength is the appropriate measurable metric for defining MEs involving permanent implant brachytherapy. The 20 percent variance threshold is consistent with the recommendation of the ACMUI for all medical uses of byproduct material as described in SECY-05-0234, discussed earlier in this section.
Another ME criterion included in the proposed rule published on July 21,
In response to these comments and a recommendation from the ACMUI in its final report on the draft final rule (“Advisory Committee on the Medical Uses of Isotopes Comments on the Draft Final Rule, 10 CFR parts 30, 32, and 35, Final Report,” dated January 6, 2016), the NRC has changed § 35.3045(a)(2)(v)(C) [redesignated as § 35.3045(a)(2)(iii)(C)] to read “Sealed source(s) implanted directly into a location discontiguous from the treatment site as documented in the post-implantation portion of the written directive.”
This “wrong treatment site” ME criterion will capture cases in which total source strength administered outside of the treatment site did not exceed 20 percent of the total source strength documented in the post-implantation portion of the WD, but one or more sources were directly implanted into a location far from the treatment site. For example, in a case in which 100 sources were implanted, 81 were within the treatment site, 18 sources were outside and contiguous to the treatment site, and one source was erroneously implanted directly into a site discontiguous from the treatment site. This would not be an ME under the “exceeds 20 percent of the total source strength” criterion; but would be an ME because one source met the “wrong treatment site” criterion.
The proposed criterion specified in § 35.3045(a)(2)(v)(E), “a 20 percent or more error in calculating the total source strength documented in the pre-implantation portion of the written directive,” in the proposed rule published on July 21, 2014, was not included in the final rule. The decision not to include this criterion is based on the comments received on the proposed rule and is discussed in Section V., Public Comment Analysis, of this document.
The new ME criteria for permanent implant brachytherapy in § 35.3045 require amendments to §§ 35.40 and 35.41. The previous WD requirements were primarily associated with temporary implant brachytherapy medical use. This final rule establishes separate WD requirements in § 35.40, “Written directives,” that are appropriate for permanent implant brachytherapy. This rule requires that the WD for permanent implant brachytherapy consist of two portions. The first portion of the WD must be prepared before the implantation, and the second portion of the WD must be completed after the procedure but before the patient leaves the post-treatment recovery area. For permanent implant brachytherapy, this rule requires that the WD portion prepared before the implantation include documentation of the treatment site, the radionuclide, and the total source strength. This final rule requires that the post-implantation portion of the WD contain documentation of the treatment site, the number of sources implanted, the total source strength implanted, and the date.
Based on ACMUI input discussed earlier in this section and information gained at public workshops, the NRC understands that the final WD for these permanent implants must allow for unanticipated medical situations encountered during the procedure. For instance, an AU might need to adjust the number of sources implanted because the volume of the treatment site may have decreased since the treatment plan was developed. Therefore, in defining an ME involving the treatment site for permanent implants, the NRC based the criterion for an ME on the percentage of implanted sources that are outside the treatment site as documented in the post-implantation portion of the WD rather than by defining an ME based on a comparison of the implanted total source strength to the total source strength documented in the pre-implantation portion of the WD. This definition differs from the ME definition for all other brachytherapy procedures where dose comparisons are made with reference to what was prescribed in the WD that was prepared before the procedure.
This final rule also makes changes to § 35.41, “Procedures for administrations requiring a written directive,” to include permanent implant brachytherapy. Although § 35.41(a)(2) requires licensees to determine if the administration is in accordance with the WD, there is no specific requirement that a licensee determine that an administered dose or dosage met an ME criterion as defined in § 35.3045. Section 35.41 is amended to require that a licensee develop procedures for determining if an ME has occurred. For all permanent implant brachytherapy, § 35.41 is also amended to require that a licensee develop additional procedures to include an evaluation of the placement of sources as documented in the post-implantation portion of the WD. The procedures must include a provision that these assessments must be made within 60 days from the date the treatment was performed. Although there is no requirement in § 35.41 to use imaging to determine the occurrence of an ME, imaging is the best (and in some circumstances may be the only) method to determine source strength outside of the treatment site and is routinely practiced in most clinical facilities.
The current regulations in 10 CFR part 35 provide three pathways for individuals to satisfy T&E requirements to be approved as an RSO, AMP, ANP, or AU. These pathways are: (1) Approval of an individual who is certified by a specialty board whose certification process has been recognized by the NRC or an Agreement State (certification pathway); (2) approval based on an evaluation of an individual's T&E (alternate pathway); or (3) identification of an individual's approval on an existing NRC or Agreement State license.
Under the certification and the alternate pathway, an individual seeking authorization for medical byproduct material must obtain a written attestation signed by a preceptor with the same authorization. The attestation must state that the individual has satisfactorily completed the necessary T&E requirements and has achieved a level of competency sufficient to function independently in the position for which authorization is sought.
During a Commission briefing held on April 29, 2008, the ACMUI recommended that the attestation requirements be revised. The ACMUI expressed concern that the existing requirements have had unintended consequences that, if not corrected, would impact the availability of authorized individuals. In other words, there would likely be a shortage of authorized individuals to provide medical care as a result of the reluctance of preceptors to sign attestations. The ACMUI recommended that attestations be eliminated for the board certification
The ACMUI also recommended that the attestation requirements associated with the alternate pathways be amended to delete the requirement to attest to an individual's radiation safety-related competency. The reason for the recommendation was that the ACMUI believed that signing an attestation of competence results in a perceived risk of personal liability on the part of the individual signing the attestation and that preceptors are reluctant to accept this risk.
In addition, the ACMUI recommended that the attestation submitted under the alternate pathway be considered acceptable if it is provided by a residency program director representing a consensus of an authoritative group, irrespective of whether the program director personally met the requirements for AU status. The ACMUI advised that training of residents is a collective process and entails the collective judgment of an entire residency program faculty, whereas preceptor attestation is an individual process, and an individual preceptor typically would provide only a small portion of the T&E.
Following the April 29, 2008, Commission briefing, in an SRM dated May 15, 2008, the Commission directed the NRC staff to work with the ACMUI and the Agreement States to provide recommendations to the Commission with regard to amending the NRC's requirements for preceptor attestation for both board-certified individuals and for individuals seeking authorization via the alternate pathway. The Commission also directed the NRC staff to consider additional methods, such as having the attestation provided by consensus of an authoritative group.
Following both consideration of the ACMUI's position, which was consistent with its long-held position on this issue, and interactions with the Agreement States, the NRC staff provided its recommendations on this issue to the Commission on November 20, 2008, in SECY-08-0179, “Recommendations on Amending Preceptor Attestation Requirements in 10 CFR part 35, Medical Use of Byproduct Material.” The NRC staff recommended that the Commission approve development of the following amendments to the 10 CFR part 35 attestation requirements: (1) Eliminate the attestation requirement for individuals seeking authorized status via the board certification pathway; (2) retain the attestation requirement for individuals seeking authorized status via the alternate pathways; however, replace the text stating that the attestation demonstrates that the individual “has achieved a level of competency to function independently” with alternative text such as “has demonstrated the ability to function independently” to fulfill the radiation safety-related duties required by the license; and (3) accept attestations from residency program directors, representing consensus of residency program faculties as long as at least one member of the residency program faculty is an authorized individual in the same category as that requested by the applicant seeking authorized status.
In an SRM dated January 16, 2009, to SECY-08-0179, the Commission approved these recommendations and directed the NRC staff to develop the proposed rule language for the attestation requirements for the alternate pathway in concert with the ACMUI and the Agreement States.
Participants at public workshops held in the summer of 2011 broadly supported the proposed changes to remove the attestation requirement for board-certified individuals. The workshop panelists (which included members of the ACMUI and the Agreement States) recommended that the NRC remove the requirement for attestation for board-certified individuals. They believed that board certification coupled with the recentness of training requirements should be sufficient for the regulator's needs. With regard to the language of attestation (for the alternate pathway), they believed that the preceptors should not attest to someone's competency; rather, they should attest that the individuals received the T&E that is necessary to carry out one's responsibility independently. At the April 2011 ACMUI meeting, the ACMUI advised that the attestation language should be revised to say that the individual has received the requisite T&E to fulfill the radiation safety-related duties required by the license. In the final rule, the attestation language is revised accordingly.
The final rule amends T&E requirements in multiple sections of 10 CFR part 35 with regard to the attestation requirements in accordance with the NRC staff's recommendations in SECY-08-0179.
The petition and its resolution are discussed in Section II., Petition for Rulemaking, PRM-35-20, of this document.
When Tc-99m is eluted from a Mo-99 generator, Mo-99 could be co-eluted along with technetium. This is termed “molybdenum breakthrough.” Current regulations in § 35.204(a) prohibit a licensee from administering a radiopharmaceutical to humans that exceeds 0.15 microcuries of Mo-99 per millicurie of Tc-99m. Section 35.204(b) requires that a licensee that uses Mo-99/Tc-99m generators for preparing a Tc-99m radiopharmaceutical measure the Mo-99 concentration of the first eluate to demonstrate compliance with the specified concentrations. However, a generator can be eluted several times to obtain Tc-99m for formulating radiopharmaceuticals for patient use.
If Mo-99 breakthrough exceeds the permissible concentration listed in § 35.204(a), it may cause unnecessary radiation exposures to patients. The administration of higher levels of Mo-99 could potentially affect health and safety and have an adverse effect on nuclear medicine image quality and medical diagnosis.
Generator manufacturers have always recommended testing each elution prior to use in humans. Before 2002, § 35.204 required a licensee to measure the Mo-99 concentration of each eluate. However, the NRC revised § 35.204 in April 2002 because the medical and pharmaceutical community considered frequency of Mo-99 breakthrough to be a rare event. Therefore, the Commission decided that measuring only the first elution from a generator was necessary to detect manufacturing issues or generators that may have been damaged in transport.
From October 2006 to February 2007, and again in January 2008, medical licensees reported to the NRC that numerous generators had failed the Mo-99 breakthrough tests. Some licensees reported the failed tests in the first elution, while some reported an acceptable first elution but failed subsequent elutions. One generator manufacturer voluntarily reported 116 total elution test failures in 2008. Based upon the numerous reports of failed Mo-99 breakthrough measurements noted in
The regulations do not currently require reporting to the NRC when an elution from a Mo-99/Tc-99m or Sr-82/Rb-82 generator exceeds the regulatory limit in § 35.204(a). As discussed in this section, eluates from Mo-99/Tc-99m generators exceeded the permissible concentration listed in § 35.204(a) on numerous occasions in 2006, 2007, and 2008. Additionally, in 2011, issues with Sr-82/Rb-82 generators were discovered when several individuals were identified with unexpectedly high levels of Sr-82 and Sr-85. These individuals had undergone Rb-82 chloride cardiac scanning procedures several months prior and had received these radionuclides in levels greatly in excess of the administration levels permitted in § 35.204 for Sr-82/Rb-82 generators. Further investigations showed that at least 90 individuals at one facility and 25 at another facility received levels of Sr-82 or Sr-85 that exceeded the levels permitted in § 35.204. Of these patients, at least three had levels of Sr-82 and Sr-85 high enough to result in reportable MEs as defined in § 35.3045.
Because the reporting of a generator when the eluate exceeded permissible concentrations was voluntary, the NRC had difficulty determining the extent of potential problems. Reporting of results in excess of the levels in § 35.204 for the Sr-82/Rb-82 generators could have alerted users and regulators to issues associated with these generators and possibly reduced the number of patients exposed to excess levels of Sr-82 and Sr-85. Breakthrough of Mo-99, or Sr-82 and Sr-85 contaminants can lead to unnecessary radiation exposure to patients.
This final rule also adds a new reporting requirement for a generator eluate exceeding permissible concentrations of Mo-99 or Sr-82 and Sr-85. This new reporting requirement in § 35.3204(a) requires a licensee to report to the NRC and the manufacturer or distributor of medical generators within 7 calendar days any measurement that exceeds the limits in § 35.204(a), at the time of generator elution.
Currently, § 35.24(b) requires a licensee's management to appoint an RSO who, in writing, agrees to be responsible for implementing the radiation protection program. Further, the regulations in 10 CFR part 35 do not allow the naming of more than one permanent RSO on a license.
During an ACMUI meeting in June 2007, ACMUI members expressed a concern that this restriction has contributed to a shortage of available RSOs to serve as preceptors. The ACMUI stated that the restriction has created a situation in which an individual who is qualified and performing the same duties as an RSO cannot be recognized or listed as an RSO, and that this restriction has created a situation in which an individual working as a contractor RSO at several hospitals or other licensed locations is unable to have actual day-to-day oversight at the various facilities.
The final rule amends the regulations in 10 CFR part 35 to allow a licensee to appoint a qualified individual with expertise in certain uses of byproduct material to serve as an ARSO. This individual will be required to complete the same T&E requirements as the named RSO for the individual's assigned sections of the radiation safety program. The ARSOs will have oversight duties for the radiation safety operations of their assigned sections, while reporting to the named RSO. The regulation will continue to allow a licensee to name only one RSO on a license. The RSO will continue to be responsible for the day-to-day oversight of the entire radiation safety program. Similarly, a licensee with multiple operating locations could appoint a qualified ARSO at each location where byproduct material is used; however, the named RSO will remain responsible for the overall licensed program. Under the final rule, the ARSO will be named on the license for the types of use of byproduct material for which this individual is qualified and has been assigned duties and tasks by the RSO.
The NRC believes that allowing an ARSO to be named on a license will increase the number of individuals who will be available to serve as preceptors for individuals seeking to be appointed as RSOs or ARSOs. Also, an ARSO named on a license could more easily become an RSO on other licenses for the types of uses for which the ARSO is qualified.
In addition, the current regulations allow AUs, AMPs, and ANPs to serve as the RSO only on the license for which they are listed. Because AUs, AMPs, and ANPs must meet the same requirements to serve as the RSO regardless of which medical use license they are identified on, the NRC believes that it is overly restrictive not to allow them to serve as an RSO on any medical use license. Therefore, a modification is made that will allow an AU, AMP, or ANP listed on any medical use license or permit to serve as an RSO or ARSO. This change will increase the number of individuals available to serve as RSOs and ARSOs on NRC medical licenses. Additionally, these ARSOs and RSOs could serve as preceptors for an individual seeking to be named as the RSO.
Participants at the public workshops held in the summer of 2011 broadly supported the proposed change to allow an ARSO to be named on a license. The T&E requirements for an ARSO were discussed, and stakeholders strongly supported the NRC's position that the ARSOs must meet the same qualifications as the RSO for their assigned sections of the radiation safety program.
The final rule amends multiple sections of 10 CFR part 35 to accommodate the new ARSO position.
Additional amendments are discussed in Section VI, Section-by-Section Analysis, of this document.
The final rule will become effective 180 days from its publication in the
The NRC staff submitted a proposed rule to the Commission for approval on August 8, 2013, SECY-13-0084, “Proposed Rule: Medical Use of Byproduct Material—Medical Event Definitions, Training and Experience, and Clarifying Amendments.” The Commission approved the NRC staff's recommendation to publish the proposed rule, with certain changes
During the comment period, the NRC staff held a public meeting on October 8, 2014, to better inform stakeholders of the proposed amendments and the various methods by which to provide comments on the proposed rule. Also, a public meeting was held on February 10, 2015, to better understand the comments made by Spectrum Pharmaceuticals. Spectrum Pharmaceuticals expressed concern about the proposed additional case work requirements in § 35.396 for the radionuclides used primarily for their alpha emissions and requested the NRC require 80 hours rather than the required 700 hours of specialized training for any physician so that an oncologist or a hematologist may administer parenteral radioactive drugs.
Early public input on the proposed rule was solicited through various mechanisms. The proposed amendments and preliminary draft rule text were discussed at the two transcribed facilitated public workshops that were conducted in New York City, New York, on June 20-21, 2011; and in Houston, Texas, on August 11-12, 2011. The purpose of the workshops was to solicit key stakeholder input on topics associated with the definition of an ME, including the requirements for reporting and notifications of MEs for permanent implant brachytherapy, and on other medical issues that were being considered in the proposed rulemaking. These workshops were initiated as a result of the Commission's direction to the NRC staff in the SRM to SECY-10-0062, which specified that the staff should work closely with the ACMUI and the medical community to develop ME definitions that would protect the interests of patients. The Commission also directed that these definitions should allow physicians the flexibility to take actions that they deem medically necessary, while preserving the NRC's ability to detect misapplications of radioactive material and failures in processes, procedures, and training. The panelists for the workshops included representatives from the ACMUI, Agreement States, and professional societies, and a patients' rights advocate.
For certain amendments, the NRC posted preliminary draft rule text (ADAMS Accession No. ML111390420) for a 75-day comment period on
The NRC received 69 comment letters that contained over 100 individual comments. The comment letters are posted on
For the ME criteria for permanent implant brachytherapy, the commenters generally supported the activity-based criteria instead of the current dose-based criteria for the treatment site. The commenters did not support the criteria related to the dose to normal tissues located outside the treatment site, and normal tissues located within the treatment site. The commenters also expressed concern with the proposed 5 cubic centimeter volume of the normal tissue specification for the absorbed dose criteria for normal tissues. The commenters stated numerous practical difficulties in making these dose assessments. They stated that the volume of a maximally exposed 5 contiguous cubic centimeters of normal tissue appears reasonable in theory. However, it will be difficult to determine in practice with current technology. They expressed concern that the treatment planning systems typically report dose-volume histograms to structures, but they do not identify contiguous volumes. Based on these concerns, this final rule ME criteria in § 35.3045 does not include dose to normal tissues located outside, or within the treatment site.
There were numerous comments on the compatibility category for the Agreement States for § 35.3045, Report and notification of a medical event. Members of the medical community submitted ten comments in support of Compatibility Category B. The OAS, the Conference of Radiation Control Program Directors (CRCPD), and all 7 of the Agreement States that submitted comments supported Compatibility Category C. This issue is fully discussed in Part I, Public Comments on the Specific Issues on Which the NRC Requested Comments.
The commenters expressed concern about confusion among AUs surrounding the definition of ME and WDs related to Yttrium-90 (Y-90) microspheres. The NRC staff has determined that the use of Y-90 would continue to be licensed under § 35.1000, “Other medical uses of byproduct material or radiation from byproduct material.”
The commenters were generally supportive of the proposed regulation that allows for the naming of an ARSO on the license.
The commenters were supportive of the proposed removal of attestation requirements for the board-certified individuals, and other changes to the attestation requirements that are retained for individuals applying through the alternate pathway.
The commenters were not supportive of the proposed additional case work requirements for the radionuclides used primarily for their alpha emissions. They were concerned that the proposed regulation has the unintended consequence of increasing the burden of the work experience requirement for those seeking to administer therapeutic radiopharmaceuticals such as alpha and beta emitters. They indicated that it may prove too burdensome for certain practitioners, particularly those in areas far removed from teaching hospitals and urban centers, to participate in three
With regard to the proposed reporting and notification of failed Mo-99/Tc-99m and Sr-82/Rb-82 generators in § 35.3204, the commenters stated that the 30-day deadline to report should be shortened to more effectively address patient safety concerns. In response to this comment, the final rule has been changed to require a 7-calendar-day reporting and notification time for a failed generator.
The NRC carefully considered the public comments in developing the final rule. This section summarizes the comments that the NRC received on the proposed rule and provides responses to these comments. Part I discusses the specific comments received on the issues on which the NRC specifically requested comments and discusses the NRC's responses to these comments. Part II discusses comments received on the specific sections of the 10 CFR part 35 amendments in the proposed rule and the NRC's responses to these comments.
In the proposed rule, the NRC requested comments on the following specific issues:
The NRC asked whether, in defining MEs, the proposed volume of 5 contiguous cubic centimeters dose-volume specification for an absorbed dose to normal tissue located both outside and within the treatment site is appropriate. The NRC also asked whether the application of the proposed ME definition for normal tissue based on the absorbed dose to the maximally exposed 5 contiguous cubic centimeters during permanent implant brachytherapy is appropriate for all potential treatment modalities, or whether it may result in unintended consequences for tissues or organs adjacent to the treatment site.
The NRC received numerous comments on this issue. The comment summaries and NRC responses to comments on this issue are discussed in Part II, Comments on Specific Sections in the Proposed Rule, under §§ 35.41 and 35.3045.
The NRC asked whether a 180-day effective date for the final rule is sufficient to communicate the changes to all practitioners and for practitioners to revise procedures, train on them, and implement the changes. Three commenters responded to this question. One commenter stated that 180 days is sufficient to implement the rule. However, two commenters stated that 365 days or more is needed to implement significant changes related to the dose evaluation requirements proposed for the ME criteria portion of the rule. Two commenters also recommended that the amendments related to PRM-35-20 should be implemented immediately, or in no more than 30 days. Because the ME criteria related to the dose evaluations to normal tissues are removed in the final rule, the NRC determined that 180 days is sufficient to implement the final rule.
The NRC asked if any of the changes in the proposed rule are likely to discourage licensees from using certain therapy options or otherwise adversely impact clinical practice, and if so, how.
The NRC received several comments on this issue. The comment summaries and NRC responses to comments on this issue are discussed in Part II, Comments on Specific Sections in the Proposed Rule, under §§ 35.390 and 35.396.
Currently § 35.3045, Report and notification of a medical event, is designated as Compatibility Category C for the Agreement States. This designation means that the essential objectives of the requirement should be adopted by the State to avoid conflicts, duplications, or gaps. The manner in which the essential objectives are addressed in the Agreement State requirements need not be the same as NRC requirements, provided the essential objectives are met. Under Compatibility Category C, Agreement States may require the reporting of MEs with more restrictive criteria than those required by the NRC if they do not create a conflict, duplication or gap with the essential objectives of the regulation.
Some medical licensees have multiple locations, some of which are NRC-regulated and some of which are Agreement State-regulated. Many of these licensees would prefer a Compatibility Category B designation for uniformity of practice and procedures among their different locations. A Compatibility Category B designation is for those program elements that apply to activities that have direct and significant effects in multiple jurisdictions.
During the development of the proposed rule, the OAS expressed a strong desire to retain a dose-based ME reporting criterion for the treatment site if NRC regulations are revised to include only activity-based criteria for determining MEs for permanent implant brachytherapy. The OAS had no objection to the introduction of the activity-based criteria, as long as the dose-based criteria could be retained by the Agreement States. With a Compatibility Category C designation, some Agreement States indicated they could require both the dose-based criterion and source-strength based criterion, as long as the Agreement State reports to the NRC using the reporting criteria that meets the essential objectives of the NRC regulatory requirements. As discussed in the proposed rule published on July 21, 2014, for some Agreement States, Compatibility Category B is difficult to achieve because their regulations must also meet specific state requirements based on the state agencies in which the radiation control regulators reside. Also, Agreement States may have existing laws requiring the collection of additional information on medical diagnostic and therapy procedures.
If the level of compatibility for § 35.3045 were to be raised to Compatibility Category B, Agreement State requirements would need to be essentially identical to those of the NRC. Compatibility Category B is applied to requirements that have significant direct transboundary health and safety implications.
The ACMUI in its report to the NRC (Enclosure 4 to SECY-13-0084) recommended that MEs related to permanent implant brachytherapy be designated as Compatibility Category B. The ACMUI was concerned with the proposed designation as Compatibility Category C, which would allow the Agreement States to retain the dose-based criteria for an ME for permanent implant brachytherapy. The ACMUI asserted that a Compatibility Category C would continue to result in clinically insignificant occurrences being identified as MEs by Agreement States and thereby perpetuate the confusion associated with the current dose-based criteria. The ACMUI stated that the most important component of the rationale for conversion from dose-based to
The Commission, in the SRM to SECY-13-0084, directed the NRC staff to designate § 35.3045 as Compatibility Category B in the proposed rule, which was subsequently published on July 21, 2014 (79 FR 42410). The NRC specifically invited comments on the appropriate compatibility category for ME reporting under § 35.3045.
The NRC received 19 comments on this issue. The medical community submitted ten comments in support of Compatibility Category B. The Organization of the Agreement States (OAS), the Conference of Radiation Control Program Directors (CRCPD), and 7 Agreement States submitted comments in support of Compatibility Category C. The medical community commenters stated that some medical licensees practice at multiple locations, some of which are NRC-regulated and some of which are Agreement State-regulated. These commenters stated that a Compatibility Category B designation would allow for uniformity of practice and procedures across the country. They stated that moving § 35.3045 from Compatibility Category C to B is appropriate and necessary. The commenters from the medical community also stated that they recognize that the Agreement States oppose a change in Compatibility Category, citing state legislative requirements, the difficulty in changing state regulations, and the fact that States do not perceive a problem with the current dose-based definition. While the commenters from the medical community appreciate these concerns, they believed these concerns are outweighed by the importance of having a consistent definition throughout the country to prevent confusion and unnecessary reporting of otherwise medically acceptable events. They expressed concern that a Compatibility C designation would allow Agreement States to implement unnecessarily more expansive criteria that may classify medically acceptable procedures as an ME.
The Agreement States, OAS, and CRCPD recommended that the compatibility designation for ME reporting under § 35.3045 be designated as Compatibility C. They argued that under Compatibility Category C the Agreement States would continue to have the flexibility to add additional reporting terms (for example, shorter timelines for reporting, or a requirement to report diagnostic MEs). Several Agreement States questioned how a single medical incident at a single facility can have “direct and significant effects in multiple jurisdictions.” They further added that the Compatibility Category C designation has been adequate for the reporting requirements for radiography, irradiator, and well logging licensees who routinely work in multiple jurisdictions. One Agreement State stated that the proposed activity-based ME reporting criteria should be added to the existing dose-based criteria, rather than replace it. The Agreement State stated that it would require licensees to apply both criteria, and only those MEs that meet the NRC's proposed activity-based criteria would be reported to the NRC.
Based on these comments, and review of the NRC's Management Directive 5.9 “Adequacy and Compatibility of Agreement State Programs,” NRC staff determined that ME reporting under § 35.3045 should be designated as Compatibility Category C. Under Compatibility Category C, the Agreement States must adopt the essential objective of the requirement to avoid conflicts, duplications, or gaps. The essential objective of § 35.3045 is to maintain a consistent national program for reporting MEs. A consistent national program for reporting MEs allows the NRC to identify trends or patterns, identify generic issues or concerns, recognize inadequacies or unreliability of specific equipment or procedures, and determine why an event occurred and whether any actions are necessary to improve the effectiveness of NRC and Agreement State regulatory programs.
The NRC has determined that allowing Agreement States to use the dose-based criteria in addition to the activity-based criteria for permanent implant brachytherapy MEs in § 35.3045(a)(2) would create inconsistencies in the national reporting program and disrupt the NRC and Agreement States' ability to use the national program for reporting MEs for the purposes described above. As a result, the use of dose-base criteria instead of activity-based criteria would create a conflict with the NRC's essential objective of this regulatory provision, which could impair the effective and orderly regulation of agreement material on a nationwide basis.
The NRC staff concluded that the continued use of a dose-based criteria could: (1) Preclude a practice in the national interest to have consistent reporting and notification standard; (2) impair effective communication; and (3) preclude an effective review or evaluation by the Commission and Agreement State programs for agreement material with respect to protection of public health and safety. Under Compatibility Category C for reporting permanent implant brachytherapy ME's, the regulatory provision uses activity-based criteria to ensure the consistent reporting of significant events as MEs across the country. Agreement States' use of dose-based criteria for these reporting requirements would not be compatible with this provision because it conflicts with the essential objective of this provision to maintain a consistent national program for reporting MEs.
The NRC staff considered Compatibility Category B for the ME criteria for permanent implant brachytherapy in § 35.3045(a)(2), but concluded that this designation is not justified, because ME reporting, while important to the effective and orderly regulation of agreement material on a nationwide basis, does not have significant direct transboundary implications. As a Compatibility Category C regulatory provision, the Agreement States have the flexibility to include, for example, a shorter reporting time, but the use of dose-based ME reporting criteria for permanent implant brachytherapy would create conflicts and inconsistencies with respect to the national reporting program. Therefore, the NRC will not accept, under Compatibility Category C, Agreement State use of dose-based criteria for permanent implant brachytherapy ME reporting.
The comment summaries and NRC responses on this issue are discussed in Part II of this section, under § 35.3045.
The ACMUI identified two issues with respect to securing an RSO's signature on a preceptor statement: There were not enough preceptors and some preceptors were not willing to sign preceptor statements. Naming the ARSOs on a license and permitting them to sign preceptor forms will increase the number of individuals who may sign the preceptor forms. Changes to the attestation language will remove impediments for individuals who were not willing to sign the previous preceptor statements. These changes will enhance opportunities for RSO candidates.
The NRC disagrees with the comment that RSOs are approved based upon their T&E without a preceptor statement. Under current regulations, an individual seeking to be named as an RSO on a medical license must submit a preceptor statement. The new provision in this rulemaking will only remove the preceptor attestation requirements for individuals who are certified by a board recognized by the NRC or Agreement States. Individuals seeking to be named as an RSO or ARSO under the alternate pathway will need to submit a preceptor statement.
The commenter's proposed text would imply that the ARSO is listed on a license as an AU, AMP, or ANP. This is not always the case. Further, as written in the proposed rule and in the rule text suggested by the commenter, the regulations could have permitted the RSO to assign duties and tasks to the individual as the ARSO for which he or she was not fully qualified (
The commenter proposed adding a pathway for an individual to qualify as an RSO via the ARSO position. This proposed pathway is problematic because it would create a training program for an individual to become an ARSO without the individual meeting all the required T&E for an ARSO or an RSO. The NRC does not intend for this rule to create a training program for an individual to become an ARSO who is not fully qualified to be an RSO. The NRC did not include a provision to require management to have the ARSO agree in writing to be responsible for implementing the radiation safety program because the RSO is responsible for the radiation safety program. The RSO may delegate tasks and duties to the ARSO but the final rule at § 35.24(b) states that the RSO “
Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraph (b)(1) of this section and is able to independently fulfill the radiation safety-related duties as an
The recommended amendment would add provisions that would allow the residency program director to provide an attestation to the T&E requirements for an ANP similar to those provisions added for an AU, AMP, and RSO.
(iii) A program director of a structured nuclear pharmacy training program who affirms in in [sic] writing that the attestation represents the consensus of the training program faculty where at least one faculty member is an authorized nuclear pharmacist who meets the requirements in §§ 35.57 or 35.55, or equivalent Agreement State requirements and concurs with the attestation provided by the program director. The nuclear pharmacy training program must be part of a College or School of Pharmacy that is accredited by the Accreditation Council for Pharmacy Education.
Note that § 35.390(b)(1)(ii)(G)(
The NRC reviewed the rule language and believes it is clear that when sealed sources are used as part of a diagnostic medical procedure, these uses are authorized under § 35.500. Possession of the sources may be authorized under § 35.65, but medical use of the sources is only authorized under § 35.500. For example, a transmission source may be possessed under § 35.65, but can only be used as part of a medical diagnostic procedure under § 35.500.
1. Perform pre-procedure requirements and interventions as may be required.
2. Perform intra-procedure requirements as may be required.
3. Perform post-procedure requirements as may be required.
The commenter clarified that, as with other physician extenders,
Several commenters stated that the proposed changes in § 35.390(b)(1)(ii)(G) would discourage clinicians from seeking authorization to administer these radioactive drugs and would make an already burdensome regulatory scheme more onerous. The commenters suggested that the NRC revise the proposed work experience requirement in categories in § 35.390(b)(1)(ii)(G)(
Several commenters acknowledged that the clarifications of the categories of parenteral administrations were useful and logical. However, they agreed with another commenter that there was an unintended consequence of increasing the work experience burden for those seeking administration of radiopharmaceuticals with alpha and beta emitters.
The NRC notes that to obtain authorization to use parenteral radioactive drugs requiring a WD, the physician must either (1) meet the T&E requirement or be certified by a medical specialty board recognized under § 35.390 and meet the clinical case work criteria in § 35.390, or (2) meet the T&E requirement or be certified by a medical specialty board recognized under §§ 35.490 or 35.690 and satisfy the additional 80 hours of T&E requirement specified in § 35.396(d).
Without compromising radiological health and safety, the NRC strives to ensure that its regulations do not restrict patient access to diagnostic and treatment options. The intent of NRC's T&E requirements is to ensure that AUs are adequately trained so that their handling and administration of radioactive drugs is radiologically safe for patients, workers, and the public. The current T&E requirements are protective of radiological health and safety. As explained in greater detail in a response to another comment on parenteral administrations, throughout 2015 and early 2016 the ACMUI assessed the concerns raised in this comment. Additionally, the ACMUI established a standing subcommittee that will periodically assess the T&E requirements across all modalities and make recommendations for changes as warranted. The NRC will also continue to consider whether changes to these T&E requirements are warranted.
With respect to the comment that hematologists and oncologists “typically prescribe therapeutic radiopharmaceuticals . . . ,” the NRC regulations require that such radiopharmaceuticals be administered in accordance with a WD. A WD is an AU's—not a hematologist's or oncologist's—written order for the administration of byproduct material or radiation from byproduct material to a specific patient, as specified in § 35.40.
One commenter stated that amending § 35.396 to reduce the T&E requirement to 80 hours in this final rule would be a logical outgrowth of the proposed rule and thus would satisfy the Administrative Procedure Act of 1946 (APA) requirement to provide notice and an opportunity for comment. The commenter stated that the NRC provided adequate notice of an amendment to this T&E requirement and that the NRC received substantial public input on these T&E requirements. Alternatively, according to the commenter, the NRC could invoke the “good cause” exemption from the APA notice and comment requirements because the 700 hour T&E requirement for these parenteral radioactive drugs has caused a decrease in the number of AUs for these drugs and a corresponding decrease in patient access to these drugs. The commenter also proposed that the NRC could, instead of amending T&E requirements at § 35.396(d), include in this final rule a new section that would require 80 hours of T&E specifically for the parenteral administration of patient-ready doses of alpha- and beta-emitting radioactive drugs. One other commenter also supported reducing this T&E requirement to 80 hours as part of this final rule and provided a proposed training program.
Several other commenters also expressed support for reducing this T&E requirement in this final rule. The commenters asserted that the 700 hour T&E requirement has caused a lack of AUs available to administer these radioactive drugs; administration of these drugs presents no greater radiation health and safety risk than oral administration of I-131; and 80 hours of T&E is sufficiently protective of radiological health and safety.
Several commenters opposed changing this T&E requirement in the final rule. One commenter stated that the NRC and ACMUI would need to analyze key issues before proposing any changes to this T&E requirement, including whether a reduction in the requirement is advisable from a radiation health and safety perspective. These commenters stated that an AU would need to receive adequate training on a broad array of radiation health and safety topics and that an 80-hour course would not sufficiently cover these topics. These commenters also described the range of activities, considerations, and procedures necessary to ensure the safe handling and administration of these radioactive drugs.
In response to commenter's concerns about this T&E requirement, the NRC and ACMUI began considering whether a change in this requirement is warranted. Spectrum Pharmaceuticals, Inc. requested a meeting with NRC staff to explain its comments concerning this T&E requirement. The NRC staff agreed and held a public meeting on February 12, 2015, at which Spectrum Pharmaceuticals, Inc. and Florida Cancer Specialists & Research Institute presented their comments and concerns that this T&E requirement causes a shortage of AUs, and, therefore a barrier to patient access. In response to these comments and concerns, throughout 2015 and early 2016 the ACMUI assessed whether this T&E requirement places a hardship on the patient community. In a public teleconference held on June 16, 2015, the Florida Cancer Specialists & Research Institute presented to the ACMUI its concerns that this T&E requirement caused a lack of AUs and thus a barrier to patient access to these radioactive drugs. After this teleconference, the ACMUI formed a subcommittee to assess whether the 700 hour T&E requirement for parenteral administration of this class of radiopharmaceuticals places a hardship on the patient community by creating a shortage of AUs. In its subcommittee report dated September 21, 2015, which the ACMUI unanimously approved at its Fall 2015 meeting, the ACMUI concluded that it was unable to substantiate this claim. The ACMUI found that the infrequent and steadily decreasing use of specific beta-emitting radioactive drugs—specifically radioactive drugs that are used to treat lymphoma, such as Spectrum Pharmaceuticals, Inc.'s drug Zevalin®—is due to many factors. The ACMUI concluded that it could not determine whether there is a shortage of AUs and, if so, whether the NRC's T&E requirement caused the shortage. The subcommittee was then charged with continuing to assess this issue and
In its subcommittee report dated March 10, 2016, which the ACMUI unanimously approved at its meeting on this same date, the ACMUI reiterated its conclusion that it could not substantiate the claim that the T&E requirement caused a shortage of AUs and thus a hardship on the patient community. For this reason, and because the ACMUI identified several issues raised by the reduction in T&E requirements that some commenters recommended, the ACMUI recommended against reducing the T&E. However, the ACMUI recognized the need for a thorough review of T&E requirements across all modalities because of the introduction of new radioactive drugs since the requirements were established 15 years ago and because the educational paradigm has shifted from prescriptive curricula to competency-based education. The ACMUI established a standing subcommittee to assess T&E requirements for all modalities and provide recommendations to the NRC staff. As stated in response to other comments, the NRC will continue to consider concerns regarding T&E requirements to ensure that these requirements are sufficient to ensure radiological health and safety for patients, workers, and the public without unnecessarily creating barriers to patient access to diagnostic and treatment options.
The purpose of § 35.433(b) is to describe the minimum performance-based tasks expected of either the AMP or the ophthalmic physicist in assisting the licensee and AU with the ophthalmic treatment program. The requirement that only an AMP shall calculate the activity of each Sr-90 source is an existing requirement in the regulations under § 35.433(a) and is not a new requirement. The requirement in § 35.433(b)(2) codifies that the AMP, or ophthalmic physicist, is to assist the licensee and AU in assuring that the requirements in § 35.41 are met. Ophthalmologists using these devices are frequently in small programs with limited access to services of an AMP. The proposed rule change was made in part to ensure that the ophthalmic physicist (or AMP) performs a minimum number of tasks at the ophthalmology office.
The NRC did not specify the frequency of involvement of the AMP or ophthalmic physicist because the licensee should determine the best frequency for its program. The NRC requires AMPs to perform certain tasks at specified frequencies for certain medical use programs. Specifically, AMPs are required to participate initially, and at least annually, in drills of emergency procedures under § 35.610. They also must be physically present during initiation of patient treatment, continuation of the treatment, or the entire treatment, depending on the unit being used under § 35.615. In addition, AMPs must perform the full calibration measurements and decay corrections before first medical use, before medical use under certain conditions, and at intervals not to exceed one year under §§ 35.632, 35.633, and 35.635.
i. That are approved in the Sealed Source and Device Registry; or
ii. In research . . . .”
The NRC received many comments on various issues related to the permanent brachytherapy event reporting criteria under this section. For better understanding of the concerned raised, the comments are grouped according to the distinct issues commenters raised.
One commenter expressed concern that failure to include an exclusion for migrated sources would require reporting as ME permanent implant brachytherapy procedures in which the sources were placed correctly then migrated. The commenter suggested that “. . . images taken 15, or 30, or 60 days after an implant cannot unambiguously
One commenter noted that in the 2002 revisions to 10 CFR part 35, the term “recordable event” was eliminated and the term “misadministration” was changed to “medical event.” The commenter stated that the definition (of an ME) did not change. The definition compares the treatment administered to what the AU intended to administer. The commenter expressed concern that, as proposed, a treatment could be identified as an ME if the seeds moved after they were implanted correctly. The commenter stated that the proposed rule as written may inhibit a physician from helping a patient if migration of seeds is not taken into account in defining an ME for permanent implant brachytherapy implants.
The commenter also asked what rule would apply if all seeds are in the treatment site, but “badly distributed around the periphery.” The commenter stated that this could result in a “bad cold spot” in the treatment site dose distribution and noted that many permanent prostate implants “show this tendency naturally 30 days after implant.”
The commenter stated that these issues pertain to the practice of medicine and should not be regulated by the NRC.
The NRC agrees that the dose distribution within the treatment site is not a suitable ME criterion because it can vary over time and is not fully under the control of the AU. In response to other comments, the NRC revised the permanent implant brachytherapy ME criteria at § 35.3045(a)(2) to be based only on total source strength, not dose. As a result, no ME has occurred if at least 80 percent of the sources are in the treatment site, regardless of the distribution of the sources or the existence of a “cold spot” in the dose distribution. The NRC agrees, and it is the NRC policy, that the NRC should not (and does not) regulate the practice of medicine.
The NRC considered the commenter's statement that these types of MEs would be prevented by assaying a portion of the seeds to ensure the total source strength is as ordered and concluded that this may not be fully correct. For example, it is possible for an ME to occur if there was an error of 20 percent or more in the total source strength ordered and administered.
In response to the portion of this comment concerning dose to normal tissue and other comments, the NRC removed the absorbed dose-based ME reporting criteria for normal tissue in § 35.3045(a)(2)(iii) and (iv).
The NRC disagrees that § 35.3045 should be designated as Compatibility Category B to ensure uniformity of practice and procedures across the country. The NRC designates regulatory program elements as Compatibility Category B if they have significant direct transboundary implications, not simply for the purpose of ensuring uniformity across the country with respect to a program element. The effect of a Compatibility Category B designation is essentially uniformity across the country with respect to a program element, because this designation requires Agreement States to adopt program elements that are “essentially identical” to that of the NRC. This uniformity is necessary because a program element has significant direct transboundary implications. As discussed in Part I, item 4 of this section, the NRC has determined that ME reporting does not rise to the level of having significant direct transboundary implications. Therefore, Compatibility Category B is inappropriate.
The NRC has determined that Compatibility Category C is the appropriate designation for § 35.3045. Under Compatibility Category C designation, the essential objectives of the regulation should be adopted by the State to avoid conflicts, duplications or gaps. The essential objective of § 35.3045 is to maintain a consistent national ME reporting program. Agreement States should ensure that their ME reporting criteria do not conflict with or create inconsistency within this program.
The NRC acknowledges that, from the perspective of a single medical facility, MEs appear to be local events only. The NRC agrees that ME reporting does not have direct and significant effects in multiple jurisdictions, and therefore agrees that Compatibility Category B is not the appropriate designation for § 35.3045. Therefore, the ME reporting criteria do not have to be essentially identical. However, the essential objective of § 35.3045 is to maintain a consistent national ME reporting program, and to adopt this essential objective Agreement States should adopt ME reporting criteria that do not create conflicts or inconsistencies in ME reporting. The ME reporting program ensures that the NRC and Agreement States are able to identify trends or patterns, identify generic issues or concerns, recognize inadequacies or unreliability of specific equipment or procedures, and determine why an event occurred and whether any actions are necessary to improve the effectiveness of NRC and Agreement State regulatory programs. Inconsistent or conflicting ME reporting criteria would frustrate these purposes.
This section describes the specific amendments by section for this final rule.
This change provides the information to allow the NRC to assess a potential situation quickly and efficiently when
New definitions for
The new definition for
The new definition for
The definition for Preceptor is amended to add ARSO to the list of individuals whose T&E is provided, directed, or verified by a preceptor. This is a conforming change in support of the new definition for
This section is amended to require only the submission of the original NRC Form 313, Application for Material License, or a letter containing information required by NRC Form 313 when applying for a license, an amendment, or renewal. This section clarifies what information should be submitted and adds a requirement to submit information on an individual seeking to be identified as an ARSO or as an ophthalmic physicist.
This section is amended by revising paragraph (b), re-designating paragraphs (d) through (g) as paragraphs (e) through (h), revising re-designated paragraphs (g) and (h), and adding new paragraphs (d) and (i).
This section is amended to make corresponding changes based on amendments to § 35.13 and to § 35.14(b)(1).
This section is amended to allow licensees to appoint qualified individuals with expertise in certain uses of byproduct material to be named as ARSOs on a license or permit.
The licensee's management is still limited to naming one RSO who will remain responsible for implementing the entire radiation protection program. The RSO is prohibited from delegating authority and responsibilities for implementing the radiation protection program. The proposed rule would have required each ARSO to agree in writing to the tasks and duties assigned by the RSO. The NRC staff determined that this requirement is not necessary because the NRC holds the RSO responsible for implementing the radiation protection program. Therefore, the proposed requirement for each ARSO to agree in writing to the tasks and duties assigned by the RSO is not included in this final rule.
The position of an ARSO is discussed further in Section III, Discussion, of this document.
The post-implantation portion of the WD requires the documentation of the treatment site, number of sources implanted, the total source strength implanted, and the date. The information required by the post-implantation portion of the WD must be documented before the patient leaves the post-treatment recovery area.
This section is amended by adding two new paragraphs with requirements that the licensee must address when developing, implementing, and maintaining written procedures to provide high confidence that each administration requiring a WD is in accordance with the WD.
The determination that is required includes the total source strength administered outside of the treatment site compared to the total source strength documented in the post-implantation portion of the WD.
A 60-calendar-day time frame ensures that the licensee has ample time to make arrangements for the required determinations. These determinations are used to partially assess if an ME, as defined in § 35.3045, has occurred.
Multiple changes are made to this section. They include amending the title of this section to add “and Associate Radiation Safety Officer” because the T&E requirements for this new position are also applicable to the ARSO. Other changes are: (1) Removing the requirement to obtain a written attestation for individuals qualified under paragraph (a) of this section; (2) adding a provision that will allow
The AUs, AMPs, and ANPs must meet the same requirements to serve as the RSO regardless of which Commission medical license they are identified on. Therefore, not allowing them to serve as an RSO on any Commission medical license is unnecessarily restrictive. This change will increase the number of individuals available to serve as RSOs and ARSOs on NRC medical licenses.
The provision will provide flexibility for an individual to serve as both an AU and as the RSO on a new medical use license (a clinic or a medical institution) and may help to make medical procedures more widely available, especially in rural areas.
Current regulations allow a medical physicist with any board certification in diagnostic or therapeutic medical physics to serve as a supervising medical physicist in therapeutic procedures. The NRC believes that the supervision for therapeutic procedures must be provided by a therapy medical physicist who is certified in medical physics by a specialty board recognized under § 35.51 by the Commission or an Agreement State.
Multiple changes are made to this section. Most of the changes are to the T&E requirements in response to the requested amendments in PRM-35-20. This includes recognizing the board certifications of individuals certified by boards recognized under subpart J, which was removed from 10 CFR part 35 in a rulemaking dated March 30, 2005 (70 FR 16336), and making administrative clarifications. Additional information on PRM-35-20, as it relates to this rulemaking, is located in Section
However, this paragraph is also modified such that RSOs and AMPs identified by this paragraph must meet the training requirements in §§ 35.50(d) or 35.51(c), as appropriate, for any materials or uses for which they were not authorized prior to the effective date of this rule. This is not a new training requirement. Current regulations require individuals qualifying under §§ 35.50 and 35.51 as RSOs and AMPs to meet the training requirements in §§ 35.50(e) and 35.51(c).
Additionally, this paragraph is amended to clarify that an individual authorized on or before this date will not be required to comply with the T&E requirements in subparts D through H of 10 CFR part 35 for those materials and uses that the individual performed on or before January 14, 2019.
This section is restructured and amended to include three new paragraphs.
The residency program director who provides written attestations does not have to be an AU who meets the requirements in §§ 35.57, 35.190, 35.290, or 35.390, or equivalent Agreement State requirements. However, the director must affirm in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an AU who meets the requirements in §§ 35.57, 35.190, 35.290, or 35.390, or equivalent Agreement State requirements, and that the AU concurs with the attestation.
Additionally, the paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
Further discussion on this issue can be found in Section III., Discussion, of this document.
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.290, or 35.390 and 35.290(c)(1)(ii)(G), or equivalent Agreement State requirements. However, they must affirm in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an AU who meets the requirements in §§ 35.57, 35.290, or 35.390 and 35.290(c)(1)(ii)(G) or equivalent Agreement State requirements, and that the AU concurs with the attestation.
Additionally, the paragraph is amended to incorporate the new language that the written attestation must verify that the individual is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
The introductory paragraph is amended to clarify that a licensee may only use unsealed byproduct material identified in § 35.390(b)(1)(ii)(G) under this section. Currently, § 35.300 states that “A licensee may use any unsealed byproduct material. . . .” This change clarifies that a licensee's authorization of the radiopharmaceuticals requiring a WD is only for those types of radiopharmaceuticals for which the AU has documented T&E. An AU may be authorized for one or all of the specific categories described in § 35.390(b)(1)(ii)(G), but not for all unsealed byproduct material.
The current regulations include a broad category for parenteral administrations of “any other” radionuclide. This broad category is removed, as any new parenteral administration of radionuclides not listed in this paragraph are regulated under § 35.1000. This approach will allow the NRC to review each new proposed radionuclide for parenteral administration and determine the appropriate T&E for its use.
Current regulations require physicians requesting AU status for administering dosages of radioactive drugs to humans (including parenteral administration) to have work experience with a minimum of three cases in each category for which they are requesting AU status. This requirement is retained in the final rule with regard to all categories in this paragraph.
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.390, or equivalent Agreement State requirements, or have experience in administering dosages in the same dosage category or categories as the individual requesting AU status. However, they must affirm in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an AU who meets the requirements in §§ 35.57, 35.390, or equivalent Agreement State requirements, has experience in administering dosages in the same dosage category or categories as the physician requesting AU status, and concurs with the attestation.
Additionally, this paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.390, 35.392, 35.394, or equivalent Agreement State requirements, or have experience in administering dosages as specified in § 35.390(b)(1)(ii)(G)(
Additionally, this paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently, as an AU.
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.390, 35.394, or equivalent Agreement State requirements, or have experience in administering dosages as specified in § 35.390(b)(1)(ii)(G)(
Additionally, the paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
Amendments to this section include conforming changes to support the new single category for parenteral administration in § 35.390(b)(1)(ii)(G)(
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.390, 35.396, or equivalent Agreement State requirements, or have experience in administering dosages in the same category as the individual requesting AU status. However, they must affirm in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an AU who meets the requirements in §§ 35.57, 35.390, 35.396, or equivalent Agreement State requirements, and concurs with the attestation. An AU who meets the requirements in §§ 35.390, 35.396, or equivalent Agreement State requirements, must have experience in administering dosages in the same category as the individual requesting AU user status.
Additionally, this paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
This section is expanded to allow for sources that are listed in the SSDR for manual brachytherapy to be used for other manual brachytherapy uses that are not explicitly listed in the SSDR.
The NRC recognizes that the medical uses specified in the SSDR may not be all-inclusive. The final rule will permit physicians to use manual brachytherapy sources to treat sites or diseases not listed in the SSDR. For example, the SSDR may specify that the sources are for interstitial uses, but the final rule change allows the physician to use the sources for a topical use. The NRC has determined this flexibility should be afforded to physicians to use their discretion in the practice of medicine.
This section title is modified by deleting “Decay of” at the beginning of the title. This new title reflects the expanded information and requirements in this section.
The second task is related to the requirements in § 35.41 and is included in this final rule to ensure the safe use of Sr-90 for ophthalmic treatments. Both the AMP and the ophthalmic physicist are required to assist the licensee in developing, implementing, and maintaining written procedures to provide high confidence that the dose administration is in accordance with the WD. Under this paragraph, the licensee must modify its procedures required under § 35.41 to specify the frequencies at which the AMP or the ophthalmic physicist will observe treatments, review the treatment methodology, calculate treatment time for the prescribed dose, and review records to verify that the treatment was administered in accordance with the WD.
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.490, or equivalent Agreement State requirements. However, they must affirm in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an AU who meets the requirements in §§ 35.57, 35.490, or equivalent Agreement State requirements, and concurs with the attestation.
Additionally, the paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
This section is restructured and expanded to include the use of medical devices to allow sealed sources and medical devices that are listed in the SSDR for diagnostic medical uses to be used for diagnostic medical uses that are not explicitly listed in the SSDR, and to allow sealed sources and medical devices to be used in research in accordance with an active Investigational Device Exemption (IDE) application accepted by the FDA. This section title is modified to add “and medical devices” because the use of medical devices is added to this section.
This section is restructured and expanded to clarify that both diagnostic sealed sources and devices authorized in § 35.500 are included in the T&E requirements of this section.
This section is amended to separate the uses of photon-emitting remote afterloader units, teletherapy units, or gamma stereotactic radiosurgery units from the uses of the sealed sources contained within these units. The amended section allows only sealed sources approved in the SSDR in devices to deliver therapeutic medical treatments as provided for in the SSDR. However, the units containing these sources can be used for therapeutic medical treatments that are not explicitly provided for in the SSDR, provided that they are used in accordance with radiation safety conditions and limitations described in the SSDR. The purpose of this amendment is to allow physicians flexibility to exercise their medical judgment and to use these devices for new therapeutic treatments that may not have been anticipated when the devices were registered.
Currently, § 35.610(d) requires that all individuals who operate these units be provided safety instructions initially, and at least annually; however, there is no requirement for these individuals to receive instructions when the unit is upgraded. The amendment requires individuals who operate these new or upgraded units to receive training prior to first use for patient treatment. These individuals include AUs, AMPs, operators, and others that need to know how the units operate.
This section title is modified to delete “5-year inspection” and insert “Full-inspection servicing” to more accurately reflect the requirements in this section for inspection and servicing of teletherapy units and gamma stereotactic radiosurgery units.
Additionally, this paragraph requires that the full inspection and servicing of these units be performed during each source replacement regardless of the last time the units were inspected and serviced.
The full inspection and servicing interval of a teletherapy unit has not
The residency program directors who provide written attestations do not have to be AUs who meet the requirements in §§ 35.57, 35.690, or equivalent Agreement State requirements, for the type(s) of therapeutic medical unit(s) for which the individual is requesting AU status. However, they must affirm in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an AU who meets the requirements in §§ 35.57, 35.690, or equivalent Agreement State requirements, for the type(s) of therapeutic medical unit(s) for which the individual is requesting AU status and concurs with the attestation.
Additionally, this paragraph is amended to incorporate the new language that the written attestation must verify that the physician is able to independently fulfill the radiation safety-related duties, rather than has achieved a level of competency to function independently as an AU.
This section is amended to conform to the changes made in § 35.610 by adding a requirement to maintain the operational and safety instructions required by § 35.610.
This section title is modified to delete “5-year inspection” and insert “full-inspection servicing” to reflect the changes to § 35.655 requiring full inspection and servicing of teletherapy units and gamma stereotactic radiosurgery units.
(1) The total source strength administered differs by 20 percent or more from the total source strength documented in the post-implantation portion of the WD. An example of a situation that meets this criterion is a situation in which the sealed sources that were implanted had a different source strength than what was intended. This situation could occur because the licensee ordered, or the vendor shipped, sealed sources with the wrong activity;
(2) The total source strength administered outside of the treatment site exceeds 20 percent of the total source strength documented in the post-implantation portion of the WD. An example of a situation that meets this criterion is a situation in which the
(3) An administration that includes the wrong radionuclide; the wrong individual or human research subject; sealed source, or sources, implanted directly into a location discontiguous from the treatment site, as documented in the post-implantation portion of the WD; or a leaking sealed source resulting in a dose that exceeds 0.5 Sv (50 rem) to an organ or tissue. Only the criteria for a leaking sealed source retains the dose threshold in current regulations because the NRC determined the leaking sealed source delivering a dose below this threshold does not need to be reported as an ME. Several situations that will meet this criterion are self-evident,
This new section requires reporting and notification of an elution from a Mo-99/Tc-99m or Sr-82/Rb-82 generator that exceeds the regulatory requirements in §§ 30.34 and 35.204(a). Further discussion of this requirement can be found in Section III., Discussion, of this document.
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This final rule affects a number of “small entities” as defined by the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810). However, as indicated in the regulatory analysis available as indicated in Section XXIII, “Availability of Documents” section of this document, these amendments do not have a significant economic impact on the affected small entities. The NRC requested comment on the proposed rule and accompanying draft regulatory analysis on the impact of the proposed rule on small entities. The NRC received no comment submissions from an identified small entity.
The NRC has prepared a final regulatory analysis on this regulation. The regulatory analysis examines the costs and benefits of the alternatives considered by the NRC. The regulatory analysis is available as indicated in Section XXIII., Availability of Documents, of this document.
The backfit rule and issue finality provisions of 10 CFR part 52 (which are found in the regulations at §§ 50.109, 70.76, 72.62, 76.76, and in 10 CFR part 52) do not apply to this final rule. Parts 30, 32, and 35 of 10 CFR do not contain a backfitting provision. Therefore, a backfitting analysis is not required.
Cumulative effects of regulation (CER) describes the challenges that licensees, certificate holders, States, or other entities may encounter while implementing new regulatory requirements (
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The NRC has determined that the following actions in this final rule are the types of actions described in categorical exclusions in § 51.22(c)(2) and (c)(3)(i-v):
(1) The amendments to the general administrative requirements and general technical requirements meet the categorical exclusion criteria under § 51.22(c)(2).
(2) The amendments to sealed sources usage provide clarifications to the current regulations and meet the categorical exclusion criteria under § 51.22(c)(2).
(3) The amendments to the requirements for reporting MEs and reporting failed generator tests meet the categorical exclusion criteria under § 51.22(c)(3)(iii).
(4) The amendments related to the record-keeping requirements meet the categorical exclusion criteria under § 51.22(c)(3)(ii).
(5) The amendments related to the T&E requirements meet the categorical exclusion criteria under § 51.22(c)(3)(iv).
There are two amendments that do not meet the categorical exclusion criteria in § 51.22. Therefore, an environmental assessment has been prepared for this rule for the two amendments that do not meet the categorical exclusion criteria in § 51.22. The environmental assessment is discussed in Section XIII., Environmental Assessment and Final Finding of No Significant Environmental Impact, of this document. The amendments that do not meet the categorical exclusions in § 51.22 are: (1) The increase in the frequency of Mo-99 measurement tests required in § 35.204, and (2) the increase in the full inspection time interval for a gamma stereotactic radiosurgery unit from 5 years to 7 years in § 35.655.
The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in Subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and; therefore, an environmental impact statement is not required. The amendments that were the subject of the Environmental Assessment establish more frequent measuring of Mo-99 and increase the inspection interval for a gamma stereotactic radiosurgery unit from 5 years to 7 years. The amendments are procedural in nature. It is expected that this rule will not cause any significant increase in radiation exposure to the public or radiation release to the environment beyond the exposures or releases currently resulting from the medical use of byproduct material.
The NRC requested the views of the States and State Liaison Officers on the environmental assessment for this rule. The NRC did not receive any comments on the environmental assessment from the States or State Liaison Officers.
The determination of the environmental assessment is that this rule would have no significant impact on the quality of the human environment. The environmental assessment is available as indicated in Section XXIII, Availability of Documents, of this document.
This final rule contains new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The burden to the public for the information collection(s) is estimated to average 2.52 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection.
The information collection is being conducted to provide the NRC the information it needs to effectively evaluate license applications, applications for amendments, licensee operations, and significant safety events for protection of public health and safety. The information will be used by the NRC in evaluating compliance with licensing requirements. The NRC will assess the adequacy of an applicant's or licensee's physical location, equipment, organization, training, experience, procedures and plans for protection of public health and safety. The NRC review and the findings derived there form the basis of NRC licensing and inspection decisions. The NRC uses reports of significant safety events in evaluating the protective actions required to avoid exposures to patients and the public that could exceed regulatory limits, and therefore impact public health and safety and the environment. Responses to the information collection requirements at §§ 32.72 and 35.12 are mandatory or are required to obtain or retain a benefit. All other information collection requirements in this final rule are mandatory. Section 161b of the AEA authorizes the NRC to impose these information collections.
You may submit comments on any aspect of the information collection(s), including suggestions for reducing the burden, by the following methods:
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•
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
This final rule is a rule as defined in the Congressional Review Act (5. U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
For the purpose of Section 223 of the Atomic Energy Act of 1954, as amended (AEA), the NRC is issuing this final rule that amends 10 CFR parts 30, 32, and 35 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule will be subject to criminal enforcement.
The NRC has coordinated with the Agreement States throughout the development of this final rule. Agreement State representatives have served on the rulemaking working group that developed the proposed and final amendments to 10 CFR part 35 and on the steering committee for the rulemaking.
Through an All Agreement State Letter (FSME-11-044, dated May 20, 2011), the Agreement States were notified of the availability of preliminary rule text for comments
In February 2013, the NRC provided the preliminary draft proposed rule to the Agreement States for a 30-day review. The Agreement States provided comments on the preliminary draft proposed rule. Several comments resulted in revisions to the discussion section of the proposed rule to provide additional emphasis or clarity. A summary of the Agreement States comments and the NRC staff responses to the comments is contained in Enclosure 6 to SECY-13-0084.
Through an All Agreement State Letter (FSME-14-078, dated August 15, 2014), the Agreement States were notified of the availability of the proposed rule noticed in the
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The final rule is a matter of compatibility between the NRC and the Agreement States, thereby providing consistency among Agreement State and NRC requirements. Discussion on the Compatibility Category for § 35.3045, Report and notification of a medical event, can be found in Section V., Public Comment Analysis, of this document. The compatibility categories are designated in the following table:
The NRC staff consults with the ACMUI whenever it identifies an issue with implementation of 10 CFR part 35 regulations. Accordingly, issues addressed by this rule have been discussed at ACMUI meetings over the last several years. The ACMUI meetings are transcribed. Full transcripts of the ACMUI meetings can be found online in the NRC Library at
In December 2012, the NRC provided the preliminary draft proposed rule to the ACMUI for a 90-day review. The draft proposed rule was made public to facilitate the ACMUI review in a public forum. The ACMUI discussed the draft proposed rule at two publicly held teleconferences on March 5 and March 12, 2013. The ACMUI provided a final report, “Advisory Committee on the Medical Uses of Isotopes Sub-Committee on Proposed Rule,” dated April 5, 2013, to the NRC on April 9, 2013.
While the ACMUI was supportive of most of the proposed amendments, it expressed concerns on some issues and provided its recommendations on those issues. Several comments resulted in revisions to the discussion section of the proposed rule to provide additional emphasis or clarity. However, the NRC did not accept all of the ACMUI recommendations. The recommendations that the NRC staff did not accept were discussed in a document entitled, “NRC Staff Responses to the ACMUI Comments on the Draft Part 35 Proposed Rule,” Enclosure 5, to SECY-13-0084.
In addition, the ACMUI recommended that for permanent implant brachytherapy procedures, licensees be allowed to use total source strength as a substitute for total dose for determining MEs until the 10 CFR part 35 rulemaking is completed. In response, on July 9, 2013, the Commission issued an interim enforcement policy (78 FR 41125) that addressed this issue.
On October 6, 2015, the NRC provided the preliminary draft final rule to the ACMUI for a 90-day review. The ACMUI held a public teleconference on January 6, 2016, and provided a final report, “Advisory Committee on the Medical Uses of Isotopes Sub-Committee on Draft Final Rule, 10 CFR parts 30, 32, and 35,” dated January 6, 2016, to the NRC on January 6, 2016. The NRC prepared a response to the ACMUI recommendations and the response is listed in the list of available documents, in Section XXIII., “Availability of Documents.”
The amendments to 10 CFR part 35 are consistent with the Commission's Medical Use Policy Statement published August 3, 2000 (65 FR 47654). This rule is consistent with the Commission's statement because it balances the interests of the patient with the flexibility needed by the AU to take the actions that he or she deems medically necessary, while continuing to enable the NRC to detect deficiencies in processes, procedures, and training, as well as any misapplication of byproduct materials.
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is amending its medical use regulations related to ME definitions for permanent implant brachytherapy; T&E requirements for AUs, medical physicists, RSOs, and nuclear pharmacists; completing action on PRM-35-20 to “grandfather” certain experienced individuals; measuring Mo-99 contamination for each elution and
Published elsewhere in this issue of the
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
Byproduct material, Criminal penalties, Government contracts, Intergovernmental relations, Isotopes, Nuclear energy, Nuclear materials, Penalties, Radiation protection, Reporting and recordkeeping requirements, Whistleblowing.
Byproduct material, Criminal penalties, Labeling, Nuclear energy, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements.
Biologics, Byproduct material, Criminal penalties, Drugs, Health facilities, Health professions, Labeling, Medical devices, Nuclear energy, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 30, 32, and 35:
Atomic Energy Act of 1954, secs. 11, 81, 161, 181, 182, 183, 184, 186, 187, 223, 234, 274 (42 U.S.C. 2014, 2111, 2201, 2231, 2232, 2233, 2234, 2236, 2237, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); 44 U.S.C. 3504 note.
(g) * * * The licensee shall report the results of any test that exceeds the permissible concentration listed in § 35.204(a) of this chapter at the time of generator elution, in accordance with § 35.3204 of this chapter.
Atomic Energy Act of 1954, secs. 81, 161, 181, 182, 183, 223, 234, 274 (42 U.S.C. 2111, 2201, 2231, 2232, 2233, 2273, 2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.
The revisions and addition read as follows:
(a) * * *
(4) The applicant commits to the following labeling requirements:
(b) * * *
(5) * * *
(i) A copy of each individual's certification by a specialty board whose certification process has been recognized by the Commission or an Agreement State as specified in § 35.55(a) of this chapter; or
(d) A licensee shall satisfy the labeling requirements in paragraph (a)(4) of this section.
Atomic Energy Act of 1954, secs. 81, 161, 181, 182, 183, 223, 234, 274 (42 U.S.C. 2111, 2201, 2231, 2232, 2233, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); 44 U.S.C. 3504 note.
(1) Meets the requirements in §§ 35.50 and 35.59; and
(2) Is currently identified as an Associate Radiation Safety Officer for the types of use of byproduct material for which the individual has been assigned duties and tasks by the Radiation Safety Officer on—
(i) A specific medical use license issued by the Commission or an Agreement State; or
(ii) A medical use permit issued by a Commission master material licensee.
(1) Meets the requirements in §§ 35.433(a)(2) and 35.59; and
(2) Is identified as an ophthalmic physicist on a—
(i) Specific medical use license issued by the Commission or an Agreement State;
(ii) Permit issued by a Commission or Agreement State broad scope medical use licensee;
(iii) Medical use permit issued by a Commission master material licensee; or
(iv) Permit issued by a Commission master material licensee broad scope medical use permittee.
(b) The approved information collection requirements contained in this part appear in §§ 35.6, 35.12, 35.13, 35.14, 35.19, 35.24, 35.26, 35.27, 35.40, 35.41, 35.50, 35.51, 35.55, 35.60, 35.61, 35.63, 35.67, 35.69, 35.70, 35.75, 35.80, 35.92, 35.190, 35.204, 35.290, 35.310, 35.315, 35.390, 35.392, 35.394, 35.396, 35.404, 35.406, 35.410, 35.415, 35.432, 35.433, 35.490, 35.491, 35.590, 35.604, 35.605, 35.610, 35.615, 35.630, 35.632, 35.633, 35.635, 35.642, 35.643, 35.645, 35.647, 35.652, 35.655, 35.690, 35.1000, 35.2024, 35.2026, 35.2040, 35.2041, 35.2060, 35.2061, 35.2063, 35.2067, 35.2070, 35.2075, 35.2080, 35.2092, 35.2204, 35.2310, 35.2404, 35.2406, 35.2432, 35.2433, 35.2605, 35.2610, 35.2630, 35.2632, 35.2642, 35.2643, 35.2645, 35.2647, 35.2652, 35.2655, 35.3045, 35.3047, 35.3067, and 35.3204.
(b) * * *
(1) Filing an original NRC Form 313, “Application for Material License,” that includes the facility diagram, equipment, and training and experience qualifications of the Radiation Safety Officer, Associate Radiation Safety Officer(s), authorized user(s), authorized medical physicist(s), ophthalmic physicist(s), and authorized nuclear pharmacist(s); and
(c) * * *
(1) Submitting an original of either—
(ii) A letter containing all information required by NRC Form 313; and
(d) In addition to the requirements in paragraphs (b) and (c) of this section, an application for a license or amendment for medical use of byproduct material as described in § 35.1000 must also include:
(1) Any additional aspects of the medical use of the material that are applicable to radiation safety that are not addressed in, or differ from, subparts A through C, L, and M of this part;
(2) Identification of and commitment to follow the applicable radiation safety program requirements in subparts D through H of this part that are appropriate for the specific § 35.1000 medical use;
(3) Any additional specific information on—
(i) Radiation safety precautions and instructions;
(ii) Methodology for measurement of dosages or doses to be administered to patients or human research subjects; and
(iii) Calibration, maintenance, and repair of instruments and equipment necessary for radiation safety; and
(4) Any other information requested by the Commission in its review of the application.
The revisions and additions read as follows:
(b) Before it permits anyone to work as an authorized user, authorized medical physicist, ophthalmic physicist, or authorized nuclear pharmacist under the license, except—
(1) For an authorized user, an individual who meets the requirements in §§ 35.59 and 35.190(a), 35.290(a), 35.390(a), 35.392(a), 35.394(a), 35.490(a), 35.590(a), and 35.690(a);
(2) For an authorized nuclear pharmacist, an individual who meets the requirements in §§ 35.55(a) and 35.59;
(3) For an authorized medical physicist, an individual who meets the requirements in §§ 35.51(a) and 35.59;
(4) An individual who is identified as an authorized user, an authorized nuclear pharmacist, authorized medical physicist, or an ophthalmic physicist—
(d) Before it permits anyone to work as an Associate Radiation Safety Officer, or before the Radiation Safety Officer assigns duties and tasks to an Associate Radiation Safety Officer that differ from those for which this individual is authorized on the license;
(g) Before it changes the address(es) of use identified in the application or on the license;
(h) Before it revises procedures required by §§ 35.610, 35.642, 35.643, and 35.645, as applicable, where such revision reduces radiation safety; and
(i) Before it receives a sealed source from a different manufacturer or of a different model number than authorized by its license unless the sealed source is used for manual brachytherapy, is listed in the Sealed Source and Device Registry, and is in a quantity and for an isotope authorized by the license.
(a) A licensee shall provide the Commission, no later than 30 days after the date that the licensee permits an individual to work under the provisions of § 35.13(b) as an authorized user, authorized medical physicist, ophthalmic physicist, or authorized nuclear pharmacist—
(1) A copy of the board certification and, as appropriate, verification of completion of:
(i) Training for the authorized medical physicist under § 35.51(c);
(ii) Any additional case experience required in § 35.390(b)(1)(ii)(G) for an authorized user under § 35.300; or
(iii) Device specific training in § 35.690(c) for the authorized user under § 35.600; or
(2) A copy of the Commission or Agreement State license, the permit issued by a Commission master material licensee, the permit issued by a Commission or Agreement State licensee of broad scope, the permit issued by a Commission master material license broad scope permittee, or documentation that only accelerator-produced radioactive materials, discrete sources of radium-226, or both, were used for medical use or in the practice of nuclear pharmacy at a Government agency or Federally recognized Indian Tribe before November 30, 2007, or at all other locations of use before August 8, 2009, or an earlier date as noticed by the NRC for each individual whom the licensee permits to work under the provisions of this section.
(b) A licensee shall notify the Commission no later than 30 days after:
(1) An authorized user, an authorized nuclear pharmacist, a Radiation Safety Officer, an Associate Radiation Safety Officer, an authorized medical physicist, or ophthalmic physicist permanently discontinues performance of duties under the license or has a name change;
(2) The licensee permits an individual qualified to be a Radiation Safety Officer under §§ 35.50 and 35.59 to function as a temporary Radiation Safety Officer and to perform the functions of a Radiation Safety Officer in accordance with § 35.24(c);
(3) The licensee's mailing address changes;
(4) The licensee's name changes, but the name change does not constitute a transfer of control of the license as described in § 30.34(b) of this chapter;
(5) The licensee has added to or changed the areas of use identified in the application or on the license where byproduct material is used in accordance with either § 35.100 or § 35.200 if the change does not include addition or relocation of either an area where PET radionuclides are produced or a PET radioactive drug delivery line from the PET radionuclide/PET radioactive drug production area; or
(6) The licensee obtains a sealed source for use in manual brachytherapy from a different manufacturer or with a different model number than authorized by its license for which it did not require a license amendment as provided in § 35.13(i). The notification must include the manufacturer and model number of the sealed source, the isotope, and the quantity per sealed source.
(c) The provisions of § 35.13(f) regarding additions to or changes in the areas of use at the addresses identified in the application or on the license;
(e) The provisions of § 35.14(b)(1) for an authorized user, an authorized nuclear pharmacist, an authorized medical physicist, or an ophthalmic physicist;
(b) A licensee's management shall appoint a Radiation Safety Officer who agrees, in writing, to be responsible for implementing the radiation protection program. The licensee, through the Radiation Safety Officer, shall ensure that radiation safety activities are being performed in accordance with licensee-approved procedures and regulatory requirements. A licensee's management may appoint, in writing, one or more Associate Radiation Safety Officers to support the Radiation Safety Officer. The Radiation Safety Officer, with written agreement of the licensee's management, must assign the specific duties and tasks to each Associate Radiation Safety Officer. These duties and tasks are restricted to the types of use for which the Associate Radiation Safety Officer is listed on a license. The Radiation Safety Officer may delegate duties and tasks to the Associate Radiation Safety Officer but shall not delegate the authority or responsibilities for implementing the radiation protection program.
(c) For up to 60 days each year, a licensee may permit an individual qualified to be a Radiation Safety Officer, under §§ 35.50 and 35.59, to function as a temporary Radiation Safety Officer and to perform the functions of a Radiation Safety Officer, as provided in paragraph (g) of this section, if the licensee takes the actions required in paragraphs (b), (e), (g), and (h) of this section and notifies the Commission in accordance with § 35.14(b).
The revisions and addition read as follows:
(b) * * *
(5) For high dose-rate remote afterloading brachytherapy: The radionuclide, treatment site, dose per fraction, number of fractions, and total dose;
(6) For permanent implant brachytherapy:
(i) Before implantation: The treatment site, the radionuclide, and the total source strength; and
(ii) After implantation but before the patient leaves the post-treatment recovery area: The treatment site, the number of sources implanted, the total source strength implanted, and the date; or
(7) For all other brachytherapy, including low, medium, and pulsed dose rate remote afterloaders:
(i) Before implantation: The treatment site, radionuclide, and dose; and
(ii) After implantation but before completion of the procedure: The radionuclide; treatment site; number of sources; total source strength and exposure time (or the total dose); and date.
(b) * * *
(3) Checking both manual and computer-generated dose calculations;
(4) Verifying that any computer-generated dose calculations are correctly transferred into the consoles of therapeutic medical units authorized by §§ 35.600 or 35.1000;
(5) Determining if a medical event, as defined in § 35.3045, has occurred; and
(6) Determining, for permanent implant brachytherapy, within 60 calendar days from the date the implant was performed, the total source strength administered outside of the treatment site compared to the total source strength documented in the post-implantation portion of the written directive, unless a written justification of patient unavailability is documented.
Except as provided in § 35.57, the licensee shall require an individual fulfilling the responsibilities of the Radiation Safety Officer or an individual assigned duties and tasks as an Associate Radiation Safety Officer as provided in § 35.24 to be an individual who—
(a) Is certified by a specialty board whose certification process has been recognized by the Commission or an Agreement State and who meets the requirements in paragraph (d) of this section. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized, a specialty board shall require all candidates for certification to: (1)(i) Hold a bachelor's or graduate degree from an accredited college or university in physical science or engineering or biological science with a minimum of 20 college credits in physical science;
(ii) Have 5 or more years of professional experience in health physics (graduate training may be substituted for no more than 2 years of the required experience) including at least 3 years in applied health physics; and
(iii) Pass an examination administered by diplomates of the specialty board, which evaluates knowledge and competence in radiation physics and instrumentation, radiation protection, mathematics pertaining to the use and measurement of radioactivity, radiation biology, and radiation dosimetry; or
(2)(i) Hold a master's or doctor's degree in physics, medical physics, other physical science, engineering, or applied mathematics from an accredited college or university;
(ii) Have 2 years of full-time practical training and/or supervised experience in medical physics—
(A) Under the supervision of a medical physicist who is certified in medical physics by a specialty board recognized by the Commission or an Agreement State; or
(B) In clinical nuclear medicine facilities providing diagnostic or therapeutic services under the direction of physicians who meet the requirements for authorized users in §§ 35.57, 35.290, or 35.390; and
(iii) Pass an examination, administered by diplomates of the specialty board, that assesses knowledge and competence in clinical diagnostic radiological or nuclear medicine physics and in radiation safety; or
(b)(1) Has completed a structured educational program consisting of both:
(i) 200 hours of classroom and laboratory training in the following areas—
(A) Radiation physics and instrumentation;
(B) Radiation protection;
(C) Mathematics pertaining to the use and measurement of radioactivity;
(D) Radiation biology; and
(E) Radiation dosimetry; and
(ii) One year of full-time radiation safety experience under the supervision of the individual identified as the Radiation Safety Officer on a Commission or an Agreement State license or permit issued by a Commission master material licensee that authorizes similar type(s) of use(s) of byproduct material. An Associate Radiation Safety Officer may provide supervision for those areas for which the Associate Radiation Safety Officer is authorized on a Commission or an Agreement State license or permit issued by a Commission master material licensee. The full-time radiation safety experience must involve the following—
(A) Shipping, receiving, and performing related radiation surveys;
(B) Using and performing checks for proper operation of instruments used to determine the activity of dosages, survey meters, and instruments used to measure radionuclides;
(C) Securing and controlling byproduct material;
(D) Using administrative controls to avoid mistakes in the administration of byproduct material;
(E) Using procedures to prevent or minimize radioactive contamination and using proper decontamination procedures;
(F) Using emergency procedures to control byproduct material; and
(G) Disposing of byproduct material; and
(2) This individual must obtain a written attestation, signed by a preceptor Radiation Safety Officer or Associate Radiation Safety Officer who has experience with the radiation safety aspects of similar types of use of byproduct material for which the individual is seeking approval as a Radiation Safety Officer or an Associate Radiation Safety Officer. The written attestation must state that the individual has satisfactorily completed the requirements in paragraphs (b)(1) and (d) of this section, and is able to independently fulfill the radiation safety-related duties as a Radiation Safety Officer or as an Associate Radiation Safety Officer for a medical use license; or
(c)(1) Is a medical physicist who has been certified by a specialty board whose certification process has been recognized by the Commission or an Agreement State under § 35.51(a), has experience with the radiation safety aspects of similar types of use of byproduct material for which the licensee seeks the approval of the individual as Radiation Safety Officer or an Associate Radiation Safety Officer, and meets the requirements in paragraph (d) of this section; or
(2) Is an authorized user, authorized medical physicist, or authorized nuclear pharmacist identified on a Commission or an Agreement State license, a permit issued by a Commission master material licensee, a permit issued by a Commission or an Agreement State licensee of broad scope, or a permit issued by a Commission master material license broad scope permittee, has experience with the radiation safety aspects of similar types of use of byproduct material for which the licensee seeks the approval of the individual as the Radiation Safety Officer or Associate Radiation Safety
(3) Has experience with the radiation safety aspects of the types of use of byproduct material for which the individual is seeking simultaneous approval both as the Radiation Safety Officer and the authorized user on the same new medical use license or new medical use permit issued by a Commission master material license. The individual must also meet the requirements in paragraph (d) of this section.
(d) Has training in the radiation safety, regulatory issues, and emergency procedures for the types of use for which a licensee seeks approval. This training requirement may be satisfied by completing training that is supervised by a Radiation Safety Officer, an Associate Radiation Safety Officer, authorized medical physicist, authorized nuclear pharmacist, or authorized user, as appropriate, who is authorized for the type(s) of use for which the licensee is seeking approval.
(a) Is certified by a specialty board whose certification process has been recognized by the Commission or an Agreement State and who meets the requirements in paragraph (c) of this section. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized, a specialty board shall require all candidates for certification to:
(2) * * *
(i) Under the supervision of a medical physicist who is certified in medical physics by a specialty board whose certification process has been recognized under this section by the Commission or an Agreement State; or
(b) * * *
(2) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraphs (b)(1) and (c) of this section, and is able to independently fulfill the radiation safety-related duties as an authorized medical physicist for each type of therapeutic medical unit for which the individual is requesting authorized medical physicist status. The written attestation must be signed by a preceptor authorized medical physicist who meets the requirements in § 35.51, § 35.57, or equivalent Agreement State requirements for an authorized medical physicist for each type of therapeutic medical unit for which the individual is requesting authorized medical physicist status.
(a) Is certified by a specialty board whose certification process has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized, a specialty board shall require all candidates for certification to:
(b) * * *
(2) Has obtained written attestation, signed by a preceptor authorized nuclear pharmacist, that the individual has satisfactorily completed the requirements in paragraph (b)(1) of this section and is able to independently fulfill the radiation safety-related duties as an authorized nuclear pharmacist.
(a)(1) An individual identified on a Commission or an Agreement State license or a permit issued by a Commission or an Agreement State broad scope licensee or master material license permit or by a master material license permittee of broad scope as a Radiation Safety Officer, a teletherapy or medical physicist, an authorized medical physicist, a nuclear pharmacist or an authorized nuclear pharmacist on or before January 14, 2019 need not comply with the training requirements of § 35.50, § 35.51, or § 35.55, respectively, except the Radiation Safety Officers and authorized medical physicists identified in this paragraph must meet the training requirements in § 35.50(d) or § 35.51(c), as appropriate, for any material or uses for which they were not authorized prior to this date.
(2) Any individual certified by the American Board of Health Physics in Comprehensive Health Physics; American Board of Radiology; American Board of Nuclear Medicine; American Board of Science in Nuclear Medicine; Board of Pharmaceutical Specialties in Nuclear Pharmacy; American Board of Medical Physics in radiation oncology physics; Royal College of Physicians and Surgeons of Canada in nuclear medicine; American Osteopathic Board of Radiology; or American Osteopathic Board of Nuclear Medicine on or before October 24, 2005, need not comply with the training requirements of § 35.50 to be identified as a Radiation Safety Officer or as an Associate Radiation Safety Officer on a Commission or an Agreement State license or Commission master material license permit for those materials and uses that these individuals performed on or before October 24, 2005.
(3) Any individual certified by the American Board of Radiology in therapeutic radiological physics, Roentgen ray and gamma ray physics, x-ray and radium physics, or radiological physics, or certified by the American Board of Medical Physics in radiation oncology physics, on or before October 24, 2005, need not comply with the training requirements for an authorized medical physicist described in § 35.51, for those materials and uses that these individuals performed on or before October 24, 2005.
(4) A Radiation Safety Officer, a medical physicist, or a nuclear pharmacist, who used only accelerator-produced radioactive materials, discrete sources of radium-226, or both, for medical uses or in the practice of nuclear pharmacy at a Government agency or Federally recognized Indian Tribe before November 30, 2007, or at all other locations of use before August 8, 2009, or an earlier date as noticed by the NRC, need not comply with the training requirements of § 35.50, § 35.51 or § 35.55, respectively, when performing the same uses. A nuclear pharmacist, who prepared only radioactive drugs containing accelerator-produced radioactive materials, or a medical physicist, who used only accelerator-produced radioactive materials, at the locations and during the time period identified in this paragraph, qualifies as an authorized nuclear pharmacist or an authorized medical physicist, respectively, for those materials and uses performed before these dates, for the purposes of this chapter.
(b)(1) Physicians, dentists, or podiatrists identified as authorized users for the medical use of byproduct material on a license issued by the Commission or an Agreement State, a permit issued by a Commission master
(2) Physicians, dentists, or podiatrists not identified as authorized users for the medical use of byproduct material on a license issued by the Commission or an Agreement State, a permit issued by a Commission master material licensee, a permit issued by a Commission or an Agreement State broad scope licensee, or a permit issued by a Commission master material license of broad scope on or before October 24, 2005, need not comply with the training requirements of subparts D through H of this part for those materials and uses that these individuals performed on or before October 24, 2005, as follows:
(i) For uses authorized under § 35.100 or § 35.200, or oral administration of sodium iodide I-131 requiring a written directive for imaging and localization purposes, a physician who was certified on or before October 24, 2005, in nuclear medicine by the American Board of Nuclear Medicine; diagnostic radiology by the American Board of Radiology; diagnostic radiology or radiology by the American Osteopathic Board of Radiology; nuclear medicine by the Royal College of Physicians and Surgeons of Canada; or American Osteopathic Board of Nuclear Medicine in nuclear medicine;
(ii) For uses authorized under § 35.300, a physician who was certified on or before October 24, 2005, by the American Board of Nuclear Medicine; the American Board of Radiology in radiology, therapeutic radiology, or radiation oncology; nuclear medicine by the Royal College of Physicians and Surgeons of Canada; or the American Osteopathic Board of Radiology after 1984;
(iii) For uses authorized under § 35.400 or § 35.600, a physician who was certified on or before October 24, 2005, in radiology, therapeutic radiology or radiation oncology by the American Board of Radiology; radiation oncology by the American Osteopathic Board of Radiology; radiology, with specialization in radiotherapy, as a British “Fellow of the Faculty of Radiology” or “Fellow of the Royal College of Radiology”; or therapeutic radiology by the Canadian Royal College of Physicians and Surgeons; and
(iv) For uses authorized under § 35.500, a physician who was certified on or before October 24, 2005, in radiology, diagnostic radiology, therapeutic radiology, or radiation oncology by the American Board of Radiology; nuclear medicine by the American Board of Nuclear Medicine; diagnostic radiology or radiology by the American Osteopathic Board of Radiology; or nuclear medicine by the Royal College of Physicians and Surgeons of Canada.
(3) Physicians, dentists, or podiatrists who used only accelerator-produced radioactive materials, discrete sources of radium-226, or both, for medical uses performed at a Government agency or Federally recognized Indian Tribe before November 30, 2007, or at all other locations of use before August 8, 2009, or an earlier date as noticed by the NRC, need not comply with the training requirements of subparts D through H of this part when performing the same medical uses. A physician, dentist, or podiatrist, who used only accelerator-produced radioactive materials, discrete sources of radium-226, or both, for medical uses at the locations and time period identified in this paragraph, qualifies as an authorized user for those materials and uses performed before these dates, for the purposes of this chapter.
(a) Any person authorized by § 35.11 for medical use of byproduct material may receive, possess, and use any of the following byproduct material for check, calibration, transmission, and reference use:
(1) Sealed sources, not exceeding 1.11 GBq (30 mCi) each, manufactured and distributed by a person licensed under § 32.74 of this chapter or equivalent Agreement State regulations;
(2) Sealed sources, not exceeding 1.11 GBq (30 mCi) each, redistributed by a licensee authorized to redistribute the sealed sources manufactured and distributed by a person licensed under § 32.74 of this chapter or equivalent Agreement State regulations, providing the redistributed sealed sources are in the original packaging and shielding and are accompanied by the manufacturer's approved instructions;
(3) Any byproduct material with a half-life not longer than 120 days in individual amounts not to exceed 0.56 GBq (15 mCi);
(4) Any byproduct material with a half-life longer than 120 days in individual amounts not to exceed the smaller of 7.4 MBq (200 µCI) or 1000 times the quantities in appendix B of part 30 of this chapter; or
(5) Technetium-99m in amounts as needed.
(b) Byproduct material in sealed sources authorized by this provision shall not be:
(1) Used for medical use as defined in § 35.2 except in accordance with the requirements in § 35.500; or
(2) Combined (
(c) A licensee using calibration, transmission, and reference sources in accordance with the requirements in paragraph (a) or (b) of this section need not list these sources on a specific medical use license.
(a) Is certified by a medical specialty board whose certification process has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized, a specialty board shall require all candidates for certification to:
(c) * * *
(2) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraph (c)(1) of this section and is able to independently fulfill the radiation safety-related duties as an authorized user for the medical uses authorized under § 35.100. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.190, § 35.290, or § 35.390, or equivalent Agreement State requirements; or
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.190, § 35.290, or § 35.390, or equivalent Agreement State requirements, and concurs with the attestation provided by the residency program director. The residency training program must be approved by the Residency Review Committee of the
(b) A licensee that uses molybdenum-99/technetium-99m generators for preparing a technetium-99m radiopharmaceutical shall measure the molybdenum-99 concentration in each eluate from a generator to demonstrate compliance with paragraph (a) of this section.
(e) The licensee shall report any measurement that exceeds the limits in paragraph (a) of this section at the time of generator elution, in accordance with § 35.3204.
(a) Is certified by a medical specialty board whose certification process has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized, a specialty board shall require all candidates for certification to:
(c)(1) * * *
(ii) Work experience, under the supervision of an authorized user who meets the requirements in § 35.57, § 35.290, or §§ 35.390 and 35.290(c)(1)(ii)(G), or equivalent Agreement State requirements. An authorized nuclear pharmacist who meets the requirements in § 35.55 or § 35.57 may provide the supervised work experience for paragraph (c)(1)(ii)(G) of this section. Work experience must involve—
(2) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraph (c)(1) of this section and is able to independently fulfill the radiation safety-related duties as an authorized user for the medical uses authorized under §§ 35.100 and 35.200. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.290, or §§ 35.390 and 35.290(c)(1)(ii)(G), or equivalent Agreement State requirements; or
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.290, or §§ 35.390 and 35.290(c)(1)(ii)(G), or equivalent Agreement State requirements, and concurs with the attestation provided by the residency program director. The residency training program must be approved by the Residency Review Committee of the Accreditation Council for Graduate Medical Education or the Royal College of Physicians and Surgeons of Canada or the Council on Postdoctoral Training of the American Osteopathic Association and must include training and experience specified in paragraph (c)(1) of this section.
A licensee may use any unsealed byproduct material identified in § 35.390(b)(1)(ii)(G) prepared for medical use and for which a written directive is required that is—
(a) Is certified by a medical specialty board whose certification process has been recognized by the Commission or an Agreement State and who meets the requirements in paragraphs (b)(1)(ii)(G) of this section. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To be recognized, a specialty board shall require all candidates for certification to:
(b)(1) * * *
(ii) * * *
(G) Administering dosages of radioactive drugs to patients or human research subjects from the three categories in this paragraph. Radioactive drugs containing radionuclides in categories not included in this paragraph are regulated under § 35.1000. This work experience must involve a minimum of three cases in each of the following categories for which the individual is requesting authorized user status—
(
(
(
(2) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraph (b)(1) of this section and is able to independently fulfill the radiation safety-related duties as an authorized user for the medical uses authorized under § 35.300 for which the individual is requesting authorized user status. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.390, or equivalent Agreement State requirements and has experience in administering dosages in the same dosage category or categories as the individual requesting authorized user status; or
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.390, or equivalent Agreement State requirements, has experience in administering dosages in the same dosage category or categories as the individual requesting authorized user status, and concurs with the attestation provided by the residency program director. The residency training program must be approved by the Residency Review Committee of the Accreditation Council for Graduate Medical Education or the Royal College of Physicians and Surgeons of Canada or the Council on Postdoctoral Training of the American Osteopathic Association
(a) Is certified by a medical specialty board whose certification process includes all of the requirements in paragraphs (c)(1) and (2) of this section and whose certification process has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page; or
(c) * * *
(3) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraphs (c)(1) and (2) of this section, and is able to independently fulfill the radiation safety-related duties as an authorized user for oral administration of less than or equal to 1.22 gigabecquerels (33 millicuries) of sodium iodide I-131 for medical uses authorized under § 35.300. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.390, § 35.392, § 35.394, or equivalent Agreement State requirements and has experience in administering dosages as specified in § 35.390(b)(1)(ii)(G)(
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.390, § 35.392, § 35.394, or equivalent Agreement State requirements, has experience in administering dosages as specified in § 35.390(b)(1)(ii)(G)(
(a) Is certified by a medical specialty board whose certification process includes all of the requirements in paragraphs (c)(1) and (2) of this section, and whose certification has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page; or
(c) * * *
(3) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraphs (c)(1) and (2) of this section, and is able to independently fulfill the radiation safety-related duties as an authorized user for oral administration of greater than 1.22 gigabecquerels (33 millicuries) of sodium iodide I-131 for medical uses authorized under § 35.300. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.390, § 35.394, or equivalent Agreement State requirements, and has experience in administering dosages as specified in § 35.390(b)(1)(ii)(G)(
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.390, § 35.394, or equivalent Agreement State requirements, has experience in administering dosages as specified in § 35.390(b)(1)(ii)(G)(
(a) Except as provided in § 35.57, the licensee shall require an authorized user for the parenteral administration requiring a written directive, to be a physician who—
(1) Is an authorized user under § 35.390 for uses listed in § 35.390(b)(1)(ii)(G)(3), or equivalent Agreement State requirements; or
(2) Is an authorized user under § 35.490, § 35.690, or equivalent Agreement State requirements, and who meets the requirements in paragraph (b) of this section; or
(3) Is certified by a medical specialty board whose certification process has been recognized by the Commission or an Agreement State under § 35.490 or § 35.690, and who meets the requirements in paragraph (b) of this section.
(b) The physician—
(1) Has successfully completed 80 hours of classroom and laboratory training, applicable to parenteral administrations listed in § 35.390(b)(1)(ii)(G)(
(i) Radiation physics and instrumentation;
(ii) Radiation protection;
(iii) Mathematics pertaining to the use and measurement of radioactivity;
(iv) Chemistry of byproduct material for medical use; and
(v) Radiation biology; and
(2) Has work experience, under the supervision of an authorized user who meets the requirements in § 35.57, § 35.390, § 35.396, or equivalent Agreement State requirements, in the parenteral administrations listed in § 35.390(b)(1)(ii)(G)(
(i) Ordering, receiving, and unpacking radioactive materials safely, and performing the related radiation surveys;
(ii) Performing quality control procedures on instruments used to determine the activity of dosages, and performing checks for proper operation of survey meters;
(iii) Calculating, measuring, and safely preparing patient or human research subject dosages;
(iv) Using administrative controls to prevent a medical event involving the use of unsealed byproduct material;
(v) Using procedures to contain spilled byproduct material safely, and using proper decontamination procedures; and
(vi) Administering dosages to patients or human research subjects, that include
(3) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraphs (b)(1) and (2) of this section, and is able to independently fulfill the radiation safety-related duties as an authorized user for the parenteral administration of unsealed byproduct material requiring a written directive. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.390, § 35.396, or equivalent Agreement State requirements. A preceptor authorized user who meets the requirements in § 35.390, § 35.396, or equivalent Agreement State requirements, must have experience in administering dosages in the same category or categories as the individual requesting authorized user status; or
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.390, § 35.396, or equivalent Agreement State requirements, has experience in administering dosages in the same dosage category or categories as the individual requesting authorized user status, and concurs with the attestation provided by the residency program director. The residency training program must be approved by the Residency Review Committee of the Accreditation Council for Graduate Medical Education or the Royal College of Physicians and Surgeons of Canada or the Council on Postdoctoral Training of the American Osteopathic Association and must include training and experience specified in paragraphs (b)(1) and (2) of this section.
A licensee must use only brachytherapy sources:
(a) Approved in the Sealed Source and Device Registry for manual brachytherapy medical use. The manual brachytherapy sources may be used for manual brachytherapy uses that are not explicitly listed in the Sealed Source and Device Registry, but must be used in accordance with the radiation safety conditions and limitations described in the Sealed Source and Device Registry; or
(b) In research to deliver therapeutic doses for medical use in accordance with an active Investigational Device Exemption (IDE) application accepted by the U.S. Food and Drug Administration provided the requirements of § 35.49(a) are met.
(a) Licensees who use strontium-90 for ophthalmic treatments must ensure that certain activities as specified in paragraph (b) of this section are performed by either:
(1) An authorized medical physicist; or
(2) An individual who:
(i) is identified as an ophthalmic physicist on a specific medical use license issued by the Commission or an Agreement State; permit issued by a Commission or Agreement State broad scope medical use licensee; medical use permit issued by a Commission master material licensee; or permit issued by a Commission master material licensee broad scope medical use permittee; and
(ii) holds a master's or doctor's degree in physics, medical physics, other physical sciences, engineering, or applied mathematics from an accredited college or university; and
(iii) has successfully completed 1 year of full-time training in medical physics and an additional year of full-time work experience under the supervision of a medical physicist; and
(iv) Has documented training in:
(A) The creation, modification, and completion of written directives;
(B) Procedures for administrations requiring a written directive; and
(C) Performing the calibration measurements of brachytherapy sources as detailed in § 35.432.
(b) The individuals who are identified in paragraph (a) of this section must:
(1) Calculate the activity of each strontium-90 source that is used to determine the treatment times for ophthalmic treatments. The decay must be based on the activity determined under § 35.432; and
(2) Assist the licensee in developing, implementing, and maintaining written procedures to provide high confidence that the administration is in accordance with the written directive. These procedures must include the frequencies that the individual meeting the requirements in paragraph (a) of this section will observe treatments, review the treatment methodology, calculate treatment time for the prescribed dose, and review records to verify that the administrations were in accordance with the written directives.
(c) Licensees must retain a record of the activity of each strontium-90 source in accordance with § 35.2433.
(a) Is certified by a medical specialty board whose certification process has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized, a specialty board shall require all candidates for certification to:
(b)(1) * * *
(ii) 500 hours of work experience, under the supervision of an authorized user who meets the requirements in § 35.57, § 35.490, or equivalent Agreement State requirements, at a medical facility authorized to use byproduct materials under § 35.400, involving—
(3) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraphs (b)(1) and (2) of this section and is able to independently fulfill the radiation safety-related duties as an authorized user of manual brachytherapy sources for the medical uses authorized under § 35.400. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.490, or equivalent Agreement State requirements; or
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.490, or equivalent Agreement State requirements, and concurs with the attestation provided by the residency program director. The residency training program must be approved by the Residency Review Committee of the Accreditation Council for Graduate Medical Education or the Royal College of Physicians and Surgeons of Canada or the Council on Postdoctoral Training of the American Osteopathic Association and must include training and experience specified in paragraphs (b)(1) and (2) of this section.
(b) * * *
(3) Has obtained written attestation, signed by a preceptor authorized user who meets the requirements in § 35.57, § 35.490, § 35.491, or equivalent Agreement State requirements, that the individual has satisfactorily completed the requirements in paragraphs (b)(1) and (2) of this section and is able to independently fulfill the radiation safety-related duties as an authorized user of strontium-90 for ophthalmic use.
(a) A licensee must use only sealed sources that are not in medical devices for diagnostic medical uses if the sealed sources are approved in the Sealed Source and Device Registry for diagnostic medicine. The sealed sources may be used for diagnostic medical uses that are not explicitly listed in the Sealed Source and Device Registry but must be used in accordance with the radiation safety conditions and limitations described in the Sealed Source and Device Registry.
(b) A licensee must only use medical devices containing sealed sources for diagnostic medical uses if both the sealed sources and medical devices are approved in the Sealed Source and Device Registry for diagnostic medical uses. The diagnostic medical devices may be used for diagnostic medical uses that are not explicitly listed in the Sealed Source and Device Registry but must be used in accordance with the radiation safety conditions and limitations described in the Sealed Source and Device Registry.
(c) Sealed sources and devices for diagnostic medical uses may be used in research in accordance with an active Investigational Device Exemption (IDE) application accepted by the U.S. Food and Drug Administration provided the requirements of § 35.49(a) are met.
Except as provided in § 35.57, the licensee shall require the authorized user of a diagnostic sealed source or a device authorized under § 35.500 to be a physician, dentist, or podiatrist who—
(a) Is certified by a specialty board whose certification process includes all of the requirements in paragraphs (c) and (d) of this section and whose certification has been recognized by the Commission or an Agreement State. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page; or
(b) Is an authorized user for uses listed in § 35.200 or equivalent Agreement State requirements; or
(c) Has completed 8 hours of classroom and laboratory training in basic radionuclide handling techniques specifically applicable to the use of the device. The training must include—
(1) Radiation physics and instrumentation;
(2) Radiation protection;
(3) Mathematics pertaining to the use and measurement of radioactivity; and
(4) Radiation biology; and
(d) Has completed training in the use of the device for the uses requested.
(a) A licensee must only use sealed sources:
(1) Approved and as provided for in the Sealed Source and Device Registry in photon emitting remote afterloader units, teletherapy units, or gamma stereotactic radiosurgery units to deliver therapeutic doses for medical uses: or
(2) In research involving photon-emitting remote afterloader units, teletherapy units, or gamma stereotactic radiosurgery units in accordance with an active Investigational Device Exemption (IDE) application accepted by the U.S. Food and Drug Administration provided the requirements of § 35.49(a) are met.
(b) A licensee must use photon-emitting remote afterloader units, teletherapy units, or gamma stereotactic radiosurgery units:
(1) Approved in the Sealed Source and Device Registry to deliver a therapeutic dose for medical use. These devices may be used for therapeutic medical treatments that are not explicitly provided for in the Sealed Source and Device Registry, but must be used in accordance with radiation safety conditions and limitations described in the Sealed Source and Device Registry; or
(2) In research in accordance with an active Investigational Device Exemption (IDE) application accepted by the FDA provided the requirements of § 35.49(a) are met.
(d)(1) Prior to the first use for patient treatment of a new unit or an existing unit with a manufacturer upgrade that affects the operation and safety of the unit, a licensee shall ensure that vendor operational and safety training is provided to all individuals who will operate the unit. The vendor operational and safety training must be provided by the device manufacturer or by an individual certified by the device manufacturer to provide the operational and safety training.
(2) A licensee shall provide operational and safety instructions initially and at least annually to all individuals who operate the unit at the facility, as appropriate to the individual's assigned duties. The instructions shall include instruction in—
(i) The procedures identified in paragraph (a)(4) of this section; and
(ii) The operating procedures for the unit.
(g) A licensee shall retain a copy of the procedures required by paragraphs (a)(4) and (d)(2)(ii) of this section in accordance with § 35.2610.
(a) A licensee shall have each teletherapy unit and gamma stereotactic radiosurgery unit fully inspected and serviced during each source replacement to assure proper functioning of the source exposure mechanism and other safety components. The interval between each full-inspection servicing shall not exceed 5 years for each teletherapy unit and shall not exceed 7 years for each gamma stereotactic radiosurgery unit.
(a) Is certified by a medical specialty board whose certification process has been recognized by the Commission or an Agreement State and who meets the requirements in paragraph (c) of this section. The names of board certifications that have been recognized by the Commission or an Agreement State are posted on the NRC's Medical Uses Licensee Toolkit web page. To have its certification process recognized,
(b)(1) * * *
(ii) 500 hours of work experience, under the supervision of an authorized user who meets the requirements in § 35.57, § 35.690, or equivalent Agreement State requirements, at a medical facility that is authorized to use byproduct materials in § 35.600, involving—
(3) Has obtained written attestation that the individual has satisfactorily completed the requirements in paragraphs (b)(1) and (2) and (c) of this section; and is able to independently fulfill the radiation safety-related duties as an authorized user of each type of therapeutic medical unit for which the individual is requesting authorized user status. The attestation must be obtained from either:
(i) A preceptor authorized user who meets the requirements in § 35.57, § 35.690, or equivalent Agreement State requirements for the type(s) of therapeutic medical unit for which the individual is requesting authorized user status; or
(ii) A residency program director who affirms in writing that the attestation represents the consensus of the residency program faculty where at least one faculty member is an authorized user who meets the requirements in § 35.57, § 35.690, or equivalent Agreement State requirements, for the type(s) of therapeutic medical unit for which the individual is requesting authorized user status, and concurs with the attestation provided by the residency program director. The residency training program must be approved by the Residency Review Committee of the Accreditation Council for Graduate Medical Education or the Royal College of Physicians and Surgeons of Canada or the Council on Postdoctoral Training of the American Osteopathic Association and must include training and experience specified in paragraphs (b)(1) and (2) of this section.
(c) For each Associate Radiation Safety Officer appointed under § 35.24(b), the licensee shall retain, for 5 years after the Associate Radiation Safety Officer is removed from the license, a copy of the written document appointing the Associate Radiation Safety Officer signed by the licensee's management.
A licensee shall maintain a record of safety instructions required by §§ 35.310 and 35.410 and the operational and safety instructions required by § 35.610 for 3 years. The record must include a list of the topics covered, the date of the instruction, the name(s) of the attendee(s), and the name(s) of the individual(s) who provided the instruction.
(a) A licensee shall maintain a record of the full-inspection servicing for teletherapy and gamma stereotactic radiosurgery units required by § 35.655 for the duration of the use of the unit.
(a) A licensee shall report any event as a medical event, except for an event that results from patient intervention, in which—
(1) The administration of byproduct material or radiation from byproduct material, except permanent implant brachytherapy, results in—
(i) A dose that differs from the prescribed dose or dose that would have resulted from the prescribed dosage by more than 0.05 Sv (5 rem) effective dose equivalent, 0.5 Sv (50 rem) to an organ or tissue, or 0.5 Sv (50 rem) shallow dose equivalent to the skin; and
(A) The total dose delivered differs from the prescribed dose by 20 percent or more;
(B) The total dosage delivered differs from the prescribed dosage by 20 percent or more or falls outside the prescribed dosage range; or
(C) The fractionated dose delivered differs from the prescribed dose for a single fraction, by 50 percent or more.
(ii) A dose that exceeds 0.05 Sv (5 rem) effective dose equivalent, 0.5 Sv (50 rem) to an organ or tissue, or 0.5 Sv (50 rem) shallow dose equivalent to the skin from any of the following—
(A) An administration of a wrong radioactive drug containing byproduct material or the wrong radionuclide for a brachytherapy procedure;
(B) An administration of a radioactive drug containing byproduct material by the wrong route of administration;
(C) An administration of a dose or dosage to the wrong individual or human research subject;
(D) An administration of a dose or dosage delivered by the wrong mode of treatment; or
(E) A leaking sealed source.
(iii) A dose to the skin or an organ or tissue other than the treatment site that exceeds by:
(A) 0.5 Sv (50 rem) or more the expected dose to that site from the procedure if the administration had been given in accordance with the written directive prepared or revised before administration; and
(B) 50 percent or more the expected dose to that site from the procedure if the administration had been given in accordance with the written directive prepared or revised before administration.
(2) For permanent implant brachytherapy, the administration of byproduct material or radiation from byproduct material (excluding sources that were implanted in the correct site but migrated outside the treatment site) that results in—
(i) The total source strength administered differing by 20 percent or more from the total source strength documented in the post-implantation portion of the written directive;
(ii) The total source strength administered outside of the treatment site exceeding 20 percent of the total source strength documented in the post-implantation portion of the written directive; or
(iii) An administration that includes any of the following:
(A) The wrong radionuclide;
(B) The wrong individual or human research subject;
(C) Sealed source(s) implanted directly into a location discontiguous from the treatment site, as documented in the post-implantation portion of the written directive; or
(D) A leaking sealed source resulting in a dose that exceeds 0.5 Sv (50 rem) to an organ or tissue.
(a) The licensee shall notify by telephone the NRC Operations Center and the distributor of the generator
(b) By an appropriate method listed in § 30.6(a) of this chapter, the licensee shall submit a written report to the appropriate NRC Regional Office listed in § 30.6 of this chapter within 30 calendar days after discovery of an eluate exceeding the permissible concentration at the time of generator elution. The written report must include the action taken by the licensee; the patient dose assessment; the methodology used to make this dose assessment if the eluate was administered to patients or human research subjects; and the probable cause and an assessment of failure in the licensee's equipment, procedures or training that contributed to the excessive readings if an error occurred in the licensee's breakthrough determination; and the information in the telephone report as required by paragraph (a) of this section.
For the Nuclear Regulatory Commission.
(b) The Deputy Attorney General shall convene and direct the work of the Task Force in fulfilling its functions under this order. The Deputy Attorney General may permit, when appropriate, the designee of a member of the Task Force, including participants invited under section 3 of this order, to participate in lieu of the member or participant. The Deputy Attorney General shall convene the Task Force at such times as the Deputy Attorney General deems appropriate.
(a) the Secretary of the Treasury;
(b) the Secretary of Defense;
(c) the Secretary of Health and Human Services;
(d) the Secretary of Housing and Urban Development;
(e) the Secretary of Energy;
(f) the Secretary of Education;
(g) the Secretary of Veterans Affairs;
(h) the Secretary of Homeland Security;
(i) the Administrator of the Small Business Administration;
(j) the Chairman of the Board of Governors of the Federal Reserve System;
(k) the Commissioner of Social Security;
(l) the Administrator of the United States Agency for International Development;
(m) the Director of the Bureau of Consumer Financial Protection;
(n) the Chairman of the Federal Trade Commission;
(o) the Chairman of the Securities and Exchange Commission;
(p) the Administrator of General Services;
(q) the Chairman of the National Credit Union Administration;
(r) the Chairman of the Commodity Futures Trading Commission;
(s) the Chairperson of the Board of Directors of the Federal Deposit Insurance Corporation;
(t) the Director of the Federal Housing Finance Agency;
(u) the Comptroller of the Currency; and
(v) the Chief Postal Inspector for the Postal Inspection Service.
(a) provide guidance for the investigation and prosecution of cases involving fraud on the government, the financial markets, and consumers, including cyber-fraud and other fraud targeting the elderly, service members and veterans, and other members of the public; procurement and grant fraud; securities and commodities fraud, as well as other corporate fraud, with particular attention to fraud affecting the general public; digital currency fraud; money laundering, including the recovery of proceeds; health care fraud; tax fraud; and other financial crimes;
(b) provide recommendations to the Attorney General on fraud enforcement initiatives across the Department of Justice and on any matters the Task Force determines from time to time to be important in the investigation and prosecution of fraud and other financial crimes; and
(c) make recommendations to the President, through the Attorney General for:
(b) This Task Force shall replace the Financial Fraud Enforcement Task Force created by Executive Order 13519 of November 17, 2009 (Establishment of the Financial Fraud Enforcement Task Force). The Financial Fraud Enforcement Task Force is hereby terminated pursuant to section 8 of Executive Order 13519 and that order is hereby revoked.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) 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.
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