| Page Range | 34469-34752 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 34618 - Sunshine Act Meeting Notice | |
| 83 FR 34601 - Bog Creek Road Project Draft Environmental Impact Statement; Reopening of Comment Period | |
| 83 FR 34622 - Sunshine Act Meetings | |
| 83 FR 34513 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Old Southington Landfill Superfund Site | |
| 83 FR 34698 - Proposed Collection; Comment Request for Regulation Project | |
| 83 FR 34506 - Approval and Promulgation of Air Quality Implementation Plans; New York; Determination of Attainment of the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Jamestown, New York Marginal Nonattainment Area | |
| 83 FR 34508 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Union Chemical Co., Inc. Superfund Site | |
| 83 FR 34572 - National Environmental Justice Advisory Council; Notification of Public Meeting, Public Teleconference and Public Comment | |
| 83 FR 34646 - Notice of Rail Energy Transportation Advisory Committee Vacancies | |
| 83 FR 34576 - Proposed Administrative Settlement Agreement and Order on Consent, Black Swan Restoration Reach Good Samaritan Superfund Site, Boulder County, Colorado | |
| 83 FR 34605 - New Hampshire; Major Disaster and Related Determinations | |
| 83 FR 34608 - New Jersey; Major Disaster and Related Determinations | |
| 83 FR 34607 - Final Flood Hazard Determinations | |
| 83 FR 34606 - Final Flood Hazard Determinations | |
| 83 FR 34612 - Notice To Reopen the Glen Canyon Dam Adaptive Management Work Group Call for Nominations | |
| 83 FR 34537 - National Advisory Committee on Microbiological Criteria for Foods | |
| 83 FR 34555 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Application Package for Segal AmeriCorps Education Award Commitment Form; Proposed Information Collection; Comment Request | |
| 83 FR 34617 - Agency Information Collection Activities: Extension of Information Collection; Comment Request | |
| 83 FR 34645 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of West Virginia | |
| 83 FR 34552 - Pacific Fishery Management Council; Public Meeting | |
| 83 FR 34552 - Caribbean Fishery Management Council; Public Meeting | |
| 83 FR 34645 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of New Jersey | |
| 83 FR 34645 - Presidential Declaration of a Major Disaster for the State of Texas | |
| 83 FR 34615 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act | |
| 83 FR 34613 - Notice of Public Meetings for the Southeast Oregon Resource Advisory Council | |
| 83 FR 34499 - Energy Conservation Program: Test Procedure for Single Package Vertical Air Conditioners and Single Package Vertical Heat Pumps | |
| 83 FR 34560 - Application To Export Electric Energy; Manifold Energy Inc. | |
| 83 FR 34559 - Solicitation of Nominations for Membership on the Appliance Standards and Rulemaking Federal Advisory Committee | |
| 83 FR 34555 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 34561 - Application To Export Electric Energy; NS Power Energy Marketing Incorporated | |
| 83 FR 34498 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Public Meetings for the Variable Refrigerant Flow Multi-Split Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking for Test Procedures and Energy Conservation Standards | |
| 83 FR 34670 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
| 83 FR 34664 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
| 83 FR 34669 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
| 83 FR 34649 - Qualification of Drivers; Exemption Applications; Hearing | |
| 83 FR 34666 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 83 FR 34548 - Aluminum Extrusions From the People's Republic of China: Initiation and Preliminary Results of Expedited Changed Circumstances Review | |
| 83 FR 34542 - Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Notice of Initiation of Changed Circumstances Reviews, and Consideration of Revocation of the Antidumping and Countervailing Duty Orders in Part | |
| 83 FR 34554 - Initial Regulatory Flexibility Act Certification | |
| 83 FR 34553 - Procurement List; Addition and Deletions | |
| 83 FR 34544 - Drawn Stainless Steel Sinks From the People's Republic of China: Final Results of the Expedited First Sunset Review of the Antidumping Duty Order | |
| 83 FR 34595 - Documenting Electronic Data Files and Statistical Analysis Programs; Draft Guidance for Industry; Availability; Extension of Comment Period | |
| 83 FR 34545 - Fine Denier Polyester Staple Fiber From the People's Republic of China, India, the Republic of Korea, and Taiwan: Antidumping Duty Orders | |
| 83 FR 34675 - Qualification of Drivers; Exemption Applications; Diabetes | |
| 83 FR 34674 - Qualification of Drivers; Exemption Applications; Diabetes | |
| 83 FR 34564 - Combined Notice of Filings #1 | |
| 83 FR 34568 - Billing Procedures for Annual Charges for the Costs of Other Federal Agencies for Administering Part I of the Federal Power Act; Notice Reporting Costs for Other Federal Agencies' Administrative Annual Charges for Fiscal Year 2017 | |
| 83 FR 34602 - Agency Information Collection Activities: Customs Declaration | |
| 83 FR 34570 - City of Holyoke Gas and Electric Department; Notice of Application Ready for Environmental Analysis and Soliciting Comments, Recommendations, Terms and Conditions, and Prescriptions | |
| 83 FR 34568 - Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization | |
| 83 FR 34568 - Notice of Effectiveness of Exempt Wholesale Generator Status | |
| 83 FR 34561 - Constellation Mystic Power, LLC; Notice of Designation of Commission Staff as Non-Decisional | |
| 83 FR 34562 - Spire Storage West, LLC, Clear Creek Storage Company, L.L.C.; Notice of Applications | |
| 83 FR 34567 - Combined Notice of Filings | |
| 83 FR 34661 - Qualification of Drivers; Exemption Applications; Vision | |
| 83 FR 34672 - Qualification of Drivers; Exemption Applications; Vision | |
| 83 FR 34667 - Qualification of Drivers; Exemption Applications; Vision | |
| 83 FR 34536 - Request for Nominations of Members for the National Agricultural Research, Extension, Education, and Economics Advisory Board, Specialty Crop Committee, and National Genetics Advisory Council | |
| 83 FR 34677 - Qualification of Drivers; Exemption Applications; Vision | |
| 83 FR 34505 - New Mailing Standards for Mailpieces Containing Liquids: Extension of Comment Period | |
| 83 FR 34648 - Qualification of Drivers; Exemption Applications; Hearing | |
| 83 FR 34678 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
| 83 FR 34652 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
| 83 FR 34651 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 83 FR 34653 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 83 FR 34614 - Certain Carburetors and Products Containing Such Carburetors Institution of Investigation | |
| 83 FR 34618 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Plant Operations and Fire Protection; Notice of Meeting | |
| 83 FR 34680 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel TIMELESS; Invitation for Public Comments | |
| 83 FR 34594 - Submission for OMB Review; Comment Request | |
| 83 FR 34603 - Notice of Issuance of Final Determination Concerning Certain Insufflation Tubing | |
| 83 FR 34647 - Petition for Exemption; Summary of Petition Received; Air Evac EMS, Inc. | |
| 83 FR 34647 - Notice of Statute of Limitations on Claims; Final Federal Agency Actions on Proposed Highway in California | |
| 83 FR 34679 - Limitation on Claims Against Proposed Public Transportation Projects | |
| 83 FR 34590 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 34586 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 34592 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 34585 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 34589 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 34583 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 34588 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 34581 - Submission for OMB Review; Combating Trafficking in Persons | |
| 83 FR 34576 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Mobile Air Conditioner Retrofitting Program (Renewal) | |
| 83 FR 34577 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 83 FR 34580 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 83 FR 34579 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 83 FR 34578 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 83 FR 34619 - New Postal Products | |
| 83 FR 34573 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; National Fish Program (Renewal) | |
| 83 FR 34556 - Proposed Collection; Comment Request | |
| 83 FR 34574 - Environmental Impact Statements; Notice of Availability | |
| 83 FR 34613 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
| 83 FR 34596 - Agency Information Collection Activities; Proposed Collection; Comment Request; Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products | |
| 83 FR 34616 - Notice of Information Collection | |
| 83 FR 34598 - Metered Dose Inhaler and Dry Powder Inhaler Drug Products-Quality Considerations; Draft Guidance for Industry; Reopening of the Comment Period | |
| 83 FR 34635 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Adopt Rules Governing the Trading of Complex Qualified Contingent Cross and Complex Customer Cross Orders | |
| 83 FR 34621 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Cboe BZX Exchange, Inc. | |
| 83 FR 34630 - Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Cboe EDGA Exchange, Inc. | |
| 83 FR 34632 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Amend MRX Rule 723 | |
| 83 FR 34625 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Schedule of Fees To Add Establish Fees and Rebates for NQX Options and Make Several Clarifying Changes | |
| 83 FR 34639 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend BX Rules at Chapter VII, Section 6 Related to Market Maker Quotations, Section 14 Related to Lead Market Maker Quotations and Section 15 Related to Directed Market Maker Quotations | |
| 83 FR 34623 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Improvement Orders Entered Into the Price Improvement Mechanism | |
| 83 FR 34635 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend ISE Rule 723 | |
| 83 FR 34619 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Cboe EDGX Exchange, Inc. | |
| 83 FR 34638 - Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Cboe BYX Exchange, Inc. | |
| 83 FR 34469 - Definitions of Qualified Matching Contributions and Qualified Nonelective Contributions | |
| 83 FR 34561 - Combined Notice of Filings #1 | |
| 83 FR 34566 - Combined Notice of Filings | |
| 83 FR 34539 - Malheur National Forest, Prairie City Ranger District; Oregon; Cliff Knox Project | |
| 83 FR 34599 - Proposed Collection; 60-Day Comment Request; Generic Clearance To Conduct Voluntary Customer/Partner Surveys (NLM) | |
| 83 FR 34599 - Government-Owned Inventions; Availability for Licensing | |
| 83 FR 34600 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meeting | |
| 83 FR 34471 - Indemnification or Defense, or Providing Notice to the Department of Defense, Relating to a Third-Party Environmental Claim | |
| 83 FR 34609 - Announcement of Funding Awards | |
| 83 FR 34566 - Swan Lake North Hydro LLC; Notice of Modification of Procedural Schedule | |
| 83 FR 34565 - Terra-Gen Dixie Valley, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 34563 - Combined Notice of Filings #1 | |
| 83 FR 34619 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service Agreement | |
| 83 FR 34565 - Notice of Staff Attendance at the Southwest Power Pool, Inc. Regional State Committee, Members Committee, Board of Directors and Holistic Integrated Tariff Team Meetings | |
| 83 FR 34683 - Hazardous Materials: Notice of Applications for Special Permits | |
| 83 FR 34492 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2018 Sector Operations Plans and Allocation of Northeast Multispecies Annual Catch Entitlements | |
| 83 FR 34681 - Hazardous Materials: Notice of Applications for Special Permits | |
| 83 FR 34682 - Hazardous Materials: Notice of Applications for Special Permits | |
| 83 FR 34551 - Proposed Information Collection; Comment Request; Survey To Collect Economic Data From Recreational Anglers Along the Atlantic Coast | |
| 83 FR 34685 - Funding Opportunities: Capital Magnet Fund; 2018 Funding Round | |
| 83 FR 34578 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 83 FR 34578 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 83 FR 34593 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 83 FR 34559 - Notice of Availability of the Draft Feasibility Report and Integrated Environmental Impact Statement for the Adams and Denver Counties, Colorado General Investigation Study, Adams and Denver County, Colorado | |
| 83 FR 34558 - Availability of the Final Environmental Impact Statement for the Northern Integrated Supply Project, Larimer and Weld Counties, Colorado | |
| 83 FR 34557 - Special Communication and Contact Control Measures | |
| 83 FR 34582 - Notice of Availability of Final Environmental Impact Statement; Site Acquisition and Campus Consolidation for the Centers for Disease Control and Prevention/National Institute for Occupational Safety and Health (CDC/NIOSH), Cincinnati, Ohio | |
| 83 FR 34574 - Notice of Availability of the Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Final Restoration Plan/Environmental Assessment #2: Provide and Enhance Recreational Opportunities and Finding of No Significant Impact | |
| 83 FR 34571 - Notice of Availability of the Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Final Restoration Plan/Environmental Assessment #4: Nutrient Reduction (Nonpoint Source) and Recreational Opportunities and Finding of No Significant Impact | |
| 83 FR 34601 - Meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) National Advisory Council (SAMHSA NAC) | |
| 83 FR 34520 - Use of Spectrum Bands Above 24 GHz for Mobile Radio Services | |
| 83 FR 34478 - Use of Spectrum Bands Above 24 GHz for Mobile Radio Services | |
| 83 FR 34702 - Whistleblower Program Rules |
Food Safety and Inspection Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Army Department
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Federal Emergency Management Agency
U.S. Customs and Border Protection
Land Management Bureau
National Park Service
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Community Development Financial Institutions Fund
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations that amend the definitions of qualified matching contributions (QMACs) and qualified nonelective contributions (QNECs) under regulations regarding certain qualified retirement plans that contain cash or deferred arrangements under section 401(k) or that provide for matching contributions or employee contributions under section 401(m). Under these regulations, an employer contribution to a plan may be a QMAC or QNEC if it satisfies applicable nonforfeitability requirements and distribution limitations at the time it is allocated to a participant's account, but need not meet these requirements or limitations when it is contributed to the plan. These regulations affect participants in, beneficiaries of, employers maintaining, and administrators of tax-qualified plans that contain cash or deferred arrangements or provide for matching contributions or employee contributions.
Angelique Carrington at (202) 317-4148 (not a toll-free number).
Section 401(k)(1) provides that a profit-sharing or stock bonus plan, a pre-ERISA money purchase plan, or a rural cooperative plan will not be considered as failing to satisfy the requirements of section 401(a) merely because the plan includes a qualified cash or deferred arrangement (CODA). To be considered a qualified CODA, a plan must satisfy several requirements, including: (i) Under section 401(k)(2)(B), amounts held by the plan's trust that are attributable to employer contributions made pursuant to an employee's election must satisfy certain distribution limitations; (ii) under section 401(k)(2)(C), an employee's right to such employer contributions must be nonforfeitable; and (iii) under section 401(k)(3), such employer contributions must satisfy certain nondiscrimination requirements.
Under section 401(k)(3)(D)(ii), the employer contributions taken into account for purposes of applying the nondiscrimination requirements may, under such rules as the Secretary may provide and at the election of the employer, include matching contributions within the meaning of section 401(m)(4)(A) that meet the distribution limitations and nonforfeitability requirements of section 401(k)(2)(B) and (C) (also referred to as qualified matching contributions or QMACs) and qualified nonelective contributions within the meaning of section 401(m)(4)(C) (QNECs). Under section 401(m)(4)(C), a QNEC is an employer contribution, other than a matching contribution, with respect to which the distribution limitations and nonforfeitability requirements of section 401(k)(2)(B) and (C) are met.
Under § 1.401(k)-1(b)(1)(ii), a CODA satisfies the applicable nondiscrimination requirements if it satisfies the actual deferral percentage (ADP) test of section 401(k)(3), described in § 1.401(k)-2. The ADP test limits the disparity permitted between the percentage of compensation made as employer contributions to the plan for a plan year on behalf of eligible highly compensated employees and the percentage of compensation made as employer contributions on behalf of eligible nonhighly compensated employees. If the ADP test limits are exceeded, the employer must take corrective action to ensure that the limits are met. In determining the amount of employer contributions made on behalf of an eligible employee, employers are allowed to take into account certain QMACs and QNECs made on behalf of the employee by the employer.
In lieu of applying the ADP test, an employer may choose to design its plan to satisfy an ADP safe harbor, including the ADP safe harbor provisions of section 401(k)(12), described in § 1.401(k)-3. Under § 1.401(k)-3, a plan satisfies the ADP safe harbor provisions of section 401(k)(12) if, among other things, it satisfies certain contribution requirements. With respect to the safe harbor under section 401(k)(12), an employer may choose to satisfy the contribution requirement by providing a certain level of QMACs or QNECs to eligible nonhighly compensated employees under the plan.
A defined contribution plan that provides for matching or employee after-tax contributions must satisfy the nondiscrimination requirements under section 401(m) with respect to those contributions for each plan year. Under § 1.401(m)-1(b)(1), the matching contributions and employee contributions under a plan satisfy the nondiscrimination requirements for a plan year if the plan satisfies the actual contribution percentage (ACP) test of section 401(m)(2) described in § 1.401(m)-2.
The ACP test limits the disparity permitted between the percentage of compensation made as matching contributions and after-tax employee contributions for or by eligible highly compensated employees under the plan and the percentage of compensation made as matching contributions and after-tax employee contributions for or by eligible nonhighly compensated employees under the plan. If the ACP test limits are exceeded, the employer must take corrective action to ensure that the limits are met. In determining the amount of employer contributions made on behalf of an eligible employee, employers are allowed to take into account certain QNECs made on behalf of the employee by the employer. Employers must also take into account QMACs made on behalf of the employee by the employer unless an exclusion applies (including an exclusion for
If an employer designs its plan to satisfy the ADP safe harbor of section 401(k)(12), it may avoid performing the ACP test with respect to matching contributions under the plan, as long as the additional requirements of the ACP safe harbor of section 401(m)(11) are met.
As defined in § 1.401(k)-6, QMACs and QNECs must satisfy the nonforfeitability requirements of § 1.401(k)-1(c) and the distribution limitations
Before 2017, the Department of the Treasury (Treasury Department) and the Internal Revenue Service (IRS) received comments with respect to the definitions of QMACs and QNECs in §§ 1.401(k)-6 and 1.401(m)-5. In particular, commenters asserted that employer contributions should qualify as QMACs and QNECs as long as they satisfy applicable nonforfeitability requirements at the time they are allocated to participants' accounts, rather than when they are first contributed to the plan. Commenters pointed out that interpreting sections 401(k)(3)(D)(ii) and 401(m)(4)(C) to require satisfaction of applicable nonforfeitability requirements at the time amounts are first contributed to the plan would preclude plan sponsors with plans that permit the use of amounts in plan forfeiture accounts to offset future employer contributions under the plan from applying such amounts to fund QMACs and QNECs. This is because the amounts would have been allocated to the forfeiture accounts only after a participant incurred a forfeiture of benefits and, thus, generally would have been subject to a vesting schedule when they were first contributed to the plan. Commenters requested that QMAC and QNEC requirements not be interpreted to prevent the use of plan forfeitures to fund QMACs and QNECs. The commenters urged that the nonforfeitability requirements under § 1.401(k)-6 should apply when QMACs and QNECs are allocated to participants' accounts and not when the contributions are first made to the plan.
In considering the comments, the Treasury Department and the IRS took into account that the nonforfeitability requirements applicable to QMACs and QNECs are intended to ensure that QMACs and QNECS provide nonforfeitable benefits for the participants who receive them. In accordance with that purpose, the Treasury Department and the IRS concluded that it is sufficient to require that amounts allocated to participants' accounts as QMACs and QNECs be nonforfeitable at the time they are allocated to participants' accounts, rather than when such contributions are made to the plan.
Accordingly, on January 18, 2017, the Treasury Department and the IRS issued a notice of proposed rulemaking (REG-131643-15), which was published in the
This document contains amendments to 26 CFR part 1.
This document contains final regulations that amend the definitions of QMACs and QNECs to provide that employer contributions to a plan are QMACs or QNECs if they satisfy applicable nonforfeitability requirements and distribution limitations at the time they are allocated to participants' accounts. Accordingly, these regulations permit forfeitures of prior contributions to be used to fund QMACs and QNECs.
The Treasury Department and the IRS received five comments in response to the notice of proposed rulemaking that raised issues relating to the modification of the QMAC and QNEC definitions, including issues with respect to plan amendments and the pre-approved plan program, as described in Rev. Proc. 2015-36, 2015-27 I.R.B. 20, Part III of Rev. Proc. 2016-37, 2016-29 I.R.B. 136, and Rev. Proc. 2017-41, 2017-29 I.R.B. 92. The Treasury Department and the IRS determined that the comments relating to the pre-approved plan program are outside the scope of these regulations, which relate solely to the modification of the definitions of QMACs and QNECs. These comments have been shared with IRS Tax Exempt and Government Entities, Employee Plans, which administers the pre-approved plan program.
The comments also included questions relating to the application of section 411(d)(6) in cases in which a plan sponsor seeks to amend its plan to apply the rules in this regulation. The application of section 411(d)(6) is generally outside the scope of these regulations. However, if a plan sponsor adopts a plan amendment to define QMACs and QNECs in a manner consistent with these final regulations and applies that amendment prospectively to future plan years, section 411(d)(6) would not be implicated. Moreover, in the common case of a plan that provides that forfeitures will be used to pay plan expenses incurred during a plan year and that any remaining forfeitures in the plan at the end of the plan year will be allocated pursuant to a specified formula among active participants who have completed a specified number of hours of service during the plan year, section 411(d)(6) would not prohibit a plan amendment adopted before the end of the plan year that permits the use of forfeitures to fund QMACs and QNECs (even if, at the time of the amendment, one or more participants had already completed the specified number of hours of service). This is because all conditions for receiving an allocation will not have been satisfied at the time of the amendment, since one of the conditions for receiving an allocation is that plan expenses at the end of the plan year are less than the amount of
These regulations are substantively the same as the proposed regulations. However, the Treasury Department and the IRS have determined that the distribution requirements referred to in the existing definitions of QMACs and QNECs in §§ 1.401(k)-6 and 1.401(m)-5 are more appropriately characterized as distribution limitations (consistent with the heading of § 1.401(k)-1(d)), and, accordingly, these definitions have been amended to refer to distribution limitations.
These regulations are effective on July 20, 2018.
These regulations apply to plan years beginning on or after July 20, 2018. However, taxpayers may apply these regulations to earlier periods.
This regulation is not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Department of the Treasury and the Office of Management and Budget regarding review of tax regulations. Because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
IRS Revenue Procedures, Revenue Rulings, notices and other guidance cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
The principal author of these regulations is Angelique Carrington, Office of Associate Chief Counsel (Tax Exempt and Governmental Entities). However, other personnel from the IRS and Treasury Department participated in the development of these regulations.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 401(m)(9) and 26 U.S.C. 7805. * * *
(g) * * *
(5)
(d) * * *
(4)
Department of Defense (DoD).
Final rule.
The DoD is identifying the proper address and notification method for an entity making a request for indemnification or defense, or providing notice to DoD, of a third-party claim under section 330 of the National Defense Authorization Act for Fiscal Year 1993, as amended (hereinafter “section 330”), or under section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, (hereinafter “section 1502(e)”). This rule also identifies the documentation
This final rule is effective on August 20, 2018.
Mr. Philip Sheuerman, 703-692-2287.
On December 7, 2016 (81 FR 88167-88173), the Department of Defense published a proposed rule titled “Indemnification or Defense, or Providing Notice to the Department of Defense, Relating to a Third-Party Environmental Claim.” The proposed rule had a 60-day public comment period, which ended on February 6, 2017. One commenter submitted comments which are addressed in 11 responses below.
This part is finalized under 10 U.S.C. 113, 5 U.S.C. 301, section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended, and section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended.
Sections 330 and 1502(e) provide that, subject to certain exceptions set forth in the statutes, the Secretary of Defense shall hold harmless, defend, and indemnify in full certain persons and entities that acquire ownership or control of, in the case of section 330, any military installation closed pursuant to a base closure law or, in the case of section 1502(e), certain portions of the former Naval Ammunition Support Detachment on the island of Vieques, Puerto Rico (hereinafter “Detachment”), from and against any suit, claim, demand or action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss) that results from, or is in any manner predicated upon, the release or threatened release of any hazardous substance, pollutant or contaminant, or petroleum or petroleum derivative
The authority to adjudicate requests for indemnification and process requests for defense under sections 330 or 1502(e) has been delegated from the Secretary of Defense to the DoD General Counsel and re-delegated by the General Counsel to the DGC(EE&I). Requests for indemnification or defense or notice to DoD of a third-party claim must be sent to the DGC(EE&I) to be considered.
The DoD recognizes that some real property transfer documents, such as deeds and agreements, entered into in past years provide that notification
The United States Court of Appeals for the Federal Circuit has interpreted the definition of a “claim for personal injury or property damages” under section 330 to include, under certain circumstances, notice from a governmental enforcement agency to conduct a cleanup.
The timely and proper filing of a request for indemnification or defense enables the DGC(EE&I) to perform its adjudication function for requests, maintain oversight of the implementation of sections 330 and 1502(e), and secure the rights of requesters under sections 330 and 1502(e). Proper notice to DoD of a claim from a third-party is essential to allow DoD to exercise its right to defend against such a claim pursuant to sections 330(c) or 1502(e).
Under sections 330(c)(2) and 1502(e)(3)(B), the requester must allow DoD to defend the claim in order to be afforded indemnification for that claim. This regulation makes clear that failure to notify DoD immediately of receipt of any claim could prevent DoD from settling or defending that claim, and on that basis, DoD may deny indemnification. Failure to provide necessary documents and access will also prevent DoD from exercising its right to settle and defend the claim and, on that basis, DoD may deny indemnification.
In the context of a claim from a governmental enforcement agency or third party seeking to require a cleanup or response action, failure to notify DoD may prevent DoD from exercising its right to defend against the claim. If the requester undertakes a cleanup or response action itself prior to providing immediate notice to DoD, the requestor's actions may interfere with DoD's ability to defend against a claim, which might result in denial of indemnification.
This final rule does not affect claims that are made pursuant to other authorities such as under a real property covenant contained in a deed in accordance with section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).
DoD has received approximately 14 requests for indemnification since 2006. This represents an annual average of requests for indemnification of slightly more than one per year. DoD cannot fully estimate the cost of the current process upon requesters because the only times it has paid such costs are when a request for indemnification has been litigated and administrative costs paid as part of a settlement. That settlement cost, however, includes the cost of litigation, which is substantially greater than the cost of seeking an administrative settlement.
E.O. 12866 defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
It has been determined that this rule is not a significant regulatory action. This rule has not been reviewed by OMB under the requirements of these Executive Orders.
This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601,
The Paperwork Reduction Act of 1995, 44 U.S.C. 3501, authorizes the Director of OMB to review certain information collection requests by Federal agencies. The recordkeeping and reporting requirements of this final rule do not constitute a “collection of information” as defined in 44 U.S.C. 3502(3), the Paperwork Reduction Act of 1995.
Under E.O. 12898 (59 FR 7629 (February 11, 1994)), Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Federal agencies are required to identify and address disproportionately high and adverse human health and environmental effects of Federal programs, policies, and activities on minority and low-income populations.
Sections 330 and 1502(e) are intended to reduce specified risks resulting from development of former military land by aiding and legally protecting the entities that take title to land on closed military installations for development purposes. Because this rule will equally affect, on a national basis, requests for indemnification associated with the development of land, a disparate impact on minority and low-income population areas is not expected.
Title II of the Unfunded Mandates Report Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local,
The DoD has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Indian tribal governments, in the aggregate, or the private sector in any one year. Thus, this final rule is not subject to the requirements of Section 202 of the UMRA.
It has been determined that this rule does not have federalism implications. This rule 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.
Indemnification, Claim.
10 U.S.C. 113, 5 U.S.C. 301, section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended, and section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Pub. L. 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended.
This part describes the process for filing a request for indemnification or defense, or providing proper notice to DoD, of a third-party claim pursuant to section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended (hereafter “section 330”), or section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended (hereafter “section 1502(e)”). This process identifies the minimum information that a request for indemnification or defense or notice to DoD of a third-party claim for indemnification must include, where that information must be sent, how to make such a request or provide such a notice, the time limits that apply to such a request or notice, and other requirements.
(a) This part applies to—
(1) The Office of the General Counsel of the Department of Defense and the Military Departments.
(2) Any person or entity making a request for indemnification or defense, or providing notice to DoD, of a third-party claim pursuant to section 330 or section 1502(e).
(b) In the case of a property that is subject to an earlier agreement containing different notification requirements, the requirement for notice to the Deputy General Counsel in sections 175.5 and 175.6 are in addition to those notification requirements.
(c) Nothing in this part alters the provisions of § 174.15 of this title.
(a) The General Counsel of the Department of Defense has been delegated the authorities and responsibilities of the Secretary of Defense under section 330 and section 1502(e), with certain limitations as to re-delegation.
(b) The General Counsel has re-delegated the authority and responsibility to adjudicate requests for indemnification or defense and to process notices to DoD of a third-party claim under section 330 and section 1502(e) to the Deputy General Counsel or, when the position of Deputy General Counsel is vacant, the acting Deputy General Counsel. The authority to acknowledge receipt of a request has been delegated to an Associate General Counsel under the Deputy General Counsel.
(a)
(2) Delivering or otherwise filing a notice of a third-party claim with any other office or location will not
(b)
(c)
(d)
(1) A complete copy of the third-party claim, or, if not presented in writing, a complete summary of the claim, with the names of officers, employees, or agents with knowledge of any information that may be relevant to the claim or any potential defenses. The third-party claim may consist of a summons and complaint or, in the case of a third-party claim from a governmental regulatory authority, a notice, letter, order, compliance advisory, compliance agreement, or similar notification.
(2) A complete copy of all pertinent records, including any deed, sales agreement, bill of sale, lease, license, easement, right-of-way, or transfer document for the facility for which the third-party claim is made.
(3) If the requester is not the first transferee from DoD, a complete copy of all intervening deeds, sales agreements, bills of sale, leases, licenses, easements, rights-of-way, or other transfer documents between the original transfer from DoD and the transfer to the current owner. If the requester is a lender who has made a loan to a person or entity who owns, controls, or leases the facility for which the request for indemnification is made that is secured by said facility, complete copies of all promissory notes, mortgages, deeds of trust, assignments, or other documents evidencing such a loan by the requester.
(4) A complete copy of any insurance policies related to such facility.
(5) If the notice to DoD of a third-party claim is being made by a representative, agent, or attorney in fact or at law, proof of authority to make the notice on behalf of the requester.
(6) Evidence or proof of any claim, loss, or damage alleged to be suffered by the third-party claimant which the requester asserts is covered by section 330 or by section 1502(e).
(7) In the case where a requester intends to enter into, agree to, settle, or solicit a third-party claim, a description or copy of the proposed claim, settlement, or solicitation, as the case may be.
(8) To the extent that any environmental response action has been taken, the documentation supporting such response action and its costs included in the request for indemnification.
(9) To the extent that any environmental response action has been taken, a statement as to whether the remedial action is consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (part 300 of title 42, Code of Federal Regulations) or other applicable regulatory requirements.
(10) A complete copy of any claims made by the requester to any other entity related to the conditions on the property which are the subject of the claim, and any responses or defenses thereto or made to any third-party claims, including correspondence, litigation filings, consultant reports, and other information supporting a claim or defense.
(e)
(f)
(g)
(2) A requester must, at least 30 days prior to the earlier of entering into, agreeing to, settling, or soliciting a third-party claim, file a notice to DoD of such intent in accordance with this part. Failure to file such a notice will compromise the ability of DoD to defend against such a claim pursuant to section 330(c) or section 1502(e)(3) and will result in denial of any subsequent request for indemnification or defense resulting from such a claim.
(3) A requester may, if it believes more immediate notice to DoD is desirable or less than all the information required by paragraph (d) of this section is immediately available, contact the Deputy General Counsel using the phone numbers in paragraph (a)(1) of this section. Any such contact does not constitute compliance with the requirements of paragraph (g)(1) or (2) of this section unless and until the Deputy General Counsel subsequently provides written confirmation that the notice constitutes such compliance. Such written confirmation may be provided by electronic means.
(h)
(i)
(a)
(2) Delivering or otherwise filing a request for indemnification or defense with any other office or location will not constitute proper notice of a request for purposes of section 330(b)(1) or section 1502(e)(2)(A). Requesters should be aware that all delivery services, and particularly that of the USPS, to the Pentagon can be significantly delayed for security purposes and they should plan accordingly in order to meet any required filing deadlines under this part; use of a commercial delivery service may reduce the delay.
(b)
(c)
(d)
(e)
(1) A complete copy of the third-party claim, or, if not presented in writing, a complete summary of the claim, with the names of officers, employees, or agents with knowledge of any information that may be relevant to the claim or any potential defenses.
(2) A complete copy of all pertinent records, including any deed, sales agreement, bill of sale, lease, license, easement, right-of-way, or transfer document for the facility for which the request for indemnification or defense is made.
(3) If the requester is not the first transferee from DoD, a complete copy of all intervening deeds, sales agreements, bills of sale, leases, licenses, easements, rights-of-way, or other transfer documents between the original transfer from DoD and the transfer to the current owner. If the requester is a lender who has made a loan to a person or entity who owns, controls, or leases the facility for which the request for indemnification is made that is secured by said facility, complete copies of all promissory notes, mortgages, deeds of trust, assignments, or other documents evidencing such a loan by the requester.
(4) A complete copy of any insurance policies related to such facility.
(5) If the request for indemnification or defense is being made by a representative, agent, or attorney in fact or at law, proof of authority to make the request on behalf of the requester.
(6) Evidence or proof of any claim, loss, or damage covered by section 330 or by section 1502(e).
(7) In the case of a request for defense, a copy of the documents, such as a summons and complaint, or enforcement order, representing the matter against which the United States is being asked to defend.
(8) To the extent that any environmental response action has been taken, the documentation supporting such response action and its costs included in the request for indemnification.
(9) To the extent that any environmental response action has been taken, a statement as to whether the remedial action is consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (part 300 of title 42, Code of Federal Regulations) or other applicable regulatory requirements.
(10) A complete copy of any claims made by the requester to any other entity related to the conditions on the property which are the subject of the claim, and any responses or defenses thereto or made to any third-party claims, including correspondence, litigation filings, consultant reports, and other information supporting a claim or defense.
(f)
(g)
(h)
(i)
(j)
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission or FCC) adopts rules for specific millimeter wave bands above 24 GHz. A proposed rule document for the Third Further Notice of Proposed Rulemaking (
Effective August 20, 2018, except for the amendments to § 25.136, which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission will publish a document in the
John Schauble of the Wireless Telecommunications Bureau, Broadband Division, at (202) 418-0797 or
This is a summary of the Commission's
As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules adopted in the
The Commission will send a copy of this
1. The Commission continues its effort to make available millimeter wave (mmW) spectrum, at or above 24 GHz, for fifth-generation (5G) wireless, Internet of Things, and other advanced spectrum-based services. In the
2. The Commission's efforts in this proceeding to make mmW spectrum available for wireless uses is vital to ensuring continued American leadership in wireless broadband. That leadership represents a critical component of economic growth, job creation, public safety, and global competitiveness. The Commission will continue to take steps to facilitate access to additional low-band, mid-band, and high-band spectrum for the benefit of American consumers, including holding an auction of the 28 GHz band starting in November followed by an auction of the 24 GHz band.
3. On November 22, 2017, the Commission released the
4. The Commission received 15 comments and 12 reply comments. A list of commenters, reply commenters, and
5.
6.
7. The Commission emphasizes that this geographic area metric is an additional alternative for licensees, not a supplemental requirement. If a licensee deploying IoT systems finds that the Commission's existing mobile or fixed metrics better fit their needs, it is welcome to use either of those metrics instead. As the Commission has emphasized since the
8. The objections raised by, and alternative suggestions offered by commenters, are not persuasive. With respect to calls for entirely different regimes, such as substantial service or site-based licensing, the Commission has already determined that geographic area licensing with the performance requirements that the Commission adopted in the
9.
10.
11. The Commission reiterates that this operability requirement in no way dictates the use of any particular technology or air interface. The Commission also emphases that this operability requirement is specific to the 24 GHz band, and does not extend to other UMFUS bands. The 28 GHz band and the 37 and 39 GHz bands also have operability requirements, but those are separate and independent from the one the Commission adopts for the 24 GHz band. Devices are not required to operate across all UMFUS bands. While one commenter expresses concern about the ability to filter signals from the 24.45-24.75 GHz band, it ultimately supports the operability requirement, and it does not provide any technical analysis in support of its concern.
12. In addition, as the Commission noted in the
13.
14. In the
15. To provide for more flexible FSS use of the 24.75-25.25 GHz band, the Commission proposed to eliminate footnote NG535, thereby making this band available for general FSS uplink operations without restricting these operations to, or affording priority for, the provision of feeder links for 17/24 GHz BSS space stations. To further increase flexibility for all FSS uses in this new sharing regime, the Commission also proposed to eliminate the Petitions for Reconsideration of
16.
17. The Commission will not adopt any operational requirements addressing limits on aggregate interference into satellite receivers at this time, as it does not believe such limits are justified by the current record, and the Commission received no specific proposals for such a rule. The Commission retains the authority to monitor developments and intervene to prevent unacceptable interference to satellites if that becomes necessary, but there is no evidence to date that suggests that any such intervention will be necessary. The Commission will amend footnote NG65 to the U.S. Table to include the 24.75-25.25 GHz band to make clear the relative interference protection obligations between the co-primary services. The Commission rejects CTIA's argument that it should adopt a new footnote stating that certain shared frequency bands are identified predominantly for terrestrial mobile and fixed services on a primary basis. The Commission does not believe that this proposed footnote fulfills its intent to specify accurately the relative interference protection obligations of FSS and UMFUS stations in this band, and further, it would go beyond the scope of this rulemaking by including frequency bands apart from the 24.75-25.25 GHz band (
18. The Commission adopts its proposals to remove footnote NG535. In doing so, the Commission removes the restriction on FSS operations apart from BSS feeder links, in the 25.05-25.25 GHz band segment, and eliminate the priority of BSS feeder links relative to other FSS operations in the 24.75-25.05 GHz band. The Commission also eliminates the Appendix F orbital-location restrictions contained in Section 25.262(a), which should give 17/24 GHz BSS feeder link operators the same flexibility as other FSS operators in the band. FSS use beyond the provision of BSS feeder links is already permitted in the lower portion of the band, and the Commission believes that it will further spectrum efficiency to extend this same flexibility to other types of individually licensed FSS earth stations in the upper band segment. The Commission rejects T-Mobile's argument that the Commission should constrain satellite operators' use of the 24.75-25.25 GHz band beyond limits placed on satellite operators in comparable UMFUS bands. Such a position is at variance with the Commission's stated objectives in the
19. The Commission received no opposition to its proposed rule changes to harmonize the treatment of FSS and BSS feeder link transmissions under its rules, nor any opposition on the associated conforming amendments. Accordingly, the Commission adopts these rule changes as elaborated above, for the reasons set forth in the
20.
21. In the
22.
23.
24.
25. Thus, while technological development in the mmW bands remains in a nascent stage, the Commission's balancing of objectives shifts towards facilitating rapid 5G deployment in the United States. In that context, and given the Commission's balancing of various statutory objectives, the Commission weighs more heavily the risk that bright-line, pre-auction limits may restrict unnecessarily the ability of entities to participate and acquire spectrum in a mmW band auction. This could, in turn, unnecessarily constrain providers in their paths towards 5G deployment on mmW bands, limit their incentives to invest in these new services, and delay the realization of related economic benefits. The Commission is not inclined to adopt such limits on auction participation absent a clear indication that they are necessary to address a specific competitive concern In the case of the 28 GHz, 37 GHz, and 39 GHz bands, the Commission is not persuaded by commenters' generalized assertions that a bright-line, pre-auction limit in these bands is necessary to protect competition in the provision of wireless services, particularly in light of its decision below to adopt a post-auction case-by-case review of spectrum in the UMFUS bands. The Commission emphases that the Commission has adopted rules to facilitate flexible terrestrial wireless use of 4950 megahertz of mmW spectrum across five bands, which will be licensed in multiple blocks of different sizes and geographic areas, providing many spectrum opportunities for various types of auction bidders. In addition, given the similar technical characteristics and potential uses of the mmW spectrum for the
26. Although the Commission will not apply an
27. The Commission intends to conduct the same type of case-by-case review that the Commission anticipated in 2001 when it eliminated the CMRS spectrum cap, and that it articulated in
28. In supporting such a case-by-case review, U.S. Cellular proposed a two-tiered public interest framework that relied on band-specific spectrum concentration limits. The Commission rejects their proposal for specific in-band limits for similar reasons as it articulated in the
29.
30.
31. The Commission rejects CTIA's argument that the Commission's action was arbitrary and capricious because the Commission did not “provide reasoning for adopting an untested sharing model that requires licensees to coordinate with Federal parties, the latter of which has proven to be highly successful for the AWS-1 and AWS-3 bands.” In the
32. In the
33.
34. Various satellite interests sought reconsideration of that decision. ViaSat asserts that “the 42-42.5 GHz band segment could be used in connection with the downlink spectrum that currently is available for satellite use in the adjacent 37.5-42 GHz band segment to achieve increased satellite broadband network capabilities that will be needed to meet this exponentially expanding consumer demand.” ViaSat, SES, and O3b argue that providing satellite access to the 42 GHz band also comes with an established public interest benefit—helping to bridge the digital divide in rural America.
35.
36. The MOBILE NOW Act does not require us to give further consideration to adding an FSS allocation in the 42 GHz band. While the Act asks that the Commission considers how this band may be used to provide “commercial wireless broadband service,” including licensed and/or unlicensed service, it also asks that the Commission include technical characteristics under which the band may be employed for “mobile or fixed terrestrial wireless operations, including any appropriate coexistence requirements.” By its express language limiting any proposed licensed or unlicensed services in the band to “mobile and fixed terrestrial operations,” the Commission finds that Congress excluded the alternative of permitting licensed satellite service in the band. Legislative history also indicates that Congress intended such mmW spectrum for “mobile or fixed
37. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the
38. In the
39. The
40. The
41. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA.
42. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.
43.
44.
45. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 36,708 common carrier fixed licensees and up to 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. The Commission notes, however, that both the common carrier microwave fixed and the private operational microwave fixed licensee categories includes some large entities.
46.
47.
48.
49. The Commission expects the rules adopted in the
50. Small entities and other applicants for UMFUS licenses will be required to file license applications using the Commission's automated Universal Licensing System (ULS). ULS is an online electronic filing system that also serves as a powerful information tool, one that enables potential licensees to research applications, licenses, and antenna structures. It also keeps the public informed with weekly public notices, FCC rulemakings, processing utilities, and a telecommunications glossary. Small entities, like all other entities who are UMFUS applicants, must submit long-form license applications must do so through ULS using Form 601, FCC Ownership Disclosure Information for the Wireless Telecommunications Services using FCC Form 602, and other appropriate forms.
51. The Commission expects that the filing, recordkeeping and reporting requirements associated with the demands described above will require small businesses as well as other entities that intend to utilize these new UMFUS licenses to use professional, accounting, engineering or survey services in order to meet these requirements. As described below, several steps have been taken that will alleviate the burdens of the requirements on small businesses.
52. The RFA requires an agency to describe any significant, specifically
53. The Commission does not believe that its adopted changes will have a significant economic impact on small entities. As noted above, the various construction and performance requirements and their associated showings will be the same for small and large businesses that license the UMFUS bands. To the extent applying the rules equally to all entities results in the cost of complying with these burdens being relatively greater for smaller businesses than for large ones, these costs are necessary to effectuate the purpose of the Communications Act, namely to further the efficient use of spectrum and to prevent spectrum warehousing. Likewise compliance with the Commission's service and technical rules and coordination requirements are necessary for the furtherance of its goals of protecting the public while also providing interference free services. Moreover, while small and large businesses must equally comply with these rules and requirements, the Commission has taken the steps described below to help alleviate the burden on small businesses that seek to comply with these requirements.
54. The proposals to facilitate satellite service in the 24 GHz band should also assist small satellite businesses by providing them with additional flexibility to locate their earth stations without causing interference to or receiving interference from UMFUS licensees.
55. The Commission will send a copy of the
56.
57.
58.
59.
60.
61.
Communications common carriers, Communications equipment, Reporting and recordkeeping requirements, Satellites.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2, 25, and 30 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
The revisions read as follows:
NG65 In the bands 24.75-25.25 GHz and 47.2-48.2 GHz, stations in the fixed and mobile services may not claim protection from individually licensed earth stations authorized pursuant to 47 CFR 25.136. However, nothing in this footnote shall limit the right of UMFUS licensees to operate in conformance with the technical rules contained in 47 CFR part 30. The Commission reserves the right to monitor developments and to undertake further action concerning interference between UMFUS and FSS, including aggregate interference to satellite receivers, if appropriate.
47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319, 332, 605, and 721, unless otherwise noted.
(d) * * *
(7) Applicants for authorizations for space stations in the Fixed-Satellite Service, including applicants proposing feeder links for space stations operating in the 17/24 GHz Broadcasting-Satellite Service, must also include the information specified in § 25.140(a). Applicants for authorizations for space stations in the 17/24 GHz Broadcasting-Satellite Service must also include the information specified in § 25.140(b);
(17) [Reserved]
(e) * * *
(1) An application for a GSO FSS earth station license in the 17.8-19.4 GHz, 19.6-20.2 GHz, 24.75-25.25 GHz, 27.5-29.1 GHz, or 29.25-30 GHz bands not filed on FCC Form 312EZ pursuant to paragraph (a)(2) of this section must be filed on FCC Form 312, Main Form and Schedule B, and must include any information required by paragraph (g) or (j) of this section or by § 25.130.
(g) * * *
(1) * * *
(vii) The relevant off-axis EIRP density envelopes in §§ 25.138, 25.218, 25.221, 25.222, 25.226, or § 25.227 must be superimposed on plots submitted pursuant to paragraphs (g)(1)(i) through (vi) of this section.
(g) Notwithstanding that FSS is co-primary with the Upper Microwave Flexible Use Service in the 24.75-25.25 GHz band, earth stations in that bands shall be limited to individually licensed earth stations. An applicant for a license for a transmitting earth station in the 24.75-25.25 GHz band must meet one of the following criteria to be authorized to operate without providing any additional interference protection to stations in the Upper Microwave Flexible Use Service:
(1) The FSS licensee also holds the relevant Upper Microwave Flexible Use Service license(s) for the area in which the earth station generates a power flux density (PFD), at 10 meters above ground level, of greater than or equal to −77.6 dBm/m2/MHz;
(2) The earth station in the 24.75-25.25 GHz band was authorized prior to August 20, 2018; or
(3) The application for the earth station in the 24.75-25.25 GHz band was filed prior to August 20, 2018; or
(4) The applicant demonstrates compliance with all of the following criteria in its application:
(i) There are no more than two other authorized earth stations operating in the 24.75-25.25 GHz band within the county where the proposed earth station is located that meet the criteria contained in either paragraphs (g)(1) (g)(2), (g)(3) or (g)(4) of this section, and there are no more than 14 other authorized earth stations operating in the 24.75-25.25 GHz band within the Partial Economic Area where the proposed earth station is located that meet the criteria contained in paragraphs (g)(1) (g)(2), (g)(3) or (g)(4) of this section. For purposes of this requirement, multiple earth stations that are collocated with or at a location contiguous to each other shall be considered as one earth station;
(ii) The area in which the earth station generates a power flux density (PFD), at 10 meters above ground level, of greater than or equal to −77.6 dBm/m
(iii) The area in which the earth station generates a PFD, at 10 meters above ground level, of greater than or equal to −77.6 dBm/m2/MHz does not contain any major event venue, urban mass transit route, passenger railroad, or cruise ship port. In addition, the area mentioned in paragraph (a)(4)(ii) of this section shall not cross any of the following types of roads, as defined in functional classification guidelines issued by the Federal Highway Administration pursuant to 23 CFR 470.105(b): Interstate, Other Freeways and Expressways, or Other Principal Arterial. The Federal Highway Administration Office of Planning, Environment, and Realty Executive Geographic Information System (HEPGIS) map contains information on the classification of roads. For purposes of this rule, an urban area shall be an Adjusted Urban Area as defined in section 101(a)(37) of Title 21 of the United States Code.
(iv) The applicant has successfully completed frequency coordination with the UMFUS licensees within the area in which the earth station generates a PFD, at 10 meters above ground level, of greater than or equal to −77.6 dBm/m2/MHz with respect to existing facilities constructed and in operation by the UMFUS licensee. In coordinating with UMFUS licensees, the applicant shall use the applicable processes contained in § 101.103(d) of this chapter. (f) If an earth station applicant or licensee in the 24.75-25.25 GHz, 27.5-28.35 GHz, 37.5-40 GHz and/or 47.2-48.2 GHz bands enters into an agreement with an UMFUS licensee, their operations shall be governed by that agreement, except to the extent that the agreement is inconsistent with the Commission's rules or the Communications Act.
(a) Applications for earth station licenses in the GSO FSS in the conventional Ka-band or the 24.75-25.25 GHz band that indicate that the following requirements will be met and include the information required by relevant provisions in §§ 25.115 and 25.130 may be routinely processed:
(6) The pfd at the Earth's surface produced by emissions from a space station operating in the conventional Ka-band, for all conditions including clear sky, and for all methods of modulation, shall not exceed a level of −118 dBW/m2/MHz, in addition to the limits specified in § 25.208(d).
The revisions and addition read as follows:
(a) * * *
(2) In addition to the information required by § 25.114, an applicant for GSO FSS space station operation, including applicants proposing feeder links for space stations operating in the 17/24 GHz BSS, that will be located at an orbital location less than two degrees from the assigned location of an authorized co-frequency GSO space station, must either certify that the proposed operation has been coordinated with the operator of the co-frequency space station or submit an interference analysis demonstrating the compatibility of the proposed system with the co-frequency space station. Such an analysis must include, for each type of radio frequency carrier, the link noise budget, modulation parameters, and overall link performance analysis. (See Appendices B and C to Licensing of Space Stations in the Domestic Fixed-Satellite Service, FCC 83-184, and the following public notices, copies of which are available in the Commission's EDOCS database, available at
(3) In addition to the information required by § 25.114, an applicant for a GSO FSS space station, including applicants proposing feeder links for space stations operating in the 17/24 GHz BSS, must provide the following for operation other than analog video operation:
(iv) With respect to proposed operation in the 24.75-25.25 GHz band (Earth-to-space), a certification that the proposed uplink operation will not exceed the applicable EIRP density envelopes in § 25.138(a) and that the associated space station will not generate a power flux density at the Earth's surface in excess of the applicable limits in this part, unless the non-routine uplink and/or downlink FSS operation is coordinated with operators of authorized co-frequency space stations at assigned locations within six degrees of the orbital location and except as provided in paragraph (d) of this section.
(v) With respect to proposed operation in the 4500-4800 MHz (space-to-Earth), 6725-7025 MHz (Earth-to-space), 10.70-10.95 GHz (space-to-Earth), 11.20-11.45 GHz (space-to-Earth), and/or 12.75-13.25 GHz (Earth-to-space) bands, a statement that the proposed operation will take into account the applicable requirements of Appendix 30B of the ITU Radio Regulations (incorporated by reference,
(vi) With respect to proposed operation in other FSS bands, an interference analysis demonstrating compatibility with any previously authorized co-frequency space station at a location two degrees away or a certification that the proposed operation has been coordinated with the operator(s) of the previously authorized
(b) Each applicant for a license to operate a space station transmitting in the 17.3-17.8 GHz band must provide the following information, in addition to that required by § 25.114:
(3) An applicant for a license to operate a space station transmitting in the 17.3-17.8 GHz band must certify that the downlink power flux density on the Earth's surface will not exceed the values specified in § 25.208(c) and/or (w), or must provide the certification specified in § 25.114(d)(15)(ii).
(4) An applicant for a license to operate a space station transmitting in the 17.3-17.8 GHz band to be located less than four degrees from a previously licensed or proposed space station transmitting in the 17.3-17.8 GHz band, must either certify that the proposed operation has been coordinated with the operator of the co-frequency space station or provide an interference analysis of the kind described in paragraph (a) of this section, except that the applicant must demonstrate that its proposed network will not cause more interference to the adjacent space station transmitting in the 17.3-17.8 GHz band operating in compliance with the technical requirements of this part, than if the applicant were locate at an orbital separation of four degrees from the previously licensed or proposed space station.
(5) In addition to the requirements of paragraphs (b)(3) and (4) of this section, the link budget for any satellite in the 17.3-17.8 GHz band (space-to-Earth) must take into account longitudinal stationkeeping tolerances. Any applicant for a space station transmitting in the 17.3-17.8 GHz band that has reached a coordination agreement with an operator of another space station to allow that operator to exceed the pfd levels specified in § 25.208(c) or § 25.208(w), must use those higher pfd levels for the purpose of this showing.
(c) [Reserved]
(d) An operator of a GSO FSS space station in the conventional or extended C-bands, conventional or extended Ku-bands, 24.75-25.25 GHz band (Earth-to-space), or conventional Ka-band may notify the Commission of its non-routine transmission levels and be relieved of the obligation to coordinate such levels with later applicants and petitioners.
(e) To the extent specified in paragraphs (e)(1) through (e)(3) of this section, earth stations in the Fixed-Satellite Service may employ uplink adaptive power control or other methods of fade compensation to facilitate transmission of uplinks at power levels required for desired link performance while minimizing interference between networks.
(1) Except when paragraphs (e)(2) through (e)(3) of this section apply, transmissions from FSS earth stations in frequencies above 10 GHz may exceed the uplink EIRP and EIRP density limits specified in the station authorization under conditions of uplink fading due to precipitation by an amount not to exceed 1 dB above the actual amount of monitored excess attenuation over clear sky propagation conditions. EIRP levels must be returned to normal as soon as the attenuating weather pattern subsides.
(3) FSS earth stations transmitting to geostationary space stations in the 24.75-25.25 GHz, 28.35-28.6 GHz, and/or 29.25-30.0 GHz bands may employ uplink adaptive power control or other methods of fade compensation. For stations employing uplink power control, the values in paragraphs (a)(1), (2), and (4) of § 25.138 may be exceeded by up to 20 dB under conditions of uplink fading due to precipitation. The amount of such increase in excess of the actual amount of monitored excess attenuation over clear sky propagation conditions must not exceed 1.5 dB or 15 percent of the actual amount of monitored excess attenuation in dB, whichever is larger, with a confidence level of 90 percent except over transient periods accounting for no more than 0.5 percent of the time during which the excess is no more than 4.0 dB.
(f) A GSO FSS earth station with an antenna that does not conform to the applicable standards in paragraphs (a) and (b) of this section will be authorized only if the applicant demonstrates that the antenna will not cause unacceptable interference. This demonstration must comply with the requirements in §§ 25.138, 25.218, 25.220, 25.221, 25.222, 25.226, or § 25.227, as appropriate.
(i) 17/24 GHz BSS space station antennas transmitting in the 17.3-17.8 GHz band must be designed to provide a cross-polarization isolation such that the ratio of the on axis co-polar gain to the cross-polar gain of the antenna in the assigned frequency band is at least 25 dB within its primary coverage area.
(a) The requirements in this section apply to applications for, and operation of, earth stations transmitting in the conventional or extended C-bands, the conventional or extended Ku-bands, the 24.75-25.25 GHz band, or the conventional Ka-band that do not qualify for routine licensing under relevant criteria in §§ 25.138, 25.211, 25.212, 25.218, 25.221(a)(1) or (a)(3), § 25.222(a)(1) or (a)(3), § 25.226(a)(1) or (a)(3), or § 25.227(a)(1) or (a)(3).
(a) An applicant may be authorized to operate a space station transmitting in the 17.3-17.8 GHz band at levels up to the maximum power flux density limits defined in § 25.208(c) and/or § 25.208(w), without coordinating its power flux density levels with adjacent licensed or permitted operators, only if there is no licensed space station, or prior-filed application for a space station transmitting in the 17.3-17.8 GHz band at a location less than four degrees from the orbital location at
(b) Any U.S. licensee or permittee authorized to transmit in the 17.3-17.8 GHz band that does not comply with the power flux-density limits set forth in § 25.208(c) and/or § 25.208(w) shall bear the burden of coordinating with any future co-frequency licensees and permittees of a space station transmitting in the 17.3-17.8 GHz band under the following circumstances:
(1) If the operator's space-to-Earth power flux-density levels exceed the power flux-density limits set forth in § 25.208(c) and/or § 25.208(w) by 3 dB or less, the operator shall bear the burden of coordinating with any future operators proposing a space station transmitting in the 17.3-17.8 GHz band in compliance with power flux-density limits set forth in § 25.208(c) and/or § 25.208(w) and located within ±6 degrees of the operator's 17/24 GHz BSS space station.
(2) If the operator's space-to-Earth power flux-density levels exceed the power flux-density limits set forth in § 25.208(c) and/or § 25.208(w) by more than 3 dB, the operator shall bear the burden of coordinating with any future operators proposing a space station transmitting in the 17.3-17.8 GHz band in compliance with power flux-density limits set forth in § 25.208(c) and/or § 25.208(w) and located within ±10 degrees of the operator's space station.
(3) If no good faith agreement can be reached, the operator of the space station transmitting in the 17.3-17.8 GHz band that does not comply with § 25.208(c) and/or § 25.208(w) shall reduce its space-to-Earth power flux-density levels to be compliant with those specified in § 25.208(c) and/or § 25.208(w).
(c) Any U.S. licensee or permittee using a space station transmitting in the 17.3-17.8 GHz band that is required to provide information in its application pursuant to § 25.140(b)(4) must accept any increased interference that may result from adjacent space stations transmitting in the 17.3-17.8 GHz band that are operating in compliance with the rules for such space stations specified in §§ 25.140(b), 25.202(a)(9) and (e)-(g), 25.208(c) and (w), 25.210(i)-(j), 25.224, 25.262, 25.264(h), and 25.273(a)(3)).
(d) Notwithstanding the provisions of this, licensees and permittees will be allowed to apply for a license or authorization for a replacement satellite that will be operated at the same power level and interference protection as the satellite to be replaced.
47 U.S.C. 151, 152, 153, 154, 301, 303, 304, 307, 309, 310, 316, 332, 1302.
(b) In the alternative, a licensee may make its buildout showing on the basis of geographic area coverage. To satisfy the requirements of using this metric, licensees relying on mobile or point-to-multipoint service must show that they are providing reliable signal coverage and service to at least 25% of the geographic area of the license. The geographic area of the license shall be determined by the total land area of the county or counties covered by the license. Licensees relying on fixed point-to-point links or other, low-power point-to-point connections must show that they have deployed at least one transmitter or receiver in at least 25% of the census tracts within the license area. All equipment relied upon in the showing, whatever type of service or connection it provides, must be operational and providing service, either to customers or for internal use, as of the date of the filing.
(c) Showings that rely on a combination of multiple types of service will be evaluated on a case-by-case basis. Licensees may not combine population-based showings with geographic area-based showings.
(e) Failure to meet this requirement will result in automatic cancellation of the license. In bands licensed on a Partial Economic Area basis, licensees will have the option of partitioning a license on a county basis in order to reduce the population or land area within the license area to a level where the licensee's buildout would meet one of the applicable performance metrics.
(f) Existing 24 GHz, 28 GHz and 39 GHz licensees shall be required to make a showing pursuant to this section by June 1, 2024.
Mobile and transportable stations that operate on any portion of frequencies within the 27.5-28.35 GHz or the 37-40 GHz bands must be capable of operating on all frequencies within those particular bands. Mobile and transportable stations that operate on any portion of either the 24.25-24.45 GHz or 24.75-25.25 GHz bands must be capable of operating on all frequencies within both of those bands.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Interim final rule; request for comments.
This interim final rule determines the quota overages that Northeast Fishery Sector IX is responsible for paying back, allocates annual catch entitlements to Northeast Fishery Sectors VII and IX for the 2018 fishing year, approves a new lease-only operations plan for Northeast Fishery Sector IX, and approves a substantive amendment to Northeast Fishery Sector VII operations plan. Approval of the operations plans and allocation of annual catch entitlements is necessary for the sectors to operate. This action is intended to ensure that these sectors are allocated accurate annual catch entitlements that account for past catch overages, and that the sectors' operations plans can achieve the conservation and management objectives of the Northeast Multispecies Fishery Management Plan.
Effective July 20, 2018 through April 30, 2019. Comments must be received on or before August 20, 2018.
You may submit comments on this document, identified by NOAA-NMFS-2018-0069, by either of the following methods:
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Copies of each sector's operations plan and contract, as well as the programmatic environmental assessment for sectors operations in fishing years 2015 to 2020, are available from the NMFS Greater Atlantic Regional Fisheries Office (GARFO): Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also accessible via the GARFO website:
Liz Sullivan, Fishery Policy Analyst, (978) 282-8493.
To help achieve the fishing mortality and conservation objectives of the Northeast Multispecies Fishery Management Plan (FMP), each sector is allocated annual catch entitlements (ACE) and must ensure that these ACEs are not exceeded. The Regional Administrator must approve sector operations plans in order for sectors to operate and be allocated ACE for specific groundfish stocks. A sector's operations plan includes a detailed plan for monitoring and reporting catch and the specific management rules sector participants will abide by in order to avoid exceeding the sector's allocation, as well as a plan for how the sector will operate if an ACE is exceeded. The operations plan also includes internal sector enforcement measures for operations plan breaches and remedies, such as a penalty schedule for operations plan non-compliance or other actions that would jeopardize the sector's continued approval. Penalties under the plan range from a written warning or fine to expulsion from the sector.
On March 30, 2017, Carlos Rafael pleaded guilty to all counts in
On September 25, 2017, Mr. Rafael was sentenced to serve 46 months in prison and 3 years of supervised release. During his supervised release, he is barred from working in the fishing industry. The Court also ordered Mr. Rafael to pay a fine of $200,000 and forfeited Mr. Rafael's interests in four fishing vessels used in the criminal violations, including all fishing permits that NMFS issued to the four vessels.
As a result of Mr. Rafael's violations, NEFS 9 was operating without having accurately accounted for its available ACE. Further, the violations revealed a failure of adequate sector oversight and accounting. On November 22, 2017, we published an interim final rule to withdraw approval of the Fishing Years 2017 and 2018 Sector Operations Plan for NEFS 9 (82 FR 55522). This withdrawal was a necessary administrative action because NEFS 9 and its participants failed to uphold the requirements of the sector operations plan and adequately respond to Mr. Rafael's violations. Without accurate catch and ACE accounting, effective monitoring, or internal governance, we determined that continuation of the sector would undermine conservation and management objectives of the FMP. With the disapproval of the sector's operation plan, the members of NEFS 9 are not allowed to fish for groundfish, and the sector cannot transfer quota to or from other sectors.
On February 22, 2018, the NEFS 9 Board of Directors submitted a new sector operations plan for review and approval. The operations plan would allow the sector to operate as a “lease-only” sector. As a lease-only sector, NEFS 9 vessels could not actively fish for groundfish, but the sector would be allowed to transfer groundfish quota to and from other sectors. NEFS 9 vessels could continue to fish for other species not managed under the Northeast Multispecies FMP for which they have permits, such as scallops, summer flounder, and squid.
On March 26, 2018, NEFS 7 and NEFS 9 submitted rosters for the 2018 fishing year, indicating that 55 of the 60 permits previously enrolled into NEFS 9 would move into NEFS 7. Only three permits remain in NEFS 9. Consistent with sector eligibility requirements these permits are issued to at least three different persons, none of whom have any common ownership interests in the permits, vessels, or businesses associated with the permits issued the other two or more persons in the sector. NEFS 7's submitted roster included new members enrolled with the condition that all permits owned by Mr. Rafael would be inactive and unable to fish in the groundfish fishery unless and until the permit was sold to an independent third party. In order to implement and enforce this condition, the sector requested that, until such a sale occurred, we withhold the letters of authorization (LOA). LOAs are issued to all vessel owners or operators participating in a sector and authorize participation in sector operations. Because this permit condition is a substantive change to the operations plan, it requires rulemaking.
On May 1, 2018, we allocated groundfish quota to all sectors except NEFS 7 and NEFS 9. In that rule, we provided a summary of the NEFS 7 and 9 roster changes, but we did not make a determination regarding allocations to those two sectors (83 FR 18965; May 1, 2018). Before making this determination, we needed more information about, and time to evaluate how, NEFS 7 and NEFS 9 would operate and account for the past overages, and notified the public that these issues would be included in a separate rulemaking.
When we withdrew approval of NEFS 9 in November 2017, the interim final rule stated that initial allocations made to the sector at the start of the 2017 fishing year were likely artificially high, and that it was possible that the sector's 2017 catch might have already exceeded what should have been allocated. Based on analysis to assess the stock-level
To calculate the overages, we applied the misreported catch to the appropriate fishing year, as if we had known about the catch during or immediately following the end of each fishing year. If the misreported catch caused an overage in a particular fishing year, we deducted the overage from the sector's allocation for the next fishing year. If the sector carried over quota into a fishing year that it should not have, we removed the carryover that would not have been available had we known about the additional catch. Misreported catch occurred in fishing years 2012-2015. We applied the resulting overages from 2015 to 2016 allocations and from 2016 to 2017 allocations. As stated earlier, NEFS 9 ended the 2016 fishing year with multiple overages. Because we withdrew approval of the sector's operations plan, and NEFS 9 vessels have not been able to fish for groundfish since November 20, 2017, NEFS 9 ended fishing year 2017 with an overage for witch flounder only.
As part of calculating the overages, we first correctly apportioned the misreported catch that was presented in the criminal case at a species level, broken down by calendar year. This required distributing the misreported catch into the appropriate fishing year, based on the landing date for trips associated with the misreported catch. Witch flounder and American plaice are unit stocks, and therefore, no further analysis was required. However, cod and yellowtail flounder are subdivided into management stock units. For cod, the sub-units are GOM and GB; GB is further divided into eastern and western GB. For yellowtail flounder, the sub-units are CC/GOM, GB, and SNE/MA. Allocating the misreported catch to stock area requires estimating the stock areas where the misreported catch was likely to have been caught.
To apportion the misreported catch to the appropriate stock areas, we used data from the vessel monitoring systems (VMS) used by the vessels that were named in the criminal case to identify the most likely stock area from which that catch originated. We scaled the VMS effort by annual average catch-per-hour from observed groundfish trips by all sector vessels using trawl gear, to account for the different catch rate in different stock areas. The correctly apportioned catch by time and area was then applied to the allocated ACEs for the years in question to determine the overage amounts.
As stated above, on May 1, 2018, we allocated groundfish quota to all sectors except NEFS 7 and NEFS 9 and did not make a determination regarding allocating to those two sectors (83 FR 18965; May 1, 2018). This rule allocates groundfish quota to NEFS 7 and to NEFS 9, based on the final sector enrollment submitted by the sectors and the fishing year 2018 specifications approved through Framework 57 (83 FR 18985; May 1, 2018). These allocations use updated rosters and are slightly different from the rule that proposed allocations for all sectors (83 FR 12706; March 23, 2018), which used the fishing year 2017 sector rosters as a basis to estimate fishing year 2018 sector allocations.
Consistent with how ACE is allocated to all other sectors, we calculate the sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock and then multiplying that total percentage by the available commercial sub-annual catch limit (sub-ACL) for that stock. Table 3 shows the projected total PSC for each sector by stock for fishing year 2018. Table 4 shows an estimate of the allocations that each sector is allocated, in pounds and metric tons, respectively, for fishing year 2018.
Based on regulations at § 648.87(b)(1)(iii), should an ACE allocated to a sector be exceeded in a given fishing year, the sector's ACE shall be reduced by the overage on a pound-for-pound basis during the following fishing year. If a sector has an overage, but disbands in the year following the overage, the overage follows the permits to the new sector(s) or to the common pool. If the sector does not disband, but does not have sufficient ACE to pay back the overage, the sector's ACE for that stock is set to zero until the sector can acquire sufficient ACE to cover the remaining overage.
Therefore, if NEFS 9 has remaining overages from fishing year 2017, following any transfers conducted during a 2-week transfer window after all year-end catch accounting is complete (see section on NEFS 9 Operations Plan for more detail), NEFS 9's 2018 ACE would be reduced by the overage on a pound-for-pound basis. However, because the permits enrolled in NEFS 9 for 2018 have zero PSC for witch flounder, the sector would be allocated zero pounds of witch flounder. Therefore, if the sector has a remaining overage from fishing year 2017, it would begin fishing year 2018 with a negative balance of witch flounder. The Board of NEFS 7 has agreed that if the NEFS 9 overage cannot be reconciled during the post-year transfer window, NEFS 7 will
In this interim final rule, we are approving NEFS 9's sector operations plan and contract to operate as a lease-only sector. When the Regional Administrator withdrew approval of the NEFS 9 operations plan in November 2017, we cited accurate reporting, internal accountability, and organizational integrity as core principles of the sector system that were lacking in NEFS 9, as evidenced by the systematic and long-term sector and vessel misreporting. The operations plan was withdrawn, in part, because it did not contain measures that would provide accurate information or ensure compliance with the operations plan to prevent and address future misreporting or ACE overages. Restricting the sector to only being able to participate in the groundfish fishery through ACE transfers with other sectors addresses our concerns about the sector's ability to harvest groundfish and monitor and report that activity, consistent with the goals and objectives of the FMP. As a lease-only sector, NEFS 9 vessels cannot actively fish for groundfish, but the sector is allowed to transfer groundfish quota to and from other sectors, which will facilitate the sector's accounting for its ACE and overages. Based on this, we have determined that the lease-only sector operations plan and contract is consistent with the FMP's goals and objectives, and meets sector requirements outlined in the regulations at § 648.87.
The lease-only operations plan is a change from the previous operations plan for NEFS 9, for which the Regional Administrator withdrew approval. However, it is similar to the currently approved operations plan for NEFS 4, which also operates as a lease-only sector. An approved lease-only operations plan provides NEFS 9 with the ability to pay back the quota overage incurred by misreported catch. Without a new operations plan, NEFS 9 has no mechanism for reconciling the overages for which it is responsible. In April 2018, we consulted with the New England Fishery Management Council regarding NEFS 9, and the Council passed a motion to recommend that NMFS authorize the NEFS 9 lease-only operations plan to ensure the repayment of the NEFS 9 overage, as well as amend the NEFS 7 operations plan as needed and appropriately allocate to the sectors.
Because this interim final rule approves a lease-only sector operations plan for NEFS 9, the sector has the ability to eliminate the overage by transferring quota in from other sectors. We will allow NEFS 9 to transfer fishing year 2017 ACE for 2 weeks upon our completion of year-end catch accounting for all sectors to reduce or eliminate any fishing year 2017 overages. As provided by the regulations, this window of post-year transfers is opened annually. During this time, sectors are only allowed to transfer in quota to reconcile an overage. Quota for stocks that do not have an overage may not be transferred.
In this interim final rule, we are approving an amendment to the NEFS 7 sector operations plan. As described above, on March 26, 2018, NEFS 7 submitted a roster for the 2018 fishing year, indicating that 55 of the 60 permits previously enrolled into NEFS 9 would move into NEFS 7, in addition to one vessel from NEFS 8. No vessels that had been enrolled in NEFS 7 for the 2017 fishing year remained in NEFS 7 for 2018. All 56 vessels enrolled in NEFS 7 for 2018 are listed as inactive. The NEFS 7 Board of Directors voted, as part of its process to allow vessels to enroll in the sector, to add a permit condition requiring all permits in which Mr. Rafael has an ownership interest to remain inactive and unable to fish in the groundfish fishery unless and until the permit is sold to an independent third party. By approving this permit condition as part of the NEFS 7 operations plan (along with the quota allocations described earlier), NEFS 7 is able to transfer ACE to and from other sectors in the 2018 fishing year, but vessels owned by Mr. Rafael cannot actively fish for groundfish.
All of the vessels that are enrolled in NEFS 7 and in which Mr. Rafael has no ownership interest are currently listed as inactive members of the sector. To become active, the sector Board would have to vote to allow a vessel to harvest sector ACE, consistent with normal sector operations, and notify NMFS of the vessel change in status. In contrast to the vessels owned by Mr. Rafael, these vessels do not need to be sold in order to be active in the groundfish fishery.
To facilitate and enforce the requirement for a vessel owned by Mr. Rafael to be sold to an independent third party before it could become active, the Board initially requested that we withhold LOAs for those permits until a permit is sold to an independent third party, the new member requests in writing that the Board reconsider non-active status, and the NEFS 7 Board grants active status to the new member. However, current regulations at § 648.87(c)(2) state that, if a sector is approved, the Regional Administrator shall issue an LOA to each vessel operator and/or vessel owner participating in the sector, authorizing participation in the sector operations. The regulations allow the Regional Administrator to include requirements and conditions necessary to ensure effective administration and compliance with the sector's operations plan and the sector allocation. Therefore, the NEFS 7 amendment includes clarification that we will issue LOAs to vessels indicating that they are inactive. If the required steps are taken for a vessel to become active, we will issue a new LOA authorizing participation in the groundfish fishery.
NEFS 7's initial proposal did not identify the factors by which the Board would determine the new owner is independent of Mr. Rafael. Historically, NMFS uses several factors to determine whether a transfer or sale of a permit appears to be between separate legal entities. These include, but are not limited to: Whether the transfer appears to be an “arm's length” transaction to an independent person or entity in which the current owner, subsidiary, partner, officer, director, trustee, shareholder or any of their family members does not have any financial interest or any control; whether the transferor/seller derive any financial benefits from the operations of the vessel after it is transferred; whether the transferor/seller exercises any control over the activities or operation of the vessel after it is transferred; and whether there are any common shareholders, partners, or investors with significant overlapping ownership interests in both the transferor/seller and the transferee/buyer. The NEFS 7 Board of Directors has incorporated these factors into the amendment to the NEFS 7 operations plan as conditions for Board approval of new owners to provide sufficient Board oversight controls and avoid confusion regarding whether a sale meets the requirement of being an independent third party.
As stated earlier in this preamble, the Board of NEFS 7 has committed that if the NEFS 9 overage cannot be reconciled during the 2017 post-year transfer window, NEFS 7 will transfer sufficient 2018 witch flounder ACE to NEFS 9 to cover the overage, and this is included in the amendment to the NEFS 7 operations plan.
The NEFS 7 operations plan amendment addresses the operational
These changes to the operations plan meet the goals and objectives of the FMP and the sector system. We will evaluate any changes made to NEFS 7 and 9 membership and vessel ownership, using the criteria detailed above, to ensure the sector's operations remain consistent with its operations plan and the goals and objectives of the FMP. Additional substantive changes to the NEFS 7 operations plan that are requested, or determined to be necessary, would be addressed in a future rulemaking.
The NMFS Assistant Administrator has preliminarily determined that this interim final rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This interim final rule is exempt from the procedures of Executive Order (E.O.) 12866 because this action contains no implementing regulations.
This interim final rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries (AA) finds good cause to waive prior notice and the opportunity for public comment on approval of the NEFS 9 lease-only operations plan, and approval of the amendment to the NEFS 7 operations plan because it would be contrary to the public interest. Additionally, the AA finds there is good cause, under 5 U.S.C. 553(d)(1) and (3), to waive the 30-day delay in effectiveness for the allocation of annual catch entitlements (ACE) for fishing year 2018 to NEFS 7 and 9, approval of the NEFS 9 lease-only operations plan, and approval of the amendment to the NEFS 7 operations plan so that the purpose of this rule is not undermined.
Approving the NEFS 9 lease-only operations plan relieves the prohibition against operating and provides a mechanism for NEFS 9 to reconcile its witch flounder overage through the 2017 year-end transfer window and address its quota overage for witch flounder. Any overage remaining after this transfer window must be reconciled via an ACE transfer from NEFS 7, in order for NEFS 7 to remain in compliance with the operations plan amendment approved by this rule. As a result, implementing these measures immediately ensures that proper catch and ACE accounting occur. This is fundamental to achieving the goals and objectives of the FMP.
We previously proposed and accepted comment on allocating groundfish quota to NEFS 7 and 9 (83 FR 12706; March 23, 2018). Additionally, before taking this action, we consulted with the New England Council at its April 2018 meeting, at which the Council recommended that we approve the sectors' operations plan requests. This consultation provided the Council and interested members of the public an opportunity to comment on NEFS 7's and 9's potential operations plan changes and an additional opportunity to comment on the allocation of quota to both sectors. At this meeting, the Council recommended that we ensure the repayment of the NEFS 9 overage, approve the NEFS 9 lease-only operations plan, amend the NEFS 7 operations plan as needed, and appropriately allocate to the sectors. The Council also explained the importance of making quota available to the fishery at-large. Some stocks, such as Georges Bank winter flounder, have a significant seasonal component, and therefore there is additional benefit to making this quota available to the fishery as a whole as soon as possible.
The ACEs being allocated to NEFS 7 and 9 represent between 3 percent and 33 percent of the total quota for each allocated stock. Continuing to withhold this amount of quota from the fishery significantly hampers the ability of the fishery as a whole to operate. This quota is particularly important due to recent stock assessments that resulted in reduced overall quotas for several stocks, including Southern New England/Mid-Atlantic yellowtail flounder (75-percent reduction), Gulf of Maine winter flounder (45-percent reduction), and white hake (20-percent reduction). Further delaying allocations to NEFS 7 and NEFS 9 significantly reduces the quota for these stocks available for transfer to other sectors engaged in fishing. This reduces catch of these as target stocks and also impacts catch of more abundant stocks like haddock and pollock, which catch these limiting stocks as bycatch. This, together with the benefit of ensuring that all quota overages that resulted from Mr. Rafael's criminal misreporting are reconciled, outweigh the benefits of allowing for additional public comment prior to effectiveness, beyond that which we already received on the March 23, 2018, proposed rule (83 FR 12706) and through consultation with the Council.
This interim final rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notification of public meetings and webinar.
The U.S. Department of Energy (DOE or the Department) announces public meetings for the variable refrigerant flow multi-split air conditioners and heat pumps (VRF multi-split systems) working group. The Federal Advisory Committee Act (FACA) requires that agencies publish notice of an advisory committee meeting in the
DOE will hold a public meeting on August 23, 2018 from 9 a.m. to 5 p.m., and on August 24, 2018 from 9 a.m. to 1 p.m., in Washington, DC. The meetings will also be broadcast as a webinar.
The public meetings will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW, Washington, DC 20585-0121. Please see the Public Participation section of this notice for additional information on attending the public meeting, including webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
John Cymbalsky, U.S. Department of Energy, Office of Building Technologies (EE-5B), 950 L'Enfant Plaza SW, Washington, DC 20024. Phone: (202) 287-1692. Email:
On January 10th 2018, the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) met and passed the recommendation to form a VRF multi-split systems working group to meet and discuss and, if possible, reach a consensus on proposed federal test procedures and standards for VRF multi-split systems. On Wednesday, April 11, 2018, DOE published a notice of intent to establish a working group for VRF multi-split systems to negotiate a notice of proposed rulemaking for test procedures and energy conservations standards. The notice also solicited nominations for membership to the working group. 83 FR 15514. This notice announces the first two meetings for this working group.
DOE will host a public meeting on August 23, 2018 from 9 a.m. to 5 p.m., and on August 24, 2018 from 9 a.m. to 1 p.m., in Washington, DC.
The purpose of these meetings will be to provide an overview of the ASRAC negotiation process, establish ground rules, and establish a schedule for future meetings. The meeting will also include discussions and review of the VRF multi-split market and test procedure.
The time, date and location of the public meeting are listed in the
Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email:
DOE requires visitors to have laptops and other devices, such as tablets, checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the visitor's desk to have devices checked before proceeding through security.
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific States and U.S. territories. DHS maintains an updated website identifying the State and territory driver's licenses that currently are acceptable for entry into DOE facilities at
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website:
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
ASRAC's Designated Federal Officer will preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. A transcript of the public meeting will be included on DOE's website:
The docket is available for review at
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Request for information.
The U.S. Department of Energy (“DOE”) is initiating a data collection process through this request for information (“RFI”) to consider whether to amend DOE's test procedure for single package vertical air conditioners (“SPVACs”) and single package vertical heat pumps (“SPVHPs”), collectively referred to as single package vertical units (“SPVUs”). To inform interested parties and to facilitate the process, DOE has gathered data, identifying several issues associated with the currently applicable test procedure on which DOE is interested in receiving comment. The issues outlined in this document mainly concern: Incorporation by reference of the applicable industry standard; efficiency metrics; clarification of test methods; and any additional topics that may inform DOE's decisions in a future test procedure rulemaking, including methods to reduce regulatory burden while ensuring the procedure's accuracy. DOE welcomes written comments from the public on any of subject within the scope of this document (including topics not raised in this RFI).
Written comments and information are requested and will be accepted on or before September 4, 2018.
Interested persons are encouraged to submit comments by any of the following methods:
1.
2.
3.
4.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document.
The docket web page can be found at
Ms. Catherine Rivest, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-7335. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-9507. Email:
For further information on how to submit a comment, or review other public comments and the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
SPVACs and SPVHPs are included in the list of “covered equipment” for which DOE is authorized to establish and amend energy efficiency standards and test procedures. (42 U.S.C. 6311(1)(B)-(D)) DOE's test procedure for SPVACs and SPVHPs is prescribed in title 10 of the Code of Federal Regulations (“CFR”), appendix A to subpart F of part 431. The following
The Energy Policy and Conservation Act of 1975 (“EPCA” or “the Act”),
Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of the Act include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D))
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA.
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of covered equipment during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6314(b))
As discussed, SPVUs are a category of commercial package air conditioning and heating equipment. EPCA requires that the test procedures for commercial package air conditioning and heating equipment be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) or by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), as referenced in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings” (ASHRAE Standard 90.1). (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE must update its test procedure to be consistent with the amended test procedure, unless DOE determines, by rule published in the
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment including SPVUs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish a proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6314(b)) If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this RFI to collect data and information to inform its decision in satisfaction of the 7-year review requirement specified in EPCA.
DOE's current test procedures for SPVUs with a cooling capacity less than 760,000 Btu/h are set forth at 10 CFR part 431, subpart F, appendix A (“Appendix A”). The test procedure currently incorporates by reference ANSI/AHRI Standard 390-2003 (“ANSI/AHRI 390-2003”), “Performance Rating of Single Package Vertical Air-Conditioners and Heat Pumps,” (omitting section 6.4) and includes additional provisions in paragraphs (c) and (e) of 10 CFR 431.96. ANSI/AHRI 390-2003 is the SPVU test standard referenced in ASHRAE Standard 90.1. Paragraph (c) of 10 CFR 431.96 provides the method for an optional break-in period. Paragraph (e) of 10 CFR 431.96 provides specifications for addressing key information typically found in the installation and operation manuals. DOE established its test procedure for SPVUs in a final rule for commercial heating, air conditioning, and water heating equipment published on May 16, 2012. 77 FR 28928.
In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether amended test procedures for SPVUs may be warranted. Specifically, DOE is requesting comment on any opportunities to streamline and simplify testing requirements for SPVUs.
Additionally, DOE welcomes comments on other issues relevant to the conduct of this process that may not specifically be identified in this document. In particular, DOE notes that under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” Executive Branch agencies such as DOE are directed to manage the costs associated with the imposition of expenditures required to comply with Federal regulations. See 82 FR 9339 (Feb. 3, 2017). Pursuant to that
DOE defines an SPVAC as air-cooled commercial package air conditioning and heating equipment that: (1) Is factory-assembled as a single package that: (i) Has major components that are arranged vertically; (ii) is an encased combination of cooling and optional heating components; and (iii) is intended for exterior mounting on, adjacent interior to, or through an outside wall; (2) is powered by a single-or 3-phase current; (3) may contain 1 or more separate indoor grilles, outdoor louvers, various ventilation options, indoor free air discharges, ductwork, well plenum, or sleeves; and (4) has heating components that may include electrical resistance, steam, hot water, or gas, but may not include reverse cycle refrigeration as a heating means. 10 CFR 431.92. Additionally, DOE defines an SPVHP as a single package vertical air conditioner that: (1) Uses reverse cycle refrigeration as its primary heat source; and (2) may include secondary supplemental heating by means of electrical resistance, steam, hot water, or gas.
ANSI/AHRI 390-2003 provides different test provisions, such as minimum external static pressure (“ESP”), based on whether the model is ducted or non-ducted. However, whether an SPVU is ducted may be more a characteristic of installation than the equipment itself. A given SPVU model could potentially be installed either with or without a duct. DOE's preliminary research has not revealed that SPVUs have physical characteristics that clearly distinguish them as ducted or non-ducted models, and DOE has identified several models that advertise the capability for use in both ducted and non-ducted installations. ANSI/AHRI 390-2003 does not specify how to determine whether an SPVU model is to be tested using the ducted or non-ducted provisions.
Section 5.2.3 of ANSI/AHRI 390-2003 requires that for SPVUs with an outdoor-side fan drive that is non-adjustable, standard ratings shall be determined at the outdoor-side airflow rate inherent to the equipment when operated with all of the resistance elements associated with inlets, louvers, and any ductwork and attachments considered by the manufacturer as normal installation practice. However, it is not clear from DOE's initial review of manufacturer literature which resistance elements should be used during the test to be consistent with what manufacturers consider as “normal installation practice.” For externally-mounted SPVUs, provisions for transferring outdoor air through an external wall are not necessary, but it may be possible that alternative “resistance elements” could be offered as options (
ANSI/AHRI 390-2003 does not provide any specific guidance on setting and verifying the refrigerant charge of a unit. In a test procedure final rule for central air conditioners (CACs) published on June 8, 2016 (“June 2016 CAC TP final rule”), DOE established a comprehensive approach for refrigerant charging that improves test reproducibility. 81 FR 36992, 37030-37031. The approach indicates which set of installation instructions to use for charging, explains what to do if there are no instructions, specifies that target values of parameters are the centers of the ranges allowed by installation instructions, and specifies tolerances for the measured values. The approach also requires that refrigerant line pressure gauges be installed for single-package units, unless otherwise specified in manufacturer instructions.
Section 5.2.1 of ANSI/AHRI 390-2003, requires that, for units rated with 208/230 dual nameplate voltages, the test be performed at 230 V. For all other dual nameplate voltage units, the test standard requires that the test be performed at both voltages or at the lower voltage if only a single rating is to be published. DOE understands that voltage can affect the measured efficiency of air conditioners and may, therefore, consider adding provisions to its test procedure that specify at which nameplate voltage to conduct the test for dual nameplate voltage units.
Section 5.2.2.a of ANSI/AHRI 390-2003 requires that non-filtered ducted equipment be tested at the minimum ESP specified in Table 4 of ANSI/AHRI 390-2003 plus an additional 0.08 in H
Table 4 of ANSI/AHRI 390-2003 specifies the minimum ESP required for testing ducted SPVUs based on capacity range. DOE is considering whether the minimum ESP levels in ANSI/AHRI 390-2003 are representative of field operation for ducted SPVUs.
ANSI/AHRI 390-2003 does not specify tolerances on achieving the rated airflow and/or the minimum ESP during testing. The performance of any air conditioner or heat pump can be affected by variations in airflow and ESP. Consequently, rated performance could vary from field performance if airflow and ESP during testing are different than that intended for field operation. How to control an SPVU to achieve a specified airflow at a specified ESP and how closely an SPVU can achieve the specified airflow and ESP depends on the type of fan drive system. There are two common types used in SPVUs: One is multi-speed drive, which provides discrete airflow settings (or motor speeds), each typically associated with certain functions and operating conditions (
To address the tolerances for variable-speed fan drive systems, which are common in air-cooled commercial unitary air-conditioners (“ACUACs”) with capacity greater than or equal to 65,000 Btu/h, DOE established a requirement for ACUACs that the full-load indoor airflow rate must be within ±3 percent of the certified airflow. Section 6 of Appendix A. In addition, the tolerance for ESP for testing ACUACs in DOE's current test procedure is −0.00/+0.05 in H
ANSI/AHRI 390-2003 does not distinguish between cooling and heating airflow rates required for testing. For SPVHPs with multiple-speed or variable-speed indoor fans, the indoor airflow rate in heating operation could be different from that in cooling operation. Different airflow rates may be used for heating and cooling operation because of different indoor comfort needs in the heating season, and there may be a minimum heating airflow rate for electrical resistance heating safety that exceeds the cooling airflow rate. For ACUAC heat pumps, DOE's current test procedure requires that indoor airflow and ESP first be set up within required tolerances for the full-load cooling test condition, by adjusting both the unit under test and the test facility's airflow-measuring apparatus (see Section 6(i) of Appendix A). The DOE test procedure further requires that, unless the unit is designed to operate at different airflow rates for cooling and heating modes, the airflow-measuring apparatus (but not the unit under test) be adjusted to achieve an airflow in heating mode equal to the cooling full-load airflow rate within the specified tolerance, without regard to changes in ESP (see Section 6(ii), Appendix A).
ANSI/AHRI 390-2003 references ANSI/ASHRAE Standard 37-1988, “Methods of Testing for Rating Unitary Air-Conditioning and Heat Pump Equipment” (“ANSI/AHRI 37-1988”) for methods of testing SPVUs. Section 7.2 of ANSI/ASHRAE 37-1988 specifies that for equipment with cooling capacity less than 135,000 Btu/h, primary and secondary capacity measurements are required. Specifically, the indoor air enthalpy method must be used as the primary method for capacity measurement, and Table 3 of ANSI/ASHRAE 37-1988 specifies the applicable options for selecting a secondary method. Section 10.1.2 of ANSI/ASHRAE 37-1988 then requires that the two test methods agree within 6 percent. DOE understands that the outdoor air enthalpy test method is commonly used as a secondary test method for determining capacity for
Outdoor air temperature and humidity are key parameters that affect SPVU performance, and for this reason, ANSI/AHRI 390-2003 requires accurate outdoor air condition measurements. However, DOE is considering whether the method set forth in ANSI/AHRI 390-2003 would benefit from additional specification as to outdoor air temperature measurement. For air-cooled and evaporatively cooled commercial unitary air conditioners, Appendix C of AHRI Standard 340/360-2015, “2015 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment,” (“AHRI 340/360-2015”) provides details on entering outdoor air temperature measurement, including air sampling tree and aspirating psychrometer requirements. DOE is considering whether similar requirements should be adopted for testing SPVUs. However, DOE notes that in such case, some of the requirements may have to be revised for application to SPVUs. For example, the requirement in section C3 of Appendix C of AHRI 340/360-2015 that “multiple individual reading thermocouples be installed around the unit air discharge perimeter so that they are below the plane of condenser fan exhaust and just above the top of the condenser coil” may not be appropriate for SPVUs, because the units typically exhaust outdoor air horizontally, instead of vertically as is the case for ACUACs.
While Appendix C of AHRI 340/360-2015 provides detailed requirements for measurement of entering outdoor air temperature, it provides no such requirements for measurement of entering indoor air temperature, leaving indoor air temperature, or leaving outdoor air temperature. These parameters have a significant impact on performance of an SPVU as measured by the indoor air enthalpy method and the outdoor air enthalpy method. Therefore, DOE is also considering whether the requirements contained in Appendix C of AHRI 340/360-2015 would be appropriate for measurement of these parameters for testing SPVUs.
EPCA requires that test procedures produce test results that reflect efficiency of equipment during a representative average use cycle. (42 U.S.C. 6314(a)(2)) DOE prescribes energy efficiency ratio (EER) as the cooling mode metric and coefficient of performance (COP) as the heating mode metric for SPVUs. 10 CFR 431.96. Correspondingly, ASHRAE 90.1-2016 only includes minimum efficiency levels in terms of the full-load metrics of EER and COP for SPVUs. In contrast, ASHRAE 90.1-2016 includes minimum cooling mode efficiency levels for CUACs and for variable refrigerant flow multi-split air conditioners and heat pumps in terms of both the full-load metric EER and the integrated energy efficiency ratio (IEER), which integrates the performance of the equipment when operating at part-load. IEER provides an indication of seasonal performance by integrating test results from four different load points with varying outdoor conditions and load levels (lower load for cooler conditions) in order to represent the equipment's average efficiency throughout the cooling season. ANSI/AHRI 390-2003 includes a part-load metric, integrated part-load value (IPLV) that integrates unit performance at each capacity step provided by the refrigeration system. However, the IPLV tests are all conducted at constant outdoor air conditions of 80 °F dry bulb temperature and 67 °F wet bulb temperature. DOE notes that some manufacturers make representations of part-load performance of SPVUs in product literature using IPLV, indicating a potential value in ratings that integrate performance of part-load operation. However, DOE also notes that IPLV was once used for rating CUACs but has since been removed from AHRI 340/360 in favor of IEER.
DOE is aware that the energy use of field-installed fans will vary based on the use of the fan for various functions (
SPVHPs generally include a defrost cycle to periodically defrost the outdoor coil when operating in outdoor ambient conditions in which frost collects on it during heating operation. Based on preliminary DOE review of product literature, the time between defrost cycles can be between 30-90 minutes, and defrost cycle duration may be roughly 10 minutes. During the defrost cycle, the SPVHP is consuming energy but not providing heat, unless it also energizes auxiliary heat during defrost. DOE's test procedure for SPVUs is based on testing in outdoor air conditions for which defrost is not necessary (
In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the existing test procedure for SPVUs not already addressed by the specific areas identified in this document. DOE particularly seeks information that would improve the repeatability, reproducibility, and consumer representativeness of the test procedures. DOE also requests information that would help DOE create a procedure that would limit manufacturer test burden through streamlining or simplifying testing requirements. Comments regarding the repeatability and reproducibility are also welcome. DOE also requests comment on the benefits and burdens of adopting any industry based or other appropriate test procedure, without modification.
DOE also requests feedback on any potential amendments to the existing test procedure that could be considered to address impacts on manufacturers, including small businesses. Regarding the Federal test method, DOE seeks comment on the degree to which the DOE test procedure should consider and be harmonized with the most recent relevant industry standards for SPVUs and whether there are any changes to the Federal test method that would provide additional benefits to the public. DOE also requests comment on the benefits and burdens of adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification. As discussed, the Federal test procedure for SPVUs currently incorporates by reference ANSI/AHRI 390-2003 (omitting section 6.4) and includes additional provisions to provide the method for an optional break-in period and to provide specifications for addressing key information typically found in the installation and operation manuals. Section 6.4 of ANSI/AHRI 390-2003 specifies the maximum deviation of published efficiency ratings from measured test results; therefore, this section is omitted from DOE's current test procedure because it conflicts with DOE's certification, compliance, and enforcement regulations at 10 CFR part 429.
Additionally, DOE requests comment on whether the existing test procedure limits a manufacturer's ability to provide additional features to consumers of SPVUs. DOE particularly seeks information on how the test procedures could be amended to reduce the cost of new or additional features and make it more likely that such features are included on SPVUs.
DOE invites all interested parties to submit in writing by September 4, 2018, comments and information on matters addressed in this notice and on other matters relevant to DOE's consideration of an amended test procedure for SPVACs and SPVHPs. These comments and information will aid in the development of a test procedure notice of proposed rulemaking (NOPR) for SPVACs and SPVHPs if DOE determines that an amended test procedure may be appropriate for this equipment.
Submitting comments via
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at
Postal Service
Proposed rule; extension of comment period.
On July 9, 2018, the United States Postal Service (USPS®) published a
Submit comments on or before September 30, 2018.
Mail or deliver written comments to the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW, Room 4446, Washington, DC 20260-5015. If sending comments by email, include the name and address of the commenter and send to
You may inspect and photocopy all written comments, by appointment only, at USPS Headquarters Library, 475 L'Enfant Plaza SW, 11th Floor North, Washington, DC 20260. These records are available for review on Monday through Friday, 9 a.m.-4 p.m., by calling 202-268-2906.
Direct questions to Wm. Kevin Gunther at
This document extends the public comment period for the proposed rule entitled “New Mailing Standards for Mailpieces Containing Liquids,” published in the
USPS solicits comments on all aspects of the proposal and specifically on
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to make a determination that the Jamestown, New York Marginal Nonattainment Area (Jamestown Area or Area) has attained the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). This proposed determination is based upon complete, quality-assured, and certified ambient air monitoring data that shows the Area has monitored attainment of the 2008 8-hour ozone NAAQS for both the 2012-2014 and 2015-2017 monitoring periods. This action does not constitute a redesignation to attainment. The Jamestown Area will remain nonattainment for the 2008 8-hour ozone NAAQS until such time as EPA determines that the Jamestown Area meets the Clean Air Act (CAA) requirements for redesignation to attainment, including an approved maintenance plan. This action is being taken under the CAA.
Written comments must be received on or before August 20, 2018.
Submit your comments, identified by Docket ID Number EPA-R02-OAR-2018-0422 at
Kirk J. Wieber, (212) 637-3381, or by email at
On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 parts per million (ppm) (annual fourth-highest daily maximum 8-hour average concentration, averaged over three years) to provide increased protection of public health and the environment. 73 FR 16436 (March 27, 2008).
Marginal areas designated in the May 21, 2012 rule are required to attain the 2008 8-hour ozone NAAQS by the applicable deadline of July 20, 2015. See 40 CFR 51.903. On May 4, 2016, EPA determined that complete, quality-assured, and certified air quality monitoring data from the 2012-2014 monitoring period indicated that the Jamestown Area attained the 2008 8-hour ozone NAAQS by that attainment date. See 81 FR 26697.
Under the provisions of EPA's ozone implementation rule (40 CFR 51.918), if EPA also issues a determination (as it is proposing to do here) that an area is attaining the relevant standard through a rulemaking that includes public notice and comment (known informally as a Clean Data Determination), the requirements for a State to submit certain required planning SIPs related to attainment of the eight-hour NAAQS, such as attainment demonstrations, reasonable further progress plans and contingency measures, shall be suspended. EPA's action only suspends the requirements to submit the SIP revisions discussed above.
This suspension remains in effect until such time, if ever, that EPA (i) redesignates the area to attainment, at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 2008 8-hour ozone NAAQS. Although these requirements are suspended, if the State provides these submissions to EPA for review and approval at any time, EPA is not precluded from acting upon them. The determination of attainment is not equivalent to a redesignation under section 107(d)(3) of the CAA. The designation status of the Jamestown Area will remain nonattainment for the 2008 8-hour ozone NAAQS until such time as EPA determines that the Area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan.
Additionally, the determination of attainment is separate from, and does not influence or otherwise affect, any future designation determination or requirements for the Jamestown Area based on any new or revised ozone NAAQS, and it remains in effect regardless of whether EPA designates this Area as a nonattainment area for purposes of any new or revised ozone NAAQS.
For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR part 50, based on three complete, consecutive calendar years of quality-assured ambient air monitoring data. Under EPA regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations at an ozone monitor is less than or equal to 0.075 ppm. See 40 CFR part 50, appendix P. This 3-year average is referred to as the design value. When the design value is less than or equal to
EPA has reviewed the complete, quality-assured, and certified ozone ambient air monitoring data for the monitoring periods for both 2012-2014 and 2015-2017 for the Jamestown Area. For both monitoring periods, the design values for the Jamestown monitor in Chautauqua County are less than or equal to 0.075 ppm, and the monitor meets the data completeness requirements (see Table 1). Based on the 2012-2014 data from the AQS database and consistent with the requirements contained in 40 CFR part 50, EPA has concluded that this Area attained the 2008 8-hour ozone NAAQS. In addition, complete, quality-assured, and certified data through the 2017 ozone season demonstrate that the area continues to attain the standard.
The data in Table 1 are available in EPA's AQS database. The AQS report with this data is available in the docket for this rulemaking under docket number EPA-R02-OAR-2018-0422 and available online at
EPA is proposing to make a determination that the Jamestown Area has attained the 2008 8-hour ozone NAAQS. This proposed determination (informally known as a Clean Data Determination) is based upon complete, quality assured, and certified ambient air monitoring data that show the Jamestown Area has monitored attainment of the 2008 8-hour ozone NAAQS for the 2012-2014 and 2015-2017 monitoring periods. Complete and quality assured and certified data for these periods demonstrate that the area continues to attain the standard during both time periods. As provided in 40 CFR 51.918, if EPA's determination that this area has attained the 8-hour ozone standard is made final, it would suspend the requirements under CAA section 182(b)(1) for submission of a reasonable further progress plan and ozone attainment demonstration. In addition, such a final determination would mean the requirements of CAA section 172(c)(9) concerning submission of contingency measures and any other planning SIP relating to attainment of the 2008 8-hour ozone NAAQS shall be suspended for so long as the Jamestown Area continues to attain the 2008 8-hour ozone NAAQS. Although these requirements would be suspended, EPA would not be precluded from acting upon these elements at any time if submitted to EPA for review and approval.
Finalizing this determination would not constitute a redesignation of the Jamestown Area to attainment for the 2008 8-hour ozone NAAQS under CAA section 107(d)(3). This proposed determination of attainment also does not involve approving any maintenance plan for the Jamestown Area and does not determine that the Jamestown Area has met all the requirements for redesignation under the CAA, including that the attainment be due to permanent and enforceable measures. Therefore, the designation status of the Jamestown Area will remain nonattainment for the 2008 8-hour ozone NAAQS until such time as EPA takes final rulemaking action to determine that such Area meets the CAA requirements for redesignation to attainment. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
This action proposes to make an attainment determination based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. 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).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
The Environmental Protection Agency (EPA) Region 1 is issuing a Notice of Intent to Delete the Union Chemical Co., Inc. Superfund Site (Site) located in South Hope, Maine, from the National Priorities List (NPL) and requests public comments on this proposed 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). The EPA and the State of Maine, through the Department of Environmental Protection (MEDEP), have determined that all appropriate response actions under CERCLA, other than operation and maintenance, monitoring and Five-Year Reviews, have been completed. However, this deletion does not preclude future actions under Superfund.
Comments must be received by August 20, 2018.
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1989-0011, by one of the following methods:
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•
•
U.S. EPA Region 1, Superfund Records Center, 5 Post Office Square, Suite 100, Boston, MA 02109, Phone: 617-918-1440, Monday- Friday: 9:00 a.m.-5:00 p.m., Saturday and Sunday—Closed.
Terrence Connelly, Remedial Project Manager, U.S. Environmental Protection Agency, Region 1, Mail Code OSSR 07-1, 5 Post Office Square, Boston, MA 02109-3912, (617) 918-1373, email
EPA Region 1 announces its intent to delete the Union Chemical Co., Inc Superfund Site (Site) from the National Priorities List (NPL) and requests public comment on this proposed action. 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). As described in 40 CFR
EPA will accept comments on the proposal to delete this site for thirty (30) days after publication of this document in the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Site and demonstrates how it meets the deletion criteria.
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 deletion of the Site:
(1) EPA consulted with the State before developing this Notice of Intent to Delete.
(2) EPA has provided the State 30 working days for review of this notice prior to publication of it today
(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate;
(4) The State of Maine, through its Department of Environmental Protection (MEDEP), has concurred with deletion of the Site from the NPL.
(5) Concurrently with the publication of this Notice of Intent to Delete in the
(6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repository identified above.
If comments are received within the 30-day public comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Site, the Regional Administrator will publish a final Notice of Deletion in the
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion 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 NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Site from the NPL:
The Union Chemical Co., Inc. Superfund Site, CERCLIS ID: MED042143883, is located in South Hope, Knox County, Maine, on the south side of Route 17 in a rural residential area. The Site is bounded by Quiggle Brook, a southerly flowing stream, on the east and southeast, by undeveloped forested land to the south and southwest and a vacant residential lot to the west.
Union Chemical Company began operations in 1967, as a paint stripping and solvent manufacturing business. Initially, patented solvents were manufactured and utilized on the premises, and distributed nationally. The Company expanded operations to include the recycling of used stripping compounds and solvents from other businesses. Operations were further expanded in 1982 to include a full-scale, fluidized-bed incinerator to treat waste solvents and other compounds. Operations ceased in 1985.
The risk assessment conducted during EPA's Remedial Investigation indicated that there would be unacceptable carcinogenic and non-carcinogenic risks from future ingestion of the groundwater at the Site due to concentrations of contaminants.
On June 24, 1988, EPA proposed the Site for listing on the NPL and on October 4, 1989, listing on the NPL was finalized. The
MEDEP closed the hazardous waste treatment operations at the Site in June 1984. At that time approximately 2,000-2,500 55-gallon drums and 30 liquid storage tanks were present at the Site. These drums, their contents, and the contents of the storage tanks were removed by EPA and MEDEP by the end of November 1984.
At present, contamination remains in the groundwater at the Site that EPA, with consent from MEDEP, determined in 2013 to be technically impracticable to restore. In 2017, a Declaration of Environmental Covenant, which among other things, prohibits the use of groundwater, was recorded in the chain of title for the properties comprising the Site. This deed restriction limits how the Site can be redeveloped.
The scope of the Remedial Investigation was comprehensive, evaluating the nature and extent of contamination in the facility's buildings and underlying soils, unsaturated and saturated soils on the rest of the property, in groundwater in the overburden soils and in bedrock, and in surface water. Additionally, the Remedial Investigation collected soil samples from nearby properties to identify potential airborne contamination which may have occurred as a result of Union Chemical
The Feasibility Study screened seven on-site soil remedial alternatives, six alternatives for groundwater and surface water, five alternatives for the facilities, and two alternatives for off-site soils. All but one on-site soil alternative was retained for detailed analysis. The on-site soil alternatives analyzed in detail included No-Action; Limited Action; Site Capping; Soil Excavation and Low-Temperature Thermal Aeration Treatment; In-Situ Soil Aeration; and Soil Excavation and High-Temperature Thermal Treatment. The groundwater and surface water alternatives analyzed in detail included No-Action; Limited Action; Groundwater Extraction with On-Site Treatment and Discharge to Quiggle Brook; Vacuum-Enhanced Groundwater Extraction with On-Site Treatment and Discharge to Quiggle Brook; Groundwater Extraction with On-Site Treatment and Reinjection; and Vacuum-Enhanced Groundwater Extraction with On-Site Treatment and Reinjection. The five alternatives for the facilities included No-Action; Limited Action; Facilities Decontamination only; Facilities Decontamination and Demolition; and Facilities Demolition and Disposal without Decontamination. The two off-site soil alternatives were No Action and Limited Action.
In the 1990 Record of Decision (ROD) EPA selected a remedy that specified decontamination and demolition of facilities with off-site disposal of debris; soil excavation with on-site low-temperature thermal aeration; vacuum-enhanced groundwater extraction, on-site treatment, and discharge of treated groundwater to Quiggle Brook with institutional controls; and limited action for off-site soils.
The Remedial Investigation identified eight Remedial Action Objectives:
1. Prevent further leaching and migration into the groundwater of contaminants in the soils on the Site, by removal and treatment of contaminants above specific concentrations throughout the Site.
2. Provide rapid restoration of the contaminated groundwater throughout the Site, to concentrations that will protect current and future users, as well as natural resources (
3. Protect off-site groundwater and surface waters (particularly Quiggle Brook) by preventing further migration of the contaminated on-site groundwater.
4. Prevent ingestion or absorption of contaminants (particularly dioxins) contained within the incinerator equipment remaining on the Site.
5. Prevent inhalation of friable asbestos from the Still Building.
6. Remove all existing structures located on the Site to allow for the cleanup of contaminated soils found throughout the Site.
7. Remove all other contaminated materials from the facilities so that the Site will be suitable for all potential future uses.
8. Further evaluate and, if necessary, minimize and/or mitigate any potential risks to public health and the environment from potential soil impacts due to contaminants which were previously emitted from the Union Chemical Company incinerator.
In 1992, EPA entered into a Consent Decree with certain Settling Defendants to conduct Remedial Design and Remedial Action at the Site under EPA oversight.
The remedy selected in the 1990 ROD was modified in 1994, 1997, and 2001 by three Explanations of Significant Differences (ESD) and in 2013 by a ROD Amendment. In June 1994 EPA approved a request from the Settling Defendants to change the soil cleanup technology from low-temperature thermal aeration to soil vapor extraction (SVE) with hot air injection. In addition to the change in technology, EPA also set a deadline of five years for achieving the soil cleanup standards.
EPA issued a second ESD for the Site in September 1997 that modified the remedy for off-site soils. The 1997 ESD changed the length of time specified in the ROD for meteorological data collection from five years to three years, thus moving forward the timeframe for collection of off-site soil samples to determine whether the operations of the Union Chemical Company incinerator resulted in deposition of contaminants off-site.
A third ESD was issued in September 2001 that documented a change in the technical approach for treatment of contaminated groundwater and changed the location for discharge of treated groundwater. Three innovative
In November 2013, EPA issued a ROD Amendment in which it waived groundwater cleanup levels due to technical impracticability. The ROD Amendment was necessary because (1) the original groundwater remedy had reached the limits of its effectiveness, (2) the three innovative
In October 1993 EPA approved the Facilities Remedial Design, and the decontamination and demolition of facilities and off-site disposal of debris was completed in the spring of 1994.
Beginning in 1994 and continuing into 1996, on-site meteorological data was collected to support the off-site soils component of the ROD. In October 1996 EPA and the Settling Defendants performed joint off-site soil investigation and in September 1997 EPA issued an ESD documenting no further action was necessary for the off-site soils.
In April 1995 EPA approved the SVE and groundwater Remedial Design. Construction included 28 SVE wells, 94 hot air injection points, 33 groundwater extraction wells, and the integrated treatment system and was completed in December 1995. Both systems began operation in January 1996. In April 1997 EPA and MEDEP performed a final inspection for both systems and declared that the remedy was operational and functional.
The rate of mass removal of VOCs decreased dramatically between 1996 and 1999 using the groundwater extraction system, indicating that the extraction system was becoming less efficient due to the Site-specific hydrogeologic and chemical limitations. EPA and MEDEP approved the Settling Defendants' request to employ innovative
The second
Given the relative short half-lives of permanganate and hydrogen peroxide, carbon sources in the form of molasses and sodium lactate were added in August and November 2001 to create a reducing environment to enhance degradation of chlorinated ethane compounds by reductive dechlorination. Lactate addition was carried out again in August 2002.
After EPA and MEDEP approval in March 1998, the Settling Defendants' operation of the SVE system and hot air injection was discontinued to allow the soils to return to equilibrium prior to the closure-sampling program. Closure sampling was completed in the fall of 1998. Statistical analysis of the data by three groups working independently indicated that the soils had been cleaned up to below the ROD-specified cleanup levels.
Post-ROD groundwater and surface water monitoring began in the summer of 1992. The monitoring well network includes wells in the source area, in areas with the highest groundwater concentrations, and perimeter wells, near the downgradient boundaries of previously detectable concentrations. The monitoring leading up to the 2007 Five-Year Review did not show any concentration increases in the perimeter wells, indicating that the plume had not expanded since the extraction system was deactivated in 2000. Subsequent monitoring has confirmed that the plume has stabilized, yet remains above the ROD-established performance standards. Consequently, EPA issued the ROD Amendment in 2013 that included a Technical Impracticability waiver recognizing groundwater performance standards would not be attained in a reasonable timeframe because of Site geology, hydrology, and characteristics of the contaminants. Long-term groundwater monitoring will continue to be performed to ensure that the plume is stable and not migrating out of a designated Technical Impracticability Zone, which reaches the Site property boundaries except for the upgradient northwest corner of the Site.
The Operation and Maintenance (O&M) activities associated with the Site have been periodically updated as the on-site soil component was completed and again when active groundwater restoration ceased. O&M activities now consist of annual inspections, long-term monitoring of groundwater and surface water every other year, and ongoing decommissioning of the treatment building and redundant monitoring wells. These activities are outlined in bi-annual work plans that are submitted and implemented after EPA and MEDEP review and approval.
Following acceptance of the soil closure sampling results, unused wells and piping were decommissioned in accordance with the O&M Plan.
The extraction system has been deactivated. The effluent discharge line from the treatment building was flushed out, then disconnected below the ground surface and grouted. The external piping from the groundwater extraction wells was removed, and groups of extraction wells were decommissioned in 2005, 2006, and 2010.
The 1990 ROD and 2013 ROD Amendment required the implementation of institutional controls for the Site Property and nearby properties to protect human health and the environment. On August 2, 2017, MEDEP recorded a Declaration of Environmental Covenant in the chain of title for the two lots comprising the Site (collectively, Site Property) at the Knox County Registry of Deeds (Volume 5192, Page 306). Pursuant to Maine's Uniform Environmental Covenants Act, MEDEP, as the receiver of the Site Property pursuant to a 1986 court order, granted the property rights under the Declaration of Environmental Covenant to itself, and will also serve as the holder of these property interests. EPA has third party rights of enforcement under the instrument. Among other things, the Declaration of Environmental Covenant: (1) Prohibits the extraction of groundwater; (2) prohibits the destruction, obstruction, tampering, or disruption of wells; (3) prohibits the discharge or injection of liquids to the subsurface; (4) prohibits the accumulation, storage, or stockpiling of wastes, as defined in Maine Solid Waste Management Rules, Chapter 400, and operation of a junkyard or automotive scrapyard, as defined in 30 M.R.S. § 3752; (5) requires a sub-slab vapor barrier and ventilation system or a sub-slab depressurization system for any constructed buildings, and (6) provides for EPA and MEDEP access to the Site Property.
In addition to institutional controls for the Site Property, the 1990 ROD also identified a number of institutional controls that could be taken for properties beyond the Site Property. These controls included a restriction on the use of groundwater from existing bedrock wells that are hydraulically connected to the Site, specifically the well on Town of Hope's Tax Map 8 Lot 45, and advisory controls (
The Settling Defendants entered into a Lease and Indenture Agreement with the owners of Map 8 Lot 45 on May 18, 1992 and the State of Maine, acting by and through MEDEP. This agreement prohibited the use of the bedrock well in perpetuity unless released by the Settling Defendants and MEDEP.
The 2013 ROD Amendment also calls for environmental deed restrictions or other mechanisms to limit the use of properties adjacent to the Site, as deemed necessary by EPA based on new information including but not limited to the development (or installation of drinking water wells) on properties adjacent to the Site or movement of the leading edge of either plume. To date, EPA has not determined that it is necessary to implement other land use restrictions on the properties adjacent to the Site.
With the recording of the Declaration of Environmental Covenant, the criteria for EPA's Sitewide Ready for Anticipated Use Government Performance and Results Act Measure were complete, and EPA Region 1 signed the Superfund Property Reuse Evaluation Checklist for Reporting on August 17, 2017.
EPA conducts Five-Year Reviews of the Site because hazardous substances, pollutants, or contaminants remain on-site above levels that allow for unlimited use and unrestricted exposure. These reviews are statutory and four have been completed with the most recent one completed in September 2017.
The 2017 Five-Year Review concluded the remedy currently
Pursuant to that Five-Year Review recommendation, on October 23, 2017, the Settling Defendants collected groundwater and surface water samples for PFOA and PFOS from two overburden wells, two bedrock wells, and two surface water locations. The samples were analyzed via EPA Method 537, Version 1.1. Modified, and QA/QC review determined that results were of acceptable quality. Three of the four wells had concentrations below EPA's drinking water advisory level of 70 ng/L (nanograms per liter or parts per trillion) for both PFOA and PFOS.
The overburden well with the exceedance of both PFOA and PFOS is historically the most contaminated well in the ongoing long-term Site monitoring and is located immediately downgradient of the former facility's discharge trench. The other overburden well and the two bedrock wells are located 150-450 feet farther downgradient from the well with the exceedance (and for the bedrock wells, the property boundary is another 200 feet or more downgradient beyond them). All the wells are within the Technical Impracticability Zone created under the 2013 ROD Amendment.
In the two surface water samples collected from Quiggle Brook, PFOS and PFOA were not individually detected at concentrations exceeding the method detection limit of 1.0 ng/L but had estimated PFOA concentrations at the instrument detection limit of 1.0 ng/L at the location upstream of the Site and 0.8 ng/L at the long-term surface water monitoring location. There is no EPA advisory level for surface water. Maine Center for Disease Control has established a surface water advisory level of 170 ng/L based on recreational exposure (swimming and wading) and these sample results are below that surface water advisory level.
In 2010, 1,4-dioxane was added to the monitoring program. Due to the elevated levels of other compounds in eight of the ten wells in the monitoring program, the samples were diluted for analysis and correspondingly, the Reported Detection Limits (RDL) were raised. Consequently, the 1,4-dioxane levels were reported as below the specific reporting limit, ranging from <20 ppb to <2,000 ppb. However, in the four monitoring events, 2010, 2012, 2014, and 2016, as the RDL has dropped in five of the eight wells, 1,4-dioxane remained below the reporting limit. Of the two wells where 1,4-dio+xane has been detected, the concentrations have decreased so that the latest results are now also below their respective reporting limits of <20 and <100 ppb. There is no Maximum Contaminant Level standard for 1,4-dioxane nor was 1,4-dioxane included the 1992 Maine Maximum Exposure Guidelines (ME MEGs), which is the Applicable or Relevant and Appropriate Requirement. The current, but unpromulgated ME MEG for 1,4-dioxane is 4 ppb.
With the recent PFAS sampling indicating one exceedance in four monitoring wells in the Technical Impracticability Zone, PFAS will be added to the long-term monitoring program coincident with every monitoring event that precedes a Five-Year Review.
There was an established community group, Hope Committee for a Clean Environment (HCCE) that was active during the RI/FS and received support through an EPA technical assistance grant. From 1992 through the early 2000s, while Remedial Design and then active remediation of the on-site soils and groundwater, and investigation of the off-site soils were underway, HCCE met regularly with EPA, MEDEP, and the Settling Defendants' Project Coordinator. With the termination of the
EPA and MEDEP have met frequently with the Hope Town Administrator and have periodically updated the Board of Selectmen. In June 2015, EPA and MEDEP attended the Town of Hope's Annual Meeting. At that meeting, the Town voted not to assume ownership of the Site Property should MEDEP's receivership of the Site Property end. The Town reaffirmed this position in an October 10, 2017 letter to MEDEP. Beyond these meetings and periodic communication with HCCE and owners of a right-of-way easement across the Site Property, there has been little participation or involvement from other members of the local community.
EPA discussed the deletion process with the Town Administrator and offered to meet with the Board of Selectmen if the Town desired a presentation. Additionally, EPA contacted the HCCE to inform the group of EPA's plan to delete the Site.
Remedial Design and Remedial Action (RD/RA) activities at the Site were consistent with the ROD, as modified by the ESDs and the ROD Amendment, and consistent with EPA RD/RA Statements of Work provided to the Settling Defendants. RA plans for all phases of construction included a Quality Assurance Project Plan (QAPP) dated February 17, 1995 and QAPP Revision 1, dated September 22, 2001. The QAPP incorporated all EPA and Maine quality assurance and quality control procedures and protocols (where necessary). All procedures and protocols were followed for soil, groundwater, and surface water sampling during the RA. EPA analytical methods were used for all validation and monitoring samples during all RA activities. EPA has determined that the analytical results are accurate to the degree needed to assure satisfactory execution of the RA, and are consistent with the ROD and the RD/RA plans and specifications.
All institutional controls are in place and currently EPA expects that no further Superfund response is needed to protect human health and the environment, except future Five-Year Reviews and ongoing long-term monitoring. O&M activities were agreed upon by EPA and the Settling Defendants and are documented in the October 2006 O&M Manual. These activities include continuing decommissioning of redundant wells, securing the functioning wells, and maintenance of the soil cap.
This Site meets all the site completion requirements as specified in OSWER Directive 9320.2-09-A-P, Close Out Procedures for National Priorities List Sites. All cleanup actions specified in the ROD, as modified by the ESDs and ROD Amendment have been implemented and the implemented remedy has achieved the degree of cleanup or protection specified in the ROD, as modified by the ESDs and ROD Amendment, for all pathways of exposure.
Confirmatory groundwater monitoring and institutional controls provide further assurance that the Site no longer poses any threats to human health or the
Environmental protection, Chemicals, Hazardous waste, Hazardous substances, 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.
U.S. Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
The U.S. Environmental Protection Agency (EPA) Region 1 is issuing a Notice of Intent to Delete the Old Southington Landfill Superfund Site (Site) located at Old Turnpike Road, Southington, Connecticut (CT), from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL was 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). The EPA and the State of Connecticut, through the CT Department of Energy and Environmental Protection (CT DEEP), have determined that all appropriate response actions under CERCLA, other than operation and maintenance, monitoring, and five-year reviews, have been completed. However, this deletion does not preclude future actions under CERCLA.
Comments must be received by August 20, 2018.
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-2005-0011, by one of the following methods:
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Almerinda Silva, Remedial Project Manager, U.S. Environmental Protection Agency, Region 1—New England OSRR07-4, 5 Post Office Square, Boston, MA 02109-3912, Phone: (617) 918-1246, email
EPA Region 1 announces its intent to delete the Old Southington Landfill Superfund Site from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), promulgated by EPA 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). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions should future conditions warrant such actions. EPA will accept comments on the proposal to delete this site for thirty (30) days after publication of this document in the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Old Southington Landfill Superfund Site and demonstrates how it meets the deletion criteria.
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 have 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 deletion:
(1) EPA consulted with the State before developing this Notice of Intent to Delete;
(2) EPA has provided the State 30 working days for review of this notice prior to publication of it today;
(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate;
(4) The State has concurred with deletion of the Site from the NPL;
(5) Concurrently with the publication of this Notice of Intent to Delete in the
(6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
If comments are received within the 30-day public comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Site, the Regional Administrator will publish a final Notice of Deletion in the
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion 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 NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Site from the NPL:
The Old Southington Landfill Superfund Site is in the Town of Southington, Hartford County, Connecticut, and is approximately 13 miles southwest of Hartford, Connecticut. From 1920 to 1967, residents and area businesses used portions of the landfill for disposal of waste materials. During this time frame, the landfill was known as the Old Turnpike Landfill. Based upon historical information, Remedial Investigation (RI) data, and differences in ownership between the northern and southern portion of the Site, it is clear that the northern and southern portions of the landfill were used for distinct and separate purposes. The northern portion of the landfill was a “stump dump” that was used for the disposal of wood and construction debris. The southern portion of the landfill was used throughout the period the landfill was in operation for the co-disposal of municipal and industrial waste. Historical information, interviews with current and past Town employees, and information contained in public documents on disposal practices indicate that for a short period of time (1964-1967) two areas (SSDA 1 and SSDA 2) in the southern portion of the landfill were used for disposal of semi-solid industrial wastes. In 1967 (or shortly thereafter), the landfill was “closed” consisting of: Compacting disposed material, covering with 2 feet of clean fill, and seeding for erosion control.
Between 1973 and 1980, the landfill property was subdivided and sold for residential and commercial development. Several residential and commercial buildings were built on the Site and on adjacent areas.
The landfill is located approximately 700 feet southeast of the former Production Well No. 5, which was installed in 1965 by the Town of Southington Water Department and was used as a public water supply. The Connecticut Department of Public
In February 1980, EPA authorized a hydrogeologic investigation aimed at defining the nature and extent of contamination in groundwater in the vicinity of Well No. 5. Analysis of groundwater samples collected from two monitoring wells installed between the landfill and Well No. 5 indicated the presence of VOCs (Warzyn Engineering, Inc., 1980). In November 1980, the Connecticut Department of Environmental Protection (now the CT DEEP) collected soil samples from a manhole excavation within the industrial park located on land that had previously been part of the landfill. Analysis of the soil samples indicated the presence of chlorinated and non-chlorinated VOCs.
The Old Southington Landfill was formerly known as the Old Turnpike Landfill. Based on the above findings and a hazardous ranking evaluation performed in 1982, EPA subsequently proposed the Site be placed on the National Priorities List (NPL), pursuant to Section 105(8)(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9605(8)(b). On September 8, 1983, the Site was proposed to the NPL (48 FR 40674) and on September 21, 1984, the Old Turnpike Landfill was final listed on the NPL as the Old Southington Landfill Superfund Site (49 FR 37070). The Site includes two Operable Units (OUs); OU1 includes the landfill cap and permanent relocation of all on-site homes and businesses; and OU2 includes the groundwater.
In 1987, EPA entered into an Administrative Order on Consent (AOC) with three Potentially Responsible Parties (PRPs) to define the nature and extent of Site contamination. In 1993, the PRPs prepared a Remedial Investigation/Feasibility Study report (ES&E, 1993) that provided results of the RI, a Human Health Risk Assessment (HHRA), an Ecological Risk Assessment (ERA), and a Feasibility Study (FS). EPA issued an Addendum to the RI/FS Report in 1994.
In September 1994, EPA issued the Interim Remedial Action for Limited Source Control Record of Decision (ROD) that addressed the landfill and included the following major remedy components and remedy objectives:
• Relocation of existing residences and businesses located on top of the landfill;
• Construction of a synthetic cap over the landfill to prevent human contact with contaminated subsurface soils, stop rainwater infiltration through the soil to the groundwater, and allow for the containment and collection of landfill gas;
• Excavation and consolidation of a highly contaminated area “hot spot” in a lined cell underneath the landfill cap;
• Removal of all buildings from the landfill;
• Installation of a soil gas collection system;
• Performance of long-term operation and maintenance (O&M);
• Performance of long-term monitoring;
• Development and implementation of institutional controls to ensure the remedy integrity by controlling future Site use and access; and
• Five-Year Reviews.
The remedy selected in the 1994 ROD also required additional groundwater studies be undertaken concurrent with the implementation of the cap on the landfill. In addition, because it was uncertain if the landfill gas collection system would be effective and protective of human health, the 1994 ROD required that an additional evaluation be conducted.
In 1998, a Consent Decree (CD) was entered between EPA and approximately 320 PRPs; two PRPs became the Performing Settling Defendants (PSDs) while the remainder were Contributing Settling Defendants. Pursuant to the CD, the PSDs were required to implement the remedy selected in the 1994 ROD. Construction of the remedy selected in the 1994 ROD was completed in 2001. Operation and maintenance as well as long-term monitoring are currently being conducted by the Performing Settling Defendants (PSDs). Institutional controls, consisting of Environmental Land Use Restrictions (ELURs), were implemented in 2010 and 2018 for parcels occupied by the landfill cap. Five-Year Reviews are being conducted by EPA. In June 1999, EPA entered into two additional settlements: One with six parties and the other with 119
The 2009 CD required the PSDs to develop the Remedial Design and construct the selected remedy for the 2006 ROD. As part of the Remedial Design, a vapor intrusion groundwater investigation was completed for two properties immediately downgradient of the landfill that determined only vinyl chloride slightly exceeded a proposed State groundwater quality commercial/industrial volatilization criterion. Institutional controls in the form of ELURs would be implemented to prevent construction of new buildings to prevent future vapor intrusion risks (LEA, 2014). The ELURs were completed during 2017.
Results from the 1993 RI concluded that the primary sources of groundwater contamination at the Site are wastes, including liquid organic solvents and semi-solid organic sludges, deposited in the landfill during its operation. Deposition of limited amounts of metal-containing wastes has also contributed to localized areas of elevated levels of certain metals in groundwater beneath the landfill.
Overall, the RI results indicated that industrial-related chemical waste was deposited primarily in the southern portion of the landfill. VOCs were detected in soils at sporadically high concentrations throughout this portion of the landfill. VOCs were detected in shallow, intermediate, and deep overburden groundwater exceeding the federal Maximum Contaminant Levels (MCLs).
Low to moderate concentrations of several other contaminants, including semi-volatile organic compounds (SVOCs) [primarily polycyclic aromatic hydrocarbons (PAHs)], polychlorinated biphenyl compounds (PCBs) and some metals, were also detected. The 1993 RI
The results of the 2006 SRI confirmed that groundwater flow beneath the landfill is westerly; however, as groundwater flows away from the landfill towards the Quinnipiac River, the flow becomes northwesterly. Groundwater present near the Site includes an overburden aquifer and a bedrock aquifer. Overall, groundwater flow was postulated to generally follow the bedrock topography, flowing along a west-northwest trending bedrock trough, with the impact of the bedrock topography being potentially greater on the flow in the deeper portions of the aquifer. Hydrogeologic evaluations also indicated that the bedrock surface rises in the western part of the area studied, pinching out the overburden groundwater aquifer west of the Quinnipiac River.
Groundwater migrating westward from the Site contains dissolved contaminants derived from the waste disposed in the southern portion of the Site, and flows relatively quickly downward into the deeper overburden aquifer. This phenomenon appears to be due to significant differences in the relatively low permeability of the waste versus the high permeability of the underlying sand and gravel layer. Contaminants are then transported at depth to the west by regional groundwater flow. Contaminants from the northern portions of the landfill move downward more slowly and migrate greater distances through the shallow aquifer immediately west and northwest of the landfill.
Using the information gathered from the 1993 RI, HHRA, and other technical documents, EPA identified several source control response objectives to use in developing alternatives to prevent or minimize the release of contaminants from the Site. A comprehensive evaluation of containment and management of contaminated groundwater migration from the landfill was addressed by the final response action. A presumptive remedy for CERCLA municipal landfills was selected, which consisted primarily of containment (capping) of the landfill waste and gas collection/treatment. Capping of the landfill waste along with collection of landfill gases, and if necessary, treatment, was the presumptive containment remedy selected in the FS for this Site. In this FS, the remedy was combined with other remedial actions that addressed source control of the landfill wastes. The presumptive remedy did not address exposure pathways outside the source area (landfill) such as groundwater. The following 2006 Amended Feasibility Study addressed groundwater.
In 2006, an Amended Feasibility Study (AFS) developed remedial alternatives for the remediation of groundwater, provided a detailed evaluation on the remedial alternatives, and performed a comparative analysis of the two remedial alternatives identified as (1) Alternative GW-1: No Action, and (2) Alternative GW-2: Institutional Controls/Groundwater Monitoring/Building Ventilation/Vapor Barriers. Alternative GW-2 was chosen as the selected groundwater remedy for the Site.
The September 1994, ROD for the Interim Remedial Action for Limited Source Control addressed the following Remedial Action Objectives (RAOs):
• Minimize the current and future effects of landfill contaminants on groundwater quality, specifically, reducing to a minimum the amount of precipitation allowed to infiltrate through the unsaturated waste column and contaminate the groundwater;
• eliminate potential future risks to human health through direct contact with landfill contaminants by maintaining a physical barrier;
• control surface water run-on, run-off, and erosion at the Site;
• prevent risks from uncontrolled landfill gas migration and emissions;
• comply with state and federal applicable or relevant and appropriate requirements (ARARs); and
• minimize potential impacts of implementing the selected limited source control alternative on adjacent surface waters and wetlands.
Additional groundwater studies followed and in September 2006, EPA issued a ROD for the final selected remedy that addresses potential risks from vapor intrusion into buildings above the shallow VOC plume in groundwater (2006 ROD). This remedy addressed the following remedial action objective (RAO): Prevent inhalation of VOCs by occupants of residential/commercial/industrial buildings resulting from volatilization of VOCs in groundwater, in excess of 10
The remedial action selected in the 1994 ROD (for OU1, the landfill) was based principally upon EPA's
The northern 4-acre portion of the landfill Site was redeveloped for passive recreational use. This part of the landfill is landscaped with trees and shrubs along its perimeter and abuts Black Pond. It is regularly mowed by the Town of Southington (a PSD). There is a 3-foot high chain link fence that encircles this part of the landfill along Old Turnpike Road to the west and Rejean Road to the north. The fence has an opening, which allows for pedestrian access. People can walk their dogs, sit and watch the naturally existing wildlife, and/or take their kayak or canoe out onto Black Pond. The southern portion of the landfill is secured with a 6-foot high chain link fence and public access is not allowed. The reason for prohibiting public access to this part of the landfill is to prevent potential damage to the low-permeability cap, which could in turn
The 2006 SRI determined that there were no receptors downgradient of the Site that could be affected by the plume and that Site-related groundwater contaminants of concern (COCs) downgradient of the Site do not adversely impact environmental media other than groundwater. Groundwater COCs are transported as a narrow plume in the lower portion of the aquifer, remain in the lower portion of the aquifer, with ultimate discharge into the Quinnipiac River Basin west-northwest of the Site. The also determined that non-VOC COCs from the Site in groundwater do not exceed applicable regulatory criteria. Based on the SGI's hydraulic studies, it was determined that contaminated groundwater underlying the landfill does not discharge into Black Pond or the unnamed stream and wetlands.
Confirmation of the passive landfill gas collection system's effectiveness was conducted through several means. After the gas collection system was installed and the landfill was capped, three rounds of seasonal vapor data were collected directly from the landfill gas vents and a risk assessment was conducted. The data results indicated that the gas vents were operating effectively and there was no risk found to human health or to the environment.
As part of the 2010 Five-Year Review, a helium tracer study was conducted in the northern part of the landfill to simulate potential landfill gas migration, low levels of helium were detected outside the landfill. Therefore, as a precautionary measure, the PSDs installed an impermeable vertical gas barrier trench that extends into the water table just outside the landfill cap to prevent possible landfill gas from migrating off-Site to the northern neighborhood. The PSDs performed a similar evaluation of the gas vents data in the southern portion of the landfill and found no risk being posed to human health or the environment. All vents continue to be periodically checked through long-term monitoring (LTM) and O&M programs.
This ROD memorialized the remedy to reduce potential risks from the migration of volatile contaminants to indoor air within buildings located above groundwater contamination. The components of this remedy complement those in the1994 ROD.
The major components of the 2006 ROD are as follows:
i. Institutional controls, in the form of Environmental Land Use Restrictions (ELURs) as defined in Connecticut's Remediation Standard Regulations (CT RSRs) will be placed on properties or portions of properties where groundwater Volatile Organic Compound (VOC) concentrations exceed the CT RSR volatilization criteria for residential or commercial/industrial use, or criteria listed in Table L-1 of the 2006 ROD. Periodic inspections are required to ensure compliance with the institutional controls and to ensure proper notification to EPA and the State, as necessary.
ii. Building ventilation (sub-slab depressurization systems or similar technology) will be used in existing buildings located over portions of properties where VOCs in groundwater exceed the CT RSR's volatilization criteria or criteria listed in Table L-1 of the 2006 ROD to prevent migration of VOC vapors into buildings. Similarly, vapor barriers (or similar technology) or sub-slab depressurization (or similar technology) will be used to control vapors in new buildings.
iii. Groundwater monitoring will be conducted in areas where the potential for vapor intrusion is a concern. Such areas include, but are not limited to, the two parcels that are the initial focus of this remedial action Chuck & Eddy's (C&E) and the Radio Station. Compliance wells will be installed at appropriate locations, to collect groundwater to evaluate long-term fluctuations in accordance with the monitoring requirements of the CT RSRs and other federal requirements to ensure the protectiveness of the remedy in the future.
iv. Conduct operation, maintenance, and monitoring of engineering and institutional controls to ensure remedial measures are performing as intended and continue to protect human health and the environment in the long-term.
v. Five-year reviews.
The 2006 ROD addresses the threat presented by vapor intrusion through engineering controls, institutional controls, long-term monitoring, and Five-Year Reviews to prevent potential exposure to contamination that presents an unacceptable risk to human health. Engineering controls (
In August 2010 further testing was performed at the Highland Hills neighborhood and the results confirmed that there is no vapor intrusion risk to this neighborhood and thus no further action is necessary in this area. To confirm that any groundwater contamination that far from the landfill edge would be at depths greater than 15 feet and not pose a vapor intrusion risk, groundwater samples were collected sequentially in discrete vertical intervals and analyzed and compared to criteria presented in Table L-1 of the 2006 ROD. Groundwater samples from two consecutive 1 foot intervals and subsequently every 5 feet down to 60 feet were collected and analyzed. There were no exceedances of any of the volatilization criteria in the upper 30 feet of the aquifer. These results confirm the conceptual Site model that there is no vapor intrusion pathway in groundwater below the Highland Hills subdivision and therefore no vapor intrusion risk.
An investigation was conducted by the PSDs with EPA oversight in 2011 to confirm that the Site's groundwater plume was not migrating towards the portion of the aquifer classified by the State as GA [potable], situated to the south and southwest of the landfill. The investigation results demonstrated that the groundwater that is moving through the Landfill moves in a west/northwest direction, which continues to support the conceptual Site model for groundwater flow and contaminant transport. Thus, the Site groundwater plume does not flow toward or impact the GA aquifer. A more detailed description of this investigation and findings can be found in the
A Vapor Intrusion Groundwater Investigation was performed by the PSDs during 2011 to assess the potential for vapor intrusion at the C&E's Property, the Radio Station Property, and at two locations along Nunzio Drive and Barbara Lane (located southwest of the Site). Soil boreholes were advanced at select locations and monitoring wells were installed. Soil and groundwater samples were collected from these locations for analysis. Soil vapor probes were installed in occupied structures at the C&E's Property and the Radio Station Property. Four quarterly rounds of soil vapor and groundwater samples were collected from June 2010 through September 2011. Only vinyl chloride was identified as slightly exceeding the criteria presented in Table L-1 of the 2006 ROD. No VOCs were detected at concentrations exceeding the State RSRs for soil vapor (LEA, 2014). Therefore, construction of remedial vapor mitigation systems for existing structures at the C&E's Property and the Radio Station Property identified in the 2006 ROD was unnecessary. However, a
Residents and businesses have been permanently relocated from the landfill. The landfill has been properly capped and a soil gas collection system and impermeable gas barrier have been installed at the landfill. Therefore, there is no risk to human health or the environment from coming in contact with the landfill soil or landfill gas. In addition, everyone who lives or works in the area over the groundwater plume is connected to a municipal water supply, and so there is no ingestion or dermal contact with the contaminated groundwater. The route of potential exposure to human health is through vapor intrusion in the shallow groundwater that could potentially migrate into buildings. The 2006 remedy addresses this issue through long-term monitoring and implementation of vapor intrusion engineering controls and institutional controls. The components of 1994 and the 2006 remedies are functioning effectively as designed.
Attainment of Groundwater Restoration Cleanup Levels is not a Remedial Action Objective at this Site. The final groundwater remedy is not designed to clean up or restore groundwater but to address potential risks from vapor intrusion into buildings located above shallow groundwater contaminated from the Site (EPA, 2006).
There is an ongoing O&M program instituted for the 1994 remedy that includes landfill cover maintenance, cap effectiveness monitoring (groundwater monitoring and gas vent monitoring), and landfill inspection. An Operation and Maintenance Plan was prepared in 2001 that details the inspections, maintenance, and monitoring activities (CRA, 2001). An inspection plan was developed to ensure integrity of the cover system. Routine inspections of the Site include observing and recording the height of grass cover and areas of settlement and/or ponding. A security inspection that includes a fence perimeter inspection and a visual inspection of trespasser or disturbance activity is also conducted periodically. The PSDs' contractor performs the cap effectiveness monitoring, inspections, non-routine maintenance. One PSD (Town of Southington) performs the soil cover maintenance on a routine basis (removal of debris and grass cutting).
For the 2006 remedy, it was determined that no sub-slab vapor mitigation system was required for either the existing C&E property or the Radio Station buildings. However, as a preventative measure any new construction of new buildings or additions to existing buildings would require sub-slab and/or engineering vapor intrusion mitigation measures. In 2010, a pre-fabricated building was constructed at the C&E property with the placement of a passive vapor barrier. This barrier was installed under the direction of the C&E property owner without EPA or CT DEEP oversight. As a result, in 2011 a second geomembrane was proposed for installation under the concrete slab as a passive vapor intrusion barrier. EPA and CT DEEP reviewed and approved the design. The installation with oversight, was approved by EPA and CT DEEP. A Vapor Intrusion Inspection Plan (VIIP) was developed by LEA in March 2018 that specifies inspection frequency on a biennial basis with mitigation steps as necessary. The VIIP is included in Appendix N of the Remedial Action Completion Report (LEA, 2018).
Institutional controls have been implemented for properties that comprise the Site and two properties located downgradient of the capped landfill to prevent consumption of groundwater, prevent activities that would compromise the integrity of the landfill cap, and restrict construction of structures over contaminated groundwater that exceed state groundwater standards with regard to preventing vapor intrusion exposures. These institutional controls address the requirements of both the 1994 and 2006 RODs. The institutional controls are environmental restrictions in the forms of “Declarations of Land Use Restrictive Covenants or “Declarations of Environmental Land Use Restrictions (ELURs)”.
The September 14, 2010 ELURs were executed by the Town of Southington for the three Town-owned parcels located in the northern area of the capped landfill. In the ELURs, the Town agreed to: (1) Place notice of the restrictions on the deed, title, or other instrument and have it continue into perpetuity; (2) prohibit any use of any portion of the property that will disturb any of the remedial measures (except for maintenance and repair upon prior approval by EPA); (3) prohibit any activities that could result in exposure to contaminants in the subsurface soils and groundwater; (4) prohibit any future residential and commercial development on the property; (5) prohibit use or consumption of contaminated groundwater underlying the property; and (6) grant access to EPA, including its contractors, and the State for the purpose of conducting any activity related to the CDs. Finally, EPA, the State, and/or the PSDs have the right to enforce the ELURs. The April 9, 2018 ELURs were implemented for one Town-owned parcel located in the southern area of the capped landfill, which has the same restrictions as the September 14, 2010 ELURs.
In September 17, 2015 ELURs were implemented by the CT DEEP for the remaining 9 state-owned parcels of the landfill. These ELURs have the same six restrictions as those described in the September 14, 2010 ELURs, plus an additional restriction that requires any new structure to be constructed in accordance to a plan approved by EPA that minimizes the risk of inhalation of contaminants. In addition, this ELUR indicates EPA and/or the PSDs have the right to enforce the restriction.
The April 19, 2017 ELUR was recorded by the owners of the Radio Station Property. In this ELUR, the owners agreed to: (1) Restrict the construction of a building over groundwater at the Subject Area where volatile organic compounds concentrations exceed the RCSA Section 22a-133k-1(75) Volatilization Criteria (unless a release is obtained from the CT DEEP); (2) allow no action or inaction which would allow a risk of pollutant migration, or potential hazard to human health or the environment; or result in the disturbance of structural integrity of engineering controls used to contain pollutants or limit human exposure; (3) in the event of an emergency, notify the CT DEEP, implement measures to limit actual or potential risks to human health and the environment, implement a plan to ensure restoration of the property to conditions prior to the emergency; (4) not allow alterations to the property inconsistent with the ELUR until a release is approved by the CT DEEP; (5) allows access to the CT DEEP agents that perform pollution remediation activities; (6) allow access onto the property by the CT DEEP upon reasonable notice; and (7) require the property owner to notify any future interests of the ELUR requirements. This ELUR is enforceable by the CT DEEP.
The June 22, 2017 Declaration of ELUR was recorded by the owner of the property where the C&E's Used Auto Parts business is located. This ELUR has the same seven restrictions as described in the April 2017 ELUR.
Hazardous substances will remain at the Site above levels that allow unlimited use and unrestricted exposure after the completion of the action. Pursuant to CERCLA § 121(c) and as provided in the current guidance on Five-Year Reviews (OSWER Directive 9355.7-03B-P, June 2001), EPA must conduct statutorily required Five-Year Reviews. The first Five-Year Review was conducted in September 2005. The second and third Five-Year Reviews were completed in September 2010 and in September, 2015, respectively. The September 2015 Five-Year Review found the Site remedy currently protective of human health and the environment. There was one issue and recommendation, to complete the Institutional Controls at the C&E property and the Radio Station Property. The PSDs continued to work collaboratively with CT DEEP and the property owners at these two properties and in June 2017 institutional controls, in the form of ELURs, were finalized. These actions completed the 2015 Five-Year Review recommendation. The remedy is protective of human health and the environment. The next Five-Year Review is scheduled for September 2020.
From approximately 1988 through 2002, community concern and involvement was high at this Site. EPA kept the community and other interested parties apprised of the Site's activities through informational meetings, fact sheets, press releases and public meetings. In October 1988, EPA released a community relations plan that outlined a program to address community concerns to keep citizens informed and involved with remedial activities. On December 14, 1988, EPA held an informational meeting in the Southington Public Library to describe the plans for the Remedial Investigation and Feasibility Study. In January 1993, a $50,000 technical assistance grant was awarded by EPA to a local group of citizens who called themselves, Southington of Landfill Victims, (SOLV) to hire a technical consultant to help them better understand the Site's technical data and information. This consultant provided the group technical assistance in interpreting technical documents relating to the remedial investigation, human and ecological risk assessments, remedial design, and remedial action. On May 23, 1994, EPA completed the administrative record which included documents that were used by EPA to propose the remedy for the Site. These documents were available for public review at EPA's offices in Boston, Massachusetts and at the Site Repository at the Southington Public Library, Southington, CT.
The Proposed Plan was made available to the public on May 23, 1994. On June 14, 1994, EPA held a public meeting to discuss the results of the Remedial Investigation, the cleanup activities presented in the FS and to present the Agency's Proposed Plan. This was followed by a 30-day comment period. On June 29, 1994 residents requested an additional 30-day comment period to August 13, 1994, which was granted by EPA.
On July 12, 1994, the Agency held a public hearing to discuss the Proposed Plan and to accept oral comments. A transcript of this hearing and comments, along with the Agency's response to comments are included in the Responsiveness Summary found in Appendix A of the 1994 ROD.
In June 2006 EPA issued a second Proposed Plan with a 60-day comment period from June 22, 2006 through August 24, 2006 for the final remedy to address vapor intrusion at properties downgradient of the landfill. On July 6, 2006 a public hearing was conducted to accept verbal comments. All comments were addressed in the responsiveness summary included in PART 3 of the 2006 ROD.
After the 1994 ROD remedy was implemented, community involvement and interest decreased significantly. EPA continues to conduct community outreach through its Five-Year Reviews or any time there is new information to share with the public.
EPA has worked closely with CT DEEP and the PSDs throughout the preparation of documentation for the deletion process. The community is being notified of EPA's intent to delete the Site from the NPL through the publication of this Notice of Intent to Delete and the public will be provided with a 30-day comment period. EPA will take all of received comments into consideration and in consultation with CT DEEP, and will respond, as appropriate, to the comments in a responsiveness summary.
All Remedial Design and Remedial Action (RD/RA) activities at the Site were consistent with the 1994 ROD, the 2006 ROD, as well as all respective EPA Statements of Work provided by the PSDs. All selected remedial and removal action objectives and associated cleanup levels are consistent with agency policy and guidance. RA plans for all phases of construction included Quality Assurance Project Plans (QAPPs) which incorporated all EPA quality assurance and quality control procedures and protocols (where necessary). All procedures and protocols were followed for soil, groundwater, surface water, sediment, soil gas, and fish tissue sampling. EPA analytical methods were used for all validation and monitoring during all RA activities. EPA has determined that the analytical results were accurate to the degree needed to assure satisfactory execution of the RAs, and were consistent with the RODs and RD/RA plans and specifications.
All Institutional Controls are in place and currently EPA expects that no further Superfund response is needed to protect human health and the environment, other than future Five-Year Reviews, ongoing long-term monitoring, O&M, and inspections. Confirmatory groundwater monitoring and institutional controls provide further assurance that the Site no longer poses any threats to human health or the environment. Operation and maintenance activities were agreed upon by EPA, in consultation with CT DEEP, and the PSDs in the 2001 O&M Plan and the 2018 Vapor Intrusion Monitoring Plan (VIIP).
EPA has followed the procedures required by 40 CFR 300.425(e). The Site meets all Site completion requirements as specified in OSWER Directive 9320.2-09-A-P, Close Out Procedures for National Priorities List Sites. All cleanup actions specified in the 1994 and 2006 RODs have been achieved for all pathways of exposure. Therefore, no further Superfund response is needed to protect human health and the environment.
A bibliography of all reports relevant to the completion of this Site under the Superfund program are included in the administrative record for this deletion.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, and 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 Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission or FCC) seeks comment on proposed service rules to allow flexible fixed and mobile uses in additional bands and on refinements to the adopted rules in this document. A Final rule document for the Third Report and Order (
Comments are due on or before September 10, 2018; reply comments are due on or before September 28, 2018.
You may submit comments, identified by GN Docket No. 14-177, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
John Schauble of the Wireless Telecommunications Bureau, Broadband Division, at (202) 418-0797 or
This is a summary of the Commission's Third Report and Order (
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Dr., Annapolis Junction, Annapolis MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington DC 20554.
Pursuant to § 1.1200(a) of the Commission's rules, this
As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the attached
The
1. The 42-42.5 GHz band (42 GHz band) consists of 500 megahertz, allocated to non-Federal fixed and mobile services on a primary basis, and it contains no current Federal allocation or service rules. The adjacent 42.5-43.5 GHz band is allocated to the Radio Astronomy Service (RAS) on a primary basis for Federal and non-Federal use and to the Federal fixed, fixed-satellite (Earth-to-space), and mobile except aeronautical mobile services on a primary basis. The allocations footnote corresponding to the 42.5-43.5 GHz band also requires that any assignments to the stations of other services also allocated to the band take all practicable steps to protect the RAS from harmful interference. Out-of-band signals into allocated radio astronomy bands can cause interference to radio astronomy observations. The Commission also notes that radio astronomy as a service frequently makes use of observations (passive) in bands not allocated to the RAS. This practice is a result of scientifically valuable signals being subject to the Doppler Effect and shifted in frequency outside radio astronomy-allocated bands. In its 2016
2. The MOBILE NOW Act, passed as part of the RAY BAUM'S Act of 2018 provides that, within two years of its enactment, the Commission shall publish an NPRM “to consider service rules to authorize mobile or fixed terrestrial wireless operations, including for advanced mobile service operations,” in the 42 GHz band. Section 604(b) of the MOBILE NOW Act provides that, in conducting this rulemaking, the Commission shall: “(1) consider how the band described in subsection (a) may be used to provide commercial wireless broadband service, including whether — (A) such spectrum may be best used for licensed or unlicensed services, or some combination thereof; and (B) to permit additional licensed operations in such band on a shared basis; and (2) include technical characteristics under which the band described in subsection (a) may be employed for mobile or fixed terrestrial wireless operations, including any appropriate coexistence requirements.” Consistent with the MOBILE NOW Act, and out of an abundance of caution, the Commission issues this
3.
4. Various commenters view the global harmonization of this band, and 5G spectrum generally, as an important step towards greater manufacturing efficiencies and more rapid development and deployment of services. For example, Samsung notes that the Commission has frequently highlighted international harmonization of spectrum as a key policy goal and endorsed its benefits. Commenters present different views, however, on the
5. Certain FSS operators argue that the band should be licensed for satellite uses, and they raise arguments similar to those raised in petitions for reconsideration of the Commission's decision not to allocate the 42 GHz band for FSS. FWCC argues the band by itself is too narrow for fixed duplex operations and that, accordingly, the 42 GHz band should be combined with the adjacent 42.5-43.5 GHz band to create a single band with rules for fixed operations. The Commission notes that although in its
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7. The Commission also seeks to refresh the record on the previous proposal in the 2016
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9. Protecting RAS Services at 42.5-43.5 GHz. As noted above, the Commission previously proposed to authorize flexible mobile and fixed operations in the 42 GHz band, as long as RAS could be protected in the adjacent 42.5-43.5 GHz band, and it sought comment on and invited detailed study of the forms that such protection should take given the location of RAS observatories. In response, The National Academy of Sciences' Committee on Radio Frequencies (CORF) informed the Commission that RAS observations are currently made at a limited set observatories around the U.S. These sites are the GBT in Green Bank, WV, the VLA at Soccoro, NM, the Haystack Observatory in Westford, MA, and ten sites of the Very Long Baseline Array (VLBA), noted in the Table of Allocations footnote US 131. CORF asserted that frequency lines at 42.519, 42.821, 43.122, and 43.424 GHz are of the greatest importance for the detection of strong silicon monoxide maser emissions from stars and star forming regions—important for measuring stellar temperature, density, wind velocity and other parameters. The 42 GHz band also is one of the preferred bands for measuring continuum observations. Because of the very low signal levels being measured, RAS telescopes are particularly vulnerable to in-band emissions, spurious out-of-band emissions, and emissions producing harmonics, making protection all the more important. CORF stated that the detrimental levels for continuum and spectral line radio astronomy observations for single dishes are −227 dBW/m
10. Proponents of using the 42 GHz band for flexible terrestrial wireless use generally agree that there are various effective means to protect RAS, including use of exclusion zones, coordination zones, and aggregate emissions limits—particularly since RAS sites are generally in remote locations. No commenter, however, provided studies or examples showing how these proposed methods would work in practice in this particular band. T-Mobile suggested that coordination with RAS should be required within a defined coordination distance. The Commission notes that CORF and T-Mobile agree that the relevant received power spectrum density at the RAS receiver should be the parameters established by ITU-R RA.769. The Commission agrees with CORF and T-Mobile that RAS bands can be protected by limiting UMFUS operations near a RAS. However, because no one has submitted technical studies regarding protection of RAS in this band, the Commission does not currently have sufficient information to propose specific rules to protect RAS facilities.
11.
12.
13. In the
14. In the
15. Two commenters, Starry and Intel, offer recommendations on the specific regulatory, technical, or procedural tool necessary to facilitate coordinated access in the Lower 37 GHz band. Starry proposes site-based registration through a third-party coordinator. Under its proposal, licensees would file “specific information about each site sufficient for a third-party coordinator to conduct an interference analysis,” including its location, height above ground level, EIRP, transmitter azimuth, and channel size. In addition, “end points operating under the control of a registered transmitter” would not be registered individually, and would instead fall under the authorization of the transmitter.” The third-party coordinator would conduct an interference analysis under which previously registered sites would be protected at a modeled receive signal strength of −79 dBm/10 MHz assuming a test antenna at the end points with a gain of 25 dBi, at a height of 10 meters above ground. Also, under this proposal, licensees would be able to negotiate alternative sharing arrangements and sites would be required to be constructed and in operation within 120 days after the registration is accepted. Under Starry's proposal, there would be clear penalties for registering unused sites. Starry also offers additional ideas for an enhanced sharing framework that could be implemented over time. No party responded to Starry's proposal. Intel's proposal would use a database similar to the database used for the 70 GHz and 80 GHz bands, except that the database would also play a role in frequency coordination.
16.
17. In designing a licensing mechanism for the Lower 37 GHz Band, the Commission seeks to accommodate a variety of use cases that may develop for this band—in essence, the Commission envisions Lower 37 GHz as an innovation band in the mmW spectrum. In particular, the Commission anticipates that there will be at least four types of non-Federal deployments in the Lower 37 GHz Band: Point-to-point links (for example backhaul and backbone links); fixed wireless broadband systems (generally consisting of a fixed access point and fixed subscriber units); single base station IoT-type systems (for example, in a factory); and carrier-based deployments of mobile systems using the Lower 37 GHz Band as supplemental capacity tied to other bands that are licensed on a geographic area basis. The Commission seeks comment on whether there are additional types of deployments contemplated for this band. If so, what would those additional uses be, and how would they affect the licensing of the Lower 37 GHz Band?
18. As detailed above, Starry proposes a model in which proposed facilities would be registered with a third-party coordinator. Another possible model, under which the Commission would issue licenses authorizing operations, would be the coordination model used in part 101 point-to-point bands. In order to complete frequency coordination, an applicant must give prior notice to nearby licensees and other applicants for licenses of the proposed applicant's operations, make reasonable efforts to avoid interference and resolve conflicts, and certify to the Commission that the proposed operation has been coordinated. Once the applicant has completed frequency coordination, the applicant must file an application for authorization with the Commission, specifying the latitude and longitude of the transmitter to be used to an accuracy of one second. The applicant must coordinate each operation, including any change in the location of the transmitter of more than five seconds in latitude or longitude or both, and must apply for a modification of their license. Similarly, if the applicant later seeks to deploy additional transmitters, the Commission's part 101 rules require coordination of those facilities and the applicant must apply for modification of the license. The Commission seeks comment on the relative merits of using these coordination models in the Lower 37 GHz band. The Commission also seeks comment on the criteria that it should use to determine whether predicted interference would be harmful. If actual harmful interference occurs after successful coordination, how should the interference be resolved? How will future Federal operations be accommodated in the sharing framework and what parameters will be used to develop a trigger for required coordination? Given that the Commission is proposing construction requirements for non-Federal licensees in this band, as discussed below, the Commission seeks comment on how best to enforce those requirements in an environment where registrations are not filed with the Commission.
19. For the four types of deployments, the Commission seeks comment on a first-come-first-served licensing or registration scheme, in which actual users have a right to interference protection, but no right to exclude other users. The Commission seeks comment on subsequent users being required to coordinate with previously registered non-Federal and Federal sites through part 101 notice and response rules or on the alternative of registering facilities with a third-party coordinator.
20. With regard to Federal sites, the Commission proposes to require non-Federal users to work with Federal users in good faith to coordinate any new system Federal users may seek to deploy. The Commission anticipates that non-Federal users would not be required to agree to coordination requests that would carry a significant risk of harmful interference. The Commission seeks comment on the criteria that it should use to determine whether interference is harmful. Is the coordination trigger that Starry proposes appropriate, or should the Commission use an alternative set of criteria? The Commission seeks comment on the best means of coordinating with Federal operations. The Commission intends to adopt as part of the rules a coordination methodology that will facilitate coordination for the kinds of cases that it anticipates may be typical. This will allow us to test the assumption that any coordination zone typically “can be measured in meters rather than kilometers.” To do so, the Commission will work with NTIA, on behalf of Federal users, and with industry to identify those cases. DoD has expressed an interest in a possible aeronautical allocation in the Lower 37 GHz band, so the Commission anticipates including aeronautical cases in its consideration of coordination methodologies.
21. The Commission expects the identification and analysis of these cases to be a critical component to its understanding of the extent that the band can be shared dynamically. Commenters should address how to prevent “warehousing,” whereby a licensee preserves its rights without providing actual service. Should licensees receive any protection before they have completed construction and begun operations? How should “operation” be defined and how can the Commission plan to monitor compliance, including whether operations have been discontinued? Should the Commission put limits on the aggregate area, or amount of spectrum, that any one licensee or its affiliates can protect? These issues are critical to establishing the co-primary sharing rights that the Commission envisions for this band.
22. To the extent that the solution to preserving Federal entity's options may be to reserve a part of the band for their priority use, the Commission seeks comment on how to define such priority rights. Are there geographic areas where such priority rights would have little or no adverse impact on non-Federal operations and, if so, what should be the process for identifying those areas? The Commission seeks comment on alternative approaches that can be used to ensure Federal and non-Federal users will have access to the band to meet their needs.
23. Below, the Commission seeks comment on whether offering three types of non-Federal licenses—point-to-point licenses; base stations licenses; and site-cluster licenses—would facilitate deployment in the Lower 37 GHz band.
24.
25.
26.
27. The Commission seeks comment on two buildout requirements for site-cluster licenses. First, a buildout period by which an applicant with a site-cluster license must register and construct a minimum of one specific facility within its site cluster area. Second, a buildout period for each specific site that the applicant registers, which would require the applicant to build that site within a specified period after registration. The Commission seeks comment on what those buildout periods should be. The Commission proposes that failure to meet its buildout requirement would preclude the applicant from reapplying for a non-exclusive license in that area for a certain period. The Commission seeks comment on what that period of time should be. The Commission also seeks comment on whether it should require licensees to file individual construction notices. If so, should these construction notices be filed with the Commission or with a third-party database administrator? The Commission also seeks comment on alternative means of enforcing construction requirements. As mentioned above, the Commission seeks comment on what rights a registrant should have before it actually constructs its facility and begins operations.
28. With regard to Federal co-primary access to the 37 GHz band, the
29.
30.
31. Equipment manufacturers indicate that they can readily integrate the 26 GHz band into a tuning range that includes two bands that the United States has already authorized for mobile services, the 24 GHz band (24.25-24.45 GHz and 24.75-25.25 GHz) and the 28 GHz band (27.5-28.35 GHz). That presents three opportunities—first, to achieve manufacturing economies by covering several bands with a single radio; second, to provide international roaming capability in affordable user devices, and third, to accelerate the availability of equipment in newly authorized bands that share a tuning range with early-deployed bands. Some commenters also contend that the 26 GHz band has better coverage characteristics than other bands that might potentially be available at higher frequencies.
32. The Commission will continue to actively support the 24 GHz and 28 GHz bands. At the same time, the Commission believes the 26 GHz band could be suitable for flexible fixed and mobile use. It is relatively near to the 24 GHz and 28 GHz bands, which the Commission has already found suitable for fixed and mobile use. The amount of spectrum potentially available (over two gigahertz) could make this band a useful addition to UMFUS. The Commission recognizes that it would need to work out suitable sharing or protection arrangements with Federal incumbents in the band. Accordingly, the Commission seeks comment on whether the 26 GHz band could be made available for non-Federal fixed and mobile use.
33. Existing allocations for the 26 GHz band in this country are mostly Federal. While Federal use of the 26 GHz band to this point has been fairly limited, the Commission recognizes that Federal agencies may aspire to make heavier use of that band in the future. Any exploration of private sector opportunities in the band must therefore address the potential for spectrum sharing and compatibility among diverse participants.
34.
35. Consistent with the international community's focus on making the 24.25-27.5 GHz band available for terrestrial mobile services, a.k.a. IMT, ITU-R's Study Group 5 Task Group 5/1 (TG 5/1) has been conducting extensive studies to evaluate the potential for sharing and compatibility in that range between mobile and EESS, SRS, FS, FSS, and ISS. As directed by WRC-15 Resolution 238, TG 5/1 has focused on ensuring the protection of EESS and SRS earth stations operating in the 25.5-27 GHz band segment. The U.S. contribution to the EESS/SRS Study found that the coordination distances necessary to prevent IMT from causing interference is 52 km for SRS and 7 km for EESS.
36.
37. The Commission notes that the United States and other governments have submitted detailed sharing and compatibility studies for a frequency range that includes the 26 GHz band, which are being evaluated by that group. In general, it appears that protection zones around existing EESS and SRS earth stations would affect only small percentages of the overall U.S. population, though their impact on specific localities could be significant for the affected populations. The protection radiuses being considered by TG 5/1 are generally intended to serve only as triggers to begin a coordination process. The final definitions of exclusion zones around particular earth stations will need to take into account a variety of local factors, including terrain, clutter, and network design features that could mitigate the effect of IMT deployment inside coordination zones. The Commission also seeks comment on the best means of protecting existing fixed links in the band. The Commission notes that there are well-established protocols for coordinating Federal and non-Federal point-to-point services.
38. The 26 GHz band currently has Federal fixed and mobile allocations in addition to the EESS, ISS, and SRS allocations. While Federal use of the 26 GHz band appears to be fairly limited to this point, the Commission recognizes that Federal agencies may be considering various potential uses for this spectrum in the future. It is difficult to predict what those services might be, their characteristics, and where they may be deployed. Nevertheless, the Commission believes that the nature of the technology apt to be used in this region of the spectrum is likely to enable sharing using such techniques as geographic separation, highly directional antennas, and taking advantage of the relatively high path losses to enable operation in close proximity. This should make sharing between Federal and non-Federal systems easier than it has been at lower frequencies. Nevertheless, sharing the 26 GHz band between Federal and non-Federal systems will still require a carefully developed framework. The Commission intends to work closely with NTIA to enable UMFUS use of the 26 GHz band while preserving the ability of Federal users to develop and deploy new technologies and services in the 26 GHz band. The Commission intends to explore a number of different approaches for sharing the band. For example, this may involve sharing the band using a framework similar to what the Commission is proposing for the lower 37 GHz band. Alternately, the Commission may set aside portions of the 26 GHz band for exclusively Federal use while making other portions available exclusively for non-Federal use. The Commission may limit non-Federal use of the band to certain geographic areas while reserving use of the band in other areas for Federal use. The Commission request comments on various approaches to sharing the 26 GHz band between UMFUS licensees and both existing and future Federal operations.
39.
40.
41. In light of the above, the Commission invites comment on Elefante's conclusion that spectrum sharing between airborne platform services (
42.
43.
44.
45.
46.
47. In response to the
48.
49. In this
50. To the extent that the Commission adopts UMFUS rules for some portion or all of the 26 GHz and 42 GHz bands, it proposes to include those bands (or portions thereof) in the mmW spectrum threshold for reviewing proposed secondary market transactions. The Commission notes that these bands share similar technical characteristics to the 24 GHz, 28 GHz, 37 GHz, 39 GHz, and 47 GHz bands. The Commission seeks comment on this proposal.
51. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the attached
52. In the
53. Until recently, the mmW bands were generally considered unsuitable for mobile applications because of propagation losses at such high frequencies and the inability of mmW signals to propagate around obstacles. As increasing congestion has begun to fill the lower bands and carriers have resorted to smaller and smaller microcells in order to re-use the available spectrum, however, the industry is taking another look at the mmW bands and beginning to realize that at least some of its presumed disadvantages can be turned to advantage. For example, short transmission paths and high propagation losses can facilitate spectrum re-use in microcellular deployments by limiting the amount of interference between adjacent cells. Furthermore, where longer paths are desired, the extremely short wavelengths of mmW signals make it feasible for very small antennas to concentrate signals into highly focused beams with enough gain to overcome propagation losses. The short wavelengths of mmW signals also make it possible to build multi-element, dynamic beam-forming antennas that will be small enough to fit into handsets—a feat that might never be possible at the lower, longer-wavelength frequencies below 6 GHz where cell phones operate today.
54. In the
55. The
56. Overall, this proposal is designed to provide for flexible use of this spectrum by allowing licensees to choose their type of service offerings, to encourage innovation and investment in mobile broadband use in this spectrum, and to provide a stable regulatory environment in which fixed, mobile, and satellite deployment would be able to develop through the application of flexible rules. The market-oriented licensing framework for these bands would ensure that this spectrum is efficiently utilized and will foster the development of new and innovative technologies and services, as well as encourage the growth and development of a wide variety of services, ultimately leading to greater benefits to consumers.
57. The proposed action is authorized pursuant to sections 1, 2, 3, 4, 5, 7, 301, 302, 302a, 303, 304, 307, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 153, 154, 155, 157, 301, 302, 302a, 303, 304, 307, 309, and 310, section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 1302.
58. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.” A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
59. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.
60. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
61. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37, 132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
62.
63.
64. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 36,708 common carrier fixed licensees and up to 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. The Commission notes, however, that both the common carrier microwave fixed and the private operational microwave fixed licensee categories includes some large entities.
65.
66.
67.
68. The Commission expects the rules proposed in the
69. Applicants in the Lower 37 GHz band will be required to coordinate their proposed operations with other licensees and applicants. Such coordination is necessary to ensure that neighboring operations will not interfere with each other. Potential applicants will also be required to coordinate their operations with any Federal agencies with operations in the areas.
70. Small entities and other applicants in 26 GHz, 42 GHz, and Lower 37 GHz UMFUS will be required to meet buildout requirements. In doing so, they will be required to provide information to the Commission on the facilities they have constructed, the nature of the service they are providing, and the extent to which they are providing coverage in their license area. With respect to the 26 GHz performance requirements, the Commission believes such requirements are necessary to ensure that spectrum is being put into use and has proposed a variety of metrics to provide small entities as well as other licensees with a variety of means by which they may demonstrate compliance. The Commissions anticipates the performance requirements will encourage rapid deployment of next generation wireless services, including 5G, which will
71. The RFA requires an agency to describe any significant alternatives for small businesses that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.
72. The Commission does not believe that its proposed changes will have a significant economic impact on small entities. The Commission believes the proposed site-based licensing scheme for the Lower 37 GHz band would facilitate access to spectrum by small businesses and a wide variety of other entities. However, to get a better understanding of costs and any burdens, the Commission seeks comment on whether any of burdens associated the filing, recordkeeping and reporting requirements described above can be minimized for small businesses. In particular, the Commission seeks comment on whether any of the costs associated with its construction or performance requirements in the 26 GHz and Lower 37 GHz bands can be alleviated for small businesses. The Commission expects to more fully consider the economic impact and alternatives for small entities following the review of comments filed in response to the
73. None.
74.
75.
76.
Communications common carriers, Reporting and recordkeeping requirements, Communications equipment.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 2, 25, and 30 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
The revisions read as follows:
NG65 In the bands 24.75-25.25 GHz, 47.2-48.2 GHz and 50.4-51.4 GHz, stations in the fixed and mobile services may not claim protection from individually licensed earth stations authorized pursuant to 47 CFR 25.136. However, nothing in this footnote shall limit the right of UMFUS licensees to operate in conformance with the technical rules contained in 47 CFR part 30. The Commission reserves the right to monitor developments and to undertake further action concerning interference between UMFUS and FSS, including aggregate interference to satellite receivers, if appropriate.
47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319, 332, 605, and 721, unless otherwise noted.
(g) Notwithstanding that FSS is co-primary with the Upper Microwave Flexible Use Service in the 24.75-25.25 GHz and 50.4-51.4 GHz bands, earth stations in these bands shall be limited to individually licensed earth stations. An applicant for a license for a transmitting earth station in the 24.75-25.25 GHz or 50.4-51.4 GHz band must meet one of the following criteria to be authorized to operate without providing any additional interference protection to stations in the Upper Microwave Flexible Use Service:
(1) The FSS licensee also holds the relevant Upper Microwave Flexible Use Service license(s) for the area in which the earth station generates a power flux density (PFD), at 10 meters above ground level, of greater than or equal to −77.6dBm/m2/MHz;
(2) The earth station in the 24.75-25.25 GHz band was authorized prior to August 20, 2018; or the earth station in the 50.4.2-51.4 GHz band was authorized prior to [effective date of this rule]; or
(3) The application for the earth station in the 24.75-25.25 GHz band was filed prior to August 20, 2018; or the application for the earth station in the 50.4-51.4 GHz band was filed prior to [effective date for this rule]; or
(4) The applicant demonstrates compliance with all of the following criteria in its application:
(i) There are no more than two other authorized earth stations operating in the same frequency band within the county where the proposed earth station is located that meet the criteria contained in either paragraphs (g)(1) (g)(2), (g)(3) or (g)(4) of this section, and there are no more than 14 other authorized earth stations operating in the same frequency band within the Partial Economic Area where the proposed earth station is located that meet the criteria contained in paragraphs (g)(1) (g)(2), (g)(3) or (g)(4) of this section. For purposes of this requirement, multiple earth stations that are collocated with or at a location contiguous to each other shall be considered as one earth station;
(ii) The area in which the earth station generates a power flux density (PFD), at 10 meters above ground level, of greater than or equal to −77.6 dBm/m
(h) If an earth station applicant or licensee in the 24.75-25.25 GHz, 27.5-28.35 GHz, 37.5-40 GHz, 47.2-48.2 GHz and/or 50.4-51.4 GHz bands enters into an agreement with an UMFUS licensee, their operations shall be governed by that agreement, except to the extent that the agreement is inconsistent with the Commission's rules or the Communications Act.
47 U.S.C. 151, 152, 153, 154, 301, 303, 304, 307, 309, 310, 316, 332, 1302.
The additions read as follows:
(b) 25.25-27.5 GHz band—25.25-25.45 GHz; 25.45-25.65 GHz; 25.65-25.85 GHz; 25.85-26.05 GHz; 26.05-26.25 GHz; 26.25-26.45 GHz; 26.45-26.65 GHz; 26.65-26.85 GHz; 26.85-27.05 GHz; 27.05-27.25 GHz; 27.25-27.45 GHz; 27.45-27.5 GHz.
(e) 42-42.5 GHz band—42-42.1 GHz; 42.1-42.2 GHz; 42.2-42.3 GHz; 42.3-42.4 GHz; 42.4-42.5 GHz.
Research, Education, and Economics, USDA.
Solicitation for membership.
In accordance with the Federal Advisory Committee Act, the U.S. Department of Agriculture (USDA) announces the opening of the solicitation for nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economics (NAREEE) Advisory Board and its subcommittees. There are eight vacancies on the NAREEE Advisory Board; three vacancies on the Specialty Crop Committee; six vacancies on the Citrus Disease Subcommittee; and two vacancies on the National Genetics Advisory Council.
All nomination materials should be submitted in a single, complete package and received or postmarked by August 10, 2018.
The nominee's name, resume or CV, completed and signed Form AD-755, and any letters of support must be submitted via one of the following methods: (1) Email to
Michele Esch, Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, 1400 Independence Avenue SW, Room 332A, The Whitten Building, Washington, DC 20250-2255; telephone: 202-720-3684; fax: 202-720-6199; email:
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure the recommendation of the Advisory Board take into account the needs of the diverse groups served by the USDA, membership shall include, to the extent practicable, individuals with demonstrated ability to represent the needs of all racial and ethnic groups, women and men, and persons with disabilities.
Please note, individuals may not serve on more than one USDA Federal Advisory Committee. Lobbyists who are registered with the Federal Government and who are selected to serve on committees to exercise their own individual best judgment on behalf of the government (
All nominees will be carefully reviewed for their expertise, leadership, and relevance. All nominees will be vetted before selection.
Appointments to the NAREEE Advisory Board and its subcommittees will be made by the Secretary of Agriculture.
Since the Advisory Board's inception by congressional legislation in 1996, each member has represented a specific category related to farming or ranching, food production and processing, forestry research, crop and animal science, land-grant institutions, non-land grant college or university with a historic commitment to research in the food and agricultural sciences, food retailing and marketing, rural economic development, and natural resource and consumer interest groups, among many others. The Board was first appointed by the Secretary of Agriculture in September 1996, and one-third of its members were appointed for a 1-, 2-, and 3-year term, respectively. The terms for eight members who represent specific categories will expire September 30, 2018. Nominations are for a 3-year appointment for these eight vacant categories. All nominees will be carefully reviewed for their expertise, leadership, and relevance to a category. Nominations for multiple categories is acceptable. Please note nomination
The eight slots to be filled are:
Members should represent the breadth of the specialty crop industry. Six members of the Specialty Crop Committee are also members of the NAREEE Advisory Board and six members represent various disciplines of the specialty crop industry. The terms of three members will expire on September 30, 2018. The Specialty Crop Committee is soliciting nominations to fill three vacant positions to represent the specialty crop industry. Appointed members will serve three years with their terms expiring in September 2021.
The National Genetic Resources Advisory Council membership is required to have two-thirds of the appointed members from scientific disciplines relevant to the National Genetic Resources Program, including agricultural sciences, environmental sciences, natural resource sciences, health sciences, and nutritional sciences; and one-third of the appointed members from the general public including leaders in fields of public policy, trade, international development, law, or management.
The terms of two members of the National Genetic Resources Advisory Council will expire on September 30, 2018. The two slots to be filled are to be composed of one scientific members and one general public member. Appointed members will serve three-year appointments expiring in September 2021.
The subcommittee is composed of nine members who must be a producer of citrus with representation from the following States: Three members from Arizona or California, five members from Florida, and one member from Texas.
The terms of six Citrus Disease Subcommittee will expire on September 30, 2018. The Citrus Disease Subcommittee is soliciting nominations to fill six vacant positions for membership; three positions are to represent Florida, two positions are to represent California or Arizona, and one position is to represent Texas. Appointed members will serve three years with their terms expiring in September 2021.
Food Safety and Inspection Service, USDA.
Notice of public meeting.
This notice is announcing that the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) will hold public meetings of the full Committee and Subcommittees on August 7-10, 2018. The Committee will discuss and adopt: (1) Effective
The full Committee will hold an open meeting on Tuesday, August 7, 2018 from 10:00 a.m. to 12:00 p.m. EST. The Subcommittees on the Use of Water in Animal Slaughter and Processing, and Appropriate Product Testing Procedures and Criteria to Verify Process Control for Microbial Pathogens or appropriate indicator organisms in Ready-to-Eat (RTE) Foods under FDA's jurisdiction, will hold concurrent open Subcommittee meetings on Tuesday, August 7, from 1:00 p.m. to 5:00 p.m., Wednesday, August 8, 2018; Thursday, August 9, 2018; and Friday, August 10,
The Committee meetings will be held at the Patriot's Plaza 3, 1st Floor Auditorium and Conference Rooms, 355 E Street SW, Washington, DC 20250. Attendance is free. Attendees must show a valid photo ID to enter the building. Attendees with non-government ID may be required to pass through the security screening systems, please allow adequate time for this process.
FSIS invites interested persons to submit comments on the FSIS-2018-0025. Comments may be submitted by one of the following methods:
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FSIS will finalize an agenda on or before the meeting dates and post it on the FSIS web page at
The official transcript of the August 7, 2018 full Committee meeting, when it becomes available, will be kept in the FSIS Docket Room at the above address and will also be posted on
Persons interested in making a presentation, submitting technical papers, or providing comments at the August 7, plenary session should contact Karen Thomas: Phone: (202) 690-6620; Fax (202) 690-6334; Email:
The NACMCF was established in 1988, in response to a recommendation of the National Academy of Sciences for an interagency approach to microbiological criteria for foods, and in response to a recommendation of the U.S. House of Representatives Committee on Appropriations, as expressed in the Rural Development, Agriculture, and Related Agencies Appropriation Bill for fiscal year 1988. The charter for the NACMCF is available for viewing on the FSIS web page at
The NACMCF provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services on public health issues relative to the safety and wholesomeness of the U.S. food supply, including development of microbiological criteria and review and evaluation of epidemiological and risk assessment data and methodologies for assessing microbiological hazards in foods. The Committee also provides scientific advice and recommendations to the Centers for Disease Control and Prevention and the Departments of Commerce and Defense. Questions from the Department of Agriculture and Health and Human Services agencies that are sponsors of the Committee are submitted as Charges to the Executive Committee for vetting and approval before they are presented to the full Committee during the plenary session. The Committee is expected to respond to the questions during their two-year term.
Ms. Carmen Rottenberg, Acting Deputy Under Secretary for Food Safety, USDA, is the Committee Chair; Dr. Susan T. Mayne, Director of the Food and Drug Administration's Center for Food Safety and Applied Nutrition, is the Vice-Chair; and Dr. Mark Carter, FSIS, is the Designated Federal Officer.
FSIS will make all materials reviewed and considered by NACMCF regarding its deliberations available to the public. Generally, these materials will be made available as soon as possible after the full Committee meeting. Further, FSIS intends to make these materials available in electronic format on the FSIS web page (
To meet the electronic and information technology accessibility standards in Section 508 of the Rehabilitation Act, NACMCF may add alternate text descriptors for non-text elements (graphs, charts, tables, multimedia, etc.). These modifications only affect the internet copies of the documents.
Copyrighted documents will not be posted on the FSIS website, but will be available for inspection in the FSIS Docket Room.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination, any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at:
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Malheur National Forest will prepare an environmental impact statement (EIS) to disclose the environmental effects of proposed vegetation and fuels treatments, wildlife habitat designations, and road activities in the Cliff Knox project area located on the Prairie City and Emigrant Creek Ranger Districts. Proposed actions include timber harvest, small diameter thinning, aspen and mountain mahogany restoration, landscape underburning, road activities to support vegetation and fuels treatments, and road system changes. The intent of the project is to restore forest health, reduce fuels, increase the forest's resilience to wildfires and other disturbance, and enhance fish and wildlife habitats.
Comments concerning the proposed action in this notice must be received by August 20, 2018. The draft EIS is expected in December 2018 and the final EIS is expected in June 2019.
The preferred method to submit comments is via email to:
Kathy Schnider, District NEPA Planner, 327 SW Front St., P.O. Box 337, Prairie City, OR 97869. Phone: 541-820-3821. Email:
The Cliff Knox Project encompasses approximately 40,000 acres across the Bluebucket Creek subwatershed (10,976 acres) and the Cliff Creek-Malheur River subwatershed (29,342 acres), and includes the Malheur River Inventoried Roadless Area and part of the Malheur River Wild and Scenic River corridor. The legal description for the planning area includes Townships 17 and 18 South and Ranges 33, 34, and 35 East, Willamette Meridian, Grant County, Oregon. The full scoping package is available on the Malheur National Forest website:
Purpose and Need for Action
The project's purpose and need is represented by differences between existing and desired conditions based on forest plan management direction, other forest service policies, and best available science.
The purpose of the Cliff Knox Project is to improve forest health and increase resilience to drought, fire, insects and diseases, and other disturbances by moving the project area toward its historical (natural) range of variability in forest structure, tree density, species composition, and associated wildlife habitat. Additionally, there is an opportunity to contribute to the economic stability of local communities that depend on timber resources for their livelihood and move the forest transportation system toward a more environmentally and fiscally sustainable state.
Specifically, there is a need in the project area to:
(1) Increase forest resilience to insect and disease outbreaks and uncharacteristic wildfires by moving the landscape toward a more historical range of variability for structure, density, and species composition. This includes special consideration for the Malheur River Wild and Scenic River, the Malheur Inventoried Roadless Area, riparian habitat conservation areas, dedicated and replacement old growth stands, aspen and mountain mahogany stands, and connectivity corridors.
(2) Enhance landscape resilience to wildfire by restoring fuel profiles to types primarily conducive to surface fire, with special attention to lands adjacent to strategic roads and areas identified as wildland-urban interface.
(3) Increase public and firefighter safety in the event of a wildfire in the project area.
(4) Restore and promote open stands dominated by large trees and fire-tolerant tree species, which were historically dominant across the project area.
(5) Maintain existing old forest stands and promote old trees (greater than 150 years old) to increase their abundance over the long term.
(6) Restore and promote regeneration of hardwoods, including quaking aspen, mountain mahogany, and riparian hardwoods.
(7) Treat vegetation to improve characteristics of the Malheur River Inventoried Roadless Area as defined by the 2001 Roadless Area Conservation Rule (36 CFR 294.11).
(8) Increase water availability for native vegetation by reestablishing historical openings and grasslands, thinning overstocked stands, and removing encroaching juniper and other conifers where they did not historically occur.
(9) Improve quantity and quality of forage for large ungulates, especially in big-game winter range management areas.
(10) Reduce road related impacts to the watershed (aquatic and terrestrial habitat, and water quality).
(11) Improve existing road networks to provide access to the forest while meeting forest plan standards and guidelines as well as regulatory direction.
(12) Capture the economic value of forest products and other resources to support local economies and provide employment opportunities.
(13) Provide safe access to the forest for public health, enjoyment, and stewardship.
To meet the purpose and need for the Cliff Knox Project and to move the project area toward desired conditions, the Malheur National Forest is proposing activities including timber harvest, small diameter thinning, aspen and mountain mahogany restoration, landscape underburning, road activities to support vegetation and fuels treatments, and road system changes.
Approximately 27,000 acres of vegetation and fuel treatments are proposed to increase forest resilience to insect and disease outbreaks and uncharacteristic wildfires; restore fuel profiles, promote development of old stands and trees; and restore quaking aspen, mountain mahogany, and riparian hardwoods (related to the need). Treatments include stand improvement commercial thinning, biomass removal (biomass material may be removed during logging operations, by hand, or with small equipment such as all-terrain vehicles or small excavators or forwarders), and small diameter thinning where stands are above the appropriate management zone for stand density. In areas of high tree mortality due to insect infestations, dead lodgepole and ponderosa pine trees in excess of wildlife standards for downed and dead trees may be salvaged. Additionally, 3 units are identified as potential tree tipping units, where large wood could be placed in streams. Proposed vegetation and fuel treatments are located across the project area to address the purpose and need, including within the Malheur Wild and Scenic River, Malheur River Inventoried Roadless Area, the wildland-urban interface and adjacent to strategic roads, and riparian habitat conservation areas. These treatments would help move forest structure, composition, and density toward more resilient vegetative conditions.
Landscape underburning on approximately 40,000 acres is proposed to reduce surface fuel loading, reduce ladder fuels, and raise canopy base height. Treated stands would see a combination of piled material burning and underburning. Those stands not mechanically treated would be managed exclusively with the use of underburning.
The proposed action includes wildlife habitat designations that include additions to replacement old growth (108 acres) and pileated woodpecker feeding areas (205 acres), establishment of connectivity corridors (4,950 acres) and wildlife habitat enhancement openings (1,020 acres). Preliminary connectivity corridors have been identified between late and old structure stands to allow for movement of old-growth dependent species. The goal of creating “connectivity” is to manage stands in corridors at higher canopy densities when compared to more intensively managed stands located outside of corridors. Habitat enhancement openings are proposed in areas where soil types point to a more open canopy in the past to create openings in coniferous forest to move areas that would have historically been more open towards desired vegetation communities. Most of these units are located in big-game winter range and are adjacent to or include existing openings.
Road activities to support vegetation and fuels treatments are also proposed to provide safe access and to reduce road-related impacts. Road maintenance and reconstruction for haul would occur on open or temporarily opened roads to provide safe access and adequate drainage. About 15 miles of temporary roads would be constructed to access some timber harvest units; these areas would be rehabilitated following use.
Multiple changes to the road system are proposed. This includes decommissioning about 9.5 miles of road that are not needed for future management actions and are either already in an overgrown state or are contributing to resource related impacts, such as delivering sediment to streams or disturbing wildlife. Also proposed is closing about 14 miles of currently open roads that may be needed for future management actions but are either currently in an overgrown state or contributing to resource related impacts, such as delivering sediment to streams or disturbing wildlife. Closed roads are to be left in a stable hydrologic state and are to be periodically maintained. The proposed action also includes confirming the previous administrative closure of 28 miles of road and opening about 2.5 miles of currently closed roads that show signs of moderate to high use, have little potential for resource impacts, and some of which provide access to dispersed camping sites, State and Bureau of Land Management lands, and permittee allotments. Additionally, the proposed action includes decomissioning and relocating about 2 miles of road that are causing unacceptable resource damage in their current locations but provide access to essential management activities and dispersed campsites.
The Cliff Knox Project will also include a variety of project design criteria that serve to mitigate impacts of activities to forest resources, including wildlife, soils, watershed condition, aquatic species, riparian habitat conservation areas, heritage resources, visuals, rangeland, botanical resources, and invasive plants.
A full range of alternatives to the proposed action, including a no action alternative, will be considered. The no action alternative represents no change and serves as the baseline for the comparison of the action alternatives. Alternatives may be developed in response to issues raised by the public during the scoping process or due to additional concerns for resource values identified by the interdisciplinary team.
The proposed action may also include the following amendments to the 1990 Malheur National Forest Land and Resource Management Plan (Forest Plan), as amended:
(1) Designating management area 13 (old growth): Old growth changes are needed to maintain consistency with forest plan standards for dedicated and replacement old growth.
(2) Reducing cover below forest plan standards in big-game summer range and winter range: Reduction in satisfactory and/or total cover in big-game summer range and/or big-game winter range. Vegetation management treatments may initially reduce cover levels in some areas; however, these treatments would make it possible to achieve desired vegetative health conditions that may result in more abundant, higher quality cover with reduced insect activity in the future.
(3) Removal of trees greater than or equal to 21 inches diameter at breast height and harvest within late and old structure: Removal of trees greater than or equal to 21 inches diameter at breast height within specific stands with existing aspen and mountain mahogany is proposed to improve the growth of existing aspen and mountain mahogany by reducing competition for sunlight and water from large, young nearby trees, and to move stands with old forest multi-strata structure toward the old
(4) Not maintaining the current level of connectivity between late and old structure and old growth stands: Reduction in connectivity is proposed because the southern portion of the project area contains pockets of late and old structure stands within areas that developed over mollic soils, an indicator that these areas were grasslands and meadows within their historical range of variability, but are now experiencing encroachment from conifers. Connectivity does not exist in these areas, and therefore cannot be maintained.
When proposing a forest plan amendment, the 2012 Planning Rule (36 CFR 219), as amended, requires the Responsible Official to provide in the initial notice “which substantive requirements of §§ 219. 8 through 219.11 are likely to be directly related to the amendment (§ 219.13(b)(5)).” Whether a rule provision is likely to be directly related to an amendment is determined by the purpose for the amendment, the beneficial effects or adverse effects of the amendment, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale. The following substantive requirements would likely be directly related to the proposed amendments.
Substantive provisions that relate to all proposed amendments include: 219.8(a)(1)(ii) Contributions of the plan area to ecological conditions within the broader landscape influenced by the plan area; 219.8(a)(1)(iv) System drivers, including dominant ecological processes, disturbance regimes, and stressors, such as natural succession, wildland fire, invasive species, and climate change; and the ability of terrestrial and aquatic ecosystems on the plan area to adapt to change; 219.9(a)(1) Ecosystem integrity; 219.9(a)(2) Ecosystem diversity; 219.10(a)(1) Aesthetic values, air quality, cultural and heritage resources, ecosystem services, fish and wildlife species, forage, geologic features, grazing and rangelands, habitat and habitat connectivity, recreation settings and opportunities, riparian areas, scenery, soil, surface and subsurface water quality, timber, trails, vegetation, viewsheds, wilderness, and other relevant resources and uses; 219.10(a)(5) Habitat conditions, subject to the requirements of 219.9, for wildlife, fish, and plants commonly enjoyed and used by the public; for hunting, fishing, trapping, gathering, observing, subsistence, and other activities (in collaboration with federally recognized Tribes, Alaska Native Corporations, other Federal agencies, and State and local governments); and 219.10(a)(8) System drivers, including dominant ecological processes, disturbance regimes, and stressors, such as natural succession, wildland fire, invasive species, and climate change; and the ability of the terrestrial and aquatic ecosystems on the plan area to adapt to change (219.8).
Substantive provisions that relate to the proposed amendments for reducing cover below forest plan standards in big-game summer range and winter range, removal of trees greater than or equal to 21 inches diameter at breast height and harvest within late and old structure, and not maintaining the current level of connectivity between late and old structure and old growth stands include: 219.8(a)(1)(iii) Conditions in the broader landscape that may influence the sustainability of resources and ecosystems within the plan area; 219.8(a)(1)(v) Wildland fire and opportunities to restore fire adapted ecosystems; 219.8(a)(1)(vi) Opportunities for landscape scale restoration; and 219.10(a)(7) Reasonably foreseeable risks to ecological, social, and economic sustainability.
Substantive provisions that relate to the proposed amendments for designating management area 13 (old growth), removal of trees greater than or equal to 21 inches diameter at breast height and harvest within late and old structure, and not maintaining the current level of connectivity between late and old structure and old growth stands include: 219.9(a)(2)(i) Key characteristics associated with terrestrial and aquatic ecosystem types.
The Forest Supervisor of the Malheur National Forest, 431 Patterson Bridge Road, John Day, OR 97845, is the Responsible Official. The Responsible Official decides if the proposed action will be implemented and documents the decision and rationale for the decision in the record of decision. Responsibility for preparation of the draft EIS and final EIS has been delegated to the District Ranger, Prairie City Ranger District.
Given the purpose and need of the project, the Responsible Official will review the proposed action, other alternatives, and the environmental effects analysis in order to determine: (1) Which alternative, or combination of alternatives, should be implemented; (2) the location and treatment methods for all proposed activities; (3) the design features, mitigation measures and monitoring requirements; and, (4) consistency with the forest plan and the need for amendments.
Decisions by the Forest Supervisor to approve project-specific plan amendments are subject to the Project-level Predecisional Administrative Review Process of 36 CFR 218 Subpart A, in accordance with 36 CFR 219.59(b). The term “project specific” refers to amendments that would only apply to the proposed project and would not apply to any future management actions.
Per 36 CFR 218.7(a)(2), this is a project proposing to implement a land management plan and is not authorized under the Healthy Forests Restoration Act (HFRA). Therefore, it is subject to both subparts A and B of 36 CFR 218.
This notice of intent initiates the scoping process, which guides the development of the EIS for the Cliff Knox Project. The interdisciplinary team will continute to seek information and comments from Federal, State, and local agencies, in addition to Tribal governments and other individuals or organizations that may be interested in, or affected by, the proposed action. There is a collaborative group in the area that the interdisciplinary team will interact with during the analysis process.
Public meetings will occur in Prairie City and Burns, Oregon, during the scoping period for the purposes of discussing and gathering comments on the proposed action. Times and locations of scheduled meetings will be advertised through local media outlets and posted on the Malheur National Forest website. The intent of this comment period is to provide those interested in or affected by this proposed action with an opportunity to make their concerns known. Written, hand-delivered, electronic, and facsimile comments concerning this proposed action will be accepted. We invite you to provide any substantive comments you might have regarding the proposed action for the Cliff Knox Project; substantive comments are within the scope of the project and the decision to be made, are specific to the proposed activities and the project area, and have a direct relationship to the project. Please provide supporting reasons for us to consider. If you cite or include references with your comments, you need to state specifically how those references relate to the proposed action. Please include a copy of or an internet link for any references you cite.
It is important that reviewers provide their comments at such times and in
Comments received in response to this solicitation, including names and addresses of those who comment, will become part of the public record for this proposed action, and may be released under the Freedom of Information Act. However, comments submitted anonymously will also be accepted and considered.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on a request from Goal Zero LLC (Goal Zero), the Department of Commerce (Commerce) is initiating changed circumstances reviews to consider the possible revocation, in part, of the antidumping duty (AD) and countervailing duty (CVD) orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China (China) with respect to certain solar panels, as described below.
Applicable July 20, 2018.
Eli Lovely, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1593.
On December 7, 2012, Commerce published AD and CVD orders on certain crystalline silicon photovoltaic cells, whether or not assembled into modules, from China.
The merchandise covered by the
The
Merchandise under consideration may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, modules, laminates, panels, building-integrated modules, building-integrated panels, or other finished goods kits. Such parts that otherwise meet the definition of merchandise under consideration are included in the scope of the
Excluded from the scope of the
Also excluded from the scope of the
Additionally, excluded from the scope of the
Modules, laminates, and panels produced in a third-country from cells produced in the PRC are covered by the
Merchandise covered by the
Goal Zero proposes that the
Pursuant to section 751(b) of the Act, Commerce will conduct a changed circumstances review upon receipt of a request from an interested party
Section 782(h)(2) of the Act and 19 CFR 351.222(g)(1)(i) provide that Commerce may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have expressed a lack of interest in the order, in whole or in part. In addition, in the event Commerce determines that expedited action is warranted, 19 CFR 351.221(c)(3)(ii) permits Commerce to combine the notices of initiation and preliminary results. In its administrative practice, Commerce has interpreted “substantially all” to mean producers accounting for at least 85 percent of the total U.S. production of the domestic like product covered by the order.
The petitioner states that it does not oppose the partial revocation request; however, because the petitioner did not indicate whether it accounts for substantially all of the domestic production of crystalline silicon photovoltaic cells, whether or not assembled into modules, we are not combining this notice of initiation with a preliminary determination, pursuant to 19 CFR 351.221(c)(3)(ii), but will provide interested parties with an opportunity to address the issue of domestic industry support with respect to this requested partial revocation of the orders, as explained below. After examining comments, if any, concerning domestic industry support, we will issue the preliminary results of these changed circumstances reviews.
Interested parties are invited to provide comments and/or factual information regarding these changed circumstances reviews, including comments on industry support and the proposed partial revocation language. Comments and factual information may be submitted to Commerce no later than ten days after the date of publication of this notice. Rebuttal comments and rebuttal factual information may be filed with Commerce no later than seven days after the comments and/or factual information are filed.
Commerce intends to publish in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this sunset review, the Department of Commerce (Commerce) finds that revocation of the antidumping duty order would be likely to lead to the continuation or recurrence of dumping at the levels indicated in the “Final Results of Review” section of this notice.
Applicable July 20, 2018.
Joshua Tucker, 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) 482-2044.
On April 11, 2013, Commerce published its antidumping duty order on drawn stainless steel sinks from China.
Stainless Steel Sinks from the People's Republic of China/Elkay Manufacturing Company's Notice of Intent to Participate,” dated March 16, 2018.
On April 2, 2018, Commerce received an adequate substantive response to the notice of initiation from Elkay within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
On April 10, 2018, Commerce notified the U.S. International Trade Commission (ITC) that it did not receive an adequate substantive response from respondent interested parties.
The merchandise covered by the order includes drawn stainless steel sinks with single or multiple drawn bowls, with or without drain boards, whether finished or unfinished, regardless of type of finish, gauge, or grade of stainless steel. Mounting clips, fasteners, seals, and sound-deadening pads are also covered by the scope of this order if they are included within the sales price of the drawn stainless steel sinks.
Excluded from the scope of the order are stainless steel sinks with fabricated bowls. Fabricated bowls do not have seamless corners, but rather are made by notching and bending the stainless steel, and then welding and finishing the vertical corners to form the bowls. Stainless steel sinks with fabricated bowls may sometimes be referred to as “zero radius” or “near zero radius” sinks. The products covered by this order are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under statistical reporting number 7324.10.0000 and 7324.10.0010. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
All issues raised in this sunset review are addressed in the Issues and Decision Memorandum,
Pursuant to sections 751(c)(1) and 752(b) of the Act, Commerce determines that revocation of the antidumping duty order on drawn stainless steel sinks from China would be likely to lead to the continuation or recurrence of dumping and that the magnitude of the dumping margins likely to prevail would be weighted-average dumping margins up to 76.53 percent.
This notice also serves as the only 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. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders 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 the final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC), Commerce is issuing antidumping duty orders on fine denier polyester staple fiber (fine denier PSF) from the People's Republic of China (China), India, the Republic of Korea (Korea), and Taiwan.
Applicable July 20, 2018.
Edythe Artman at (202) 482-3931 (China), Patrick O'Connor at (202) 482-0989 (India), Karine Gziryan at (202) 482-4081 (Korea), Lilit Astvatsatrian at (202) 482-6412 (Taiwan), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
In accordance with sections 735(a), 735(d), and 777(i)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(c), on May 30, 2018, Commerce published its affirmative final determinations in the less-than-fair-value (LTFV) investigations of fine denier PSF from China, India, Korea and Taiwan.
The product covered by these orders is fine denier PSF from China, India, Korea, and Taiwan. For a complete description of the scope of these orders,
In accordance with sections 735(b)(1)(A)(i) and 735(d) of the Act, the ITC notified Commerce of its final determinations in these investigations, in which it found that an industry in the United States is materially injured by reason of imports of fine denier PSF from China, India, Korea, and Taiwan.
Therefore, in accordance with section 736(a)(1) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by Commerce, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of fine denier PSF from China, India, Korea, and Taiwan. With the exception of entries occurring after the expiration of the provisional measures period and before publication of the ITC's final affirmative injury determinations, as further described below, antidumping duties will be assessed on unliquidated entries of fine denier PSF from China, India, Korea, and Taiwan entered, or withdrawn from warehouse, for consumption on or after January 5, 2018, the date of publication of the preliminary determinations.
Except as noted above and in the “Provisional Measures” section of this notice below, in accordance with section 735(c)(1)(B) of the Act, Commerce will instruct CBP to continue to suspend liquidation on all relevant entries of fine denier PSF from China, India, Korea, and Taiwan. These instructions suspending liquidation will remain in effect until further notice.
Commerce will also instruct CBP to require cash deposits equal to the estimated weighted-average dumping margins, or cash deposits adjusted for subsidy offset, as applicable, indicated in the tables below. Given that the provisional measures period has expired, as explained below, effective on the date of publication in the
Section 733(d) of the Act states that suspension of liquidation pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of the subject merchandise request that Commerce extend the four-month period to no more than six months. At the request of exporters that account for a significant proportion of fine denier PSF from China, India, Korea, and Taiwan, Commerce extended the four-month period to six months in each of these investigations. Commerce published the preliminary determinations in these investigations on January 5, 2018.
Therefore, in accordance with section 733(d) of the Act and our practice,
The estimated weighted-average antidumping duty margin percentages and cash deposit rates adjusted for subsidy offset, as applicable, are as follows:
This notice constitutes the antidumping duty orders with respect to fine denier PSF from China, India, Korea, and Taiwan pursuant to section 736(a) of the Act. Interested parties can find a list of antidumping duty orders currently in effect at
These orders are published in accordance with section 736(a) of the Act and 19 CFR 351.211(b).
The merchandise covered by these orders is fine denier polyester staple fiber (fine denier PSF), not carded or combed, measuring less than 3.3 decitex (3 denier) in diameter. The scope covers all fine denier PSF, whether coated or uncoated. The following products are excluded from the scope:
(1) PSF equal to or greater than 3.3 decitex (more than 3 denier, inclusive) currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 5503.20.0045 and 5503.20.0065.
(2) Low-melt PSF defined as a bi-component polyester fiber having a polyester fiber component that melts at a lower temperature than the other polyester fiber
Fine denier PSF is classifiable under the HTSUS subheading 5503.20.0025. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is initiating and issuing the preliminary results of a changed circumstances review (CCR) of the antidumping duty (AD) order on aluminum extrusions from the People's Republic of China (China), finding that the cash deposit rate for the 21 exporters/producers who retain a separate rate assigned in the less-than-fair value (LTFV) investigation should be recalculated to reflect the revised countervailing duty (CVD) export subsidy offsets from the amended final CVD determination. We invite interested parties to comment on these preliminary results.
Applicable July 20, 2018.
Mark Flessner or Erin Kearney, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6312 or (202) 482-0167, respectively.
On May 26, 2011, Commerce published AD and CVD orders on aluminum extrusions from China.
In the CVD investigation, the subsidy rate applied to “all other” companies was 374.15 percent,
Of the companies that were granted a separate rate in the LTFV investigation, 21 companies have not been subject to an administrative review and, thus, continue to be assigned the separate rate cash deposit rate determined in the LTFV investigation.
The merchandise covered by the
Aluminum extrusions are produced and imported in a wide variety of shapes and forms, including, but not limited to, hollow profiles, other solid profiles, pipes, tubes, bars, and rods. Aluminum extrusions that are drawn subsequent to extrusion (drawn aluminum) are also included in the scope.
Aluminum extrusions are produced and imported with a variety of finishes (both coatings and surface treatments), and types of fabrication. The types of coatings and treatments applied to subject aluminum extrusions include, but are not limited to, extrusions that are mill finished (
Subject aluminum extrusions may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, window frames, door frames, solar panels, curtain walls, or furniture. Such parts that otherwise meet the definition of aluminum extrusions are included in the scope. The scope includes the aluminum extrusion components that are attached (
Subject extrusions may be identified with reference to their end use, such as fence posts, electrical conduits, door thresholds, carpet trim, or heat sinks (that do not meet the finished heat sink exclusionary language below). Such goods are subject merchandise if they otherwise meet the scope definition, regardless of whether they are ready for use at the time of importation.
The following aluminum extrusion products are excluded: Aluminum extrusions made from aluminum alloy with an Aluminum Association series designations commencing with the number 2 and containing in excess of 1.5 percent copper by weight; aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 5 and containing in excess of 1.0 percent magnesium by weight; and aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 7 and containing in excess of 2.0 percent zinc by weight.
The scope also excludes finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, picture frames with glass pane and backing material, and solar panels. The scope also excludes finished goods containing aluminum extrusions that are entered unassembled in a “finished goods kit.” A finished goods kit is understood to mean a packaged combination of parts that contains, at the time of importation, all of the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication, such as cutting or punching, and is assembled “as is” into a finished product. An imported product will not be considered a “finished goods kit” and therefore excluded from the scope of the
The scope also excludes aluminum alloy sheet or plates produced by other than the extrusion process, such as aluminum products produced by a method of casting. Cast aluminum products are properly identified by four digits with a decimal point between the third and fourth digit. A letter may also precede the four digits. The following Aluminum Association designations are representative of aluminum alloys for casting: 208.0, 295.0, 308.0, 355.0, C355.0, 356.0, A356.0, A357.0, 360.0, 366.0, 380.0, A380.0, 413.0, 443.0, 514.0, 518.1, and 712.0. The scope also excludes pure, unwrought aluminum in any form.
The scope also excludes collapsible tubular containers composed of metallic elements corresponding to alloy code 1080A as designated by the Aluminum Association where the tubular container (excluding the nozzle) meets each of the following dimensional characteristics: (1) Length of 37 millimeters (“mm”) or 62 mm, (2) outer diameter of 11.0 mm or 12.7 mm, and (3) wall thickness not exceeding 0.13 mm.
Also excluded from the scope of this order are finished heat sinks. Finished heat sinks are fabricated heat sinks made from aluminum extrusions the design and production of which are organized around meeting certain specified thermal performance requirements and which have been fully, albeit not necessarily individually, tested to comply with such requirements.
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 6603.90.8100, 7616.99.51, 8479.89.94, 8481.90.9060, 8481.90.9085, 9031.90.9195, 8424.90.9080, 9405.99.4020, 9031.90.90.95, 7616.10.90.90, 7609.00.00, 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30, 7615.19.50, 7615.19.70, 7615.19.90, 7615.20.00, 7616.99.10, 7616.99.50, 8479.89.98, 8479.90.94, 8513.90.20, 9403.10.00, 9403.20.00, 7604.21.00.00, 7604.29.10.00, 7604.29.30.10, 7604.29.30.50, 7604.29.50.30, 7604.29.50.60, 7608.20.00.30, 7608.20.00.90, 8302.10.30.00, 8302.10.60.30, 8302.10.60.60, 8302.10.60.90, 8302.20.00.00, 8302.30.30.10, 8302.30.30.60, 8302.41.30.00, 8302.41.60.15, 8302.41.60.45, 8302.41.60.50, 8302.41.60.80, 8302.42.30.10, 8302.42.30.15, 8302.42.30.65, 8302.49.60.35, 8302.49.60.45, 8302.49.60.55, 8302.49.60.85, 8302.50.00.00, 8302.60.90.00, 8305.10.00.50, 8306.30.00.00, 8414.59.60.90, 8415.90.80.45, 8418.99.80.05, 8418.99.80.50, 8418.99.80.60, 8419.90.10.00, 8422.90.06.40, 8473.30.20.00, 8473.30.51.00, 8479.90.85.00, 8486.90.00.00, 8487.90.00.80, 8503.00.95.20, 8508.70.00.00, 8515.90.20.00, 8516.90.50.00, 8516.90.80.50, 8517.70.00.00, 8529.90.73.00, 8529.90.97.60, 8536.90.80.85, 8538.10.00.00, 8543.90.88.80, 8708.29.50.60, 8708.80.65.90, 8803.30.00.60, 9013.90.50.00, 9013.90.90.00, 9401.90.50.81, 9403.90.10.40, 9403.90.10.50, 9403.90.10.85, 9403.90.25.40, 9403.90.25.80, 9403.90.40.05, 9403.90.40.10, 9403.90.40.60, 9403.90.50.05, 9403.90.50.10, 9403.90.50.80, 9403.90.60.05, 9403.90.60.10, 9403.90.60.80, 9403.90.70.05, 9403.90.70.10, 9403.90.70.80, 9403.90.80.10, 9403.90.80.15, 9403.90.80.20, 9403.90.80.41, 9403.90.80.51, 9403.90.80.61, 9506.11.40.80, 9506.51.40.00, 9506.51.60.00, 9506.59.40.40, 9506.70.20.90, 9506.91.00.10, 9506.91.00.20, 9506.91.00.30, 9506.99.05.10, 9506.99.05.20, 9506.99.05.30, 9506.99.15.00, 9506.99.20.00, 9506.99.25.80, 9506.99.28.00, 9506.99.55.00, 9506.99.60.80, 9507.30.20.00, 9507.30.40.00, 9507.30.60.00, 9507.90.60.00, and 9603.90.80.50.
The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99, as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
Pursuant to section 751(b) of the Act and 19 CFR 351.216 and 351.221(c)(3), Commerce is initiating a CCR of the antidumping duty order on aluminum extrusions from China. While Commerce was conducting the 2016-2017 administrative review,
Section 351.221(c)(3)(ii) of Commerce's regulations permits Commerce to combine the notice of initiation of a changed circumstances review and the notice of preliminary results if Commerce concludes that expedited action is warranted. In this instance, because we believe we have all the information necessary to make a preliminary finding, and that modification of the export subsidy offset was permitted on or after November 2, 2015 (the effective date of the
When it concludes that expedited action is warranted, Commerce may publish the notice of initiation and preliminary results of a CCR in a single notice.
Based on Commerce's analysis of the information published in the
The preliminary cash deposit rates are listed below:
Case briefs from interested parties may be submitted not later than 30 days after the date of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).
Any interested party may request a hearing within 30 days of publication of this notice. Any hearing, if requested, will be held no later than 37 days after the date of publication of this notice in the
Unless extended, consistent with 19 CFR 351.216(e), we intend to issue the final results of this CCR no later than 270 days after the date on which this review is initiated, or within 45 days after the date on which this review is initiated if all parties agree to our preliminary finding. The final results will include Commerce's analysis of issues raised in any written comments.
We are issuing and publishing this initiation and preliminary results notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act and sections 351.216 and 351.221(c)(3) of Commerce's regulations.
National Oceanic and Atmospheric Administration (NOAA), 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.
Written comments must be submitted on or before September 18, 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 and instructions should be directed to Sabrina Lovell, Economist, Office of Science and Technology, NMFS, 1315 East-West Hwy., Silver Spring, MD 20910. Tel: (301) 427-8153 or
This request is for a new information collection.
The objective of the survey will be to understand how anglers respond to changes in management options and fishing regulations (
The survey will be conducted using two modes: Mail and internet.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings (webinars).
The Pacific Fishery Management Council's (Pacific Council) Salmon Technical Team (STT) will hold a series of meetings via webinar to discuss the ongoing development of salmon rebuilding plans for Klamath River fall Chinook, Sacramento River fall Chinook, Strait of Juan de Fuca natural coho, Queets River natural coho, and Snohomish River natural coho. These meetings are open to the public.
The STT webinar for Klamath River fall Chinook will be held Tuesday, August 14, 2018, from 9 a.m. to 12 p.m.
The STT meeting for Sacramento River fall Chinook will be held Tuesday, August 14, 2018, from 1 p.m. to 4 p.m.
The STT meeting for Strait of Juan de Fuca natural coho will be held Wednesday, August 15, 2018, from 9 a.m. to 12 p.m.
The STT meeting for Queets River natural coho will be held Wednesday, August 15, 2018, from 1 p.m. to 4 p.m.
The STT meeting for Snohomish River natural coho will be held Thursday, August 16, 2018, from 9 a.m. to 12 p.m.
The STT meetings will be held by webinar. To attend the webinars, (1) join the meeting by visiting this link
Ms. Robin Ehlke, Pacific Council; telephone: 503-820-2410.
Three natural coho stocks (Queets coho, Strait of Juan de Fuca coho, and Snohomish coho) and two Chinook stocks (Sacramento River fall Chinook and Klamath River fall Chinook) were found to meet the criteria for being classified as overfished in the PFMC Review of 2017 Ocean Salmon Fisheries. Under the tenets of the Salmon Fishery Management Plan (FMP), the STT is required to develop a salmon rebuilding plan for each of these stocks and propose them to the Council within one year.
The STT will meet with tribal, state, and other management entities who are working together to develop the salmon rebuilding plans. These meetings will focus on progress made since the June 2018 meetings, and on additional analysis needed for plan development. Topics for discussion may include, but are not limited to, outstanding data needs, data analysis, and potential alternatives to rebuild the stocks. One meeting will occur for each of the five stocks; additional meetings will be scheduled as needed. These meetings are open to the public. All meetings will have the same webinar ID and access code.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Caribbean Fishery Management Council's (Council) Outreach and Education Advisory Panel (OEAP) will hold a 2-day meeting in August to discuss the items contained in the agenda in the
The meetings will be held on August 9, 2018, from 10 a.m. to 4 p.m. and on August 10, 2018, from 9 a.m. to 3 p.m.
The meetings will be held at the CFMC Headquarters, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918-1903, telephone: (787) 766-5926.
The order of business may be adjusted as necessary to accommodate the completion of agenda items. The meeting will begin on August 9, 2018 at 10 a.m. and will end on August 10, 3018 at 3 p.m. Other than the start time, interested parties should be aware that discussions may start earlier or later than indicated. In addition, the meeting may be extended from, or completed prior to the date established in this notice.
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contac Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918-1903; telephone: (787) 766-5926, at least 5 days prior to the meeting date.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to and Deletions from the Procurement List.
This action adds a product to the Procurement List that will be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
On 4/20/2018 (83 FR 77), the Committee for Purchase From People Who Are Blind or Severely Disabled published a notice of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of a qualified nonprofit agency to provide the product and impact of the addition on the current or most recent contractors, the Committee has determined that the product listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the product to the Government.
2. The action will result in authorizing small entities to furnish the product to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product proposed for addition to the Procurement List.
Accordingly, the following product is added to the Procurement List:
On 6/15/2018 (83 FR 116), the Committee for Purchase From People Who Are Blind or Severely Disabled published a notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the service to the Government.
2. If approved, the action will result in authorizing a small entity to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.
Item proposed for addition to the Procurement List:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services proposed for deletion from the Procurement List.
Items proposed for deletion from the Procurement List:
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is proposing to renew the Office of Management and Budget (OMB) approval for an existing information collection, titled, “Consumer and College Credit Card Agreements.”
Written comments are encouraged and must be received on or before August 20, 2018 to be assured of consideration.
Comments in response to this notice are to be directed towards OMB and to the attention of the OMB Desk Officer for the Bureau of Consumer Financial Protection. You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
•
In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Documentation prepared in support of this information collection request is available at
• Agreements between the issuer and a consumer under a credit card account for an open-end consumer credit plan; and
• any college credit card agreements to which the issuer is a party and certain additional information regarding those agreements.
The data collections enable the Bureau to provide consumers with a centralized depository for consumer and college credit card agreements. It also presents information to the public regarding the arrangements between financial institutions and institutions of higher education. This is a routine request for OMB to renew its approval of the collections of information currently approved under this OMB control number. The Bureau is not proposing any new or revised collections of information pursuant to this request.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled Application Package for Segal AmeriCorps Education Award Commitment Form for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments may be submitted, identified by the title of the information collection activity, by August 20, 2018.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Rhonda Taylor, at 202-606-6721, or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day notice requesting public comment was published in the
Department of the Air Force, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by September 18, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the HQ AFSPC/A4MC, ATTN: SMSgt. John Storm, 150 Vadenberg St., Ste. 1105, Peterson AFB CO 80914, or call HQ AFSPC/A4MC Nuclear C2 Systems Branch at (719) 554-4057.
A
Department of the Army, DoD.
Notice; comment request.
This directive establishes the Special Communications and Contacts Control Measures (SCCCM) program to provide specific limitations on the communications and contacts of Army Corrections Command (ACC) prisoners to protect national security, public safety, the good order, discipline and correctional mission of the Army Corrections System (ACS) facilities from acts of violence or terrorism.
Comments are due by August 20, 2018.
Mail comments to: Office of the Provost Marshal General (Gregory W. Limberis), 2800 Army Pentagon, Washington, DC 20310.
Mr. Gregory Stroebel, (703) 545-5935.
(a) Upon direction of the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)), the Commander, ACC, may authorize the Commander of an ACS Facility to implement SCCCM that are reasonably necessary to protect persons against the risk of death or serious bodily injury. These procedures may be implemented upon written notification to the Commander, ACC, by the ASA (M&RA), that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons or substantial damage to property that would entail the risk of death or serious bodily injury to persons. These SCCCM ordinarily may include housing the prisoner in administrative segregation and/or limiting certain conditions of confinement, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of death or serious bodily injury. The authority of the Commander, ACC under this paragraph may not be delegated.
(b) Designated ACS facility staff shall provide to the affected prisoner, as soon as practicable, written notification of the restrictions imposed and the basis for the restrictions. The notice's statement as to the basis may be limited in the interest of prison security or safety, to protect against acts of violence or terrorism that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. The prisoner shall sign for and receive a copy of the notification. The prisoner's attorney(s) of record shall also provide a written acknowledgement of receipt of the notice and an agreement to abide by the SCCCM.
(c) Initial placement of a prisoner in administrative segregation and/or any limitation of the prisoner's conditions of confinement in accordance with paragraph (a) of this section may be imposed for up to 120 days or, with the approval of the ASA (M&RA), a longer period of time not to exceed one year. Special restrictions imposed in accordance with paragraph (a) of this section may be extended thereafter by the Commander, ACC, in increments not to exceed one year, upon receipt by the Commander, ACC of an additional written notification from the ASA (M&RA) that there continues to be a substantial risk that the prisoner's communications or contacts with other persons could result in death or serious bodily injury to persons or substantial damage to property that would entail the risk of death or serious bodily injury to persons. The authority of the Commander, ACC under this paragraph may not be delegated.
(d) In any case where the Secretary of the Army specifically so orders, based on information from the Provost Marshal General/Commanding General, United States Army Criminal Investigation Command (USACIDC) that reasonable suspicion exists to believe that a particular prisoner may use communications with attorneys or their agents to solicit, further, or otherwise facilitate acts of terrorism, the Commander, ACC, shall, in addition to the SCCCM imposed under paragraph (a) of this section, provide appropriate procedures for the monitoring or review of communications between that prisoner and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts of terrorism.
(1) The certification by the Secretary of the Army under this paragraph (d) shall be in addition to any findings or determinations relating to the need for the imposition of other SCCCM as provided in paragraph (a) of this section, but may be incorporated into the same document.
(2) Except in the case of prior court authorization, the Commander, ACC, shall provide written notice to the prisoner and to the attorneys involved prior to the initiation of any such monitoring or review authorized under this paragraph (d). The notice shall explain:
(i) That, notwithstanding the provisions of DoDI 1325.07, AR 190-47, or other rules, all communications between the prisoner and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of terrorism;
(ii) That communications between the prisoner and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.
(3) The Commander, ACC, with the concurrence of the Judge Advocate General and the Army General Counsel, shall employ appropriate procedures to ensure that all attorney-client communications are reviewed for privilege claims and that any properly privileged materials (including, but not limited to, recordings of privileged communications) are not retained during the course of the monitoring. To protect the attorney-client privilege and to ensure that the investigation or judicial proceeding is not compromised by exposure to privileged material relating to the investigation, judicial
(e) The affected prisoner may seek review of any specific limitation on communications or contacts imposed pursuant to this directive in accordance with AR 190-47, paragraph 10-14. The Commander, ACC will act on any request for review.
The Provost Marshal General is the proponent for this policy and will incorporate the provisions of this directive into AR 190-47 as soon as possible. This directive will be rescinded upon publication of the revised regulation.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
The U.S. Army Corps of Engineers (Corps) Omaha District has prepared a Final Environmental Impact Statement (EIS) to analyze the direct, indirect, and cumulative effects of a water supply project called the Northern Integrated Supply Project (NISP or Project) in Larimer and Weld Counties, CO. The purpose of NISP is to provide the Participants, a group of 15 water providers and communities, with approximately 40,000 acre-feet (AF) per year of new, reliable municipal water supply through a regional project coordinated by the Northern Colorado Water Conservancy District (Northern Water). NISP would result in direct impacts to jurisdictional waters of the U.S., including wetlands. The placement of fill material into waters of the U.S. requires authorization from the Corps under Section 404 of the Clean Water Act. Northern Water is the applicant for the Section 404 permit, acting on behalf of the Participants. In accordance with Section 176 of the Clean Air Act a Draft General Conformity Determination has been prepared for the Project.
Written comments on the Final EIS and the Draft General Conformity Determination will be accepted on or before September 4, 2018.
Send written comments regarding NISP, the Final EIS, and the Draft General Conformity Determination to John Urbanic, NISP EIS Project Manager, U.S. Army Corps of Engineers, Omaha District, Denver Regulatory Office, 9307 South Wadsworth Boulevard, Littleton, CO 80128, or by email to
John Urbanic, NISP EIS Project Manager, telephone 303-979-4120, fax at 303-979-0602, or email at
The Final EIS was prepared in accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Corps' regulations for NEPA implementation (33 Code of Federal Regulations [CFR] Parts 230 and 325, Appendix B). The Corps, Omaha District, Denver Regulatory Office is the lead federal agency responsible for the Final EIS. Information contained in the EIS serves as the basis for a decision regarding issuance of a Section 404 Permit. It also provides information for local and state agencies that have jurisdictional responsibility for affected resources.
The Corps released a Draft EIS for NISP on April 30, 2008 and a Supplemental Draft EIS on June 19, 2015. The Corps has considered the comments received on the Draft and Supplemental Draft EIS in the development of the Final EIS. The purpose of the Final EIS is to provide decision-makers and the public with information pertaining to the Project, disclose environmental impacts of the alternatives, and identify mitigation measures to reduce impacts. In NISP, Northern Water proposes to construct Glade Reservoir with a total storage capacity of approximately 170,000 AF. The Project would also involve rehabilitating the existing diversion and intake structure in the Cache la Poudre River as well as constructing a new diversion and intake structure, forebay, pumping facility, and outlet channel. Glade Reservoir would inundate approximately 7 miles of U.S. Highway 287 and a section of the Munroe (North Poudre Supply) Canal, requiring a relocation of the highway and the canal. Northern Water also proposes to construct the South Platte Water Conservation Project (SPWCP) which includes Upper Galeton Reservoir with a total storage capacity of approximately 45,624 AF. The SPWCP includes the construction of a new diversion and intake structure in the South Platte River, pumping facilities, and new pipelines for Upper Galeton Reservoir.
This FEIS evaluates the effects of the following alternatives to NISP: Alternative 1—No Action Alternative; Alternative 2M—Glade Reservoir with modified conveyance and the South Platte Water Conservation Project (Applicant's Preferred Alternative); Alternative 2—Glade Reservoir and the South Platte Water Conservation Project; Alternative 3—Cactus Hill Reservoir, Poudre Valley Canal Diversion, and the South Platte Water Conservation Project; and Alternative 4—Cactus Hill Reservoir, with multiple diversion locations, and the South Platte Water Conservation Project.
In accordance with Section 176 of the Clean Air Act and the Environmental Protection Agency's general conformity regulations (40 CFR part 93, subpart B), a Draft General Conformity Determination has been prepared for the Project. Section 176 of the Clean Air Act requires federal agencies to ensure that their actions conform to applicable implementation plans for achieving and maintaining the National Ambient Air Quality Standards for criteria air pollutants. The Corps has prepared a Draft Conformity Determination for the Project and has included it in Chapter 4.14.7 of the Final EIS. The Draft General Conformity Determination finds that all alternatives of the Project conform with the State Implementation Plan.
The U.S. Environmental Protection Agency Region VIII, U.S. Fish and Wildlife Service, Bureau of Land Management, Colorado Department of Transportation, Colorado Department of Natural Resources, Colorado Department of Public Health and Environment, and Larimer County participated as cooperating agencies in the development of the Final EIS.
Copies of the Final EIS will be available for review at:
1. Colorado State University Morgan Library, 1201 Center Avenue, Fort Collins, CO 80521.
2. Poudre River Public Library District—Old Town Library, 201 Peterson Street, Fort Collins, CO 80524.
3. Poudre River Public Library—Harmony Library, 4616 S. Shields Street, Fort Collins, CO 80526.
4. University of Northern Colorado, James A. Michener Library, 14th Avenue and 20th Street, Greeley, CO 80639.
5. Fort Morgan Public Library, 414 Main Street, Fort Morgan, CO 80701.
6. Windsor Recreation Center, 250 11th Street, Windsor, CO 80550.
7. Northern Colorado Water Conservancy District, 220 Water Avenue, Berthoud, CO 80513.
8. U.S. Army Corps of Engineers, Denver Regulatory Office, 9307 S. Wadsworth Boulevard, Littleton, CO 80128.
Electronic copies of the Final EIS and supporting documents may be obtained from the Denver Regulatory Office or its website at:
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; extension of public comment deadline.
The comment period for the Notice of Availability of the Draft Feasibility Report and Integrated Environmental Impact Statement for the Adams and Denver Counties, Colorado General Investigation Study, Adams and Denver County, Colorado published in the
Mr. Jeffrey Bohlken, U.S. Army Corps of Engineers at (402) 995-2671 or by email at
The Draft EIS can be downloaded from
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Solicitation of nominations for membership.
To ensure a wide range of candidates and a balanced committee, the U.S. Department of Energy (DOE) announces the solicitation of nominations to fill upcoming vacancies on the Appliance Standards and Rulemaking Federal Advisory Committee (Committee).
All nomination information should be provided in a single, complete package submitted electronically or postmarked by August 20, 2018.
Nominations packages should be submitted either electronically or by mail, but not by both methods. Complete nomination packages identified by docket number “EERE-2013-BT-NOC-0005” may be submitted by any of the following methods:
1.
2.
3.
4.
It is recommended that nominations be submitted in electronic format via email to
John Cymbalsky by telephone at (202) 287-1692 or by email at
The Committee will provide advice and recommendations to the Secretary of Energy on the DOE's Appliance and Equipment Standards Program's test procedures and rulemaking determinations. The Committee's scope is to review and make recommendations on the: (1) Development of minimum efficiency standards for residential appliances and commercial equipment, (2) development of product test procedures, (3) certification and enforcement of standards, (4) labeling for various residential products and commercial equipment, and (5) specific issues of concern to DOE as requested by the Secretary of Energy, the Assistant Secretary for Energy Efficiency and Renewable Energy, and the Buildings Technologies Office's Director.
To facilitate the functioning of the Committee, working groups (
DOE is hereby soliciting nominations for members of the Appliance Standards and Rulemaking Federal Advisory Committee. The Committee is expected to be continuing in nature. Members will be selected with a view toward achieving a balanced committee of experts in fields relevant to energy
Members of the Committee will serve without compensation; however, each member may be reimbursed in accordance with Federal Travel Regulations for authorized travel and per diem expenses incurred while attending Committee meetings.
1. The nominee's current resume or curriculum vitae and contact information, including mailing address, email address, and telephone number; and
2. A letter of interest, including a summary of how the nominee's experience and expertise would support the Committee's objectives;
All nomination information should be provided in a single, complete package by the deadline specified in this notice. Nominations packages should be submitted by either mail or electronically, but not by both methods.
Should more information be needed, DOE staff will contact the nominee, obtain information from the nominee's past affiliations or obtain information from publicly available sources, such as the internet. A selection team will review the nomination packages. This team will be comprised of representatives from several DOE Offices. The selection team will seek balanced viewpoints and consider many criteria, including: (a) Scientific or technical expertise, knowledge, and experience; (b) stakeholder representation; (c) availability and willingness to serve; and (d) skills working in committees, working groups and advisory panels. The selection team will make recommendations regarding membership to the Secretary of Energy for review and selection of Committee members.
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure that recommendations to the Committee take into account the needs of the diverse groups served by DOE, membership shall include, to the extent practicable, individuals with demonstrated ability to represent the needs of women and men of all racial and ethnic groups, and persons with disabilities. Please note, however, that individuals already serving on another Federal advisory committee are ineligible for nomination.
Office of Electricity, DOE.
Notice of application.
Manifold Energy Inc. (the Applicant) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before August 20, 2018.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On June 25, 2018, DOE received an application from the Applicant for authorization to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities.
In its application, the Applicant states that it “does not own or control electric generation facilities or transmission facilities and that it has no “obligation to serve native load within a franchised service area.” The electric energy that the Applicant proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and other suppliers within the United States pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning the Applicant's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-456. An additional copy is to be provided to Marc-Antoine Dénommée, 495 Avenue de l'étang, Mascouche, Québec J7K 4E4, Canada.
A final decision will be made on this application after the environmental
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program website at
Office of Electricity, DOE.
Notice of application.
NS Power Energy Marketing Incorporated (NSP Marketing or Applicant) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before August 20, 2018.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On June 28, 2018, DOE received an application from NSP Marketing for authorization to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. NSP Marketing will be seeking market-based rate authority from the Federal Energy Regulatory Commission (FERC).
In its application, NSP Marketing states that it “does not own or control any electric power generation or transmission facilities and does not have a franchised electric power service area.” The electric energy that the Applicant proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and other suppliers within the United States pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning NSP Marketing's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-455. An additional copy is to be provided to both Matt Clarke, Nova Scotia Power, 1223 Lower Water St., Halifax, NS B3J 3S8 Canada, and Bonnie A. Suchman, Suchman Law LLC, 8104 Paisley Place, Potomac, MD 20854.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program website at
With respect to an order issued by the Commission on July 13, 2018 in the above-captioned docket,
Exceptions to this designation as non-decisional are:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on July 10, 2018, Spire Storage West, LLC (Spire), filed an application under section 7(c) of the Natural Gas Act (NGA) and part 157 of the Commission's regulations for a certificate of public convenience and necessity authorizing Spire's acquisition of the underground natural gas storage facility currently owned and operated by the Clear Creek Storage Company, L.L.C. (Clear Creek) and to operate that facility (Clear Creek Facility) to provide storage services in interstate commerce pursuant to Spire's FERC Gas Tariff. Spire further requests the Commission's reaffirmation of its authorization for Spire to charge market-based rates following its acquisition of the Clear Creek Facility.
Concurrently with the Spire application above, Clear Creek filed an application under section 7(b) of the Natural Gas Act (NGA) and part 157 of the Commission's regulations requesting authorization to abandon the Clear Creek Facility by combination with Spire, an affiliated entity.
Following approval of the proposals in the above applications and completion of the consolidation, Spire will render service through the combined Spire and Clear Creek facilities under Spire's open-access FERC Gas Tariff. These services will include service to any customer served by Clear Creek at the time of the combination.
Questions regarding the Spire filing in Docket No. CP18-520-000 may be directed to James F. Bowe, Jr., King & Spalding LLP, 1700 Pennsylvania Avenue NW, Suite 200, Washington, DC 20006; phone (202) 626-9601;
These filings are available for review at the Commission's Washington, DC offices, or may be viewed on the Commission's website at
There are two ways to become involved in the Commission's review of
However, a person does not have to intervene to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Protests and interventions may be filed electronically via the internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's website under the “e-filing” link. The Commission strongly encourages electronic filings.
As of the February 27, 2018 date of the Commission's order in Docket No. CP16-4-001, the Commission will apply its revised practice concerning out-of-time motions to intervene in any new Natural Gas Act section 3 or section 7 proceeding.
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying the requested authorizations will be issued.
Comment Date: 5:00 p.m. Eastern Time, August 9, 2018.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Terra-Gen Dixie Valley, 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 August 2, 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 Federal Energy Regulatory Commission (Commission) hereby gives notice that members of its staff may attend the meetings of the Southwest Power Pool, Inc. Regional State Committee (RSC), Members Committee, Board of Directors and Holistic Integrated Tariff Team (HITT) as noted below. Their attendance is part of the Commission's ongoing outreach efforts.
The meetings will be held at the Embassy Suites Downtown/Old Market, 555 South 10th Street, Omaha, NE 68102. The phone number is (402) 346-9000. All meetings are Central Time.
The discussions may address matters at issue in the following proceedings:
This meeting is open to the public.
For more information, contact Patrick Clarey, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (317) 249-5937 or
Take notice that the schedule for processing the following hydroelectric application has been modified.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on July 6, 2018, Columbia Gas Transmission, LLC (Columbia), 700 Louisiana Street, Houston, Texas 77002-2700, filed in Docket No. CP18-518-000 a prior notice request pursuant to sections 157.205, and 157.216 of the Commission's regulations under the Natural Gas Act for authorization to abandon 12 injection/withdrawal wells and associated pipelines and appurtenances at five of Columbia's Ohio storage fields located in Ashland, Medina, and Richland counties, Ohio. Columbia proposes to abandon these facilities under authorities granted by its blanket certificate issued in Docket No. CP83-76-000, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions concerning this application may be directed to Linda Farquhar, Manager, Project Determinations & Regulatory Administration, Columbia Gas Transmission, LLC, 700 Louisiana Street, Houston, Texas 77002-2700 at (832) 320-5685 or at
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenter will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's website (
Take notice that during the month of June 2018, the status of the above-captioned entities as Exempt Wholesale Generators Companies became effective by operation of the Commission's regulations. 18 CFR 366.7(a) (2017).
1. The Federal Energy Regulatory Commission (Commission) is required to determine the reasonableness of costs incurred by other Federal agencies (OFAs)
2. The Commission has completed its review of the forms and supporting documentation submitted by the U.S. Department of the Interior (Interior), the U.S. Department of Agriculture (Agriculture), and the U.S. Department of Commerce (Commerce) for fiscal year (FY) 2017. This notice reports the costs the Commission included in its administrative annual charges for FY 2018.
3. The basis for eligible costs that should be included in the OFAs' administrative annual charges is prescribed by the Office of Management and Budget's (OMB) Circular A-25—
4. Circular A-25 provides for user charges to be assessed against recipients of special benefits derived from federal activities beyond those received by the general public.
5. The Commission received cost forms and other supporting documentation from the Departments of the Interior, Agriculture, and Commerce. The Commission completed a review of each OFA's cost submission forms and supporting reports. In its examination of the OFAs' cost data, the Commission considered each agency's ability to demonstrate a system or process which effectively captured, isolated, and reported FPA Part I costs as required by the “Other Federal Agency Cost Submission Form.”
6. The Commission held a Technical Conference on March 29, 2018 to report its initial findings to licensees and OFAs. Representatives for several licensees and most of the OFAs attended the conference. Following the technical conference, a transcript was posted, and licensees had the opportunity to submit comments to the Commission regarding its initial review.
7. Idaho Falls Group (Idaho Falls) filed written comments,
8. After additional review, full consideration of the comments presented, and in accordance with the previously cited guidance, the Commission accepted as reasonable any costs reported via the cost submission forms that were clearly documented in the OFAs' accompanying reports and/or analyses. These documented costs will be included in the administrative annual charges for FY 2018.
9. Figure 1 summarizes the total reported costs incurred by Interior, Agriculture, and Commerce with respect to their participation in administering Part I of the FPA. Additionally, Figure 1 summarizes the reported costs that the Commission determined were clearly documented and accepted for inclusion in its FY 2018 administrative annual charges.
10. As presented in Figure 1, the Commission determined that $6,602,429 of the $6,643,007 in total reported costs were reasonable and clearly documented in the OFAs' accompanying reports and/or analyses. Based on this finding, 1% of the total reported cost was determined to be unreasonable. The Commission noted the most significant issue with the documentation provided by the OFAs was the lack of supporting documentation to substantiate costs reported on the “Other Federal Agency Cost Submission Form.”
11. The cost reports that the Commission determined were clearly documented and supported could be traced to detailed cost-accounting reports, which reconciled to data provided from agency financial systems or other pertinent source documentation. A further breakdown of these costs is included in the Appendix to this notice, along with an explanation of how the Commission determined their reasonableness.
12. If you have any questions regarding this notice, please contact Norman Richardson at (202) 502-6219 or Raven Rodriguez at (202) 502-6276.
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection.
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b.
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d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, recommendations, terms and conditions, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. These applications have been accepted and are now ready for environmental analysis.
l.
The existing Holyoke Number 2 Project consists of: (1) An intake at the wall of the first level canal fed by the Holyoke Canal System (licensed under FERC Project No. 2004) with three trash rack screens (one 16.2-foot-tall by 26.2-foot-wide and two 14.8-foot-tall by 21.8-foot-long) with 3-inch clear spacing; (2) two 9-foot diameter, 240-foot-long penstocks; (3) a 17-foot-high by 10-foot-diameter surge tank; (4) a 60-foot-long by 40-foot-wide by 50-foot high powerhouse with one 800-kilowatt vertical turbine generator unit; (5) two parallel 9-foot-wide, 10-foot-high, 120-foot-long brick arched tailrace conduits discharging into the second level canal; (6) an 800-foot-long, 4.8-kilovolt transmission line; and (7) appurtenant facilities. The project is estimated to generate 4,710,000 kilowatt-hours annually.
m. Copies of the applications are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the applications directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
You may also register online at
n.
o.
Environmental Protection Agency (EPA).
Notice of availability.
In accordance with the Oil Pollution Act of 1990 (OPA) and the National Environmental Policy Act (NEPA), the Federal and State natural resource trustee agencies for the Louisiana Trustee Implementation Group (Louisiana TIG) have prepared the Final Restoration Plan and Environmental Assessment #4: Nutrient Reduction (Nonpoint Source) and Recreational Opportunities (Final RP/EA #4). The Final RP/EA #4 describes and, in conjunction with the associated Finding of No Significant Impact (FONSI), selects twenty-three preferred project alternatives considered by the Louisiana TIG to improve water quality by reducing nutrients from nonpoint sources and to compensate for recreational use services lost as a result of the
•
•
Alternatively, you may request a CD of the Final RP/EA #4 and FONSI (see
• Louisiana—Joann Hicks, 225-342-5477.
• EPA—Doug Jacobson, 214-665-6692.
On April 20, 2010, the mobile offshore drilling unit
The Trustees conducted the natural resource damage assessment for the
The
• U.S. Environmental Protection Agency (EPA);
• U.S. Department of the Interior (DOI), as represented by the National
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• State of Louisiana Coastal Protection and Restoration Authority (CPRA), Oil Spill Coordinator's Office (LOSCO), Department of Environmental Quality (LDEQ), Department of Wildlife and Fisheries (LDWF), and Department of Natural Resources (LDNR);
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas Parks and Wildlife Department, General Land Office, and Commission on Environmental Quality.
On April 4, 2016, the Trustees reached and finalized a settlement of their natural resource damage claims with BP in a Consent Decree approved by the United States District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Louisiana Restoration Area are now chosen and managed by the Louisiana TIG. The Louisiana TIG is composed of the following Trustees: CPRA, LOSCO, LDEQ, LDWF, LDNR, EPA, DOI, NOAA, USDA.
A Notice of Availability of the
The Final RP/EA #4 is being released in accordance with OPA NRDA regulations found in the Code of Federal Regulations (CFR) at 15 CFR 990, and NEPA (42 U.S.C. 4321
• Nutrient Reduction on Dairy Farms in St. Helena and Tangipahoa Parishes
• Nutrient Reduction on Dairy Farms in Washington Parish
• Nutrient Reduction on Cropland and Grazing Lands in Bayou Folse
• Winter Water Holding on Cropland in Vermilion and Cameron Parishes Plus
Agricultural Best Management Practices
• Pass-a-Loutre Wildlife Management Area Crevasse Access
• Pass-a-Loutre Wildlife Management Area Campgrounds
• Grand Isle State Park Improvements
• Chitimacha Boat Launch
• Sam Houston Jones State Park Improvements
• Montegut S1/S2 Access/Pointe-aux-Chenes Fishing Piers
• WHARF Phase 1
• Bayou Segnette State Park Improvements
• Atchafalaya Delta Wildlife Management Area Access
• Atchafalaya Delta Wildlife Management Area Campgrounds
• Rockefeller Piers/Rockefeller Signage
• St. Bernard State Park Improvements
• Cypremort Point State Park Improvements
• The Wetlands Center
• Recreational Use Improvements at Barataria Preserve in Jefferson Parish, Jean Lafitte National Historical Park and Preserve, Barataria Unit
• Des Allemands Boat Launch
• Middle Pearl
• Improvements to Grand Avoille Boat Launch
• Belle Chasse
The Louisiana TIG has examined the injuries assessed by the
The documents comprising the Administrative Record for the FinalRP/EA #4 and FONSI can be viewed electronically at
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
Environmental Protection Agency (EPA).
Notification of public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, the U.S. Environmental Protection Agency (EPA) hereby provides notice that the National Environmental Justice Advisory Council (NEJAC) will meet on the dates and times described below. All meetings are open to the public. Members of the public are encouraged to provide comments relevant to the specific issues being considered by the NEJAC. For additional information about registering to attend the meeting or to provide public comment, please see “REGISTRATION” under
The NEJAC will convene a public face-to-face meeting beginning on Tuesday, August 14, 2018, starting at 6:00 p.m., Eastern Time. The NEJAC meeting will continue August 15-16,
One public comment period relevant to the specific issues being considered by the NEJAC (see
The NEJAC meeting will be held at the Boston Park Plaza, 50 Park Plaza, Boston, MA 02116-3912.
Questions or correspondence concerning the public meeting should be directed to Karen L. Martin, U.S. Environmental Protection Agency, by mail at 1200 Pennsylvania Avenue NW, (MC2201A), Washington, DC 20460; by telephone at 202-564-0203; via email at
The Charter of the NEJAC states that the advisory committee “will provide independent advice and recommendations to the Administrator about broad, crosscutting issues related to environmental justice. The NEJAC's efforts will include evaluation of a broad range of strategic, scientific, technological, regulatory, community engagement and economic issues related to environmental justice.”
Registration for the August 14-16, 2018, pubic face-to-face meeting will be processed at
Individuals or groups making remarks during the public comment period will be limited to seven (7) minutes. To accommodate the number of people who want to address the NEJAC, only one representative of a particular community, organization, or group will be allowed to speak. Written comments can also be submitted for the record. The suggested format for individuals providing public comments is as follows: Name of speaker; name of organization/community; city and state; and email address; brief description of the concern, and what you want the NEJAC to advise EPA to do. Written comments received by registration deadline, will be included in the materials distributed to the NEJAC prior to the teleconference. Written comments received after that time will be provided to the NEJAC as time allows. All written comments should be sent to Karen L. Martin, EPA, via email at
For information about access or services for individuals requiring assistance, please contact Karen L. Martin, at (202) 564-0203 or via email at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR)—National Fish Program (formerly referred to as the National Listing of Fish Advisories); EPA ICR Number 1959.06, OMB Control Number 2040-0226—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 20, 2018.
Submit your comments, referencing Docket ID Number EPA-HQ-OW-2014-0350, 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.
Samantha Fontenelle, Office of Science and Technology, Standards and Health Protection Division, Environmental Protection Agency, 1200 Pennsylvania
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
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to the
Environmental Protection Agency (EPA).
Notice of availability.
In accordance with the Oil Pollution Act of 1990 (OPA) and the National Environmental Policy Act (NEPA), the Federal and State natural resource trustee agencies for the Louisiana Trustee Implementation Group (Louisiana TIG) have prepared the Final Restoration Plan and Environmental Assessment #2: Provide and Enhance Recreational Opportunities (Final RP/EA #2). The Final RP/EA #2 describes and, in conjunction with the associated Finding of No Significant Impact (FONSI), selects four preferred project alternatives considered by the Louisiana TIG to compensate for recreational use services lost as a result of the
Alternatively, you may request a CD of the Final RP/EA #2 and FONSI (see
On April 20, 2010, the mobile offshore drilling unit
The Trustees conducted the natural resource damage assessment for the
The
• U.S. Environmental Protection Agency (EPA);
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• State of Louisiana Coastal Protection and Restoration Authority (CPRA), Oil Spill Coordinator's Office (LOSCO), Department of Environmental Quality (LDEQ), Department of Wildlife and Fisheries (LDWF), and Department of Natural Resources (LDNR);
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas Parks and Wildlife Department, General Land Office, and Commission on Environmental Quality.
On April 4, 2016, the Trustees reached and finalized a settlement of their natural resource damage claims with BP in a Consent Decree approved by the United States District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Louisiana Restoration Area are now chosen and managed by the Louisiana TIG. The Louisiana TIG is composed of the following Trustees: CPRA, LOSCO, LDEQ, LDWF, LDNR, EPA, DOI, NOAA, USDA.
A Notice of Availability of the
The Final RP/EA #2 is being released in accordance with OPA NRDA regulations found in the Code of Federal Regulations (CFR) at 15 CFR 990, and NEPA (42 U.S.C. 4321
The Louisiana TIG has examined the injuries assessed by the
The documents comprising the Administrative Record for the Final RP/EA #2 and FONSI can be viewed electronically at
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
Environmental Protection Agency.
Notice of proposed agreement; request for public comment.
In accordance with the requirements of section 122 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980, as amended (“CERCLA”), notice is hereby given of the proposed administrative settlement under sections 104, 106, 107, and 122 of CERCLA, between the U.S. Environmental Protection Agency (“EPA”) and the Fourmile Watershed Coalition and Four Mile Fire Protection District (“Settling Party”). Pursuant to the terms of the proposed settlement, the Settling Party will conduct a Removal Action to abate an actual or threat of release of hazardous substances, pollutants or contaminants at the Black Swan Restoration Reach Good Samaritan Superfund Site located in Boulder County, Colorado. In exchange, the EPA will resolve any potential liability the Settling Party may have under CERCLA. The State of Colorado was consulted on this settlement regarding applicable state laws and regulations.
Comments must be submitted on or before August 20, 2018. For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the agreement. The Agency will consider all comments received and may modify or withdraw its consent to the agreement if comments received disclose facts or considerations that indicate that the agreement is inappropriate, improper, or inadequate.
The Agency's response to any comments, the proposed agreement and additional background information relating to the agreement is available for public inspection at the EPA Superfund Record Center, 1595 Wynkoop Denver, Colorado.
Comments and requests for a copy of the proposed agreement should be addressed to Maureen O'Reilly, Enforcement Specialist, Environmental Protection Agency—Region 8, Mail Code 8ENF-RC, 1595 Wynkoop Street, Denver, Colorado 80202-2466, and should reference the Black Swan Restoration Reach Good Samaritan Superfund Site, Central City, Gilpin County, Colorado.
Mark Chalfant, Enforcement Attorney, Legal Enforcement Program, Environmental Protection Agency—Region 8, Mail Code 8ENF-L, 1595 Wynkoop Street, Denver, Colorado 80202-2466, (303) 312-6177.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Mobile Air Conditioner Retrofitting Program (EPA ICR No. 1774.07, OMB Control No. 2060-0350) 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 20, 2018.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2018-0220, 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.
Christina Thompson, Environmental Protection Agency, Stratospheric Protection Division, Office of Atmospheric Programs, MC 6205T, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-0983; fax number: (202) 343-2362; 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
Regulations promulgated under SNAP require that Motor Vehicle Air
Board of Governors of the Federal Reserve System.
Notice.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Application for a Foreign Organization to Acquire a U.S. Bank or Bank Holding Company (FRY-3F; OMB No. 7100-0119).
The revisions are applicable as of July 31, 2018.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
In addition to the application materials, an applicant also is required to publish a notice in a newspaper of general circulation in the community where the head office of the bank to be acquired is located. The notice must state the name and address of the applicant and its proposed subsidiary, and it must invite the public to submit written comments to the appropriate Federal Reserve Bank.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 6, 2018.
A.
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 15, 2018.
1.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the International Applications and Prior Notifications under Subparts A and C of Regulation K (FR K-1; OMB No. 7100-0107). The revisions are applicable as of July 31, 2018.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC, 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved
Board of Governors of the Federal Reserve System.
Notice.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the International Applications and Prior Notifications Under Subpart B of Regulation K (FR K-2; OMB No. 7100-0284)
The revisions are applicable as of July 31, 2018.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
The applicant also is required to publish a notice in a newspaper of general circulation in the community where the office is proposed to be located. The notice must state the name and address of the applicant/notificant and the proposed office, and it must invite the public to submit written comments to the appropriate Reserve Bank.
Board of Governors of the Federal Reserve System.
Notice
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Bank Holding Company Application and Notification Forms (OMB No. 7100-0121): The Application for Prior Approval to Become a Bank Holding Company or for a Bank Holding Company to Acquire an Additional Bank or Bank Holding Company (FR Y-3), the Notification for Prior Approval to Become a Bank Holding Company or for a Bank Holding Company to Acquire an Additional Bank or Bank Holding Company (FR Y-3N), and the Notification for Prior Approval to Engage Directly or Indirectly in Certain Nonbanking Activities (FR Y-4).
The revisions are applicable as of July 31, 2018.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
The applicant or notificant also is required to publish a notice in a newspaper of general circulation in the community where the head office of the bank to be acquired is located. The notice must state the name and address of the applicant and its proposed subsidiary, and it must invite the public to submit written comments to the appropriate Federal Reserve Bank.
The information submitted in the FR Y-3, Y-3N, and Y-4 is considered to be public unless an institution requests confidential treatment for portions of the particular application or notification. Applicants may rely on any Freedom of Information Act exemption, and such requests for confidentiality must contain detailed justifications corresponding to the claimed exemption. Requests for confidentiality will be evaluated on a case-by-case basis.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division (MVCB) will be submitting to the Office of Management and Budget a request and an extension of existing OMB Clearances concerning combating trafficking in persons.
Submit comments on or before August 20, 2018.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503. Additionally submit a copy to GSA by any of the following methods:
•
•
Ms. Cecelia L. Davis, Procurement Analyst, Acquistion Policy Division, via telephone 202-219-0202, or via email
This is a requirement for a revision and renewal of OMB control number 9000-0188, Combating Trafficking in Persons.
Executive Order (E.O.) 13627, entitled Strengthening Protections Against Trafficking in Persons in Federal Contracts, dated September 25, 2012 (77 FR 60029, October 2, 2012) and Title XVII of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239, enacted January 2, 2013) strengthen the long standing zero-tolerance policy of the United States regarding Government employees and contractor personnel engaging in any form of trafficking in persons.
Contractors are required to inform the contracting officer and the agency Inspector General of any credible information it receives from any source that alleges a contractor employee, subcontractor, or subcontractor employee, or their agent has engaged in conduct that violates the policy in paragraph (b) of the clause 52.222-50. This requirement flows down to all subcontractors.
Additional protections are required where the estimated value of the supplies (other than commercially available off-the-shelf (COTS) items) to be acquired outside the United States or
A notice was published in the
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of availability.
The Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS), in cooperation with the U.S. General Services Administration (GSA), announces the availability of the Final Environmental Impact Statement (EIS) for the proposed acquisition of a site in Cincinnati, Ohio, and the development of this site into a new, consolidated CDC/National Institute for Occupational Safety and Health (NIOSH) campus (Proposed Action). The site being considered for acquisition and development is bounded by Martin Luther King Drive East to the south, Harvey Avenue to the west, Ridgeway Avenue to the north, and Reading Road to the east.
The Final EIS and this notice are published pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA) as implemented by the Council on Environmental Quality (CEQ) Regulations.
CDC will issue a final decision on the proposed action after August 20, 2018.
Copies of the Final EIS can be obtained at:
•
•
All U.S. Mail communications must include the agency name and Docket Number.
Harry Marsh, Architect, Office of Safety, Security and Asset Management (OSSAM), Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-K80, Atlanta, Georgia 30329-4027, phone: (770) 488-8170, or email:
Currently, three NIOSH research facilities—the Robert A. Taft Campus, Taft North Campus, and the Alice Hamilton Laboratory Campus—are located in Cincinnati, Ohio. These facilities no longer meet the research needs required to support occupational safety and health in the modern workplace. The facilities' deficiencies adversely affect NIOSH's ability to conduct occupational safety and health research in Cincinnati. It is not possible to renovate the facilities located on the three campuses to meet current standards and requirements. Additionally, the current distribution of NIOSH activities across separate campuses in Cincinnati results in inefficiencies in scientific collaboration and the duplication of operational support activities. Therefore, CDC is
Potential locations for the proposed new campus were identified through a comprehensive site selection process conducted by GSA on behalf of CDC. In June 2016, GSA issued a Request for Expressions of Interest (REOI) seeking potential sites capable of accommodating the proposed new campus. In response to the REOI, GSA received seven expressions of interest. Following an assessment of each site, GSA found that only one site qualified for further consideration (The Site). The Site encompasses all land between Martin Luther King Drive East to the south, Harvey Avenue to the west, Ridgeway Avenue to the north, and Reading Road to the east in Cincinnati, Ohio.
Under NEPA, as implemented by CEQ Regulations (40 CFR parts 1500-1508), Federal agencies are required to evaluate the environmental effects of their proposed actions and a range of reasonable alternatives to the proposed action before making a decision. On February 9, 2018, in accordance with NEPA, CDC published a Notice of Availability announcing that a Draft EIS for the proposed acquisition and campus consolidation had been prepared (83 FR 5774). The Draft EIS evaluated the potential impacts of two alternatives: The Proposed Action Alternative (acquisition of the Site and construction of a new, consolidated CDC/NIOSH campus) and the No Action Alternative (continued use of the existing campuses for the foreseeable future). Impacts on the following resources were considered: Land use, zoning, and plans; community facilities; socioeconomics and environmental justice; utilities and infrastructure; visual quality; cultural resources; transportation; geology, topography, and soils; air quality; noise; and hazardous substances.
Publication of the Draft EIS notice initiated a 45-day review period, which ended on March 26, 2018. During this period, CDC received comments from government agencies, a Native American tribe, and the public. These comments pertained to the proposed action in general; the accessibility of the proposed campus site for bicyclists; historic buildings; traffic and air quality impacts; sustainability; and the potential displacement of neighborhood residents.
All comments were considered when preparing the Final EIS and responses to the comments are provided in the Final EIS. No comment required substantive revisions to the analyses presented in the Draft EIS or to the alternatives considered. The Final EIS identifies the Proposed Action Alternative as CDC's Preferred Alternative.
CDC will make a decision on whether to proceed with the proposed action after August 20, 2018. At that time, CDC will issue a Record of Decision documenting and explaining its decision based on the Final EIS.
Questions on the Final EIS and the proposed action may be directed to: Harry Marsh, Architect, Office of Safety, Security and Asset Management (OSSAM), Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-K80, Atlanta, Georgia 30329-4027, phone: (770) 488-8170, or email:
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request Gonococcal Isolate Surveillance Project to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on February 5, 2018 to obtain comments from the public and affected agencies. The CDC received 2 non-substantive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Gonococcal Isolate Surveillance Project (0920-0307) (Exp. Date 02/28/2019)—Revision—National Center for HIV, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The Gonococcal Isolate Surveillance Project (GISP) was created in 1986 to monitor trends in antimicrobial susceptibilities of
In the current approval period, GISP isolates are only collected from males and include <4% of reported male gonorrhea cases in the United States. This relatively limited scope likely limits the speed with which new resistance patterns are found and with which public health officials can respond. Published data suggest that resistance in
GISP surveillance can also be strengthened by ensuring that GISP surveillance is only being conducted on
Historically, healthcare providers at approximately 30 participating sentinel sites (
Under this revision, the data collection and reporting processes have been streamlined to minimize burden. All demographic/clinical data from the sentinel sites, and antimicrobial susceptibility testing results from the regional laboratories, will be submitted electronically (1) directly from the sentinel site to the GISP data manager at CDC through a secure data portal, (2) through a secure GISP-web based application, or (3) through the CDC Secure Access Management Services partner portal. To minimize burden, comma-separated values (csv) files that provide standardized structure of the electronic data are provided to sentinel sites and laboratories. Additionally, to further minimize burden, the regional laboratories will be able to extract electronic data from electronic laboratory information systems instead of hand entering data and will no longer be required to report control strain testing results.
This project will not collect name, social security number, or date of birth. A Patient ID, a unique patient identifier assigned by the site that allows for linking of multiple isolates from a single person at a single clinic visit and across multiple clinic visits, is requested and will be provided to CDC for purposes of enhanced surveillance. Sensitive information such as sex of sex partners, HIV status, sex work exposure, and injection drug use are collected. Patient data are obtained through review of medical records by the clinic staff and included in collection reporting of demographic/clinical information. All personally identifiable information (PII) is retained by the STD clinics that treated the patient and is not recorded with data sent to CDC or regional laboratories. At sites where enhanced surveillance will not occur isolates are collected from patients as part of their routine care when a gonorrhea infection is suspected. The electronic GISP database is stored on the CDC mainframe computer and only approved Division of STD Prevention (DSTDP) staff have access rights to the data. As part of the revision, we will continue to systematically identify the risks and potential effects of collecting, maintaining, and disseminating PII and to examine and evaluate alternative processes for handling that information to mitigate potential privacy risks and risks to confidentiality.
The CDC has designated
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled
CDC must receive written comments on or before September 18, 2018.
You may submit comments, identified by Docket No. CDC-2018-0061 by any of the following methods:
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•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Assessing impact of the NIOSH research—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The National Institute for Occupational Safety and Health (NIOSH) is responsible for conducting research and making recommendations to prevent worker injury and illness, as authorized in Section 20(a)(1) of the Occupational Safety and Health Act (29 U.S.C. 669). NIOSH is strongly committed to program evaluation as a way to maximize its contributions to improved occupational safety and health. NIOSH is requesting a new generic information collection request for a three-year period that will support the timely information collection needed for upcoming program evaluation activities, such as external reviews of NIOSH research programs (which fulfill a Government Performance and Results Act (GPRA) requirement, studies to understand the economic value of NIOSH research, process evaluations of NIOSH programs, and evaluations of large research projects. NIOSH needs to collect information about research dissemination and achieved outcomes from key audiences (grantees, potential NIOSH research users and relevant safety and health experts) for accountability and program improvement purposes. NIOSH is specifically interested in assessing intermediate outcomes—the use of NIOSH research products and findings by external stakeholders and partners to improve safety and health—as evidence of research impact. Being able to collect information on intermediate outcomes from grantees, as well as past, present and potential future users of NIOSH research would allow us to provide more robust evidence of use or adoption of NIOSH research products or findings.
The evaluation findings and recommendations from the various program evaluation activities described above will be used as an input for future direction of the programs and incorporated into analyses and reports to either investigate the value of NIOSH's research, or improve program operations to maximize impact. Data will be collected through semi-structured key informant interviews with grantees, potential or known users of NIOSH research and subject matter experts in safety and health. NIOSH estimates that 30 respondents will be involved in phone interviews, which would last between 30-60 minutes. However, participants might be burdened an additional hour reading the invitation email and providing relevant documents such as evidence of research impact. Therefore, the estimated burden for each participant is two hours. The total estimated burden is 60 hours. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Communities Organized to Prevent Arboviruses: Assessment of Knowledge, Attitudes, and Vector Control Practices and Sero-Prevalence and Incidence of Arboviral Infection in Ponce, Puerto Rico (COPA Study). The purpose of this study is to establish longitudinal follow-up of a community cohort and evaluate the impact of vector control interventions in 14 communities in southern Puerto Rico.
CDC must receive written comments on or before September 18, 2018.
You may submit comments, identified by Docket No. CDC-2018-0058 by any of the following methods:
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•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Communities Organized To Prevent Arboviruses: Assessment of Knowledge, Attitudes, and Vector Control Practices and Sero-Prevalence and Incidence of Arboviral Infection in Ponce, Puerto Rico (COPA Study)—NEW—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Recent years have seen the emergence of two epidemic arthropod-borne viruses (arboviruses) that are transmitted by Aedes aegypti mosquitoes. Chikungunya virus was introduced into the Caribbean in late 2013, and caused large epidemics of fever with severe joint pain throughout the Caribbean and Americas in 2014. Zika virus was first detected in the Americas in Brazil in 2014, spread throughout the Americas, has since been associated with devastating birth defects, Guillain-Barre syndrome, and is the first arbovirus that can also be
In all of these cases, the public health response to the spread of these arboviruses throughout the tropics, where their mosquito vectors thrive, has been hampered by a lack of sustainable and effective interventions to prevent infection with any of these arboviruses at the community level. Additionally, the rapid speed with which new arboviruses spread does not often provide the time needed to plan and implement community-level interventions to decrease disease transmission. Although several candidate vaccines for chikungunya and Zika are currently in clinical development, none are yet available. A dengue vaccine has been licensed in several countries, but initial analyses have suggested that decades will be needed before it results in reduction in transmission of dengue virus. In recent years, community based strategies for vector control have been studied and implemented in different countries as an alternative to vertical strategies (
Research suggests that vector control programs that have substantial community participation can have significant and lasting impacts on vector density, and are more cost-effective than vertically structured programs. In addition, these types of programs have been reported to readily integrate with other health or development programs, promote an enduring sense of pride in the home and community, and make use of politically viable vector control strategies.
The purpose of this study is to establish longitudinal follow-up of a community cohort and evaluate the impact of vector control interventions in 14 communities in southern Puerto Rico. The study investigators have prior experience working in these communities; however, there is minimal available information regarding the prevalence or incidence of infection with tropical arboviruses, density of Ae. aegypti mosquitos, or community members' knowledge, attitudes, and practices regarding behaviors intended to avoid mosquitos. Such information will be needed to inform decision-making regarding the location, design, and content of interventions to be implemented and evaluated to reduce the burden of these pathogens.
The questionnaire section will vary depending on age and day of birth of each participant. A questionnaire with general household questions will be administered to one household representative in each home with one or more participants. This representative should be 21 years or older or an emancipated minor. If all eligible household members are unemancipated minors, a household member over the age of 50 may act as household representative and complete this section of the survey only. A questionnaire on socio-demographic information will be administered to all participants. The assessment of knowledge, attitudes, and practices questionnaire will be administered to all participants seven years and older with questions adapted for ages: 7-11 (younger child), 12-13 (older child), 14-50 (adult). A vector control tools questionnaire will be administered to all participants 21 years or older born on an odd numbered day of the month. The questionnaire will be administered after written consent and verbal assent (when appropriate) from those present in the household at the time of the visit. The knowledge, attitudes, and practices questionnaire will be focused on vector control, healthcare-seeking behavior, and disease occurrence. We will collect demographic information (
There is no burden on respondents other than the time needed to participate. Estimated annual burden is 2,416 hours. Authorizing legislation comes from Section 301 of the Public Health Service Act.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Assessment of a Preventive Service Program in the Context of a Zika Virus Outbreak in Puerto Rico” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on March 30, 2018 to obtain comments from the public and affected agencies. CDC received one non-substantive comment to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Assessment of a Preventive Service Program in the Context of a Zika Virus Outbreak in Puerto Rico—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Puerto Rico has reported the highest number of Zika virus infections in the United States, including infections in pregnant women. Zika virus infection during pregnancy has been identified as a cause of microcephaly and other severe brain abnormalities, and has been linked to other problems such as miscarriage, stillbirth, defects of the eye, hearing deficits, limb abnormalities, and impaired growth. One strategy to prevent these devastating outcomes is to prevent unintended pregnancy among women at risk of Zika virus infection. To this end, an initiative was launched in April 2016 to train physicians at clinics across Puerto Rico to provide patient-centered services to women who chose to delay or avoid pregnancy during the Zika virus outbreak.
As part of the public health response to the Zika virus outbreak, CDC seeks to assess approaches to mitigating the effects of Zika virus infection and determine which approaches have utility. Previous assessment of the prevention program indicated high satisfaction of patients with program services. The specific objectives of this data collection are to assess (1) prevention strategy adherence among patients at approximately 18 months after receipt of program services; and (2) prevention strategy adherence, patient satisfaction, and unmet need for services among participants at approximately 30 months after receipt of program services. The practical utility of the information to be collected as part of this project is to assess services delivered to women in Puerto Rico, monitor outcomes of interest, and determine potential for replication/adaptation in other jurisdictions similarly affected by the Zika virus or during other emergency responses. For the information collection, CDC plans to conduct online surveys with 1,920 patients approximately 18 months after receiving program services and 1,760 patients approximately 30 months after receiving program services. The number of patients surveyed is based on an initial sample of 3,200 patients invited to participate, anticipating a 60% response rate at 18 months and a 55% response rate at 30 months.
Participation in all data collection activities will be completely voluntary. OMB approval is requested for two years. Total Annualized Burden Hours are estimated to be 259, and there are no costs to respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Using Qualitative Methods to Understand Issues in HIV Prevention, Care and Treatment in the United States” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on March 13, 2018 to obtain comments from the public and affected agencies. CDC received four comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Using Qualitative Methods to Understand Issues in HIV Prevention, Care and Treatment in the United States (OMB No. 0920-1091; expires December 31, 2018)—Extension—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, Centers for Disease Control and Prevention (CDC).
The CDC's National Center on HIV/AIDS, Viral Hepatitis, STD and TB Prevention (NCHHSTP), Division of HIV/AIDS Prevention (DHAP) seeks a three year extension for an existing Generic information collection request (Generic ICR) entitled, “Using Qualitative Methods to Understand Issues in HIV Prevention, Care and Treatment in the United States” (OMB Number: 0920-1091). Specific studies conducted under this extended Generic ICR will be consistent with the national HIV prevention goals, the CDC Division of HIV/AIDS Prevention (DHAP) Strategic Plan, and DHAP's High-impact HIV Prevention approach.
The purposes for each data collection study supported under this extended Generic ICR will be to understand specific barriers and facilitators to local HIV prevention, care and treatment in the United States and territories. For example, each study will seek to identify ways to improve programmatic activities along the continuum of HIV prevention, treatment and care for different populations residing in different geographic settings with greatest burden of HIV.
The target populations for studies included in this extended Generic ICR include, but are not limited to: Persons living with HIV who are in treatment; persons living with HIV who are out of treatment and who may or may not be seeking treatment at healthcare facilities; persons at high risk for HIV acquisition (HIV negative) and HIV transmission (HIV positive); persons from groups at high risk for HIV including gay, bisexual and other MSM, transgender persons, and injection and non-injection drug users; persons from racial and ethnic minorities; and healthcare providers or other professionals who provide HIV prevention, care and treatment services. Other populations may include individuals who provide non-HIV services or otherwise interact with persons living with HIV or persons at risk for HIV acquisition.
Studies will only provide local contextual information about the barriers and facilitators to HIV prevention, care, and treatment experienced by specific communities at risk for acquiring HIV infection, by HIV-positive persons across the HIV care continuum, and by organizations or individuals providing HIV prevention, care, treatment, and related support services.
Data collection methods used in any of the specific studies primarily will consist of rapid qualitative assessment methodologies, such as semi-structured and in-depth qualitative interviews, focus groups; direct observations; document reviews; and short structured surveys. Data will be analyzed using
CDC will use the results from each specific data collection study to help to identify ways to improve local programmatic activities for specific communities along the continuum of HIV prevention, treatment and care for populations and areas with the greatest HIV burden. CDC will communicate study outcomes to local stakeholders and organizations in positions to consider and implement site-specific improvements in HIV prevention, care, and treatment for each of the study sites examined. For stakeholders, organizations, or agencies outside the local affected communities, all communications will include clear discussion of the limitations of the region-specific, qualitative methods and the non-generalizability of the study outcomes.
For a given year, each separate data collection will range from 30 (minimum) to 200 (maximum) respondents based on the nature and scope of the research purposes. For example, if there are three data collections, the maximum combined number of expected respondents is 600. In a given year, CDC anticipates that the need to screen 1600 persons to identify 800 eligible persons, of which 600 persons will agree to participate.
CDC anticipates that screener forms will take five minutes to complete each, contact information forms will take one minute to complete each, and consent forms will take five minutes to complete each. CDC anticipates 50% of the targeted populations screened will be eligible for the study. Of eligible persons, 75% will agree to participate.
Brief structured surveys will take 15 minutes to complete. In-depth interviews or focus groups with respondents are expected to take 60 minutes (one hour) to complete. In-depth interviews or focus groups with healthcare providers are expected to take 45 minutes to complete.
The total annual response burden based on an average of 600 study respondents per year (assuming three large data collections involving 200 participants each) is estimated at 918 hours. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled “Surveillance of Nonfatal Injuries Among On-Duty Law Enforcement Officers.” The purpose of this project is to collect follow-back telephone interview data from injured and exposed law enforcement officers treated in emergency departments (EDs) and produce a descriptive summary of these injuries and exposures.
CDC must receive written comments on or before September 18, 2018.
You may submit comments, identified by Docket No. CDC-2018-0062 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Surveillance of Nonfatal Injuries Among On-Duty Law Enforcement Officers—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
Law enforcement officers have high rates of non-fatal injuries compared to the general worker population. As law enforcement officers undertake many critical public safety activities and are tasked with protecting the safety and health of the public, it follows that understanding and preventing injuries among law enforcement officers will have a benefit reaching beyond the workers to the general public.
As mandated in the Occupational Safety and Health Act of 1970 (Pub. L. 91-596), the mission of NIOSH is to conduct research and investigations on occupational safety and health. Related to this mission, the purpose of this project is to conduct research that will provide a detailed description of non-fatal occupational injuries and exposures incurred by law enforcement officers. This information will offer detailed insight into events that lead to the largest number of nonfatal injuries and exposures among law enforcement officers. The project will use two related data sources. The first source is data abstracted from medical records of law enforcement officers treated in a nationally stratified sample of emergency departments. These data are routinely collected through the occupational supplement to the National Electronic Injury Surveillance System (NEISS-Work). The second data source, for which NIOSH is seeking OMB approval for three years, is responses to telephone interview surveys of the injured and exposed law enforcement officers identified within NEISS-Work.
The proposed telephone interview surveys will supplement NEISS-Work data with an extensive description of law enforcement officers injuries and exposures, including worker characteristics, injury types, injury circumstances, and injury outcomes. Previous reports describing occupational injuries to law enforcement officers provide limited details on specific regions or sub-segments of the population. As compared to these earlier studies, the scope of the telephone interview data will be broader as it includes sampled cases nationwide. Results from the telephone interviews will be weighted and reported as national estimates.
The sample size for the telephone interview survey is estimated to be approximately 900 law enforcement officers annually for the proposed three year duration of the study. This is based on the number of law enforcement officers identified in previous years of NEISS-Work data and a 30% response rate that is comparable to the rate of previously conducted National Electronic Injury Surveillance System telephone interview studies. Each telephone interview will take approximately 30 minutes to complete, resulting in an annualized burden estimate of 150 hours. Using the routine NEISS-Work data, an analysis of all identified EMS workers will be performed to determine if there are differences between the telephone interview responder and non-responder groups.
The Division of Safety Research (DSR) within NIOSH is conducting this project. DSR has a strong interest in improving surveillance of law enforcement officer injuries and exposures to provide the information necessary for effectively targeting and implementing prevention efforts and, consequently, reducing occupational injuries to law enforcement officers. The Consumer Product Safety Commission (CPSC) will also contribute to this project, as they are responsible for coordinating the collection of all NEISS-Work data and for overseeing the collection of all telephone interview data. The total estimated burden is 450 hours. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Knowledge, Attitudes, and Practices of US Large Animal Veterinarians Concerning Common Veterinary Infection Control Measures When Working with Animal Obstetric Cases. The goals of this survey are to better describe veterinarians' current knowledge of zoonotic infectious diseases that cause abortion in large animals, determine common veterinary infection control practices when working up obstetric cases, and identify common barriers to personal protective equipment use.
CDC must receive written comments on or before September 18, 2018.
You may submit comments, identified by Docket No. CDC-2018-0056 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Knowledge, Attitudes, and Practices of U.S. Large Animal Veterinarians Concerning Common Veterinary Infection Control Measures When Working with Animal Obstetric Cases—New ICR—National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention (CDC).
Veterinarians are particularly at risk of contracting zoonotic infectious diseases due to their close proximity to animals, especially during times of injury or illness. Some veterinarians may be unaware of recommended personal protection measures or opt not to participate in measures that would decrease their risk of contracting a zoonotic disease (Wright
The goals of this study are to establish veterinarians' knowledge of zoonotic infectious disease, identify veterinarians' attitudes towards zoonotic infectious disease and personal risk, and determine practices to decrease personal risk of infection. By identifying knowledge gaps in personal protective equipment (PPE) use, transmission risk factors, and disease identification/diagnosis, we aim to determine the best methods for education of veterinarians on relevant abortion-associated zoonotic infectious diseases.
The purpose of this study is to better describe veterinarians' current knowledge of zoonotic diseases that cause abortion in large animals, determine common veterinary infection control practices when working up obstetric cases, and identify common barriers to PPE use. In order to develop effective messaging strategies, a deeper understanding of the attitudes and barriers to PPE use is needed. The information collected will be used to improve and enhance zoonotic disease education and PPE guidance targeted to veterinarians. The estimated annual burden hours are 125. There is no cost to respondents other than their time.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by September 18, 2018.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' 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.
William Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
As mandated by Sections 1152-1154 of the Social Security Act, CMS directs the QIO program, which is one of the largest federal programs dedicated to improving health quality for Medicare beneficiaries. QIOs are groups of health quality experts, clinicians, and
CMS evaluates the quality and effectiveness of the QIO program as authorized in Part B of Title XI of the Social Security Act. CMS created the Independent Evaluation Center (IEC) to provide CMS and its stakeholders with an independent and objective program evaluation of the 11th SOW.
For the program to improve medication safety and prevent adverse drug events (ADEs), QIN-QIOs provide technical assistance to providers, practitioners, organizations offering Medicare Advantage plans under Medicare Part C, and prescription drug sponsors offering drug plans under Part D. ADEs are defined as “injury resulting from medical intervention related to a drug,” and cause the majority of preventable deaths in hospitals. ADEs escalate healthcare costs and utilization, increasing admission and readmission rates, emergency department (ED) visits, and physician visits. ADEs are particularly problematic for older adults who have multiple chronic conditions and interact with many care settings.
Opioid misuse and overdose is a significant cause of ADEs and was declared a public health emergency by the White House in 2017. In 2016, over 14 million Medicare Part D beneficiaries received opioid prescriptions, and many of these beneficiaries received extreme amounts of the drugs. The Medicare population has one of the highest and fastest-growing rates of diagnosed opioid use disorder.
As part of the HHS Opioid Initiative launched in March 2015, CMS developed a multipronged approach to combat misuse and promote programs that support treatment and recovery support services for clinicians, beneficiaries, and families. CMS also worked with HHS and other health agencies to develop a
The QIO program provides technical assistance to reduce ADEs in beneficiaries resulting from polypharmacy, specifically those who use three or more medications including a prescription in a HRM) drug groups. In the 11th SOW, specific interventions include training providers through Learning Action Networks; developing collaborations among local providers across care settings; providing materials and information resources; and helping providers collect data to monitor prescribing practices.
To evaluate the effectiveness of this program, we will use a mixed method evaluation combining secondary data analysis of Medicare claims with a community provider survey. We plan to conduct an online survey of 1,200 community-based pharmacists, physicians, and nursing home administrators or directors of nursing in nursing homes. These participants were selected based on their role in prescribing HRM and treating ADEs.
The proposed survey assesses the extent to which the
The survey will also provide estimates of the attribution of the QIN-QIO program for improving ADE prevention, and reported impact of the QIN-QIO program from the perspective of healthcare providers. The perceived influence on quality improvement efforts will be quantified and, along with econometric modeling methods, will be used to assess program attribution. Estimating attribution is a contract requirement for the IEC and helps provide evidence of impact of the QIN-QIO program. Since current analytical methods do not adequately address the overlap of quality improvement initiatives targeting medication safety and ADE prevention, the IEC developed an innovative approach, combining survey input with modeling, to estimate the relative importance of the QIN-QIO program. The concept is supported at the highest level of administration for Quality Improvement at CMS and has been presented at national conferences and to CMS/CCSQ leadership. The survey data is an essential component of this analytic method.
The information collected through the survey will complement the existing data by helping identify factors associated with ADE outcomes of interest from existing data sets such as Medicare claims. For example, claims data can provide information on whether the number of prescriptions for opioids has decreased, but not what has helped to facilitate the decrease.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW, Washington, DC 20201. Attention Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
Food and Drug Administration, HHS.
Notice of availability; extension of comment period.
The Food and Drug Administration (FDA or Agency) is extending the comment period for the notice of availability that published in the
FDA is extending the comment period on the document published May 21, 2018 (83 FR 23468). Submit either electronic or written comments on the draft revised guidance by October 18, 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:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the 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
Virginia Recta, Center for Veterinary Medicine (HFV-160), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0840,
In the
The Agency has received a request for a 90-day extension of the comment period. The request conveyed concern that the current 60-day comment period does not allow sufficient time to develop a comprehensive response.
FDA has considered the request and is extending the comment period for the notice of availability for 90 days, until October 18, 2018. The Agency believes that a 90-day extension allows adequate time for interested persons to submit comments.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by September 18, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before September 18, 2018. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the 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
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA's regulations governing the content and format of labeling for human prescription drug and biological products were revised in the
Currently, § 201.56 (21 CFR 201.56) requires that prescription drug labeling contain certain information in the format specified in either § 201.57 (21 CFR 201.57) or § 201.80 (21 CFR 201.80), depending on when the drug was approved for marketing. Section 201.56(a) sets forth general labeling requirements applicable to all prescription drugs. Section 201.56(b) specifies the categories of new and more recently approved prescription drugs subject to the revised content and format requirements in §§ 201.56(d) and 201.57. Section 201.56(c) sets forth the schedule for implementing these revised content and format requirements. Section 201.56(e) specifies the sections and subsections, required and optional, for the labeling of older prescription drugs not subject to the revised format and content requirements.
Section 201.57(a) requires that prescription drug labeling for new and more recently approved prescription drug products include a “Highlights of Prescribing Information” section. The “Highlights” section provides a concise extract of the most important information required under § 201.57(c) (the Full Prescribing Information (FPI)), as well as certain additional information important to prescribers. Section 201.57(b) requires a table of contents to prescribing information entitled “Full Prescribing Information: Contents,” consisting of a list of each heading and subheading along with its identifying number to facilitate health care practitioners' use of labeling information. Section 201.57(c) specifies the contents of the FPI. Section 201.57(d) mandates the minimum specifications for the format of prescription drug labeling and establishes minimum requirements for key graphic elements such as bold type, bullet points, type size, and spacing.
Older drugs not subject to the revised labeling content and format requirements in § 201.57 are subject to labeling requirements at § 201.80. Section 201.80(f)(2) requires that, within 1 year, any FDA-approved patient labeling be referenced in the “Precautions” section of the labeling of older products and either accompany or be reprinted immediately following the labeling.
New drug product applicants must: (1) Design and create prescription drug labeling containing “Highlights,” “Contents,” and FPI; (2) test the designed labeling (
FDA estimates the burden of this collection of information as follows:
Our estimated burden for the information collection reflects an overall increase of 602,503 hours and a corresponding increase of 345 records. We attribute this adjustment to an increase in the number of submissions we received over the last few years.
Food and Drug Administration, HHS.
Notice; reopening of the comment period.
The Food and Drug Administration (FDA, Agency, or we) is reopening the comment period for the “Metered Dose Inhaler and Dry Powder Inhaler Drug Products—Quality Considerations; Draft Guidance for Industry,” published in the
FDA is reopening the comment period on the notice published April 19, 2018 (83 FR 17420). Submit either electronic or written comments by September 18, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before September 18, 2018. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the 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
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for
Richard Lostritto, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 4132, Silver Spring, MD 20993, 301-796-1697,
In the
Persons with access to the internet may obtain the draft guidance at
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Chris Kornak, 240-627-3705,
Technology description follows.
NIAID researchers have discovered that blocking CD300f function in dendritic cells markedly enhances their ability to phagocytose and process apoptotic tumor cells, leading to substantial inhibition of tumor growth. In this light, CD300f may be viewed as a dendritic cell checkpoint receptor analogous to T cell checkpoint receptors like PD-1 and CTLA-4. As a result, inhibiting CD300f function on dendritic cells could be a promising anti-cancer therapy, especially in the settings where blocking of T cell checkpoint receptors has been ineffective.
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
National Institutes of Health, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995 to provide opportunity for public comment on proposed data collection projects, the
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
To obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: David Sharlip, National Library of Medicine, Building 38A, Room B2N12, 8600 Rockville Pike, Bethesda, MD 20894, or call non-toll-free number 301-827-6361 or Email your request to
Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires: written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function 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, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 750.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice of meeting.
Notice is hereby given of the meeting on August 2, 2018, of the Substance Abuse and Mental Health Services Administration's (SAMHSA) National Advisory Council (SAMHSA NAC).
August 2, 2018, 9:00 a.m. to 4:00 p.m. EDT, Open.
Substance Abuse and Mental Health Services Administration, 5600 Fishers Lane, Rockville, Maryland 20857, Room 5N54.
Carlos Castillo, Committee Management Officer and Designated Federal Official, SAMHSA National Advisory Council, Room 18E77A, 5600 Fishers Lane, Rockville, Maryland 20857 (mail), Telephone: (240) 276-2787, Email:
The SAMHSA NAC was established to advise the Secretary, Department of Health and Human Services (HHS), and the Assistant Secretary for Mental Health and Substance Use, SAMHSA, to improve the provision of treatments and related services to individuals with respect to substance use and to improve prevention services, promote mental health, and protect legal rights of individuals with mental illness and individuals who are substance users.
The meeting will include remarks from the Assistant Secretary for Mental Health and Substance Use; updates from the Department of Health and Human Services' Operating Divisions; updates from the ex-officio members, and a council discussion.
The meeting is open to the public and will be held at the Substance Abuse and Mental Health Services Administration, Room 5N54, 5600 Fishers Lane, Rockville, MD 20857. Attendance by the public will be limited to space available. Interested persons may present data, information, or views orally or in writing, on issues pending before the Council. Written submissions must be forwarded to the contact person by July 26, 2018. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations must notify the contact person by July 26, 2018. Up to five minutes will be allotted for each presentation.
The meeting may be accessed via telephone. To attend on site; obtain the call-in number, access code, and/or web access link; submit written or brief oral comments; or request special accommodations for persons with disabilities, please register on-line at:
Meeting information and a roster of Council members may be obtained either by accessing the SAMHSA Council's website at
U.S. Customs and Border Protection, Department of Homeland Security and United States Department of Agriculture, Forest Service.
Notice of reopening of comment period.
This document provides additional time for interested parties to submit comments on the Bog Creek Road Project Draft Environmental Impact Statement (Draft EIS) concerning the repair and maintenance of Bog Creek Road and closure of certain roads within the Blue-Grass Bear Management Unit in the Selkirk Mountains in Boundary County, Idaho. U.S. Customs and Border Protection (CBP) and the United States Department of Agriculture, Forest Service (USDA, Forest Service) Idaho Panhandle National Forests (IPNF) (collectively, the Agencies) published a Notice of Availability of the Draft EIS in the
The comment period for the Draft EIS published at 83 FR 25472 on June 1, 2018, is reopened. Comments must be received on or before July 31, 2018.
CD-ROM and print copies are available by sending a request to Paul Enriquez at
• The IPNF Supervisors Office, 3815 Schreiber Way, Coeur d'Alene, Idaho;
• Sandpoint Ranger District, 1602 Ontario Street, Sandpoint, Idaho;
• Bonners Ferry Ranger District, 6286 Main Street, Bonners Ferry, Idaho; and
• Priest Lake Ranger District, 32203 Highway 57, Priest River, Idaho
•
•
• Hand delivered to any of the USDA, Forest Service locations where CD-ROM and print copies of the Draft EIS are available; or
•
Paul Enriquez, CBP, Border Patrol and Air and Marine Program Management Office, by telephone at 949-643-6365, or email at
Interested persons are invited to submit written comments on all aspects of the Draft EIS. Comments that will provide the most assistance to the Agencies will reference a specific section of the Draft EIS, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change. Substantive comments received during the comment period will be addressed in the Final Environmental Impact Statement (Final EIS). The Final EIS will be made available to the public through a Notice of Availability (NOA) in the
This project is subject to 36 CFR part 218, subparts A and B of the USDA, Forest Service's Project-level Pre-decisional Administrative Review Process. Pursuant to 36 CFR part 218, only those who provide timely and specific written comments regarding the proposed project during a comment period are eligible to file an objection with the USDA, Forest Service. Comments received regarding this Draft EIS are considered part of the administrative record for the National Environmental Policy Act (NEPA) review. Within this context, a commenter's personally identifiable information, such as name and contact information, may be released to a third party upon request under the Freedom of Information Act. Comments submitted anonymously, without a name and contact information, will be accepted and considered; however, anonymous comments will not provide the commenter with standing to participate in the USDA, Forest Service objection process.
This process is being conducted pursuant to the NEPA (42 U.S.C. 4321
U.S. Customs and Border Protection (CBP) and the United States Department of Agriculture, Forest Service (USDA, Forest Service) Idaho Panhandle National Forests (IPNF) (collectively, the Agencies) published a notice in the
Several stakeholders have requested that the Agencies extend the comment period so that they can take additional time to review the proposed action and alternatives and submit worthwhile comments. The Agencies believe that it is very important to receive well thought out and developed comments in the formulation of the Bog Creek Road Project Final Environmental Impact Statement. Therefore, the Agencies have decided to allow additional time for the public to submit comments on the Draft EIS. Accordingly, the comment period is reopened until July 31, 2018, and comments must be received on or before that date.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and will be accepted (no later than September 18, 2018) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice must include the OMB Control Number 1651-0009 in the subject line and the agency name. To avoid duplicate submissions, please use only
(1)
(2)
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number (202) 325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 148.13 of the CBP regulations prescribes the use of the CBP Form 6059B when a written declaration is required of a traveler entering the United States. Generally, written declarations are required from travelers arriving by air or sea. Section 148.12 requires verbal declarations from travelers entering the United States. Generally, verbal declarations are required from travelers arriving by land. CBP continues to find ways to improve the entry process through the use of mobile technology to ensure it is safe and efficient. To that end, CBP is testing the operational effectiveness of a process which allows travelers to use a mobile app to submit information to CBP prior to arrival. This process, called Mobile Passport Control (MPC) which is a mobile app that allows travelers to self-segment upon arrival into the United States—a process also known as intelligent queuing. Another electronic process that CBP is testing in lieu of the paper 6059B is the Automated Passport Control (APC). This is a CBP program that facilitates the entry process for travelers by providing self-service kiosks in CBP's Primary Inspection area that travelers can use to make their declaration.
A sample of CBP Form 6059B can be found at:
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of certain insufflation tubing. Based upon the facts presented, CBP has concluded that the country of origin of the insufflation tubing in question is China, for purposes of U.S. Government procurement.
The final determination was issued on July 13, 2018. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within August 20, 2018.
Yuliya A. Gulis, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade, at (202) 325-0042.
Notice is hereby given that on July 13, 2018, pursuant to subpart B of Part 177, U.S. Customs and Border Protection Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of certain insufflation tubing imported by Global Resources International, Inc. from the Dominican Republic, which may be offered to the U.S. Government under an undesignated government procurement contract. This final determination, HQ H298148, was issued under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In the final determination, CBP concluded that the country of origin of the insufflation tubing is China for purposes of U.S. Government procurement.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that a notice of final determination shall be published in the
This is in response to your correspondence dated March 26, 2018, requesting a final determination, on behalf of Global Resources International, Inc. (“Global Resources”), concerning the country of origin of certain
We note that Global Resources is a party-at-interest within the meaning of 19 C.F.R. § 177.22(d)(1) and is entitled to request this final determination.
Global Resources is the importer of insufflation tubing. Insufflation tubing is used to interconnect and deliver carbon dioxide gas (“CO
The country of origin of the clear tubing, blue tubing, filter assembly, and fittings is China. The insufflation tubing is assembled, sterilized, packed, and labeled in the Dominican Republic.
What is the country of origin of the insufflation tubing for purposes of U.S. Government procurement?
CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or practice for products offered for sale to the U.S. Government, pursuant to subpart B of Part 177, 19 C.F.R. § 177.21
Under the rule of origin set forth under 19 U.S.C. § 2518(4)(B):
An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
In rendering advisory rulings and final determinations for purposes of U.S. Government procurement, CBP applies the provisions of subpart B of Part 177 consistent with the Federal Procurement Regulations.
WTO GPA [World Trade Organization Government Procurement Agreement] country end product, an FTA [Free Trade Agreement] country end product, a least developed country end product, or a Caribbean Basin country end product.
A “WTO GPA country end product” is defined as an article that:
(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or
(2) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself.
The Dominican Republic is a WTO GPA country. China is not. You assert that the insufflation tubing at issue is a product of the Dominican Republic for U.S. Government procurement purposes because all of the components of insufflation tubing, sourced from China, meet the requisite tariff shift rules under the Dominican Republic-Central America-United States Free Trade Agreement (“DR-CAFTA”). Please note that this is an incorrect analysis to apply to determine the country of origin for U.S. Government procurement purposes. Rather, as set forth below, the relevant test is “substantial transformation.”
In the Court of International Trade's decision in
The court reviewed the “name, character and use” test in determining whether a substantial transformation had occurred, and reviewed various court decisions involving substantial transformation determinations. The court noted, citing
In reaching its decision in
The assembly process of insufflation tubing is similar to that of the Generation II flashlight in
Based on the facts provided, insufflation tubing will be considered a product of China for purposes of U.S. Government procurement.
Notice of this final determination will be given in the
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New Hampshire (FEMA-4371-DR), dated June 8, 2018, and related determinations.
The declaration was issued June 8, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated June 8, 2018, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of New Hampshire resulting from a severe winter storm and snowstorm during the period of March 13-14, 2018, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. You are further authorized to provide snow assistance under the Public Assistance program for a limited period of time during or proximate to the incident period. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, James N. Russo, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of New Hampshire have been designated as adversely affected by this major disaster:
Carroll, Rockingham, and Stafford Counties for Public Assistance.
Carroll, Rockingham, and Stafford Counties for snow assistance under the Public Assistance program for any continuous 48-hour period during or proximate to the incident period.
All areas within the State of New Hampshire are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New Hampshire (FEMA-4370-DR), dated June 8, 2018, and related determinations.
The declaration was issued June 8, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated June 8, 2018, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of New Hampshire resulting from a severe storm and flooding during the period of March 2-8, 2018, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated area and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, James N. Russo, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following area of the State of New Hampshire has been designated as adversely affected by this major disaster:
Rockingham County for Public Assistance.
All areas within the State of New Hampshire are eligible for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of October 19, 2018 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of November 2, 2018 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New Jersey (FEMA-4368-DR), dated June 8, 2018, and related determinations.
The declaration was issued June 8, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated June 8, 2018, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of New Jersey resulting from a severe winter storm and snowstorm during the period of March 6-7, 2018, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. You are further authorized to provide snow assistance under the Public Assistance program for a limited period of time during or proximate to the incident period. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Lai Sun Yee, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of New Jersey have been designated as adversely affected by this major disaster:
Bergen, Essex, Morris, Passaic, and Somerset Counties for Public Assistance.
Bergen and Morris Counties for snow assistance under the Public Assistance program for any continuous 48-hour period during or proximate to the incident period.
All areas within the State of New Jersey are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034,
Office of Strategic Planning and Management, HUD.
Notice.
In accordance with the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in competitions for funding under the Notices of Funding Availability (NOFAs) for the following programs: FY2017 Rural Capacity Building for Community Development and Affordable Housing Grants (RCB); FY2017 Fair Housing Initiatives Program (FHIP); and FY2017 The Research and Evaluation, Demonstrations and Data Analysis and Utilization Program.
Office of Strategic Planning and Management, Grants Management and Oversight Division at
The
The
The
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545(a)(4)(C)), the Department is publishing the awardees and the amounts of the awards in Appendices A-C to this document.
Contact: Myron Newry, 202-402-7095.
Contact: Kinnard Wright, 202-402-7495.
Office of the Secretary, Interior.
Notice to reopen a call for nominations.
A request for nominations was published by the Department of the Interior in the
The nomination period for the notice published on June 6, 2018, at 83 FR 26304, is reopened. Nominations for the vacant positions are due August 20, 2018.
Send nomination packages to Brent Rhees, Regional Director, U.S. Bureau of Reclamation, 125 S State Street, Room 8100, Salt Lake City, UT 84138, or via email to
Katrina Grantz, Chief, Adaptive Management Work Group, Environmental Resources Division, at (801) 524-3635, fax: 801-524-5499, or by email at
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management's (BLM), Southeast Oregon Resource Advisory Council (RAC) will meet as indicated below:
The Southeast Oregon RAC will take a field tour on Tuesday, August 7, 2018, from 8:00 a.m. to 5 p.m. and meet on Wednesday, August 8, 2018, from 8:00 a.m. to 12:30 p.m. Pacific Standard Time. The public comment period on Wednesday, August 8, will be from 11:45 a.m. to 12:15 p.m.
Participants in the Tuesday, August 7, 2018, field tour will depart from the Lakeview Interagency Office, 1301 S G Street, Lakeview, Oregon 97630, at 8:00 a.m. The Wednesday, August 8, 2018, public meeting will be held at the Lakeview Interagency Office.
Larisa Bogardus, Public Affairs Officer, 1301 S G Street, Lakeview, Oregon 97630; 541-947-6237;
The 15-member Southeast Oregon RAC was chartered and appointed by the Secretary of the Interior. Their diverse perspectives are represented in commodity, conservation, and general interests. They provide advice to the BLM, and as needed the Forest Service, resource managers regarding management plans and proposed resource actions on public land in southeast Oregon. All meetings are open to the public in their entirety. Information to be distributed to the RAC is requested prior to the start of each meeting.
The August 7 field trip will consist of a tour of lands with wilderness characteristics, and existing Wilderness Study Areas in preparation for the RAC to participate in the Lakeview Resource Management Plan Amendment process. Members of the public who want to participate in the field tour must provide their own transportation. Agenda items for the Wednesday, August 8, meeting include possible management approaches for areas identified by the BLM as lands with wilderness characteristics for a formal recommendation by the Southeast Oregon RAC as part of the Lakeview District's Resource Management Plan Amendment process, development of cross-boundary fuel breaks to protect against wildfire, potential agency changes to sage grouse management, and any other business that may reasonably come before the RAC. A final agenda will be posted online at
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee we will be able to do so.
43 CFR 1784.4-2
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before June 30, 2018, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by August 6, 2018.
Comments may be sent via U.S. Postal Service and all other carriers to the National Register of Historic Places, National Park Service, 1849 C St. NW, MS 7228, Washington, DC 20240.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before June 30, 2018. Pursuant to Section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State Historic Preservation Officers:
Additional documentation has been received for the following resources:
Nominations submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nominations and responded to the Federal Preservation Officer within 45 days of receipt of the nominations and supports listing the properties in the National Register of Historic Places.
Section 60.13 of 36 CFR part 60.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on June 14, 2018, under section 337 of the Tariff Act of 1930, as amended, on behalf of Walbro, LLC of Tucson, Arizona. A supplement to the complaint was filed on June 22, 2018. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain carburetors and products containing such carburetors by reason of infringement of certain claims of U.S. Patent No. 6,394,424 (“the '424 patent”); U.S. Patent No. 6,439,547 (“the '547 patent”); U.S. Patent No. 6,533,254 (“the '254 patent”); U.S. Patent No. 6,540,212 (“the '212 patent”); and U.S. Patent No. 7,070,173 (“the '173 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general or limited exclusion order, in the alternative a limited exclusion order, and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of products identified in paragraph (2) by reason of infringement of one or more of claims 1, 2, 16, 18, and 19 of the '424 patent; claims 1 and 18 of the '547 patent; claims 1-7, 12, and 13 of the '254 patent; claims 12, 14, 15, and 18 of the '212 patent; and claims 54-57, 60, and 62-65 of the '173 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337.
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “handheld carburetors for small or utility gasoline engines that are used in chainsaws, leaf blowers, backpack blowers, trimmers, lawn trimmers, string trimmers, line trimmers, weed whackers, hedge trimmers, pole hedge trimmers, backpack hedge trimmers, earth augers, power augers, hole diggers, post hole diggers, ice augers, cultivators, mini-tillers, water pumps, electricity generators, inverter generators, mini dirt bikes, mini-bikes, pocket bikes, pit bikes, transfer pumps, brush cutters, clearing saws, pole saws, pole pruners, pruning saw, hammer drills, rotary hammers, sprayers, backpack sprayers, misters, backpack misters, post drivers, piling drivers, post pounders, multi-tools, engine powered drill, fogging machine, insect fogger, orchard fogger, mosquito fogger, mist blower, gasoline powered atomizer, duster, backpack duster, pressure washer, demolition saws, power cutters, cut off saw, cut-off saw, disc cutter, circular saw, concrete
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Walbro, LLC, 2015 W. River Road #202, Tucson, AZ 85704.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On July 17, 2018, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Eastern District of Michigan in the lawsuit entitled
The Complaint seeks civil penalties and injunctive relief for alleged violations of the Clean Air Act relating to excess opacity and emissions of particulate matter (“PM”); failure to follow good air pollution control practices in limiting PM emissions; violations of reporting and notification requirements; failure to conduct required performance testing for a number of pollutants; and violations of baghouse operation, monitoring, and inspection requirements. Under the proposed Consent Decree, Gerdau would be required to take a number of measures to control PM pollution and limit opacity. The proposed Consent Decree would require enclosure of a partially opened roof monitor at the
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $12.40 (25 cents per page reproduction cost) payable to the United States Treasury.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on the “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” for approval under the Paperwork Reduction Act (PRA). This collection was developed as part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery. This notice announces our intent to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection,
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Gatrie Johnson, National Aeronautics and Space Administration, 300 E Street SW, Washington, DC 20546-0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Gatrie Johnson, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546 or email or
The proposed information collection activity provides a means to garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable.
The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions:
The collections are voluntary;
The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
The collections are non-controversial and do not raise issues of concern to other Federal agencies;
Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;
Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) 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 automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
Office of the Director of National Intelligence (ODNI).
Notice.
In December 2011, the ODNI accepted responsibility from the Information Security Oversight Office (ISOO) to manage the Standard Form 714,
Written comments must be received on or before August 20, 2018 to be assured of consideration.
Comments should be sent to OMB liaison to ODNI Jasmeet Seehra at
Requests for additional information or copies of the information collection and supporting statements should be directed to Ms. Patricia Gaviria, Director of the Information Management Division, Policy and Strategy, Office of the Director of National Intelligence, Washington, DC 20511;
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the ODNI is requesting extension in effect of Standard Form 714, proposing no changes to the Form and its instructions at this time. The ODNI invites the general public and other Federal agencies to comment on Standard Form 714. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection reflected in the Standard Form 714 meets the intent of section 1.3 (“Financial Disclosure”) of Executive Order 12968, as amended (“Access to Classified Information”); (b) the accuracy of the estimated burden of the proposed information collection for Standard Form 714; (c) ways to enhance the quality, utility, and clarity of the information to be collected in the Standard Form 714; (d) ways, including the use of information technology, to minimize the burden of the collection of information on all respondents to the Standard Form 714; and (e) whether small businesses are affected by this collection. All comments will become a matter of public record.
The Standard Form 714 contains information that is used to assist in making eligibility determinations for access to specifically designated
Respondent burden data follows below:
The ACRS Subcommittee on Plant Operations and Fire Protection will hold a meeting on July 26, 2018 at U.S. Nuclear Regulatory Commission, Region I, 2100 Renaissance Blvd., Suite 100, King of Prussia, PA 19406-2713.
The entire meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will hear presentations by and hold discussions with NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kent Howard (Telephone 301-415-2989 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC website at
If attending this meeting, please enter through the Main Entrance, 2100 Renaissance Blvd., Suite 100, King of Prussia, PA 19406-2713.
Weeks of July 23, 30, August 6, 13, 20, 27, 2018.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of July 30, 2018.
There are no meetings scheduled for the week of August 6, 2018.
There are no meetings scheduled for the week of August 13, 2018.
There are no meetings scheduled for the week of August 20, 2018.
There are no meetings scheduled for the week of August 27, 2018.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
2.
3.
This notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 16, 2018, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange filed a proposal to amend the fee schedule to modify certain Routing Fees.
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange proposes to amend its fee schedule, effective July 2, 2018, to amend pricing for orders routed for securities at or above $1.00, which yield fee code X. The Exchange currently assesses $0.00290 per share for these orders. The Exchange is proposing to increase the rate from $0.00290 per share to $0.00300 per share. The Exchange notes that the proposed amount is in line with amounts assessed for similar transactions on another exchange.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
Particularly, the Exchange believes its proposed fees are reasonable taking into account routing costs and also notes that the proposed change is in line with the amount assessed for similar transactions by another exchange.
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 believes the proposed routing fee will not impose an undue burden on competition because the Exchange will uniformly assess the affected routing fees on all Members. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value or if they view the proposed fee as excessive. Further, excessive fees for participation would serve to impair an exchange's ability to compete for order flow and members rather than burdening competition.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange proposes to amend its fee schedule applicable to its equities trading platform (“BZX Equities”). Particularly, the Exchange proposes to amend the Tape B Volume and Quoting Tiers effective July 2, 2018.
The Exchange currently offers one Tape B Volume and Quoting Tier under footnote 13, which provides an additional rebate of $0.0001 per share for orders that add liquidity in Tape B securities where a Member is enrolled in at least 50 LMP Securities
First, the Exchange proposes to require that a Member is enrolled in and meets the requirements for at least 100 LMP Securities, an increase from the current requirement of 50. Second, the Exchange is proposing to require that at least 10 of the LMP Securities that a Member is enrolled in and meets the requirements for are BZX-listed securities.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange believes that increasing the threshold for Members to be enrolled in and meet the requirements for at least 50 LMP Securities to 100 LMP Securities is a reasonable means to incentivize Members to meet certain quoting standards in additional LMP Securities that the Exchange believes will narrow spreads, increase size at the inside, and increase liquidity depth on
The Exchange further believes that the proposed changes represent an equitable allocation of reasonable dues, fees, and other charges because the thresholds necessary to achieve the Tape B Volume and Quoting Tier would continue to encourage Members to add additional liquidity to the Exchange in LMP Securities, including BZX-listed securities. The proposed changes also are not unreasonably discriminatory as they apply equally to all Members.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the changes burden competition, but instead, enhance competition, as these changes are intended to increase the competitiveness of the Exchange as it is designed to enhance the market quality of LMP Securities, including BZX-listed securities, on the Exchange. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee structures to be unreasonable or excessive. The proposed changes are generally intended to enhance market quality in LMP Securities, including BZX-listed securities, and Tape B securities. As such, the proposal is a competitive proposal that is intended to add additional liquidity to the Exchange, which will, in turn, benefit the Exchange and all Exchange participants and enhance the Exchange's standing as a listing venue.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
83 FR 32932, 16 July 2018.
Wednesday, July 18, 2018 at 10:00 a.m.
The following item will not be considered during the Open Meeting on Wednesday, July 18, 2018:
• Whether to propose amendments to the disclosure requirements in Rule 3-10 and Rule 3-16 of Regulation S-X.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend GEMX Rule 723, entitled “Price Improvement Mechanism for Crossing Transactions.”
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.
GEMX proposes to amend Rule 723, entitled “Price Improvement Mechanism for Crossing Transactions.” Specifically, the Exchange proposes to amend Rule 723(c)(2) to expand the types of Improvement Orders
The Exchange adopted PIM as part of its application to be registered as a national securities exchange under its previous name of Topaz Exchange, LLC.
With respect to the current limitation of Improvement Orders for the account of a Public Customer or for the Member's own account, ISE noted in its Adopting Filing that “all ISE Members would be permitted to participate in a PIM . . . unrelated orders could compete in standard increments to trade with the Agency Order in the PIM. Such unrelated orders could include agency orders on behalf of Public Customers, market makers on other exchanges, and non-ISE member broker-dealers, as well as non-Improvement orders submitted by ISE members.”
At this time, the Exchange proposes to permit any GEMX Member to enter an Improvement Order marked as a response to a PIM auction similar to Nasdaq PHLX LLC (“Phlx”)
The Exchange proposes to amend GEMX Rule 723(d)(1)-(3), which
The Exchange proposes to amend Rule 723(d)(2) which currently provides, “After Priority Customer interest at a given price, Professional Orders and Members' interest will participate in the execution of the Agency Order based upon the percentage of the total number of contracts available at the price that is represented by the size of the Members' interest.” The Exchange proposes to replace the reference to “Priority Customer interest” with the defined term “Priority Customer Interest” proposed to be added in Rule 723(d)(1), as described above. The Exchange also proposes to change “Professional Orders” to “Professional Interest” which will be defined in Rule 723(d)(1) to include Professional Orders as well as Improvement Orders from non-Priority Customers and Market Maker quotes. Since Professional Interest is defined in this manner, the Exchange also proposes to remove the language referring to “Members' interest” from the sentence because Professional Interest would include all orders from non-Priority Customers and Market Maker quotes.
The Exchange proposes to amend Rule 723(d)(3) to again remove the rule text relating to “Members' interest” and instead utilize the defined “Professional Interest” term consistent with proposed changes to Rule 723(d)(1) and (2). The Exchange also proposes to make similar changes to add the term “Professional Interest” to the sentence in Rule 723(d)(3) that currently reads: “Thereafter, all other orders, Responses, and quotes at the price point will participate in the execution of the Agency Order based upon the percentage of the total number of contracts available at the price that is represented by the size of the order, Response or quote.” In particular, the language related to “other orders, Responses, and quotes” in this sentence will be replaced with “Professional Interest” since this term includes all orders from non-Priority Customers and Market Maker quotes, as described above. The Exchange notes that the references in this sentence to “Responses,” currently an undefined term, should instead refer to the defined term “Improvement Orders,” and the proposed changes should therefore clarify how Rule 723(d)(3) will apply. Finally, the Exchange proposes to replace the word “Priority Customer Orders” with “Priority Customer Interest” as defined in proposed Rule 723(d)(1) to clarify that those orders as well as responses (
The amendments to Rule 723(d)(1)-(3) conform to the proposed amendment to Rule 723(c)(2) and other proposed amendments as described above which do not change the manner in which PIM operates today, rather the other word changes seek to bring specificity to the manner in which order, quotes and responses are treated.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend Rule 723(c)(2) seeks to broaden the types of orders that may be submitted as Improvement Orders into PIM. As ISE previously noted, in its Adopting Filing, all Members are able to participate in a PIM today as an unrelated order that rests on the Order Book. Unrelated orders that rest on the Order Book can participate in PIM and trade with the Agency Order in the PIM. The Exchange proposes to allow all Members to submit Improvement Orders directly into PIM to provide an even greater number of GEMX Members to more directly participate in PIM and provide price improvement. The Exchange's proposal is consistent with the Act because allowing a greater number of Members to directly respond with an Improvement Order in a PIM will increase the likelihood of price improvement in that auction thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system. This approach will enable greater participation in PIM auctions.
The Exchange's proposal to amend Rule 723(d) conforms the text with changes made with respect to the proposal to amend Rule 723(c)(2) for consistency. The proposed changes to remove the more generic “Members' interest” and instead substitute very specific terms to define interest and add quotes provide more specificity as to the manner in which interest entered into PIM will be allocated. The Exchange's proposed amendments to Rule 723(d)(1)-(3) are consistent with the Act because the amendments seek to conform the rule text to the proposed Rule 723(c)(2) amendment and describe in greater detail how interest will be allocated by defining terms and eligible interest and this transparency benefits investors and the public interest.
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's proposal to amend Rule 723(c)(2) to broaden the types of orders that may be submitted as Improvement Orders into PIM does not unduly burden competition because all Members will be permitted to submit Improvement Orders directly into PIM to provide an even greater number of GEMX Members to more directly participate in PIM. The amendments to Rule 723(d) will conform the rule text and bring clarity to the allocation method for PIM.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's Schedule of Fees.
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
The Exchange recently received approval to list index options on the Nasdaq 100 Reduced Value Index (“NQX”) on a pilot basis.
By way of background, certain proprietary products such as NDX and NDXP are commonly included in or excluded from a variety of fee and rebate programs. The Exchange notes that the reason these products are often included in or excluded from certain programs is because the Exchange has expended considerable resources developing and maintaining its proprietary products. Similar to NDX and NDXP, NQX is a proprietary product. As such, the Exchange proposes to establish transaction fees for NQX options that are similarly structured to the transaction fees for NDX and NDXP options with some differences as noted below. The Exchange also proposes to similarly include or exclude NQX options from several programs from which NDX and NDXP options are currently included or excluded. Lastly, the Exchange proposes a number of clarifying changes to the Schedule of Fees. Each change is discussed below.
The Exchange proposes to establish transaction fees and rebates for adding or removing liquidity from ISE (
The proposed pricing for NQX is similarly structured to how the Exchange currently prices its other proprietary products, NDX and NDXP, in that Non-Priority Customers,
The proposed pricing for Market Maker orders, including those orders sent by Electronic Access Members (“EAMs”), is intended to encourage Market Maker activity in NQX, and the Exchange believes that the $0.25 per contract maker rebate and taker fee waiver for Market Maker orders will provide such incentive. In addition, the proposed $0.25 per contract maker rebate is intended to offset the proposed NQX license surcharge, as further discussed below, and will further incentivize Market Makers to provide liquidity in the new product during the initial months of trading.
In connection the foregoing changes, the Exchange proposes to remove language related to the NQX fee holiday from June 26-30, 2018 from its Schedule of Fees. The Exchange also proposes to relocate the pricing for NDX and NDXP presently set forth in the separate table entitled “Index Options” within Section I, and the Non-Priority Customer license surcharge for index options presently within Section IV.C, to group them with the proposed fees and rebates for NQX. The Exchange proposes to set forth the foregoing index options fees in Section III, which currently contains pricing for FX options, and retitle that section as “Index Options Fees and Rebates.” FX options ceased trading on the Exchange upon the January 2018 expiry, after which the Exchange determined not to list additional expiry contracts for FX options. No market participant has traded FX options on the Exchange as of the January 2018 expiry. As such, the Exchange proposes to remove all references to specific pricing for FX options from its Schedule of Fees.
The Exchange proposes in the new Section III to restructure the index options fees described above into three separate subsections. First, the Exchange proposes to add a new subsection A, and list the transaction fees for NDX and NDXP in this subsection. As noted above, the fees are not being amended; rather, the existing fees in Section I are being relocated into Section III.A. The rule text in corresponding note 7 in Section I will be deleted since the substance is being relocated to Section III.A. Section III.A will be titled, “NDX Index Options Fees for Regular Orders” to clarify that these fees apply to executions in regular NDX and NDXP orders only, and the Exchange will separately note in Section III.A that for all executions in complex NDX and NDXP orders, the applicable complex order fees for Non-Select Symbols in Section II will apply.
Second, the Exchange proposes to add a new subsection B, and list the proposed maker/taker fees and rebates for NQX, as discussed above, in this subsection. Section III.B will be titled, “NQX Index Options Fees and Rebates for Regular and Complex Orders” to clarify that these fees and rebates apply to executions in both regular and complex NQX orders.
Third, the Exchange proposes to add a new subsection C, and list the various Non-Priority Customer license surcharge fee amounts for the specified index options. Other than to include the proposed NQX license surcharge as further discussed below, the current fees are not being amended; rather, the existing fees in Section IV.C are being relocated into Section III.C. Section III.C will be titled, “Non-Priority Customer License Surcharge for Index Options.”
The Exchange considers it appropriate to group the index options fees as described above so that ISE's pricing for index options may be easily located within its fee schedule. For the sake of clarity, the Exchange also proposes to note within Section I that for all executions in regular NDX, NDXP and NQX orders, the applicable index options fees in Section III will apply. The Exchange similarly proposes to note within Section II that for all executions in complex NQX orders, the NQX index options fees in Section III will apply. The Exchange believes that the proposed cross references will clarify how its pricing for NDX, NDXP and NQX will apply.
Today, the tiered Priority Customer Complex Rebates in Section II of the Schedule of Fees are not paid for NDX or NDXP. Under the Exchange's proposal, the Priority Customer Complex Rebates will likewise not be paid for NQX.
Today as set forth in Section IV.C, the Exchange assesses a license surcharge of $0.25 per contract for all Non-Priority Customer orders in NDX and NDXP, which applies to all executions in those symbols, including executions of NDX and NDXP orders that are routed to away markets in connection with the Options Order Protection and Locked/Crossed Market Plan (the “Plan”).
By way of background, the Exchange administers a marketing fee program that helps Market Makers establish marketing fee arrangements with EAMs in exchange for those EAMs routing some or all of their order flow to the Market Maker. This program is funded through a fee of $0.70 per contract, which is paid by Market Makers for each regular Priority Customer contract executed in Non-Select Symbols.
As set forth in Section IV.H of the Schedule of Fees, the Exchange currently caps Crossing Order fees at $90,000 per month per member on all Firm Proprietary
Lastly, the Exchange proposes a number of clarifying changes to its Schedule of Fees. In Section I, the Exchange proposes to amend note 6, which currently reads: “Market Maker fees are subject to tier discounts, as provided in Section IV.C.” The Exchange seeks to update the reference to Section IV.C, which presently sets forth the Non-Priority Customer license surcharge for index options, to Section IV.D, which sets forth the Market Maker discount tiers.
The Exchange believes that its proposal is consistent with Section 6(b)
The Exchange believes that it is reasonable to assess the proposed maker/taker fees and rebates as discussed above for NQX because NQX will be an exclusively listed product on ISE only. Similar to NDX and NDXP, the Exchange seeks to recoup the operational costs for listing proprietary products.
The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to provide a maker rebate of $0.25 per contract and assess no taker fee to Maker Makers as compared to other market participants because Market Makers, unlike other market participants, take on a number of obligations, including quoting obligations, that other market participants do not have. Further, the proposed pricing for Market Maker orders in NQX are intended to incentivize Market Makers to quote and trade more on the Exchange, thereby providing more trading opportunities for all market participants. As noted above, the $0.25 per contract maker rebate is intended to offset the $0.25 per contract NQX license surcharge, and the Exchange believes this will further incentivize Market Makers to provide liquidity in the new product during the initial months of trading. Additionally, the proposed NQX pricing for Market Makers will be applied equally to all Market Maker orders (including those orders sent by an EAM), as further discussed above.
The Exchange also believes that it is reasonable, equitable and not unfairly discriminatory to assess no transaction fees to Priority Customer orders in NQX because Priority Customer order flow enhances liquidity on the Exchange for the benefit of all market participants. Priority Customer liquidity provides more trading opportunities, which attracts Market Makers. An increase in the activity of these market participants in turn facilitates tighter spreads, which may cause an additional corresponding increase in order flow from other market participants. The proposed pricing for Priority Customer orders in NQX is intended to attract more Priority Customer trading volume to the Exchange. In addition, the proposed NQX pricing for Priority Customers will apply equally to all Priority Customer orders, as further discussed above.
The Exchange further believes that the proposed fee of $0.25 per contract for Non-Nasdaq ISE Market Maker, Firm Proprietary/Broker-Dealer,
The Exchange believes that the proposed changes to eliminate language related to the NQX fee holiday, relocate and group the various index options fees within the Schedule of Fees, and make all of the clarifying changes related to the relocation, each as discussed above, are reasonable, equitable and not unfairly discriminatory. The proposed changes are all intended to bring greater clarity to the Schedule of Fees and will ensure that ISE's pricing for index options may be easily located within its fee schedule. Finally, the Exchange believes that its proposal to remove obsolete references to specific pricing for FX options from its Schedule of Fees is reasonable, equitable and not unfairly discriminatory because FX options ceased trading on the Exchange upon the January 2018 expiry, as discussed above, and the specific pricing for FX options is therefore no longer applicable. No market participant can trade any FX options on ISE since the Exchange has determined not to list additional expiry contracts.
The Exchange believes that its proposal to eliminate the Priority Customer Complex Rebates for NQX is reasonable because even after the elimination of the rebate, Priority Customer complex orders in NQX will not be assessed any complex order transaction fees. As noted above, the Priority Customer Complex Rebates are likewise currently eliminated for NDX and NDXP. By contrast, public customer executions on C2 in RUT are subject to a $0.15 per contract transaction fee.
The Exchange's proposal to eliminate the Priority Customer Complex Rebates for NQX is equitable and not unfairly
The Exchange believes that its proposal to charge a $0.25 per contract Non-Priority Customer license surcharge for NQX is reasonable because the fee amount is the same as the amount for NDX and NDXP, and lower when compared to the $0.45 per contract surcharge C2 applies to non-public customer transactions in RUT.
Further, the Exchange believes that its proposal to assess a Non-Priority Customer license surcharge of $0.25 per contract to NQX options is equitable and not unfairly discriminatory because the Exchange will apply the same surcharge for all similarly situated members in a similar manner. The Exchange also believes that it is equitable and not unfairly discriminatory to not assess the surcharge to Priority Customer orders in NQX because Priority Customer orders bring valuable liquidity to the market, which in turn benefits other market participants.
The Exchange believes that its proposal to exclude NQX from the $0.70 per contract marketing fee is reasonable because the purpose of the marketing fee is to attract order flow to the Exchange. Because NQX will be an exclusively listed product, a marketing fee whose purpose is to attract order flow to the Exchange is no longer necessary for NQX.
The Exchange's proposal to exclude NQX from the marketing fee is equitable and not unfairly discriminatory because the Exchange will apply this exclusion to all similarly situated members.
The Exchange believes that its proposal to exclude the Non-Priority Customer license surcharge and transaction fees for NQX from the calculation of the monthly Crossing Fee Cap is reasonable because NQX will be an exclusively listed product. Similar to NDX and NDXP, which are also excluded from the Crossing Fee Cap, the Exchange seeks to recoup the operational costs for listing proprietary products. The Exchange further believes that the proposed exclusion of NQX from the Crossing Fee Cap is equitable and not unfairly discriminatory because the Exchange will apply the exclusion all similarly situated members. The Exchange also believes that it is reasonable, equitable and not unfairly discriminatory to amend Section IV.H to include the reference to the various index options fees in Section III, as discussed above, because it will conform Section IV.H to the changes proposed herein and clarify how this provision will be applied.
The Exchange believes that the clean-up changes to Sections I and II as described above are reasonable, equitable and not unfairly discriminatory because they are merely intended to bring greater clarity to the Schedule of Fees, to the benefit of all market participants.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe its proposal to assess different maker/taker fees and rebates to different market participants for NQX options will impose an undue burden on competition because different market participants have different obligations and circumstances, as further discussed above. For example, Market Makers have quoting obligations that other market participants do not have. In addition, the Exchange notes that with its products, market participants are offered an opportunity to either transact NDXP or separately execute QQQ options. Offering products such as QQQ provides market participants with a variety of choices in selecting the product they desire to utilize to transact the Nasdaq 100 Index.
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange proposes to amend its fee schedule to (i) amend its pricing model, (ii) eliminate Add Volume Tier 1 and (iii) amend certain routing fees, effective July 2, 2018.
Currently, the Exchange utilizes a low pricing model under which it charges a low fee or provides the execution free of charge. The Exchange proposes to amend its fee schedule to replace its current low pricing model to an inverted pricing model under which the Exchange will charge a fee to add liquidity and provide a rebate to remove liquidity.
In securities priced at or above $1.00, the Exchange currently charges a fee of $0.00030 per share for Displayed orders that add or remove liquidity. The Exchange proposes to assess a standard rate of $0.00080 per share for Displayed orders that add liquidity for securities at or above $1.00 that are appended with fee codes B, V, Y, 3 or 4. The Exchange also proposes to provide a rebate of $0.00040 per share for orders that remove liquidity for securities at or above $1.00 that are appended with fee codes N, W, 6, or BB. All Displayed orders in securities priced below $1.00 would continue to be free.
In securities priced at or above $1.00, the Exchange currently charges a fee of $0.00050 per share for Non-Displayed orders that remove liquidity other than orders that yield fee code DT and DR (
Additionally, in light of the change in pricing model, the Exchange does not wish to maintain Add Volume Tier 1 and accordingly proposes to eliminate it from the fee schedule.
The Exchange next proposes to amend certain routing fees. Particularly, for securities at or above $1.00, the Exchange proposes to amend routing fees for the following orders: (i) Routed orders, pre and post market, which yield fee code 7 and are charged $0.00270 per share, (ii) routed orders to EDGX, which yield fee code I and are charged $0.00290 per share; (iii) routed orders, which yield fee code X and are charged $0.00290 per share; (iv) routed orders using ROUX routing strategy, which yield fee code RX and are charged $0.00280 per share and (v) routed orders using ROUT routing strategy, which yield fee code RT and are charged $0.00260 per share. The Exchange is proposing to amend those rates as follows: (i) the fee for routed orders, pre and post market, which yield fee code 7, would be increased to $0.00300 per share; (ii) the fee for routed orders to EDGX, which yield fee code I, would be increased to $0.00300 per share; (iii) the fee for routed orders, which yield fee code X, would be increased to $0.00300 per share; (iv) the fee for routed orders using ROUX routing strategy, which yield fee code RX, would be increased to $0.00290 per share and (v) the fee for routed orders using ROUT routing strategy, which yield fee code RT, would be increased to $0.00280 per share. The Exchange notes that the proposed amounts are in line with amounts assessed for similar transaction on other exchanges.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The Exchange believes its proposal to replace its current low fee model with a taker-maker pricing model where it would charge a fee for adding liquidity and provide a rebate for removing liquidity is equitable and reasonable as it would serve to simplify its fee schedule to provide a standard rate for orders that add liquidity and a standard rebate for orders that remove liquidity, while also eliminating its pricing incentive under Add Volume Tier 1. The proposed fee structure provides a simple and straightforward model that would treat Displayed and Non-Displayed orders equally.
The Exchange believes providing rebates for orders removing liquidity is reasonable, equitable and not unfairly discriminatory because it provides an incentive to bring additional liquidity to the Exchange, thereby promoting price discovery and enhancing order execution opportunities for Members. The Exchange believes that assessing fees for orders that add liquidity is reasonable, equitable and not unfairly discriminatory because the Exchange must balance the cost of credits for orders that remove liquidity. The Exchange believes the proposed changes are equitable and not unfairly discriminatory because they apply equally to all members. The Exchange also notes that other exchanges utilize taker-maker pricing models and notes that the proposed fees and rebates are in line with the fees and rebates assessed on other exchanges for similar transactions.
The elimination of Add Volume Tier 1 is also equitable and reasonable because it would aid in simplifying the fee schedule and result in all Members being charged the same rates for all transactions regardless of their monthly volumes. The proposed change also applies to all Members.
The Exchange lastly believes its proposed changes relating to certain routing fees are reasonable taking into account routing costs and also notes that the proposed changes are in line with amounts assessed by other exchanges.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that this change represents a significant departure from previous pricing offered by the Exchange's competitors. The proposed rates and rebates would apply uniformly to all Members, and Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets. Further, excessive fees would serve to impair an exchange's ability to compete for order flow and members rather than burdening competition. The Exchange believes that its proposal would not burden intramarket competition because the proposed rate would apply uniformly to all Members.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend MRX Rule 723, entitled “Price Improvement Mechanism for Crossing Transactions.”
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.
MRX proposes to amend Rule 723, entitled “Price Improvement Mechanism for Crossing Transactions.” Specifically, the Exchange proposes to amend Rule 723(c)(2) to expand the types of Improvement Orders
The Exchange adopted PIM as part of its application to be registered as a national securities exchange.
With respect to the current limitation of Improvement Orders for the account of a Public Customer or for the Member's own account, ISE noted in its Adopting Filing that “all ISE Members would be permitted to participate in a PIM . . . unrelated orders could compete in standard increments to trade with the Agency Order in the PIM. Such unrelated orders could include agency orders on behalf of Public Customers, market makers on other exchanges, and non-ISE member broker-dealers, as well as non-Improvement orders submitted by ISE members.”
At this time, the Exchange proposes to permit any MRX Member to enter an Improvement Order marked as a response to a PIM auction similar to Nasdaq PHLX LLC (“Phlx”)
The Exchange proposes to amend MRX Rule 723(d)(1), which explains the manner in which a PIM Order shall be allocated to conform this text to the change which is proposed in Rule 723(c)(2). Rule 723(d)(1) currently provides, “At a given price, Priority Customer interest is executed in full before Professional Orders
The Exchange proposes to amend Rule 723(d)(2) which currently provides, “After Priority Customer interest at a given price, Professional Orders and Members' interest will participate in the execution of the Agency Order based upon the percentage of the total number of contracts available at the price that is represented by the size of the Members' interest.” The Exchange proposes to replace the reference to “Priority Customer interest” with the defined term “Priority Customer Interest” proposed to be added in Rule 723(d)(1), as described above. The Exchange also proposes to change “Professional Orders” to “Professional Interest” which will be defined in Rule 723(d)(1) to include Professional Orders as well as Improvement Orders from non-Priority Customers and Market Maker quotes. Since Professional Interest is defined in this manner, the Exchange also proposes to remove the language referring to “Members' interest” from the sentence because Professional Interest would include all orders from non-Priority Customers and Market Maker quotes.
The Exchange proposes to amend Rule 723(d)(3) to again remove the rule text relating to “Members' interest” and instead utilize the defined “Professional Interest” term consistent with proposed changes to Rule 723(d)(1) and (2). The Exchange also proposes to make similar changes to add the term “Professional Interest” to the sentence in Rule 723(d)(3) that currently reads: “Thereafter, all other orders, Responses, and quotes at the price point will participate in the execution of the Agency Order based upon the percentage of the total number of contracts available at the price that is represented by the size of the order, Response or quote.” In particular, the language related to “other orders, Responses, and quotes” in this sentence will be replaced with “Professional Interest” since this term includes all orders from non-Priority Customers and Market Maker quotes, as described above. The Exchange notes that the references in this sentence to “Responses,” currently an undefined term, should instead refer to the defined term “Improvement Orders,” and the proposed changes should therefore clarify how Rule 723(d)(3) will apply. Finally, the Exchange proposes to replace the word “Priority Customer Orders” with “Priority Customer Interest” as defined in proposed Rule 723(d)(1) to clarify that those orders as well as responses (
The amendments to Rule 723(d)(1)-(3) conform to the proposed amendment to Rule 723(c)(2) and other proposed amendments as described above which do not change the manner in which PIM operates today, rather the other word changes seek to bring specificity to the manner in which order, quotes and responses are treated.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend Rule 723(c)(2) seeks to broaden the types of orders that may be submitted as Improvement Orders into PIM. As ISE previously noted, in its Adopting Filing, all Members are able to participate in a PIM today as an unrelated order that rests on the Order Book. Unrelated orders that rest on the Order Book can participate in PIM and trade with the Agency Order in the PIM. The Exchange proposes to allow all Members to submit Improvement Orders directly into PIM to provide an even greater number of MRX Members to more directly participate in PIM and provide price improvement. The Exchange's proposal is consistent with the Act because allowing a greater number of Members to directly respond with an Improvement Order in a PIM will increase the likelihood of price improvement in that auction thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system. This approach will enable greater participation in PIM auctions.
The Exchange's proposal to amend Rule 723(d) conforms the text with changes made with respect to the proposal to amend Rule 723(c)(2) for consistency. The proposed changes to remove the more generic “Members' interest” and instead substitute very specific terms to define interest and add quotes provide more specificity as to the manner in which interest entered into PIM will be allocated. The Exchange's proposed amendments to Rule 723(d)(1)-(3) are consistent with the Act because the amendments seek to conform the rule text to the proposed Rule 723(c)(2) amendment and describe in greater detail how interest will be allocated by defining terms and eligible interest and this transparency benefits investors and the public interest.
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's proposal to amend Rule 723(c)(2) to broaden the types of orders that may be submitted as Improvement Orders into PIM does not unduly burden competition because all Members will be permitted to submit Improvement Orders directly into PIM to provide an even greater number of MRX Members to more directly participate in PIM. The amendments to Rule 723(d) will conform the rule text and bring clarity to the allocation method for PIM.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 22, 2018, BOX Options Exchange LLC (the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change.
Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend ISE Rule 723, entitled “Price Improvement Mechanism for Crossing Transactions.”
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.
ISE proposes to amend ISE Rule 723, entitled “Price Improvement Mechanism for Crossing Transactions.” Specifically, the Exchange proposes to amend Rule 723(c)(2) to expand the types of Improvement Orders
ISE received approval to establish its PIM in 2004 that would allow an ISE Electronic Access Member (“EAM”) to enter matched trades (“Crossing Transactions”).
With respect to the current limitation of Improvement Orders for the account of a Public Customer or for the Member's own account, ISE noted in its Adopting Filing that “all ISE Members would be permitted to participate in a PIM . . . unrelated orders could compete in standard increments to trade with the Agency Order in the PIM. Such unrelated orders could include agency orders on behalf of Public Customers, market makers on other exchanges, and non-ISE member broker-dealers, as well as non-Improvement orders submitted by ISE members.”
At this time, the Exchange proposes to permit any ISE Member to enter an Improvement Order marked as a response to a PIM auction similar to Nasdaq PHLX LLC (“Phlx”)
The Exchange proposes to amend Rule 723(d)(1)-(3), which explains the manner in which a PIM Order shall be allocated to conform this text to the change which is proposed in Rule 723(c)(2). Rule 723(d)(1) currently provides, “At a given price, Priority Customer interest is executed in full before Professional Orders
The Exchange proposes to amend Rule 723(d)(2) which currently provides, “After Priority Customer interest at a given price, Professional Orders and Members' interest will participate in the execution of the Agency Order based upon the percentage of the total number of contracts available at the price that is represented by the size of the Members' interest.” The Exchange proposes to replace the reference to “Priority Customer interest” with the defined term “Priority Customer Interest” proposed to be added in Rule 723(d)(1), as described above. The Exchange also proposes to change “Professional Orders” to “Professional Interest” which will be defined in Rule 723(d)(1) to include Professional Orders as well as Improvement Orders from non-Priority Customers and Market Maker quotes. Since Professional Interest is defined in this manner, the Exchange also proposes to remove the language referring to “Members' interest” from the sentence because Professional Interest would include all orders from non-Priority Customers and Market Maker quotes.
The Exchange proposes to amend Rule 723(d)(3) to again remove the rule text relating to “Members' interest” and instead utilize the defined “Professional Interest” term consistent with proposed changes to Rule 723(d)(1) and (2). The Exchange also proposes to make similar changes to add the term “Professional Interest” to the sentence in Rule 723(d)(3) that currently reads: “Thereafter, all other orders, Responses, and quotes at the price point will participate in the execution of the Agency Order based upon the percentage of the total number of contracts available at the price that is represented by the size of the order, Response or quote.” In particular, the language related to “other orders, Responses, and quotes” in this sentence will be replaced with “Professional Interest” since this term includes all orders from non-Priority Customers and Market Maker quotes, as described above. The Exchange notes that the references in this sentence to “Responses,” currently an undefined term, should instead refer to the defined term “Improvement Orders,” and the proposed changes should therefore clarify how Rule 723(d)(3) will apply. Finally, the Exchange proposes to replace the word “Priority Customer Orders” with “Priority Customer Interest” as defined in proposed Rule 723(d)(1) to clarify that those orders as well as responses (
The amendments to Rule 723(d)(1)-(3) conform to the proposed amendment to Rule 723(c)(2) and other proposed amendments as described above which do not change the manner in which PIM operates today, rather the other word changes seek to bring specificity to the
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend Rule 723(c)(2) seeks to broaden the types of orders that may be submitted as Improvement Orders into PIM. As ISE previously noted, all Members are able to participate in a PIM today as an unrelated order that rests on the Order Book. Unrelated orders that rest on the Order Book can participate in PIM and trade with the Agency Order in the PIM. The Exchange proposes to allow all Members to submit Improvement Orders directly into PIM to provide an even greater number of ISE Members to more directly participate in PIM and provide price improvement. The Exchange's proposal is consistent with the Act because allowing a greater number of Members to directly respond with an Improvement Order in a PIM will increase the likelihood of price improvement in that auction thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system. This approach will enable greater participation in PIM auctions.
The Exchange's proposal to amend Rule 723(d) conforms the text with changes made with respect to the proposal to amend Rule 723(c)(2) for consistency. The proposed changes to remove the more generic “Members' interest” and instead substitute very specific terms to define interest and add quotes provide more specificity as to the manner in which interest entered into PIM will be allocated. The Exchange's proposed amendments to Rule 723(d)(1)-(3) are consistent with the Act because the amendments seek to conform the rule text to the proposed Rule 723(c)(2) amendment and describe in greater detail how interest will be allocated by defining terms and eligible interest and this transparency benefits investors and the public interest.
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's proposal to amend Rule 723(c)(2) to broaden the types of orders that may be submitted as Improvement Orders into PIM does not unduly burden competition because all Members will be permitted to submit Improvement Orders directly into PIM to provide an even greater number of ISE Members to more directly participate in PIM. The amendments to Rule 723(d) will conform the rule text and bring clarity to the allocation method for PIM.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule to modify certain Routing Fees.
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange proposes to amend its fee schedule, effective July 2, 2018, to modify pricing for orders in securities at or above $1.00 that are routed to a displayed market to remove liquidity using Parallel D, Parallel 2D, ROUT, ROUX or Post [sic] Away routing strategy, which orders yield fee code X. The Exchange currently assesses $0.00290 per share for these orders. The Exchange is proposing to increase the rate from $0.00290 per share to $0.00300 per share. The Exchange notes that the proposed amount is in line with amounts assessed for similar transactions on another exchange.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
Particularly, the Exchange believes its proposed routing fee change is reasonable taking into account routing costs and also notes that the proposed change is in line with the amount assessed for similar transactions by another exchange.
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 believes the proposed routing fee will not impose an undue burden on competition because the Exchange will uniformly assess the affected routing fees on all Members. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value or if they view the proposed fee as excessive. Further, excessive fees for participation would serve to impair an exchange's ability to compete for order flow and members rather than burdening competition.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend BX Rules at Chapter VII, Section 6 related to Market Maker quotations, Section 14 related to Lead Market Maker quotations and Section 15 related to Directed Market Maker quotations.
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.
BX proposes to amend the current rule text of Chapter VII, Section 6(d), Section 14 and Section 15 related to quoting obligations for Market Makers, Lead Market Makers and Directed Market Makers, to restructure the current rule to mirror rule text utilized on Nasdaq Phlx LLC.
The Exchange proposes to amend Chapter VII, Section 6(d) to remove the word “continuous” from this first sentence in the rule. The Exchange is removing the word “continuous” because the Exchange notes that Market Makers quote a percentage of the day and therefore the word continuous may not accurately reflect the manner in which Market Makers quote on BX. The Exchange proposes to retitle Section 6(d) as “Intra-day Quotes.”
The Exchange also proposes to replace references to “continuous” with “intra-day” within the Rulebook. The Exchange proposes to amend Chapter V, Section 3 to replace “continuous quoting” with “intra-day quoting.” The Exchange proposes to amend proposed Chapter VII, Section 14(f)(4) to replace “continuous electronic quote obligation” with “intra-day electronic quote obligation.” The Exchange proposes to amend proposed Chapter VII, Section 14(g) to replace “continuous quotes” with “intra-day quotes.” The Exchange proposes to amend Chapter VII, Section 15(iii)(d) to replace “continuous electronic quote obligation” with “intra-day electronic quote obligation.” The Exchange proposes to amend Chapter X, Section 7(c) to replace “continuous quotes” and “continuous bids and offers” with “intra-day quotes” and “intra-day bids and offers.”
The Exchange proposes to amend Chapter VII, Section 6(d)(i) to delete the
The Exchange proposes to add new rule text to Chapter VII, Section 6(d)(i). The first new sentence will provide “A Market Maker must enter bids and offers for the options to which it is registered, except in an assigned options series listed intra-day
The Exchange is also adding rule text to explain the interplay between the quoting obligations for BX Market Makers who may also qualify as a Lead Market Maker, pursuant to Chapter VII, Section 14 or Directed Market Maker pursuant to Chapter VII, Section 15. Specifically, the Exchange proposes to add, similar to Phlx Rules,
The Exchange proposes to remove the following sentence from Chapter VII, Section (d)(i)(1), “To satisfy this requirement, a Market Maker must quote 60% of the trading day (as a percentage of the total number of minutes in such trading day) or such higher percentage as BX may announce in advance.” The Exchange proposes to replace this language with language that more technically defines the quoting obligation. The Exchange proposes the following rule text:
Market Makers, associated with the same Options Participant, are collectively required to provide two-sided quotations in 60% of the cumulative number of seconds, or such higher percentage as BX may announce in advance, for which that Options Participant's assigned options series are open for trading. Notwithstanding the foregoing, a Market Maker shall not be required to make two-sided markets pursuant to this Chapter VII, Section 6(d)(i)(1) in any Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater.
The Exchange proposes to add new rule text at Chapter VII, Section 6(d)(i)(2) which provides the method by which the Exchange will calculate the BX Market Maker quoting obligations. The Exchange proposes to state, that the Exchange will (i) take the total number of seconds the Options Participant disseminates quotes in each assigned options series, excluding Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater; and (ii) divide that time by the eligible total number of seconds each assigned option series is open for trading that day. Similar to Phlx Rule 1081(c)(ii)(D), the Exchange believes that the addition of this language will bring greater transparency to the manner in which the Exchange calculated the quoting obligation. The Exchange is not amending the manner in which the quoting obligation is calculated, rather the Exchange is simply adding to the current rule the exact manner in which the Exchange determines the quoting percentage. The Exchange proposes to add, “Quoting is not required in every assigned options series.” This sentence is not currently contained in the rule. The Exchange is not proposing to amend its current practice, rather the Exchange is clearly stating that quoting is not required in every assigned options series to make clear the current
The Exchange proposes to also delete the following language from Chapter VII, Section 6(d)(i)(3), “This obligation will apply to all of a Market Maker's registered options collectively to all appointed issues, rather than on an option-by-option basis. Compliance with this obligation will be determined on a monthly basis. However, determining compliance with the continuous quoting requirement on a monthly basis does not relieve a Market Maker of the obligation to provide continuous two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against a Market Maker for failing to meet the continuous quoting obligation each trading day.” The Exchange proposes to replace this language with the following language proposed in Section 6(d)(i)(3), “For purposes of the Exchange's surveillance of an Options Participant compliance with this rule, the Exchange may determine compliance on a monthly basis. The Exchange's monthly compliance evaluation of the quoting requirement does not relieve an Options Participant of the obligation to provide two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against an Options Participant for failing to meet the quoting obligation each trading day.” The Exchange's amendment is not substantive, rather the amendment conforms the rule text to Phlx Rule 1081(c)(iii).
The Exchange proposes to remove the entire paragraph at current Section 6(d)(i)(2). As explained above this language is being relocated within the proposed rule text to Section 6(d)(i)(1) and subsection (a) to that paragraph. The Exchange notes that the sentence “Accordingly, the continuous quotation obligations set forth in this rule shall not apply to Market Makers respecting Quarterly Option Series, adjusted option series, and series with an expiration of nine months or greater” is being deleted and not relocated because this sentence is redundant. Also, the Exchange proposes to amend current Section 6(d)(i)(3) by renumbering it (4) and also capitalizing “System” which is a defined term and renumbering a cross-reference.
BX's Rules at Chapter VII, Section 14(f) related to Lead Market Maker or “LMM” quotations. The Exchange is amending BX's Rules to conform to Phlx's Rules with respect to Specialists which are the equivalent of an LMM on BX. Similar to the changes for BX Market Makers, the Exchange proposes to more specifically state within Section 14(f) that an LMM must enter two-sided quotations. Further, “An LMM that enters a bid (offer) in a series of an option in which he is registered on BX must enter an offer (bid), except in an assigned options series listed intra-day
The Exchange is removing the words “may enter quotations only in the issues included in its appointment.” The Exchange is revising this paragraph to state, “An LMM must enter two-sided quotations. An LMM that enters a bid (offer) in a series of an option in which he is registered on BX must enter an offer (bid), except in an assigned options series listed intra-day on BX. These quotations must meet the legal quote width requirements specified in Chapter VII, Section 14(b)(iv), (v) and (vi). A Market Maker who is also the Lead Market Maker, pursuant to this Chapter VII, Section 14, will be held to the Lead Market Maker obligations in options series in which the Lead Market Maker is assigned and will be held to Market Maker obligations in all other options series where assigned pursuant to Chapter VII, Section 6(d).” The deletion of the words from this paragraph are replaced with the same concept in the new sentences where it is stating that the LMM enter a bid (offer) in a series of an options in which he is registered on BX.
Today, an LMM is not held to quote an intra-day add of a series because the options series was not available for trading the entire day. The Exchange is adding this exception to the rule text to make clear that LMMs would not be responsible for quoting an intra-day addition. The Exchange believes that not counting intra-day adds of a series that were not available for the entire day of trading is consistent with the Act because the LMM would not have the opportunity to trade that particular options series for the entire trading day. As is the case today, an LMM must meet the legal quote width requirements specified in Section 14(b)(iv), (v) and (vi).
The Exchange also proposes to add to this paragraph the following sentence, “A Market Maker who is also the Lead Market Maker, pursuant to this Chapter VII, Section 14, will be held to the Lead Market Maker obligations in options series in which the Lead Market Maker is assigned and will be held to Market Maker obligations in all other options series where assigned pursuant to Chapter VII, Section 6(d).” This language will parallel the language currently proposed on Chapter VII, Section 6(d) and make clear that a BX Options Participant who is a Market Maker and a Lead Market Maker will have quoting obligations, which may need to be separately met depending on the role.
The Exchange proposes to remove the following sentence from Chapter VII, Section 14(f)(1), “An LMM must provide continuous two-sided quotations throughout the trading day in its appointed issues for 90% of the time the Exchange is open for trading in each issue. Such quotations must meet the legal quote width requirements herein. These obligations will apply to all of the LMMs appointed issues collectively, rather than on an option-by-option basis. Compliance with this obligation will be determined on a monthly basis.” The Exchange proposes to replace this language with language that more technically defines the quoting obligation. The Exchange proposes the following rule text:
LMMs, associated with the same Options Participant, are collectively required to provide two-sided quotations in 90% of the cumulative number of seconds, or such higher percentage as BX may announce in advance, for which that Option Participant's assigned options series are open for trading. An LMM shall not be required to make two-sided markets in any Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater. However, a LMM may still receive a participation entitlement in such series if it elects to quote in such series and otherwise satisfies the requirements of Chapter VI, Section 10.
The Exchange proposes to add new rule text at Chapter VII, Section 14(f)(2) which provides the method by which the Exchange will calculate the BX LMM quoting obligations. The Exchange proposes to state, that the Exchange will (i) take the total number of seconds the Options Participant disseminates quotes in each assigned options series, excluding Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater for Market Makers; and (ii) divide that time by the eligible total number of seconds each assigned option series is open for trading that day. This language conforms to the language also proposed for Chapter VII, Section 6(d)(i)(2). Similar to Phlx, the Exchange believes that the addition of this language will bring greater transparency to the manner in which the Exchange calculated the quoting obligation. The Exchange proposes to add, “Quoting is not required in every assigned options series.” This sentence is not currently contained in the rule. The Exchange is not proposing to amend its current practice, rather the Exchange is clearly stating that quoting is not required in every assigned options series to make clear the current obligation. Also, the Exchange proposes to state, “Compliance with this requirement is determined by reviewing the aggregate of quoting in assigned options series for the Options Participant.” This language is similar to the language currently being removed from Chapter VII, Section 14(f)(1), “These obligations will apply to all of the LMMs appointed issues collectively, rather than on an option-by-option basis.” The proposed new language simply conforms the text to Phlx's Rule 1081(c)(ii)(D).
The Exchange proposes to relocate the following rule text from current Section 14(f)(1) to new (f)(3) “BX Regulation may consider exceptions to the requirement to quote 90% (or higher) of the trading day based on demonstrated legal or regulatory requirements or other mitigating circumstances.” The Exchange proposes to replace this rule text in current Section 14(f)(1), “However, determining compliance with the continuous quoting requirement on a monthly basis does not relieve an LMM of the obligation to provide continuous two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against an LMM for failing to meet the continuous quoting obligation each trading day” with the following rule text:
For purposes of the Exchange's surveillance of an Options Participant compliance with this rule, the Exchange may determine compliance on a monthly basis. The Exchange's monthly compliance evaluation of the quoting requirement does not relieve an Options Participant of the obligation to provide two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against an Options Participant for failing to meet the quoting obligation each trading day.
The Exchange proposes to renumber current Section 14(f)(1)(i) as Section 14(f)(4). As noted herein, current Section 14(f)(4) is being relocated to within the rule text as explained above. The Exchange also proposes to renumber Section 14(f)(2) and (3), which are not being amended, as 14(g) and (h), respectively.
The Exchange proposes to amend Section 15(iii) related to Directed Market Maker quoting requirements to similarly add text to conform to Phlx Rule 1081(c)(ii)(C). The Exchange proposes to add to Section 15(iii), “A Directed Market Maker must enter two-sided quotations. A Directed Market Maker that enters a bid (offer) in a series of an option in which he is registered on BX must enter an offer (bid), except in an assigned options series listed intra-day on BX. These quotations must meet the legal quote width requirements specified in Chapter VII, Section 6(d)(ii).” Similar to the changes for BX Market Makers and Lead Market Makers, the Exchange proposes to more specifically state within Section 15(iii) that an Directed Market Maker must enter two-sided quotations. Today, a Directed Market Maker is not held to quote an intra-day add of a series because the options series was not available for trading the entire day. The Exchange is adding this exception to the rule text to make clear that Directed Market Makers would not be responsible for quoting an intra-day addition. The Exchange believes that not counting intra-day adds of a series that were not available for the entire day of trading is consistent with the Act because the Directed Market Maker would not have the opportunity to trade that particular options series for the entire trading day. As is the case today, a Directed Market Maker must meet the legal quote width requirements specified in Chapter VII, Section 6(d)(ii).
The Exchange also proposes to add to this paragraph the following sentence, “A Market Maker who receives a Directed Order, as described in Chapter VII [sic], Section 10, shall be held to the standard of a Directed Market Maker as described in Chapter VII, Section 15.” This language will make clear where a Market Maker receives a Directed Order and what the quoting standard shall be for that Directed Market Maker.
The Exchange proposes to adopt a new Section 15(iii)(a) and provide, Directed Market Makers, associated with the same Options Participant, are collectively required to provide two-sided quotations in 90% of the cumulative number of seconds, or such higher percentage as BX may announce in advance, for which that Options Participant's assigned options series are open for trading. An Options Participant shall be considered directed in all assigned options once the Options Participant receives a Directed Order in any option in which they are assigned and shall be considered a Directed Market Maker until such time as an Options Participant notifies the Exchange that they are no longer directed. Notwithstanding the foregoing, an Options Participant shall not be required to make two-sided markets in any Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater. Notwithstanding the obligations specified in subparagraph (iii) above, a DMM may still receive a participation entitlement in such series if it elects to quote in such series and otherwise satisfies the requirements of Chapter VII [sic], Section 10.
The Exchange notes that it is not amending the quoting obligations for Directed Market Makers. The Exchange is simply conforming the text to Phlx Rule 1081(c)(ii)(C). The Exchange is adding rule text to make clear, similar to Phlx Rule 1081(c)(ii)(C), when a Directed Market [sic] is considered to be directed. Similar to Phlx, an Options Participant shall be considered directed in all assigned options once the Options Participant receives a Directed Order in any option in which they are assigned and shall be considered a Directed Market Maker until such time as an Options Participant notifies the Exchange that they are no longer directed. The Exchange, similar to today, shall not apply quoting obligations to Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater.
The Exchange proposes to adopt a definition of an adjusted option series in subparagraph (i) similar to Phlx
The Exchange proposes to add new rule text at Chapter VII, Section 15(iii)(b) which provides the method by which the Exchange will calculate the BX Directed Market Maker quoting obligations. The Exchange proposes to state, that the Exchange will (i) take the total number of seconds the Options Participant disseminates quotes in each assigned options series, excluding Quarterly Option Series, any Adjusted Option Series, and any option series with an expiration of nine months or greater; and (ii) divide that time by the eligible total number of seconds each assigned option series is open for trading that day. Similar to Phlx, the Exchange believes that the addition of this language will bring greater transparency to the manner in which the Exchange calculated the quoting obligation.
The Exchange proposes to add, “Quoting is not required in every assigned options series.” This sentence is not currently contained in the rule. The Exchange is not proposing to amend its current practice, rather the Exchange is clearly stating that quoting is not required in every assigned options series to make clear the current obligation.
Also, the Exchange proposes to state, “Compliance with this requirement is determined by reviewing the aggregate of quoting in assigned options series for the Options Participant.” This language is similar to the language currently being removed from Chapter VII, Section 15(iii) “These obligations will apply collectively to all series in all of the issues, rather than on an issue-by-issue basis.” The proposed new language simply conforms the text to Phlx's Rule 1081(c)(ii)(D).
The Exchange proposes to relocate the following rule text from current Section 15(iii) to new 15(iii)(c) “BX Regulation may consider exceptions to the requirement to quote 90% (or higher) of the trading day based on demonstrated legal or regulatory requirements or other mitigating circumstances.” The Exchange proposes to add,
For purposes of the Exchange's surveillance of an Options Participant compliance with this rule, the Exchange may determine compliance on a monthly basis. The Exchange's monthly compliance evaluation of the quoting requirement does not relieve an Options Participant of the obligation to provide two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against an Options Participant for failing to meet the quoting obligation each trading day.
The rule text concerning a technical failure is being relocated from Section 15(iii) to Section 15(iii)(d). The word “system” is being capitalized as that term is defined within the Rulebook. As noted herein, Section 15(iv) is being relocated to Section 15(iii)(a) and Sections 15(iii)(a)(i).
The Exchange believes this proposed rule will allow Market Makers to quickly compare obligations across Nasdaq affiliated markets.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Texas (FEMA-4377-DR), dated 07/06/2018.
Issued on 07/06/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 07/06/2018, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 155846 and for economic injury is 155850.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Jersey (FEMA-4368-DR), dated 06/08/2018.
Issued on 07/13/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of NEW JERSEY, dated 06/08/2018, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of West Virginia (FEMA-4378-DR), dated 07/12/2018.
Issued on 07/12/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 07/12/2018, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 155906 and for economic injury is 155910.
Surface Transportation Board.
Notice of vacancies on federal advisory committee and solicitation of nominations.
The Surface Transportation Board (Board) hereby gives notice of two vacancies on its Rail Energy Transportation Advisory Committee (RETAC) for representatives of the electric utility industry, one of which must be filled by a representative of a state- or municipally-owned utility. The Board is soliciting suggestions from the public for candidates to fill these vacancies.
Suggestions for candidates for membership on RETAC are due August 20, 2018.
Suggestions may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's website, at
Michael H. Higgins at 202-245-0284. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.
The Board exercises broad authority over transportation by rail carriers, including rates and services (49 U.S.C. 10701-10747, 11101-11124), construction, acquisition, operation, and abandonment of railroad lines (49 U.S.C. 10901-10907), and consolidation, merger, or common control arrangements between railroads (49 U.S.C. 10902, 11323-11327).
The Board established RETAC in 2007 as a federal advisory committee consisting of a balanced cross-section of energy and rail industry stakeholders to provide independent, candid policy advice to the Board and to foster open, effective communication among the affected interests on issues such as rail performance, capacity constraints, infrastructure planning and development, and effective coordination among suppliers, railroads, and users of energy resources. RETAC operates under the Federal Advisory Committee Act (5 U.S.C. App. 2, §§ 1-16).
RETAC's membership is balanced and representative of interested and affected parties, consisting of not less than: Five representatives from the Class I railroads; three representatives from Class II and III railroads; three representatives from coal producers; five representatives from electric utilities (including at least one rural electric cooperative and one state- or municipally-owned utility); four representatives from biofuel refiners, processors, or distributors, or biofuel feedstock growers or providers; one representative of the petroleum shipping industry; and, two representatives from private car owners, car lessors, or car manufacturers. RETAC may also include up to two members with relevant experience but not necessarily affiliated with one of the aforementioned industries or sectors. (The at-large seats are currently occupied by representatives of rail labor and the downstream petroleum production industry.) Members are selected by the Chairman of the Board with the concurrence of a majority of the Board. The Chairman may invite representatives from the U.S. Departments of Agriculture, Energy, and Transportation and the Federal Energy Regulatory Commission to serve on RETAC in advisory capacities as
RETAC meets at least twice per year. Meetings are typically held at the Board's headquarters in Washington, DC, but may be held in other locations. Members of RETAC serve without compensation and without reimbursement of travel expenses. Further information about RETAC is available on the RETAC page of the Board's website at
The Board is soliciting nominations from the public for candidates to fill two vacancies on RETAC for representatives of the electric utility industry (one of which must be a representative of a state- or municipally-owned utility) for a three-year term ending September 30, 2021. According to revised guidance issued by the Office of Management and Budget, it is permissible for federally registered lobbyists to serve on advisory committees, such as RETAC, as long as they do so in a representative capacity, rather than an individual capacity.
Nominations for candidates to fill these vacancies should be submitted in letter form and should include: (1) The name of the candidate; (2) the interest the candidate will represent; (3) a summary of the candidate's experience and qualifications for the position; (4) a representation that the candidate is willing to serve as a member of RETAC; and, (5) a statement that the candidate agrees to serve in a representative capacity. Suggestions for candidates for membership on RETAC should be filed with the Board by August 20, 2018. Please note that submissions will be posted on the Board's website under Docket No. EP 670 (Sub-No. 2).
49 U.S.C. 1321; 49 U.S.C. 11101; 49 U.S.C. 11121.
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before August 9, 2018.
Send comments identified by docket number FAA-2018-0038 using any of the following methods:
•
•
•
•
Clarence Garden (202) 267-7489, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims.
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans. The actions relate to a proposed highway project, I-110 High-Occupancy Toll Lane Flyover Project 07-LA-110-PM 20.10/20.92 in the City and County of Los Angeles, State of California. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
Jason Roach Senior Environmental Planner Chief, Environmental Branch Caltrans District 7, 100 South Main Street, MS 16A, Los Angeles, CA 90012, Office Hours: 9 a.m.-4:00 p.m., Office Phone: (213) 897-0357, Email:
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that the Caltrans, have taken final agency actions subject to 23 U.S.C. 139(
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
(1) Council on Environmental Quality regulations;
(2) National Environmental Policy Act (NEPA);
(3) Moving Ahead for Progress in the 21st Century Act (MAP-21);
(4) Department of Transportation Act of 1966;
(5) Federal Aid Highway Act of 1970;
(6) Clean Air Act Amendments of 1990;
(7) Noise Control Act of 1970;
(8) 23 CFR part 772 FHWA Noise Standards, Policies and Procedures;
(9) Department of Transportation Act of 1966, Section 4(f);
(10) Clean Water Act of 1977 and 1987;
(11) Endangered Species Act of 1973;
(12) Migratory Bird Treaty Act;
(13) National Historic Preservation Act of 1966, as amended;
(14) Historic Sites Act of 1935; and,
(15) Executive Order 13112, Invasive Species.
(16) Title VI of the Civil Rights Act of 1964
23 U.S.C. 139(
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 15 individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before August 20, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2014-0102; FMCSA-2015-0329; FMCSA-2015-0328; FMCSA-2015-0326; and FMCSA-2015-0327 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for five years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the five-year period. FMCSA grants exemptions from the FMCSRs for a two-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to driver a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5-1951.
49 CFR 391.41(b)(11) was adopted in 1970, with a revision in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971).
The 15 individuals listed in this notice have requested renewal of their exemptions from the hearing standard in 49 CFR 391.41(b)(11), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will
In accordance with 49 U.S.C. 31136(e) and 31315, each of the 15 applicants has satisfied the renewal conditions for obtaining an exemption from the hearing requirement. The 15 drivers in this notice remain in good standing with the Agency. In addition, for Commercial Driver's License (CDL) holders, the Commercial Driver's License Information System (CDLIS) and the Motor Carrier Management Information System (MCMIS) are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency (SDLA). These factors provide an adequate basis for predicting each driver's ability to continue to safely operate a CMV in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each of these drivers for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
As of June 17, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 2 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
Tanya Bland, (MD); and Joseph Woodle (AL)
The drivers were included in docket number FMCSA-2015-0326. Their exemptions are applicable as of June 17, 2018, and will expire on June 17, 2020.
As of June 24, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 4 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2015-0328. Their exemptions are applicable as of June 24, 2018, and will expire on June 24, 2020.
As of June 25, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, Daniel Tricolici (MA) has satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers.
This driver was included in docket number FMCSA-2015-0327. The exemption is applicable as of June 25, 2018, and will expire on June 25, 2020.
As of June 27, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 4 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers.
The drivers were included in docket number FMCSA-2015-0329. Their exemptions are applicable as of June 27, 2018, and will expire on June 27, 2020.
As of June 29, 2018, and accordance with U.S.C. 31136(e) and 31315, the following 4 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers.
The drivers were included in docket number FMCSA-2014-0102. Their exemptions are applicable June 29, 2018, and will expire on June 29, 2020.
The exemptions are extended subject to the following conditions: (1) Each driver must report any crashes or accidents as defined in 49 CFR 390.5; and (2) report all citations and convictions for disqualifying offenses under 49 CFR part 383 and 49 CFR 391 to FMCSA; and (3) each driver prohibited from operating a motorcoach or bus with passengers in interstate commerce. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. In addition, the exemption does not exempt the individual from meeting the applicable CDL testing requirements. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 19 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the hearing requirement in 49 CFR 391.41(b)(11). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 30 individuals for an exemption from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. If granted, the exemptions would enable these hard of hearing and deaf individuals to operate CMVs in interstate commerce.
Comments must be received on or before August 20, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2017-0061 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the FMCSRs for a five-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the five-year period. FMCSA grants exemptions from the FMCSRs for a two-year period to align with the maximum duration of a driver's medical certification.
The 30 individuals listed in this notice have requested an exemption from the hearing requirement in 49 CFR 391.41(b)(11). Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971).
On February 1, 2013, FMCSA announced in a Notice of Final Disposition titled, Qualification of Drivers; Application for Exemptions; National Association of the Deaf, (78 FR 7479), its decision to grant requests from 30 individuals for exemptions from the Agency's physical qualification standard concerning hearing for interstate CMV drivers. Since the February 1, 2013 notice, the Agency has published additional notices granting requests from hard of hearing and deaf individuals for exemptions from the Agency's physical qualification standard concerning hearing for interstate CMV drivers.
Mr. Albrecht, age 51, holds a class A CDL in Pennsylvania.
Mr. Batchelor, age 40, holds an operator's license in North Carolina.
Mr. Blaine, age 36, holds an operator's license in Pennsylvania.
Mr. Clark, age 51, holds an operator's license in Connecticut.
Mr. Craig, age 41, holds an operator's license in Ohio.
Mr. Entwistle, age 65, holds an operator's license in New Jersey.
Mr. Garber, age 28, holds an operator's license in Ohio.
Mr. Guidry, age 39, holds an operator's license in Louisiana.
Mr. Hamill, age 42, holds an operator's license in New York.
Mr. Hernandez, age 36, holds an operator's license in Texas.
Mr. Hilber, age 34, holds an operator's license in Texas.
Mr. Holmes, age 46, holds an operator's license in Iowa.
Mr. Lemoine, age 52, holds an operator's license in Louisiana.
Mr. McAllister, age 66, holds an operator's license in South Carolina.
Mr. McKelvey, age 35, holds an operator's license in South Carolina.
Mr. Mitchell, age 39, holds a class A CDL in Texas.
Mr. Nagel, age 60, holds an operator's license in Minnesota.
Mr. Pizana, age 47, holds an operator's license in California.
Mr. Poole, age 41, holds on operator's license in Ohio.
Mr. Porras Payan, age 36, holds an operator's license in Texas.
Mr. Perkins, age 31, holds an operator's license in Louisiana.
Mr. Quinn, age 36, holds an operator's license in Tennessee.
Mr. Richards, age 33, holds an operator's license in Ohio.
Mr. Smith, age 45, holds an operator's license in Pennsylvania.
Mr. Smith, age 42, holds a class A CDL in Georgia.
Mr. Smith, age 47, holds an operator's license in California.
Mr. Soto, age 33, holds an operator's license in Missouri.
Mr. Soto, age 29, holds an operator's license in Indiana.
Mr. Wanner, age 29, holds an operator's license in Pennsylvania.
Mr. Wilson, age 52, holds an operator's license in Kentucky.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the dates section of the notice.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and materials received during the comment period. FMCSA may issue a final determination any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 36 individuals from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with insulin-treated diabetes mellitus (ITDM) from operating a commercial motor vehicle (CMV) in interstate commerce. The exemptions enable these individuals with ITDM to operate CMVs in interstate commerce.
The exemptions were applicable on June 29, 2018. The exemptions expire on June 29, 2020.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On May 29, 2018, FMCSA published a notice announcing receipt of applications from 36 individuals requesting an exemption from diabetes requirement in 49 CFR 391.41(b)(3) and requested comments from the public (83 FR 24563). The public comment period ended on June 28, 2018, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The physical qualification standard for drivers regarding diabetes found in 49 CFR 391.41(b)(3) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.
FMCSA received no comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
The Agency's decision regarding these exemption applications is based on the program eligibility criteria and an individualized assessment of information submitted by each applicant. The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the May 29, 2018,
These 36 applicants have had ITDM over a range of 1 to 31 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the past five years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) each driver must report within two business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) each driver must provide a copy of the ophthalmologist's or optometrist's report to the Medical Examiner at the time of the annual medical examination; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keeping a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 36 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above:
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for three individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The exemptions were applicable on February 14, 2018. The exemptions expire on February 14, 2020.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On April 27, 2018, FMCSA published a notice announcing its decision to renew exemptions for three individuals from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (83 FR 18624). The public comment period ended on May 29, 2018, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
FMCSA received no comments in this proceeding.
Based upon its evaluation of the three renewal exemption applications, FMCSA announces its decision to exempt the following drivers from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8):
The drivers were included in docket numbers FMCSA-2013-0107; FMCSA-2013-0109; FMCSA-2015-0119. Their exemptions are applicable as of February 14, 2018, and will expire on February 14, 2020.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 60 individuals for an exemption from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with insulin-treated diabetes mellitus (ITDM) operating a commercial motor vehicle (CMV) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before August 20, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2018-0033 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the FMCSRs for a five-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the five-year period. FMCSA grants exemptions from the FMCSRs for a two-year period to align with the maximum duration of a driver's medical certification.
The 60 individuals listed in this notice have requested an exemption from the diabetes prohibition in 49 CFR
The physical qualification standard for drivers regarding diabetes found in 49 CFR 391.41(b)(3) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control. The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population.
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441). The revision must provide for individual assessment of drivers with diabetes mellitus, and be consistent with the criteria described in section 4018 of the Transportation Equity Act for the 21st Century (49 U.S.C. 31305). Section 4129 requires: (1) Elimination of the requirement for three years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the three-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e). Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary. The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003, notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003, notice, except as modified by the notice in the
Mr. Allen, 66, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Allen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Allen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Bauer, 55, has had ITDM since 2012. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Bauer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bauer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Michigan.
Ms. Beaty, 60, has had ITDM since 2017. Her endocrinologist examined her in 2018 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. Her endocrinologist certifies that Ms. Beaty understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Beaty meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2018 and certified that she does not have diabetic retinopathy. She holds an operator's license from Indiana.
Mr. Bliesmer, 24, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Bliesmer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bliesmer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Minnesota.
Mr. Brassley, 61, has had ITDM since 2008. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Brassley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brassley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that
Mr. Broom, 68, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Broom understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Broom meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from California.
Mr. Bruns, 57, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Bruns understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bruns meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Burdick, 53, has had ITDM since 2012. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Burdick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Burdick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Wisconsin.
Mr. Casey, 53, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Casey understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Casey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Castano, 28, has had ITDM since 1997. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Castano understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Castano meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Florida.
Mr. Cisson, 21, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Cisson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cisson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Florida.
Mr. Daley, 59, has had ITDM since 2016. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Daley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Daley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Rhode Island.
Mr. Davis, 21, has had ITDM since 2009. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Davis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Davis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Mississippi.
Mr. Degrave, 40, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist
Mr. Diokpa, 56, has had ITDM since 2016. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Diokpa understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Diokpa meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Dodge, 71, has had ITDM since 2016. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Dodge understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dodge meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Oregon.
Mr. Elley, 37, has had ITDM since 1992. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Elley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Elley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Montana.
Mr. Evenson, 68, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Evenson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Evenson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Minnesota.
Mr. Faison, 44, has had ITDM since 2010. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Faison understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Faison meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator license from Maryland.
Mr. Falkowski, 60, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Falkowski understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Falkowski meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Ms. Floyd, 51, has had ITDM since 1994. Her endocrinologist examined her in 2018 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. Her endocrinologist certifies that Ms. Floyd understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Floyd meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2018 and certified that she has stable nonproliferative diabetic retinopathy. She holds an operator's license from Illinois.
Mr. Fontaine, 32, has had ITDM since 1997. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Fontaine understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fontaine meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Massachusetts.
Mr. Foster, 59, has had ITDM since 2010. His endocrinologist examined him in 2018 and certified that he has had no
Mr. Fry, 66, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Fry understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fry meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Gillespie, 53, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Gillespie understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gillespie meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class AM CDL from Tennessee.
Mr. Hall, 57, has had ITDM since 2011. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Hall understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hall meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Florida.
Mr. Heubner, 40, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Heubner understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Heubner meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.
Mr. Johnson, 54, has had ITDM since 2015. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Johnson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Johnson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Keys, 21, has had ITDM since 1998. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Keys understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Keys meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator from New York.
Mr. Lee, 40, has had ITDM since 2013. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Lee understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lee meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Georgia.
Mr. Lewis, 58, has had ITDM since 2010. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Lewis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lewis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist
Mr. Martin, 71, has had ITDM since 2015. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Martin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Martin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Ms. Mason, 64, has had ITDM since 2015. Her endocrinologist examined her in 2017 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. Her endocrinologist certifies that Ms. Mason understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Mason meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2018 and certified that she has stable nonproliferative diabetic retinopathy. She holds an operator's license from Maryland.
Mr. McGinty, 45, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. McGinty understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McGinty meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Ms. Meziere, 53, has had ITDM since 1973. Her endocrinologist examined her in 2018 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. Her endocrinologist certifies that Ms. Meziere understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Meziere meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2018 and certified that she does not have diabetic retinopathy. She holds a Class A CDL from Mississippi.
Mr. Miller, 36, has had ITDM since 1993. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Miller understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Miller meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Mocaby, 72, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Mocaby understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mocaby meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Morel, 62, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Morel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Morel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from New Hampshire.
Mr. Ott, 63, has had ITDM since 2016. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Ott understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ott meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Owens, 68, has had ITDM since 2005. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function
Mr. Perkins, 32, has had ITDM since 1991. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Perkins understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Perkins meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Pihuliak, 22, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Pihuliak understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pihuliak meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Poisson, 41, has had ITDM since 2014. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Poisson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Poisson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Michigan.
Mr. Rhoads, 67, has had ITDM since 2013. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Rhoads understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rhoads meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Ringbloom, 66, has had ITDM since 2016. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Ringbloom understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ringbloom meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Rinker, 70, has had ITDM since 2009. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Rinker understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rinker meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Virginia.
Mr. Roof, 51, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Roof understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Roof meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Missouri.
Mr. Sapp, 68, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Sapp understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sapp meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does
Mr. Smith, 55, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New York.
Mr. Smith, 39, has had ITDM since 1988. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from California.
Mr. Soto, 27, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Soto understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Soto meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California.
Mr. Stauffer, 59, has had ITDM since 2009. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Stauffer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stauffer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Summers, 38, has had ITDM since 2013. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Summers understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Summers meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from New Hampshire.
Mr. Waldvogel, 58, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Waldvogel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Waldvogel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Watkins, 77, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Watkins understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Watkins meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Wenger, 66, has had ITDM since 1998. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Wenger understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wenger meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Missouri.
Mr. Whitehead, 44, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more)
Mr. Wille, 60, has had ITDM since 2017. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Wille understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wille meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds an operator's license from Utah.
Mr. Winslow, 53, has had ITDM since 1991. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Winslow understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Winslow meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2018 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Wright, 53, has had ITDM since 2018. His endocrinologist examined him in 2018 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the last five years. His endocrinologist certifies that Mr. Wright understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wright meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2018 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the dates section of the notice.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and materials received during the comment period. FMCSA may issue a final determination at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 100 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirements in one eye.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before August 20, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-1999-6156; FMCSA-1999-6480; FMCSA-2002-11714; FMCSA-2005-23099; FMCSA-2006-24015; FMCSA-2006-24783; FMCSA-2007-27515; FMCSA-2008-0021; FMCSA-2008-0106; FMCSA-2008-0174; FMCSA-2009-0206; FMCSA-2009-0291;
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for five years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the five-year period. FMCSA grants exemptions from the FMCSRs for a two-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to driver a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
The 100 individuals listed in this notice have requested renewal of their exemptions from the vision standard in 49 CFR 391.41(b)(10), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 100 applicants has satisfied the renewal conditions for obtaining an exemption from the vision requirement (64 FR 54948; 64 FR 68195; 65 FR 159; 65 FR 20251; 67 FR 10475; 67 FR 15662; 67 FR 17102; 67 FR 37907; 69 FR 8260; 69 FR 17267; 69 FR 26206; 71 FR 4194; 71 FR 6824; 71 FR 13450; 71 FR 14567; 71 FR 16410; 71 FR 26601; 71 FR 26602; 71 FR 30228; 71 FR 32183; 71 FR 41310; 72 FR 21313; 72 FR 32703; 73 FR 15255; 73 FR 15567; 73 FR 27015; 73 FR 27017; 73 FR 28186; 73 FR 28187; 73 FR 35195; 73 FR 35196; 73 FR 35197; 73 FR 35198; 73 FR 35199; 73 FR 35200; 73 FR 35201; 73 FR 36955; 73 FR 38498; 73 FR 38499; 73 FR 48273; 73 FR 48275; 74 FR 26464; 74 FR 43217; 74 FR 57551; 74 FR 60022; 74 FR 65842; 75 FR 1835; 75 FR 4623; 75 FR 9478; 75 FR 9482; 75 FR 14656; 75 FR 19674; 75 FR 20882; 75 FR 25917; 75 FR 25918; 75 FR 25919; 75 FR 27621; 75 FR 27622; 75 FR 27623; 75 FR 28682; 75 FR 34210; 75 FR 34211; 75 FR 34212; 75 FR 36778; 75 FR 36779; 75 FR 39727; 75 FR 39729; 75 FR 39729; 75 FR 44051; 75 FR 47888; 76 FR 37173; 76 FR 75942; 77 FR 7657; 77 FR 10606; 77 FR 13689; 77 FR 15184; 77 FR 15184; 77 FR 20879; 77 FR 22059; 77 FR 23797; 77 FR 26816; 77 FR 27847; 77 FR 27849; 77 FR 27850; 77 FR 27850; 77 FR 29447; 77 FR 31427; 77 FR 33017; 77 FR 36336; 77 FR 36338; 77 FR 36338; 77 FR 38381; 77 FR 38384; 77 FR 38386; 77 FR 40945; 77 FR 41879; 77 FR 44708; 77 FR 46153; 77 FR 46795; 77 FR 51846; 77 FR 52391; 78 FR 57679; 78 FR 67452; 78 FR 67460; 78 FR 78477; 79 FR 1908; 79 FR 10606; 79 FR 10608; 79 FR 14328; 79 FR 14333; 79 FR 14571; 79 FR 17641; 79 FR 18390; 79 FR 21996; 79 FR 22003; 79 FR 23797; 79 FR 27043; 79 FR 27681; 79 FR 28588; 79 FR 29495; 79 FR 35212; 79 FR 35218; 79 FR 35220; 79 FR 38649; 79 FR 38659; 79 FR 38661; 79 FR 38661; 79 FR 40945; 79 FR 41735; 79 FR 41737; 79 FR 41740; 79 FR 46153; 79 FR 47175; 79 FR 53514; 79 FR 56102; 80 FR 49302; 80 FR 63869; 80 FR 80443; 81 FR 20433; 81 FR 20435; 81 FR 21655; 81 FR 26305; 81 FR 28138; 81 FR 39320; 81 FR 45214; 81 FR 66718; 81 FR 66720; 81 FR 66724; 81 FR 66726; 81 FR 77173; 81 FR 90050; 81 FR 90050; 81 FR 90050; 81 FR 90050; 81 FR 90050; 81 FR 90050; 81 FR 90050; 81 FR 90050; 81 FR 91239; 81 FR 96196). They have submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49
In accordance with 49 U.S.C. 31136(e) and 31315, the following groups of drivers received renewed exemptions in the month of August and are discussed below:
As of August 1, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 39 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (64 FR 54948; 64 FR 68195; 65 FR 159; 65 FR 20251; 67 FR 10475; 67 FR 15662; 67 FR 17102; 67 FR 37907; 69 FR 8260; 69 FR 17267; 69 FR 26206; 71 FR 4194; 71 FR 6824; 71 FR 13450; 71 FR 16410; 71 FR 26601; 71 FR 26602; 71 FR 32183; 71 FR 41310; 72 FR 21313; 72 FR 32703; 73 FR 15255; 73 FR 15567; 73 FR 27015; 73 FR 27017; 73 FR 28186; 73 FR 36955; 74 FR 26464; 74 FR 43217; 74 FR 57551; 74 FR 60022; 74 FR 65842; 75 FR 1835; 75 FR 4623; 75 FR 9478; 75 FR 9482; 75 FR 14656; 75 FR 19674; 75 FR 20882; 75 FR 25917; 75 FR 27621; 75 FR 27622; 75 FR 27623; 75 FR 28682; 75 FR 36778; 75 FR 36779; 75 FR 39727; 76 FR 37173; 76 FR 75942; 77 FR 7657; 77 FR 10606; 77 FR 13689; 77 FR 15184; 77 FR 20879; 77 FR 22059; 77 FR 23797; 77 FR 26816; 77 FR 27847; 77 FR 27849; 77 FR 27850; 77 FR 29447; 77 FR 31427; 77 FR 33017; 77 FR 36338; 77 FR 38384; 77 FR 38386; 77 FR 44708; 78 FR 57679; 78 FR 67452; 78 FR 67460; 78 FR 78477; 79 FR 1908; 79 FR 10606; 79 FR 10608; 79 FR 14328; 79 FR 14333; 79 FR 14571; 79 FR 17641; 79 FR 18390; 79 FR 21996; 79 FR 22003; 79 FR 23797; 79 FR 27043; 79 FR 27681; 79 FR 28588; 79 FR 29495; 79 FR 35212; 79 FR 35218; 79 FR 35220; 79 FR 38649; 79 FR 38661; 79 FR 47175; 80 FR 49302; 80 FR 63869; 80 FR 80443; 81 FR 20433; 81 FR 20435; 81 FR 21655; 81 FR 26305; 81 FR 28138; 81 FR 39320; 81 FR 66718; 81 FR 66720; 81 FR 66724; 81 FR 77173; 81 FR 90050; 81 FR 91239; 81 FR 96196):
The drivers were included in docket numbers FMCSA-1999-6156; FCMSA-1999-6480; FCMSA-2002-11714; FCMSA-2005-23099; FCMSA-2006-24783; FCMSA-2007-27515; FCMSA-2008-0021; FCMSA-2009-0206; FCMSA-2009-0291; FCMSA-2009-0303; FCMSA-2009-0321; FCMSA-2010-0050; FCMSA-2010-0082; FCMSA-2011-0299; FCMSA-2011-0324; FCMSA-2011-0379; FCMSA-2012-0039; FCMSA-2012-0104; FCMSA-2012-0106; FCMSA-2013-0174; FCMSA-2014-0002; FCMSA-2014-0003; FCMSA-2014-0005; FCMSA-2014-0006; FCMSA-2016-0024; FCMSA-2016-0027; FCMSA-2016-0028. Their exemptions are applicable as of August 1, 2018, and will expire on August 1, 2020.
As of August 6, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following five individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (75 FR 25918; 75 FR 39729; 77 FR 15184; 77 FR 27850; 77 FR 36336; 77 FR 36338; 77 FR 46795; 79 FR 38661; 81 FR 90050):
The drivers were included in docket numbers FMCSA-2010-0082; FMCSA-2011-0379; FMCSA-2012-0159. Their exemptions are applicable as of August 6, 2018, and will expire on August 6, 2020.
As of August 8, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 16 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (79 FR 38659; 79 FR 53514; 81 FR 90050):
The drivers were included in docket number FMCSA-2014-0007. Their exemptions are applicable as of August 8, 2018, and will expire on August 8, 2020.
As of August 9, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following four individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (75 FR 34210; 75 FR 34211; 75 FR 34212; 75 FR 27888; 77 FR 40945; 79 FR 40945; 81 FR 90050):
The drivers were included in docket number FMCSA-2010-0114. Their exemptions are applicable as of August 9, 2018, and will expire on August 9, 2020.
As of August 12, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following ten individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (81 FR 45214; 81 FR 66726):
The drivers were included in docket number FMCSA-2016-0014. Their exemptions are applicable as of August 12, 2018, and will expire on August 12, 2020.
As of August 18, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 22 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (71 FR 14567; 71 FR 30228; 73 FR 28187; 73 FR 35195; 73 FR 35196; 73 FR 35197; 73 FR 35198; 73 FR 35199; 73 FR 35200; 73 FR 35201; 73 FR 38498; 73 FR 38499; 73 FR 48273; 73 FR 48275; 75 FR 25919; 75 FR 39729; 75 FR 44051; 77 FR 46153; 79 FR 46153; 81 FR 90050):
The drivers were included in docket numbers FMCSA-2006-24015; FMCSA-2008-0106; FMCSA-2008-0174; FMCSA-2010-0082. Their exemptions are applicable as of August 18, 2018, and will expire on August 18, 2020.
As of August 19, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following two individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (79 FR 41737; 79 FR 56102; 81 FR 90050): Leamon V. Manchester (LA); Leverne F. Schulte, Jr. (OH)
The drivers were included in docket number FMCSA-2014-0008. Their exemptions are applicable as of August 19, 2018, and will expire on August 19, 2020.
As of August 27, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, Gregory S. Smith (AR) has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (77 FR 38381; 77 FR 51846; 79 FR 41740; 81 FR 90050).
The driver was included in docket number FMCSA-2012-0160. The exemption is applicable as of August 27, 2018, and will expire on August 27, 2020.
As of August 29, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, Rickey W. Goins (TN) has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (77 FR 41879; 77 FR 52391; 79 FR 41735; 81 FR 90050).
The driver was included in docket number FMCSA-2012-0161. The exemption is applicable as of August 29, 2018, and will expire on August 29, 2020.
The exemptions are extended subject to the following conditions: (1) Each driver must undergo an annual physical examination (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a certified Medical Examiner, as defined by 49 CFR 390.5, who attests that the driver is otherwise physically qualified under 49 CFR 391.41; (2) each driver must provide a copy of the ophthalmologist's or optometrist's report to the Medical Examiner at the time of the annual medical examination; and (3) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file or keep a copy of his/her driver's qualification if he/her is self- employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 100 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above. In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt eight individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
The exemptions were applicable on May 30, 2018. The exemptions expire on May 30, 2020.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On April 24, 2018, FMCSA published a notice announcing receipt of applications from eight individuals requesting an exemption from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) and requested comments from the public (83 FR 17879). The public comment period ended on May 24, 2018, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that granting exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
FMCSA received no comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the epilepsy and seizure disorder prohibition in 49 CFR 391.41(b)(8) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
In reaching the decision to grant these exemption requests, FMCSA considered the 2007 recommendations of the Agency's Medical Expert Panel (MEP). The January 15, 2013,
The Agency's decision regarding these exemption applications is based on an individualized assessment of each applicant's medical information, including the root cause of the respective seizure(s) and medical information about the applicant's seizure history, the length of time that has elapsed since the individual's last seizure, the stability of each individual's treatment regimen and the duration of time on or off of anti-seizure medication. In addition, the Agency reviewed the treating clinician's medical opinion related to the ability of the driver to safely operate a CMV with a history of seizure and each applicant's driving record found in the Commercial Driver's License Information System (CDLIS) for commercial driver's license (CDL) holders, and interstate and intrastate inspections recorded in the Motor Carrier Management Information System (MCMIS). For non-CDL holders, the Agency reviewed the driving records from the State Driver's Licensing Agency (SDLA). A summary of each applicant's seizure history was discussed in the April 24, 2018
These eight applicants have been seizure-free over a range of 23 years while taking anti-seizure medication and maintained a stable medication treatment regimen for the last two years. In each case, the applicant's treating physician verified his or her seizure history and supports the ability to drive commercially.
The Agency acknowledges the potential consequences of a driver experiencing a seizure while operating a CMV. However, the Agency believes the drivers granted this exemption have demonstrated that they are unlikely to have a seizure and their medical condition does not pose a risk to public safety.
Consequently, FMCSA finds that in each case exempting these applicants from the epilepsy and seizure disorder prohibition in 49 CFR 391.41(b)(8) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the eight exemption applications, FMCSA exempts the following drivers from the epilepsy and seizure disorder prohibition, 49 CFR 391.41(b)(8), subject to the requirements cited above:
In accordance with 49 U.S.C. 31315(b)(1), each exemption will be valid for two years from the effective
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 37 individuals from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with insulin-treated diabetes mellitus (ITDM) from operating a commercial motor vehicle (CMV) in interstate commerce. The exemptions enable these individuals with ITDM to operate CMVs in interstate commerce.
The exemptions were applicable on June 29, 2018. The exemptions expire on June 29, 2020.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On May 29, 2018, FMCSA published a notice announcing receipt of applications from 37 individuals requesting an exemption from diabetes requirement in 49 CFR 391.41(b)(3) and requested comments from the public (83 FR 24576). The public comment period ended on June 28, 2018, and one comments was received.
FMCSA has evaluated the eligibility of these applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The physical qualification standard for drivers regarding diabetes found in 49 CFR 391.41(b)(3) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.
FMCSA received one comment in this proceeding. Vicky Johnson from the Minnesota Department of Public Safety stated that Minnesota has no objections to granting diabetes exemptions to Jon E. Behle, Gavin C. Gore, Stephen R. Henderscheidt, and Jose C. Rosario.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
The Agency's decision regarding these exemption applications is based on the program eligibility criteria and an individualized assessment of information submitted by each applicant. The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the May 29, 2018,
These 37 applicants have had ITDM over a range of 1 to 22 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (two or more) severe hypoglycemic episodes in the past five years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) each driver must report within two business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) each driver must provide a copy of the ophthalmologist's or optometrist's report to the Medical Examiner at the time of the annual medical examination; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keeping a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 37 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above:
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from nine individuals for an exemption from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. If granted, the exemptions will enable these individuals to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
Comments must be received on or before August 20, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2018-0015 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the FMCSRs for a five-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the five-year period. FMCSA grants exemptions from the FMCSRs for a two-year period to align with the maximum duration of a driver's medical certification.
The nine individuals listed in this notice have requested an exemption from the vision requirement in 49 CFR 391.41(b)(10). Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to drive a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal
In July 1992, the Agency first published the criteria for the Vision Waiver Program, which listed the conditions and reporting standards that CMV drivers approved for participation would need to meet (Qualification of Drivers; Vision Waivers, 57 FR 31458, July 16, 1992). The current Vision Exemption Program was established in 1998, following the enactment of amendments to the statutes governing exemptions made by § 4007 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 401 (June 9, 1998). Vision exemptions are considered under the procedures established in 49 CFR part 381 subpart C, on a case-by-case basis upon application by CMV drivers who do not meet the vision standards of 49 CFR 391.41(b)(10).
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past three years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA-1998-3637.
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrated the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used three consecutive years of data, comparing the experiences of drivers in the first two years with their experiences in the final year.
Mr. Clemente, 32, has had amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/150. Following an examination in 2018, his optometrist stated, “Full visual field testing done with the Humphrey field analyzer showed that Paul saw all the test objects in each eye and in my opinion would indicate that he has the visual competency to be a safe driver on the highway and be able to perform the driving tasks required to operate a commercial vehicle.” Mr. Clemente reported that he has driven straight trucks for 11 years, accumulating 440,000 miles. He holds a Class A CDL from North Carolina. His driving record for the last three years shows no crashes and no convictions for moving violations in a CMV.
Mr. Doskocil, 51, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2018, his ophthalmologist stated, “In my medical opinion, Mr. Doskocil does have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Doskocil reported that he has driven straight trucks for 29 years, accumulating 1.45 million miles. He holds an operator's license from Texas. His driving record for the last three years shows no crashes and no convictions for moving violations in a CMV.
Mr. Estad, 54, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2018, his optometrist stated, “In my opinion, Mr. Estad has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Estad reported that he has driven straight trucks for 38 years, accumulating 456,000 miles, and tractor-trailer combinations for 35 years, accumulating 3.5 million miles. He holds a Class AM CDL from North Dakota. His driving record for the last three years shows no crashes and no convictions for moving violations in a CMV.
Mr. Garner, 43, has a prosthetic right eye due to a traumatic incident in 1982. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2017, his optometrist stated, “It is my assessment that I certify that the patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Garner reported that he has driven straight trucks for five years, accumulating 25,000 miles, and tractor-trailer combinations for four years, accumulating 200,000 miles. He holds a Class A CDL from Montana. His driving record for the last three years shows no crashes and no convictions for moving violations in a CMV.
Mr. Gleckler, 29, has aphakia in his left eye due to a traumatic incident in 2009. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2018, his optometrist stated, “In conclusion, in my opinion, I believe that he would have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Gleckler reported that he has driven straight trucks for ten years, accumulating 100,000 miles, and tractor-trailer combinations for ten years, accumulating 100,000 miles. He holds a Class A CDL from Ohio. His driving record for the last three years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hawkins, 56, has had a retinal detachment in his left eye since 2011. The visual acuity in his right eye is 20/
Mr. Lundvall, 61, has had glaucoma in his right eye since 2013. The visual acuity in his right eye is hand motion, and in his left eye, 20/20. Following an examination in 2018, his ophthalmologist stated, “In my opinion, Mr. Lundvall has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Lundvall reported that he has driven straight trucks for 30 years, accumulating 45,000 miles, and tractor-trailer combinations for 15 years, accumulating 900,000 miles. He holds a Class A CDL from Nebraska. His driving record for the last three years shows no crashes and no convictions for moving violations in a CMV.
Mr. Smith, 54, has had a cataract in his left eye since 2014. The visual acuity in his right eye is 20/15, and in his left eye, hand motion. Following an examination in 2018, his optometrist stated, “In my medical opinion, I feel that the patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Smith reported that he has driven tractor-trailer combinations for nine years, accumulating 1.35 million miles. He holds a Class A CDL from Georgia. His driving record for the last three years shows no crashes and one conviction for a moving violation in a CMV; failure to keep in proper lane.
Mr. Thesing, 59, has had optic nerve hypoplasia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, counting fingers. Following an examination in 2018, his optometrist stated, “It is my opinion that Mr. Thesing has sufficient vision to perform the driving tasks required to operate a commercial vehicle vehicle [
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments and material received before the close of business on the closing date indicated in the dates section of the notice.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and materials received during the comment period. FMCSA may issue a final determination at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for five individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The exemptions were applicable on December 23, 2017. The exemptions expire on December 23, 2019.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On February 15, 2018, FMCSA published a notice announcing its decision to renew exemptions for five individuals from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (FR 83 6927). The public comment period ended on March 19, 2018, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
FMCSA received no comments in this preceding.
Based upon its evaluation of the five renewal exemption applications, FMCSA announces its' decision to exempt the following drivers from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8):
As of December 23, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following five individuals have satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders prohibition in the FMCSRs for interstate CMV drivers (83 FR 6927):
The drivers were included in docket numbers FMCSA-2006-25854; FMCSA-2013-0108; FMCSA-2014-0382. Their exemptions are applicable as of December 23, 2017, and will expire on December 23, 2019.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for five individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The exemptions were applicable on May 19, 2018. The exemptions expire on May 19, 2020. Comments must be received on or before August 20, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2013-0443 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for five years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the five-year period. FMCSA grants exemptions from the FMCSRs for a two-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The five individuals listed in this notice have requested renewal of their exemptions from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
In accordance with 49 U.S.C. 31136(e) and 31315, each of the five applicants has satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders prohibition. The five drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. In addition, for Commercial Driver's License (CDL) holders, the Commercial Driver's License Information System (CDLIS) and the Motor Carrier Management Information System (MCMIS) are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency (SDLA). These factors provide an adequate basis for predicting each driver's ability to continue to safely operate a CMV in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
As of May 19, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following five individuals have satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders prohibition in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2013-0443. Their exemptions are applicable as of May 19, 2018, and will expire on May 19, 2020.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the five exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the epilepsy and seizure disorders prohibition in 49 CFR 391.41 (b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for 119 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On May 24, 2018, FMCSA published a notice announcing its decision to renew exemptions for 119 individuals from the vision requirement in 49 CFR 391.41(b)(10) to operate a CMV in interstate commerce and requested comments from the public (64 FR 68195; 65 FR 20251; 67 FR 10471; 67 FR 15662; 67 FR 17102; 67 FR 19798; 67 FR 37907; 67 FR 68719; 68 FR 2629; 68 FR 37197; 68 FR 48989; 68 FR 74699; 69 FR 10503; 69 FR 17267; 69 FR 19611; 69 FR 26206; 69 FR 64806; 69 FR 71100; 70 FR 2705; 70 FR 42615; 71 FR 6826; 71 FR 6829; 71 FR 14566; 71 FR 16410; 71 FR 19602; 71 FR 19604; 71 FR 26602; 71 FR 30227; 72 FR 1053; 72 FR 1054; 72 FR 39879; 72 FR 40360; 72 FR 52419; 73 FR 6242; 73 FR 11989; 73 FR 15567; 73 FR 16950; 73 FR 27014; 73 FR 27015; 73 FR 27017; 73 FR 76440; 74 FR 26464; 74 FR 34632; 74 FR 41971; 74 FR 49069; 74 FR 64124; 74 FR 65842; 75 FR 1835; 75 FR 9477; 75 FR 9480; 75 FR 9482; 75 FR 13653; 75 FR 14656; 75 FR 19674; 75 FR 22176; 75 FR 27621; 75 FR 27622; 75 FR 28684; 76 FR 37169; 76 FR 50318; 76 FR 54530; 76 FR 62143; 76 FR 70212; 76 FR 78729; 77 FR 3552; 77 FR 5874; 77 FR 7233; 77 FR 10604; 77 FR 13689; 77 FR 13691; 77 FR 15184; 77 FR 17107; 77 FR 17108; 77 FR 17117; 77 FR 20879; 77 FR 23797; 77 FR 23800; 77 FR 26816; 77 FR 27849; 77 FR 27850; 77 FR 31427; 78 FR 24798; 78 FR 41975; 78 FR 46407; 78 FR 47818; 78 FR 56986; 78 FR 62935; 78 FR 63302; 78 FR 63307; 78 FR 64271; 78 FR 64274; 78 FR 67454; 78 FR 67460; 78 FR 76395; 78 FR 77778; 78 FR 77780; 78 FR 77782; 78 FR 78477; 79 FR 1908; 79 FR 2247; 79 FR 2748; 79 FR 4803; 79 FR 10602; 79 FR 10607; 79 FR 10609; 79 FR 10611; 79 FR 13085; 79 FR 14331; 79 FR 14333; 79 FR 14571; 79 FR 17641; 79 FR 17642; 79 FR 17643; 79 FR 18391; 79 FR 18392; 79 FR 21996; 79 FR 22000; 79 FR 22003; 79 FR 23797; 79 FR 28588; 79 FR 29498; 80 FR 31636; 80 FR 40122; 80 FR 48413; 80 FR 59230; 80 FR 62163; 80 FR 63839; 80 FR 67476; 80 FR 67481; 80 FR 70060; 80 FR 79414; 80 FR 80443; 81 FR 1284; 81 FR 1474; 81 FR 15401; 81 FR 15404; 81 FR 16265; 81 FR 17237; 81 FR 20433; 81 FR 20435; 81 FR 21647; 81 FR 21655; 81 FR 44680; 81 FR 48493; 81 FR 52516; 81 FR 66718; 81 FR 91239; 81 FR 96196). The public comment period ended on June 25, 2018, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(10).
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to driver a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
FMCSA received no comments in this preceding.
Based upon its evaluation of the 119 renewal exemption applications and comments received, FMCSA confirms its' decision to exempt the following drivers from the vision requirement in 49 CFR 391.41(b)(10):
In accordance with 49 U.S.C. 31136(e) and 31315, the following groups of drivers received renewed exemptions in the month of May and are discussed below:
As of May 7, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 46 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (68 FR 37197; 68 FR 48989; 69 FR 64806; 70 FR 2705; 70 FR 42615; 71 FR 6826; 71 FR 19602; 72 FR 1054; 72 FR 39879; 72 FR 40360; 72 FR 52419; 73 FR 6242; 73 FR 11989; 73 FR 16950; 74 FR 26464; 74 FR 34632; 74 FR 41971; 74 FR 49069; 74 FR 64124; 74 FR 65842; 75 FR 1835; 75 FR 9477; 75 FR 9480; 75 FR 9482; 75 FR 13653; 75 FR 22176; 76 FR 37169; 76 FR 50318; 76 FR 54530;
The drivers were included in docket numbers FMCSA-2003-15268; FMCSA-2004-19477; FMCSA-2006-23773; FMCSA-2007-0071; FMCSA-2007-27897; FMCSA-2009-0011; FMCSA-2009-0291; FMCSA-2009-0321; FMCSA-2011-0140; FMCSA-2011-0365; FMCSA-2011-0366; FMCSA-2013-0027; FMCSA-2013-0030; FMCSA-2013-0165; FMCSA-2013-0166; FMCSA-2013-0167; FMCSA-2013-0168; FMCSA-2013-0169; FMCSA-2013-0170; FMCSA-2013-0174; FMCSA-2014-0002; FMCSA-2015-0049; FMCSA-2015-0053; FMCSA-2015-0056; FMCSA-2015-0070; FMCSA-2015-0072; FMCSA-2015-0345; FMCSA-2015-0347; FMCSA-2015-0351. Their exemptions are applicable as of May 7, 2018, and will expire on May 7, 2020.
As of May 11, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following six individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (77 FR 15184; 77 FR 27850; 79 FR 21996; 81 FR 91239):
The drivers were included in docket numbers FMCSA-2011-0379; FMCSA-2011-0380. Their exemptions are applicable as of May 11, 2018, and will expire on May 11, 2020.
As of May 12, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following seven individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (67 FR 68719; 68 FR 2629; 68 FR 74699; 69 FR 10503; 69 FR 71100; 71 FR 6826; 71 FR 6829; 71 FR 19602; 72 FR 1053; 73 FR 11989; 73 FR 15567; 73 FR 27015; 73 FR 76440; 75 FR 13653; 75 FR 19674; 77 FR 23797; 79 FR 23797; 81 FR 91239):
The drivers were included in docket numbers FMCSA-2002-12844; FMCSA-2003-16564; FMCSA-2006-23773; FMCSA-2008-0021. Their exemptions are applicable as of May 12, 2018, and will expire on May 12, 2020.
As of May 13, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 11 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (81 FR 21647; 81 FR 21655; 81 FR 66718):
The drivers were included in docket numbers FMCSA-2016-0024; FMCSA-2016-0025. Their exemptions are applicable as of May 13, 2018, and will expire on May 13, 2020.
As of May 16, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 23 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (79 FR 14571; 79 FR 28588; 81 FR 91239; 81 FR 96196):
The drivers were included in docket number FMCSA-2014-0003. Their exemptions are applicable as of May 16, 2018, and will expire on May 16, 2020.
As of May 21, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following three individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (75 FR 9480; 75 FR 14656; 75 FR 22176; 75 FR 28684; 77 FR 23800; 79 FR 22000; 81 FR 91239): Herbert C. Hirsch, (MO); Douglas L. Norman, (NC); Wayne J. Savage, (VA).
The drivers were included in docket numbers FMCSA-2009-0011; FMCSA-2010-0050. Their exemptions are applicable as of May 21, 2018, and will expire on May 21, 2020.
As of May 22, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 13 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (79 FR 18392; 79 FR 29498; 81 FR 91239):
The drivers were included in docket number FMCSA-2014-0004. Their exemptions are applicable as of May 22, 2018, and will expire on May 22, 2020.
As of May 25, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following seven individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (64 FR 68195; 65 FR 20251; 67 FR 10471; 67 FR 17102; 67 FR 19798; 69 FR 17267; 69 FR 19611; 71 FR 14566; 71 FR 16410; 71 FR 19604; 71 FR 30227; 73 FR 27014; 75 FR 27622; 77 FR 20879; 77 FR 26816; 77 FR 31427; 81 FR 91239):
The drivers were included in docket numbers FMCSA-1999-6480; FMCSA-2001-11426; FMCSA-2006-24015; FMCSA-2012-0039. Their exemptions are applicable as of May 25, 2018, and will expire on May 25, 2020.
As of May 30, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following three individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (67 FR 15662; 67 FR 37907; 69 FR 26206; 71 FR 26602; 73 FR 27017; 75 FR 27621; 77 FR 27849; 81 FR 91239): Joe W. Brewer, (SC); James W. Ellis, 4th, (NJ); Kevin R. Stoner, (PA).
The drivers were included in docket number FMCSA-2002-11714. Their exemptions are applicable as of May 30, 2018, and will expire on May 30, 2020.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of denials.
FMCSA announces its decision to deny applications from 14 individuals who requested an exemption from the Federal Motor Carrier Safety Regulations (FMCSRs) prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating a commercial motor vehicle (CMV) in interstate commerce.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
FMCSA received applications from 14 individuals who requested an exemption from the FMCSRs prohibiting persons with ITDM from operating a CMV in interstate commerce.
FMCSA has evaluated the eligibility of these applicants and concluded that granting these exemptions would not provide a level of safety that would be equivalent to or greater than, the level of safety that would be obtained by complying with the regulation 49 CFR 391.41(b)(3).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption if it finds such an exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such an exemption.
The Agency's decision regarding these exemption applications is based on the eligibility criteria, the terms and conditions for Federal exemptions, and an individualized assessment of each applicant's medical information provided by the applicant.
The Agency has determined that these applicants do not satisfy the criteria eligibility or meet the terms and conditions of the Federal exemption and granting these exemptions would not provide a level of safety that would be equivalent to or greater than, the level of safety that would be obtained by complying with the regulation 49 CFR 391.41(b)(3). Therefore, the 14 applicants in this notice have been denied exemptions from the physical qualification standards in 49 CFR 391.41(b)(3).
Each applicant has, prior to this notice, received a letter of final disposition regarding his/her exemption
The following six applicants have had more than one hypoglycemic episode requiring hospitalization or the assistance of others, or has had one such episode but has not had one year of stability following the episode:
The following five applicants had other medical conditions making the applicant otherwise unqualified under the Federal Motor Carrier Safety Regulations:
The following applicant, Anthony L. Golden (DE), did not have endocrinologists willing to make statements that he is able to operate CMVs from a diabetes standpoint.
The following applicant, Marty G. Niles (MT), had other miscellaneous reasons making the applicant otherwise unqualified under the Federal Motor Carrier Safety Regulations.
The following applicant, Robert J. Louis (LA), has peripheral neuropathy or circulatory insufficiency of the extremities likely to interfere with the ability to operate a CMV.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for 133 individuals from its prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals with ITDM to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On May 29, 2018, FMCSA published a notice announcing its decision to renew exemptions for 133 individuals from the insulin-treated diabetes mellitus prohibition in 49 CFR 391.41(b)(3) to operate a CMV in interstate commerce and requested comments from the public (83 FR 24581). The public comment period ended on June 28, 2018, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The physical qualification standard for drivers regarding diabetes found in 49 CFR 391.41(b)(3) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.
FMCSA received no comments in this preceding.
Based upon its evaluation of the 133 renewal exemption applications and comments received, FMCSA confirms its decision to exempt the following drivers from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce in 49 CFR 391.64(3):
In accordance with 49 U.S.C. 31136(e) and 31315, the following groups of drivers received renewed exemptions in the month of June and are discussed below:
As of June 1, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 33 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (81 FR 25486; 81 FR 66733):
The drivers were included in docket number FMCSA-2016-0037. Their exemptions are applicable as of June 1, 2018, and will expire on June 1, 2020.
As of June 3, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following eight individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (73 FR 16946; 73 FR 31734; 81 FR 96176):
The drivers were included in docket number FMCSA-2008-0071. Their exemptions are applicable as of June 3, 2018, and will expire on June 3, 2020.
As of June 5, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following nine individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (77 FR 20876; 77 FR 33264; 81 FR 96176):
The drivers were included in docket number FMCSA-2012-0044. Their exemptions are applicable as of June 5, 2018, and will expire on June 5, 2020.
As of June 9, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 40 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (81 FR 28121; 81 FR 59728):
The drivers were included in docket number FMCSA-2016-0039. Their exemptions are applicable as of June 9, 2018, and will expire on June 9, 2020.
As of June 20, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, Gary R. Harper, (IN) has satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (79 FR 29484; 79 FR 42628; 81 FR 96176).
The driver was included in docket number FMCSA-2014-0016. The exemption is applicable as of June 20, 2018, and will expire on June 20, 2020.
As of June 24, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 35 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (79 FR 22573; 79 FR 35855; 81 FR 96176):
The drivers were included in docket number FMCSA-2014-0015. Their exemptions are applicable as of June 24, 2018, and will expire on June 24, 2020.
As of June 26, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, Tommy R. Riley, (IL) has satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (79 FR 29484; 79 FR 42628; 81 FR 96176).
The driver was included in docket number FMCSA-2014-0016. The exemption is applicable as of June 26, 2018, and will expire on June 26, 2020.
As of June 27, 2018, and in accordance with 49 U.S.C. 31136(e) and 31315, the following six individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (77 FR 27842; 77 FR 38383; 81 FR 96176):
The drivers were included in docket number FMCSA-2012-0107. Their exemptions are applicable as of June 27, 2018, and will expire on June 27, 2020.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 12 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. They are unable to meet the vision requirement in one eye for various reasons. The exemptions enable these individuals to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
The exemptions were applicable on June 29, 2018. The exemptions expire on June 29, 2020.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On May 29, 2018, FMCSA published a notice announcing receipt of applications from 12 individuals requesting an exemption from vision requirement in 49 CFR 391.41(b)(10) and requested comments from the public (83 FR 24585). The public comment period ended on June 28, 2018, and one comment was received.
FMCSA has evaluated the eligibility of these applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(10).
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to drive a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
FMCSA received one comment in this proceeding. Vicky Johnson stated that Minnesota Public Safety has no objections to granting a vision exemption to Thomas R. Krentz.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision standard in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows applicants to operate CMVs in interstate commerce.
The Agency's decision regarding these exemption applications is based on medical reports about the applicants' vision as well as their driving records and experience driving with the vision deficiency. The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the May 29, 2018,
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their limitation and demonstrated their ability to drive safely. The 12 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, central retinal vein occlusion, iris coloboma, optic atrophy, and prosthesis. In most cases, their eye conditions were not recently developed. Eight of the applicants were either born with their vision impairments or have had them since childhood. The four individuals that sustained their vision conditions as adults have had it for a range of 5 to 16 years. Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV.
Doctors' opinions are supported by the applicants' possession of a valid license to operate a CMV. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions.
The applicants in this notice have driven CMVs with their limited vision
Consequently, FMCSA finds that in each case exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10) and (b) by a certified Medical Examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) each driver must provide a copy of the ophthalmologist's or optometrist's report to the Medical Examiner at the time of the annual medical examination; and (3) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 12 exemption applications, FMCSA exempts the following drivers from the vision requirement, 49 CFR 391.41(b)(10), subject to the requirements cited above:
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt seven individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
The exemptions were applicable on July 1, 2018. The exemptions expire on July 1, 2020.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On May 24, 2018, FMCSA published a notice announcing receipt of applications from seven individuals requesting an exemption from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) and requested comments from the public (83 FR 24153). The public comment period ended on June 25, 2018, and one comment was received.
FMCSA has evaluated the eligibility of these applicants and determined that granting exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
FMCSA received one comment in this proceeding. Vicky Johnson, an employee of the Minnesota Department of Public Safety (DPS), stated that the Minnesota DPS has no objections in the granting of an exemption to Jesse Hansen.
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the epilepsy and seizure disorder prohibition in 49 CFR 391.41(b)(8) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
In reaching the decision to grant these exemption requests, FMCSA considered the 2007 recommendations of the Agency's Medical Expert Panel (MEP). The January 15, 2013,
The Agency's decision regarding these exemption applications is based on an individualized assessment of each applicant's medical information, including the root cause of the respective seizure(s) and medical information about the applicant's seizure history, the length of time that has elapsed since the individual's last seizure, the stability of each individual's treatment regimen and the duration of time on or off of anti-seizure medication. In addition, the Agency reviewed the treating clinician's medical opinion related to the ability of the driver to safely operate a CMV with a history of seizure and each applicant's driving record found in the Commercial Driver's License Information System (CDLIS) for commercial driver's license (CDL) holders, and interstate and intrastate inspections recorded in the Motor Carrier Management Information System (MCMIS). For non-CDL holders, the Agency reviewed the driving records from the State Driver's Licensing Agency (SDLA). A summary of each applicant's seizure history was discussed in the May 24, 2018
These seven applicants have been seizure-free over a range of 22 years while taking anti-seizure medication and maintained a stable medication treatment regimen for the last two years. In each case, the applicant's treating physician verified his or her seizure history and supports the ability to drive commercially.
The Agency acknowledges the potential consequences of a driver experiencing a seizure while operating a CMV. However, the Agency believes the drivers granted this exemption have demonstrated that they are unlikely to have a seizure and their medical condition does not pose a risk to public safety.
Consequently, FMCSA finds that in each case exempting these applicants from the epilepsy and seizure disorder prohibition in 49 CFR 391.41(b)(8) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the seven exemption applications, FMCSA exempts the following drivers from the epilepsy and seizure disorder prohibition, 49 CFR 391.41(b)(8), subject to the requirements cited above:
In accordance with 49 U.S.C. 31315(b)(1), each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Transit Administration (FTA), DOT.
Notice.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) for the Santa Clara Valley Transportation Authority's (VTA's) Bay Area Rapid Transit (BART) Silicon Valley Phase II Extension project in Santa Clara County, California. The project will extend the BART system from the Berryessa/North San José Station through downtown San José to the Santa Clara Caltrain Station. The project will include design, construction, and future operation of a six-mile transit extension consisting of a five-mile-long single-bore tunnel; three transit stations in the City of San José, one transit station and a maintenance facility in the City of Santa Clara, and two ventilation structures along the alignment. The purpose of this notice is to announce publicly the environmental decisions by FTA on the subject project and to activate the limitation on any claims that may challenge this final environmental action.
By this notice, FTA is advising the public of final agency actions subject to 23 U.S.C. 139(l) . A claim seeking judicial review of FTA actions announced herein for the listed public transportation project will be barred unless the claim is filed on or before December 17, 2018.
Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353-2577, or Alan Tabachnick, Environmental Protection Specialist, Office of Environmental Programs, (202) 366-8541. FTA is located at 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency action by issuing a certain approval for the public transportation project listed below. The actions on the project, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the project to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA administrative record for the project. Interested parties may contact either the project sponsor or the FTA Regional Office for more information. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed project as of the issuance date of this notice and all laws under which such actions were taken, including NEPA [42 U.S.C. 4321-4375], Section 4(f) requirements [23 U.S.C. 138, 49 U.S.C. 303], Section 106 of the National Historic Preservation Act [16 U.S.C. 470f], and the Clean Air Act [42 U.S.C. 7401-7671q]. This notice does not, however, alter or extend the limitation period for challenges of project decisions subject to previous notices published in the
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before August 20, 2018.
Comments should refer to docket number MARAD-2018-0110. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel TIMELESS is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before August 6, 2018.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before August 20, 2018.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before August 20, 2018.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
A.
B.
C.
D.
E.
A.
The CDFI Fund reserves the right, in its sole discretion, to provide a CMF Award in an amount other than that which the Applicant requests; however, the Award amount will not exceed the Applicant's award request as stated in its Application. An Applicant may receive only one Award through the FY 2018 CMF Round.
B.
C.
If providing Homeownership assistance, a CMF Award may be used in conjunction with awards/allocations from other CDFI Fund programs only if the Project can be divided into such phases and the CMF Award is used in a different phase from the other CDFI Fund program awards/allocations. To clarify, a CMF Award cannot be used for a Homeownership property that is permanently financed (or supported) by both the Recipient's CMF Award and an award/allocation from another CDFI Fund program (
2. Costs financed and/or supported by the Recipient's other awards/allocations from CDFI Fund programs, including awards from prior CMF rounds, may not be counted or reported as Leveraged Costs for the CMF Award, as further set forth in the Assistance Agreement. While the Recipient's other CMF Awards may be used to finance/support the same property, each award must separately meet the program requirements as outlined in the applicable Assistance Agreement and the CMF Interim Rule (12 CFR part 1807); the same units and Leveraged Costs may not be counted towards meeting the programmatic requirements for more than one CMF Award. The term “Recipient” includes the CMF Award Recipient and any Affiliates.
In all cases, the CMF Award remains subject to the following restriction imposed by the CDFI Bond Guarantee Program: Award funds received under any CDFI Fund program cannot be used by any participant of the CDFI Bond Guarantee Program, including Qualified Issuers, Eligible CDFIs, and Secondary Borrowers, to pay principal, interest, fees, administrative costs, or issuance costs (including Bond Issuance Fees) related to the CDFI Bond Guarantee Program, or to fund the Risk Share Pool for a Bond Issue (all capitalized terms used in this sentence, other than “CMF Award”, shall have the meanings ascribed to them in the CDFI Bond Guarantee Program regulations and applicable guidance).
D.
E.
A.
Any Applicant that does not meet the criteria in Table 2 is ineligible to apply for a CMF Award under this NOFA. Further, Section III.B describes additional considerations applicable to prior Recipients and/or Allocatees under any CDFI Fund program.
B.
C.
D.
E.
1. Entities that Submit Applications Together with Affiliates: As part of the Application review process, the CDFI Fund considers whether Applicants are Affiliates, as such term is defined in 12 CFR 1807.104. If an Applicant and its Affiliate(s) wish to submit Applications, they must do so through one of the Affiliated entities, in one Application; an Applicant and its Affiliates may not submit separate Applications. If Affiliates submit multiple or separate Applications, the CDFI Fund may, at its discretion, reject all such Applications received or select only one of the submitted Applications to deem eligible, assuming that Application meets all other eligibility criteria in Section III of this NOFA.
Furthermore, an Applicant that receives an award in this CMF round may not become an Affiliate of another Applicant that receives an award in this CMF round at any time after the submission of a CMF Application under this NOFA. This requirement will also be a term and condition of the Assistance Agreement (see additional Application guidance materials on the CDFI Fund's website at
2. An Applicant will not be eligible to receive a CMF Award if the Applicant fails to demonstrate in the Application that its CMF Award would result in Eligible Project Costs (Leveraged Costs plus those costs funded by the CMF Award) that equal at least 10 times the amount of the CMF Award. Note that no costs attributable to Direct Administrative Expenses may be considered Eligible Project Costs.
A.
B.
All Applications must be prepared in English and calculations must be made in U.S. dollars. Table 4 lists the required funding Application documents for the FY 2018 CMF Round. Applicants must submit all required documents for the Application to be deemed complete. The CDFI Fund reserves the right to request and review other pertinent or public information that has not been specifically requested in this NOFA or the Application. Information submitted by the Applicant that the CDFI Fund has not specifically requested will not be reviewed or considered as part of the Application. Information submitted must accurately reflect the Applicant's activities and/or its Subsidiary Insured Depository Institution, in the case where the Applicant is an Insured Depository Institution Holding Company.
The CDFI Fund has a sequential, two-step process that requires the submission of Application documents in separate systems and on separate deadlines. The SF-424 form must be submitted through
Applicants are strongly encouraged to submit the SF-424 as early as possible through
The CDFI Fund strongly encourages Applicants to start the
C.
D.
E.
1. Submission Deadlines: Table 6 lists the deadlines for submission of the documents related to the FY 2018 CMF Funding Round:
2. Confirmation of Application Submission in
(a)
(b) AMIS Submission Information: AMIS is a web-based portal where Applicants will directly enter their Application information and add required attachments listed in Table 4. Each Applicant must register as an organization in AMIS in order to submit the required Application materials through this portal. AMIS will verify that the Applicant provided the minimum information required to submit an Application. Applicants are responsible for the quality and accuracy of the information and attachments included in the Application submitted in AMIS. The CDFI Fund strongly encourages the Applicant to allow sufficient time to confirm the Application content, review the material submitted, and remedy any issues prior to the Application deadline. Applicants can only submit one Application in AMIS. Upon submission, the Application will be locked and cannot be resubmitted, edited, or modified in any way. The CDFI Fund will not unlock or allow multiple Application submissions.
Prior to submission, each Application in AMIS must be signed by an Authorized Representative. An Authorized Representative is an officer, or other individual, who has the actual authority to legally bind and make representations on behalf of the Applicant; consultants working on behalf of the Applicant cannot be designated as Authorized Representatives. The Applicant may include consultants as Application point(s) of contact, who will be included on any communication regarding the Application and will be able to submit the Application, but cannot sign the Application. The Authorized Representative and/or Application point(s) of contact must be included as “Contacts” in the Applicant's AMIS account. The Authorized Representative must also be a “user” in AMIS. An Applicant that fails to properly register and update its AMIS account may miss important communications from the CDFI Fund or fail to submit an Application successfully. Only the Authorized Representative or Application point of contact, listed in the Application, can submit the Application in AMIS. After submitting its Application, the Applicant will not be permitted to revise or modify its Application in any way or attempt to negotiate the terms of an award.
3. Multiple Application Submissions: Applicants are only permitted to submit one complete Application. However, the
4. Late Submission: The CDFI Fund will not accept an Application submitted after the applicable
5. Intergovernmental Review: Not Applicable.
6. Funding Restrictions: CMF Awards are limited by the following:
(a) A Recipient shall use CMF Award funds only for the eligible activities set forth in 12 CFR 1807.301 and as described in Section II.C and Section II.E of this NOFA and its Assistance Agreement.
(b) A Recipient may not disburse CMF Award funds to an Affiliate, Subsidiary, or any other entity without the CDFI Fund's prior written approval.
(c) CMF Award dollars shall only be paid to the Recipient.
(d) The CDFI Fund, in its sole discretion, may pay CMF Awards in amounts, or under terms and conditions, which are different from those requested by an Applicant. However, the CDFI Fund will not grant an Award in excess of the amount requested by the Applicant.
A.
B.
The CDFI Fund will evaluate each complete and eligible Application using the multi-phase review process described in this Section. For the first two parts of the review process, the Quantitative Assessment and External Review, the Applications will be grouped into two categories: (1) Financing entities and (2) housing developers/managers. Certified CDFIs will be categorized as financing entities. Nonprofit Organizations will select whether they are primarily financing entities or housing developers/managers. These two groups will be evaluated on the criteria listed in this section. The CDFI Fund may elect to use a different criteria where appropriate, in order to evaluate the financial health, capacity, and strategies of these distinct entity types. In general, these differences are noted in this section and the Application.
1. Quantitative Assessment: Each complete and eligible Application will receive a numeric score based on the responses to quantitative questions in the Application. Applications may receive a score of up to 100 points based on the following factors outlined in Table 7.
Within the Business and Leveraging Strategy Section of the Quantitative Assessment, an Applicant will generally score more favorably to the extent it: Proposes to leverage a higher multiplier of private capital (up to 10 times the amount of the CMF Award); has a volume of projected activities supported by its track record; and is proposing to leverage some portion of capital at the Applicant-level. An Applicant will also score slightly more favorably if it is proposing to serve Iowa, Maine, North Dakota, Wyoming, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, American Samoa or Puerto Rico.
Within the Community Impact Section, an Applicant will generally
Within the Financial Health section, Applicants will generally score more favorably to the extent that their 3-year financial data indicate, among other things, the following: Strong capitalization; strong operating performance; strong liquidity; and that the Applicant has not had any negative findings (
Once the quantitative score is determined, Applicants in each of the two categories (financing entities and housing developers/managers) will be ranked in descending order based on their quantitative review score. The top 80 percent of Applications in each category will be forwarded to the next level of review: External Review. The CDFI Fund reserves the right to forward additional Applications to the External Review phase in order to ensure that a diversity of geographies (including different states as well as Metropolitan and Rural Areas) are served by the Applicants reviewed in the External Review phase. The CDFI Fund also reserves the right to forward all Applicants to the External Review phase, regardless of Quantitative Assessment score, if fewer than 140 CMF Applications are received.
2. External Review: Applications that advance from the Quantitative Assessment will be separately scored by two or more external non-Federal reviewers who are selected based on criteria that include: A professional background in affordable housing or a background community and economic development finance with experience with affordable housing. These reviewers must complete the CDFI Fund's conflict of interest process and be approved by the CDFI Fund. Reviewers will be assigned a set number of Applications, consisting of either financing entity Applicants or housing developer/manager Applicants, to review. The reviewer will provide a score for each of the Applications assessed in accordance with the scoring criteria outlined in Section V.B.2 of this NOFA and the Application materials.
The external reviewer's evaluation will result in the Application being awarded up to 100 total points by each reviewer. These points will be distributed across three sections: Business and Leveraging Strategy (40 possible points), Community Impact (35 possible points), and Organizational Capacity (25 possible points). An Applicant's final External Review score will be a composite based on the external reviewers' evaluation and Quantitative Assessment factors. The majority of the score will be based on the external reviewers' evaluation.
(a) Business and Leveraging Strategy (40 points): In the Business and Leveraging Strategy section, the Applicant will address: (i) The needs of communities and persons in its proposed Service Area and the extent to which the proposed strategy addresses these needs; (ii) the affordable housing, economic development, and financing gaps addressed by its business strategy; (iii) the projected CMF activities and track record; (iv) the role CMF plays in its project financing strategy; (v) its strategy for leveraging private capital with a CMF Award; and (vi) its strategy for leveraging its CMF Award at the Enterprise-level, through re-investments, and/or at the Project-level (as applicable).
An Applicant will generally score more favorably in the criteria evaluated by the external reviewer to the extent that it: (i) Clearly aligns its proposed CMF Award activities with the affordable housing needs and financing gaps it identifies; (ii) demonstrates that its strategy and activities will result in more favorable financing rates and terms; (iii) demonstrates that its projected activities are achievable based on the Applicant's strategy and track record; (iv) describes a clear process for locating projects and proposes activities that have a clear need for CMF financing; (v) has a credible pipeline of projects; (vi) has a clear strategy for and track record of leveraging private capital; and (vii) has a clear strategy for and demonstrates a track record of leveraging funds at the Enterprise-level, through re-investments, and/or at the Project-level (as applicable). The extent to which the Applicant proposes to meet the disaster recovery needs of the areas “most impacted and distressed” resulting from a major disaster declared in 2017 (as identified by HUD and published in the
(b) Community Impact (35 points): In the Community Impact Section, the Applicant will address: (i) The extent to which the Applicant's strategy is likely to lead to the Affordable Housing and/or Economic Development Activities impacts referenced in the Application; (ii) its strategy and track record of financing and/or supporting housing units targeted to Low-Income Families (for Homeownership) and to Very Low-Income Families (for rental); (iii) its plans for financing and/or supporting Affordable Housing in Areas of Economic Distress; (iv) its community engagement and partnerships; (v) if applicable, its strategy and track record of financing and/or supporting Economic Development Activities and how these activities fit in a Concerted Strategy and will benefit the residents of nearby Affordable Housing.
An Applicant will generally score more favorably in the criteria evaluated by the external reviewer to the extent that it: (i) Demonstrates how its business strategy will result in one or more of the Affordable Housing and/or Economic Development Activities impacts identified in the Application and the extent to which it has articulated and quantified measurements and evidence to support these impacts; (ii) demonstrates a clear and compelling strategy for financing and/or supporting housing units targeted to Low-Income Families (for Homeownership) and Very-Low Income Families (for rental); (iii) presents a strong ability to finance and/or support Affordable Housing in Areas of Economic Distress; (iv) has community engagement and
(c) Organizational Capacity (25 points): In the Organizational Capacity section, the Applicant will discuss: (i) Its management team and key staff; (ii) the roles and responsibilities of those staff in managing a CMF Award; (iii) its past experience managing Federal awards (including past CMF Awards); and (iv) its financial health and lending or property portfolio (as applicable).
An Applicant will generally score more favorably in the criteria evaluated by the external reviewer to the extent that it demonstrates: (i) Strong qualifications of its key personnel with respect to their skills and experience in identifying investments, underwriting or developing similar projects (as applicable), managing a portfolio of similar activities and ensuring compliance with program requirements; (ii) success in administering prior CMF Awards, CDFI and/or other Federal program awards; (iii) strong financial health; and (iv) solid portfolio performance (as applicable).
(d) Scoring anomaly: If, in the case of a particular Application, the reviewers' total External Review scores vary significantly from each other, the CDFI Fund may, in its sole discretion, obtain the evaluation and numeric scoring of an additional reviewer to determine whether the anomalous score should be replaced with the score of the additional reviewer.
3. Internal Review: At the conclusion of the External Review phase, each group of Applications (financing entities and housing developers/managers) will be ranked separately based on their External Review score. The CMF Program Manager will then determine the overall number of Applications that will be initially forwarded for Internal Review. The CMF Program Manager may elect to initially forward up to 50 Applications to the Internal Review phase to receive further consideration for a CMF Award. Such Applications will be forwarded for Internal Review in descending order of External Review score. The forwarded Applications will be drawn from the financing entity and housing developer/manager groups in proportion to each group's representation in the overall Application pool. For example, if the Applicant pool is 60 percent financing entities and 40 percent housing developers/managers and the CMF Program Manager elects to forward 50 Applications to the Internal Review Phase, the highest scoring 30 Applications from the financing entity group and the highest scoring 20 Applications from the housing developers/managers group would be forwarded to Internal Review.
These forwarded Applications will constitute the highly qualified pool. During the Internal Review, CDFI Fund staff will prioritize the Applications in the highly qualified pool for an award based on a combination of the following criteria: (i) Final External Review score; (ii) alignment with CMF statutory and policy priorities; (iii) the overall quality of the Applicant's strategy; and (iv) the Applicant's organizational capacity and financial health. The CDFI Fund will not attempt to ensure any specific balance of financing entities and housing developers/managers in the final Award pool.
In assessing the Application's alignment with CMF statutory and policy priorities, CDFI Fund staff will consider the following factors, including, but not limited to: The Applicant's proposed activities in Areas of Economic Distress; income targeting of the portfolio of Affordable Housing units to be financed and/or supported; the amount of private capital it will leverage with a CMF Award; and the amount of new Enterprise-level private capital that the Applicant will attract to its Service Area.
In assessing the quality of the Applicant's strategy, the CDFI Fund staff will consider the following factors, including, but not limited to: (i) The quality of the Applicant's strategy with respect to how the strategy and financing activities address identified community needs; (ii) whether the proposed financing activities will help to fill the financing gaps in their market; (iii) whether the CMF funds will contribute to the Applicant offering more favorable rates and terms than are currently available in its Service Area; (iv) whether the Applicant's projections are supported by its organizational track record, as well as the quality of its pipeline; (v) whether the proposed deployment/redeployment schedule is realistic, achievable and risk has been appropriately considered; (vi) the likely success of the strategy to leverage private capital; (vii) whether the strategy is adaptable to changing market conditions; (viii) whether the Applicant's strategy is likely to create identified community impacts and the extent to which the Applicant has articulated quantifiable measurements and evidence to support these impacts; (ix) the Applicant's approach for financing/supporting Affordable Housing in Areas of Economic Distress and meeting Affordable Housing income targeting goals; and (x) to the extent the Applicant is proposing to undertake Economic Development Activities, how those activities are part of a Concerted Strategy and will benefit residents of affordable housing.
In assessing the Applicant's organizational capacity and financial health, the CDFI Fund Staff will consider the following factors, including, but not limited to, the Applicant's: Financial position and organizational strength; ability to meet Federal Award management standards and file appropriate reports and address findings from audits; and staff capacity. Applicants may be re-prioritized for an Award or Award amounts may be reduced as a result of this analysis.
In the case of an Applicant that has received awards from other Federal programs, the CDFI Fund reserves the right to contact officials from the appropriate Federal agency or agencies to determine whether the Recipient is in compliance with current or prior award agreements, and to take such information into consideration before making a CMF Award.
In addition to the criteria outlined above, the Applicant's ability to deploy the CMF Award in a timely manner will be a key determinant in funding recommendation. Deployment considerations may include the Applicant's track record of activities compared with projections, the Applicant's progress in committing and/or deploying past CMF Awards, and whether the Applicant received a FY 2018 CDFI/NACA Program award for a similar business strategy as the proposed use of the CMF Award. The CDFI Fund may also consider the geographies served when determining funding recommendations.
4. Selection: Once Applications have been internally evaluated and preliminary award determinations have been made, the Applications will be forwarded to a selecting official for a final award determination. After preliminary award determinations are made, the selecting official will review the list of potential Recipients to determine whether the Recipient pool meets the following statutory objectives:
(a) The potential Recipients' proposed Service Areas collectively represent broad geographic coverage throughout the United States; and
(b) The potential Recipients' proposed activities equitably represent both Metropolitan Areas and Rural Areas. For the purposes of the FY 2018 CMF Round, the term Rural Areas is defined per 12 CFR 1282.1 (Enterprise Duty To Serve Final Rule) as (i) A census tract outside of a Metropolitan Statistical Area as designated by the Office of Management and Budget; or (ii) A census tract in a Metropolitan Statistical Area as designated by the Office of Management and Budget that is outside of the Metropolitan Statistical Area's Urbanized Areas, as designated by the U.S. Department of Agriculture's (USDA) Rural-Urban Commuting Area (RUCA) Code #1, and outside of tracts with a housing density of over 64 housing units per square mile for USDA's RUCA Code #2. The CDFI Fund will publish a dataset indicating which census tracts are designated as Rural Areas for the FY 2018 Round on its website.
The CDFI Fund reserves the right to modify CMF Award amounts and/or the CMF Recipient pool if deemed necessary to achieve either of these statutory objectives. In order to evaluate the geographic coverage of the potential CMF Recipient pool, Applicants will be asked to designate one of the following three Service Area types in their Applications: Local, Statewide, or Multi-State. These Service Area types are further defined in the Application; the largest Service Area an Applicant can propose is a 10 state Multi-State Service Area. To achieve greater investment in Rural Areas and/or broader geographic coverage, the CDFI Fund may consider an Application ranked outside of the highly qualified pool to receive an Award. However, the CDFI Fund will not award an Application that scores in the bottom 50 percent of the External Review score rankings. During the selection process, the CDFI Fund also reserves the right to modify or place restrictions on the Service Area requested in any Applicant's Application in order to further these statutory objectives.
In cases where the selecting official's award determination varies significantly from the initial CMF Award amount recommended by the CDFI Fund staff review, the CMF Award recommendation will be forwarded to a reviewing official for final determination. The CDFI Fund, in its sole discretion, reserves the right to reject an Application and/or adjust CMF Award amounts as appropriate, based on information obtained during the review process.
5. Insured Depository Institution Applicants: In the case of Applicants that are Insured Depository Institutions or Insured Credit Unions, the CDFI Fund will consider safety and soundness information from the Appropriate Federal Banking Agency or Appropriate State Agency, as applicable. If the Applicant is a CDFI Depository Institution Holding Company, the CDFI Fund will consider information provided by the Appropriate Federal Banking Agency and Appropriate State Agency about both the CDFI Depository Institution Holding Company and the CDFI Insured Depository Institution that will expend and carry out the Award. If the Appropriate Federal Banking Agency or Appropriate State Agency identifies safety and soundness concerns, the CDFI Fund will assess whether the concerns cause or will cause the Applicant to be incapable of undertaking the activities for which funding has been requested.
6. Right of Rejection: The CDFI Fund reserves the right to reject an Application if information (including administrative errors) comes to the attention of the CDFI Fund that adversely affects an Applicant's eligibility for an award, adversely affects the CDFI Fund's evaluation or scoring of an Application, or indicates fraud or mismanagement on the Applicant's part. If the CDFI Fund determines that any portion of the Application is incorrect in any material respect, the CDFI Fund reserves the right, in its sole discretion, to reject the Application. The CDFI Fund reserves the right to change its eligibility and evaluation criteria and procedures, if the CDFI Fund deems it appropriate. If said changes materially affect the CDFI Fund's award decisions, the CDFI Fund will provide information regarding the changes through the CDFI Fund's website. There is no right to appeal the CDFI Fund's award decisions. The CDFI Fund's award decisions are final.
7. Anticipated Award Announcement: The CDFI Fund anticipates making CMF Award announcements in early 2019.
A.
B.
If the Recipient's certification status as a CDFI changes prior to entering into an Assistance Agreement, the CDFI Fund reserves the right, in its sole discretion, to re-calculate the CMF Award, or modify the Assistance Agreement based on the Recipient's non-CDFI status.
By receiving notification of a CMF Award, the Recipient agrees that, if the CDFI Fund becomes aware of any information (including an administrative error) prior to the Effective Date of the Assistance Agreement that either adversely affects the Recipient's eligibility for an CMF Award, or adversely affects the CDFI Fund's evaluation of the Recipient's Application, or indicates fraud or mismanagement on the part of the Recipient, the CDFI Fund may, in its discretion and without advance notice to the Recipient, rescind the notice of award or take other actions as it deems appropriate.
The CDFI Fund reserves the right, in its sole discretion, to rescind an award if the Recipient fails to return the Assistance Agreement, signed by an Authorized Representative of the Recipient, and/or provide the CDFI Fund with any other requested documentation, within the CDFI Fund's deadlines.
In addition, the CDFI Fund reserves the right, in its sole discretion, to terminate and rescind the Assistance Agreement and the award made under this NOFA for any criteria described in Table 8:
C.
1. The Assistance Agreement will set forth certain required terms and conditions of the CMF Award, which will include, but not be limited to:
(a) The amount of the award;
(b) The approved uses of the award;
(c) The approved Service Area in which the award may be used;
(d) Performance goals and measures;
(e) Reinvestment requirements for Program Income; and
(f) Reporting requirements for all Recipients.
2. Prior to executing the Assistance Agreement, the CDFI Fund may, in its discretion, allow Recipients to request changes to the Service Area of the Award and certain performance goals
3. The Assistance Agreement shall provide that, prior to any determination by the CDFI Fund that a Recipient has failed to comply substantially with the Act, the CMF Interim Rule, or the environmental quality regulations, the CDFI Fund shall provide the Recipient with reasonable notice and opportunity for hearing. If the Recipient fails to comply substantially with the Assistance Agreement, the CDFI Fund may:
(a) Require changes in the performance goals set forth in the Assistance Agreement;
(b) Reduce or terminate the CMF Award; or
(c) Require repayment of any CMF Award that has been distributed to the Recipient.
4. The Assistance Agreement shall also provide that, if the CDFI Fund determines noncompliance with the terms and conditions of the Assistance Agreement on the part of the Recipient, the CDFI Fund may:
(a) Bar the Recipient from reapplying for any assistance from the CDFI Fund; or
(b) Take such other actions as the CDFI Fund deems appropriate or as set forth in the Assistance Agreement.
5. In addition to entering into an Assistance Agreement, each Applicant selected to receive a CMF Award must furnish to the CDFI Fund a certificate of good standing from the jurisdiction in which it was formed. The CDFI Fund may, in its sole discretion, also require the Applicant to furnish an opinion from its legal counsel, the content of which may be further specified in the Assistance Agreement, and which, among other matters, opines that:
(a) The Recipient is duly formed and in good standing in the jurisdiction in which it was formed and the jurisdiction(s) in which it transacts business;
(b) The Recipient has the authority to enter into the Assistance Agreement and undertake the activities that are specified therein;
(c) The Recipient has no pending or threatened litigation that would materially affect its ability to enter into and carry out the activities specified in the Assistance Agreement;
(d) The Recipient is not in default of its articles of incorporation or formation, bylaws or operating agreements, other organizational or establishing documents, or any agreements with the Federal government; and
(e) The CMF affordability restrictions that are to be imposed by deed restrictions, covenants running with the land, or other CDFI Fund approved mechanisms are recordable and enforceable under the laws of the State and locality where the Recipient will undertake its CMF activities.
D.
E.
The CDFI Fund may collect information from each Recipient including, but not limited to, an Annual Report with the components listed in Table 9:
Each Recipient is responsible for the timely and complete submission of the annual reporting documents. The CDFI Fund will use such information to monitor each Recipient's compliance with the requirements set forth in the Assistance Agreement and to assess the impact of the CMF. The CDFI Fund reserves the right, in its sole discretion, to modify these reporting requirements if it determines it to be appropriate and necessary; however, such reporting
F.
The cost principles used by Recipients must be consistent with Federal cost principles; must support the accumulation of costs as required by the principles; and must provide for adequate documentation to support costs charged to the CMF Award. In addition, the CDFI Fund will require Recipients to: Maintain effective internal controls; comply with applicable statutes and regulations, the Assistance Agreement, and related guidance; evaluate and monitor compliance; take action when not in compliance; and safeguard personally identifiable information.
A.
B.
The preferred method of contact is to submit a Service Request (SR) within AMIS. For a CMF Application question, select “General Inquiry” for the record type and select “CMF—Application” for the type. For a CDFI Certification or Compliance question, select “General Inquiry” for the record type and select the appropriate type. For Information Technology, select “General Inquiry” for the record type and select “CMF-AMIS technical problem” for the type. Failure to select the appropriate type of SR could result in delays in responding to your question.
C.
The CMF regulations are set forth in 12 CFR part 1807. 12 CFR 1807.105 provides the CDFI Fund the ability to waive any part of the regulations for good cause: “The CDFI Fund may waive any requirement of this part that is not required by law upon a determination of good cause. Each such waiver shall be in writing and supported by a statement of the facts and the grounds forming the basis of the waiver. For a waiver in an individual case, the CDFI Fund must determine that application of the requirement to be waived would adversely affect the achievement of the purposes of the Act. For waivers of general applicability, the CDFI Fund will publish notification of granted waivers in the Federal Register.” Pursuant to this requirement, the CDFI Fund is publishing notification in this NOFA that it hereby waives a portion of 12 CFR 1807.501 for all Recipients of CMF Awards.
A.
B.
For the above stated reasons, the CDFI Fund is issuing a general waiver herein of 12 CFR 1807.501(b) in cases where the CMF Award Recipient serves in the role as the developer for the Project or is financing and/or supporting a Project for Purchase and the Project is not owned, sponsored, or being developed by a limited partnership or limited liability company or other separate entity. Additionally, the CDFI Fund is issuing a general waiver herein of 12 CFR 1807.501(b) in cases where the Recipient is committing its CMF Award to a Loan Loss Reserve made by the Recipient, where the reserve is not pledged to a third party or separate entity affiliated with the Recipient, but is used to reserve against losses from loans directly made by the Recipient.
In lieu of a legally binding written agreement, such Recipients will be able to evidence a Commitment via a Board of Director's resolution for an identified Project. The resolution will be required to be in the form and substance acceptable to the CDFI Fund in its sole discretion. The CDFI Fund has determined that providing this waiver does not adversely affect the achievement of the purposes of HERA.
Pub. L. 110-289. 12 U.S.C. 4701, 12 CFR part 1805, 12 CFR part 1807, 12 CFR part 1815, 12 U.S.C. 4502.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments on forms used by individual taxpayers: Comment Request focused on Form 1040 and Schedules 1, 2, 3, 4, 5, 6, the discontinuance of 1040A and 1040EZ and revised Form W-4. The remainder of the collection including Schedules A, B, C, C-EZ, D, E, EIC, F, H, J, R, and SE, Form 1040NR, Form 1040NR-EZ, Form 1040X, and all attachments to these forms will be addressed on the next submission of the information collection.
Comments should be received on or before September 18, 2018 to be assured of consideration.
Taxpayers may submit comments electronically via the Federal eRulemaking Portal at
Requests for additional information or copies of the form should be directed to Kerry Dennis at Internal Revenue Service, at (202) 317-5751 Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
Under the PRA, OMB assigns a control number to each ”collection of information” that it reviews and approves for use by an agency. The PRA also requires agencies to estimate the burden for each collection of information. Burden estimates for each control number are displayed in (1) PRA notices that accompany collections of information, (2)
The IRS uses the Individual Taxpayer Burden Model (ITBM) to estimate the burden experienced by individual taxpayers when complying with Federal tax laws. The model was developed using a survey of tax year 2015 individual taxpayers that was fielded in 2016 and 2017. The approach to measuring burden focuses on the characteristics and activities undertaken by individual taxpayers in meeting their tax return filing obligations.
Burden is defined as the time and out-of-pocket costs incurred by taxpayers in complying with the Federal tax system. Out-of-pocket costs include any expenses incurred by taxpayers to prepare and submit their tax returns. Examples include tax return preparation fees, the purchase price of tax preparation software, submission fees, photocopying costs, postage, and phone calls (if not toll-free).
The methodology distinguishes among preparation method, taxpayer activities, taxpayer type, filing method, and income level. Indicators of tax law and administrative complexity, as reflected in the tax forms and instructions, are incorporated into the model.
Preparation methods reflected in the model are as follows:
• Self-prepared without software,
• Self-prepared with software, and
• Use of a paid preparer or tax professional.
Types of taxpayer activities reflected in the model are as follows:
• Recordkeeping,
• Tax planning,
• Gathering tax materials,
• Use of services (IRS and other),
• Form completion, and
• Form submission.
Summary level results from fiscal year 2018 using this methodology are presented below. The data shown were the best forward-looking estimates available for income tax returns filed for tax year 2017.
The burden estimates were based on tax year 2017 statutory requirements as of January 31, 2018 for taxpayers filing a tax year 2017 Form 1040, 1040A, or 1040EZ tax return. Time spent and out-of-pocket costs are presented separately. Time burden is broken out by taxpayer activity, with record keeping representing the largest component. Out-of-pocket costs include any expenses incurred by taxpayers to prepare and submit their tax returns. Examples include tax return preparation and submission fees, postage and photocopying costs, and tax preparation software costs.
Reported time and cost burdens are national averages and do not necessarily reflect a “typical” case. Most taxpayers
Within each of these estimates there is significant variation in taxpayer activity. For example, tax year 2017 non-business taxpayers are expected to have an average burden of about 8 hours and $120, while tax year 2017 business taxpayers are expected to have an average burden of about 21 hours and $410. Similarly, tax preparation fees and other out-of-pocket costs vary extensively depending on the tax situation of the taxpayer, the type of software or professional preparer used, and the geographic location.
The revised 2018 Form 1040 is in draft form and subject to change. The updated form, full set of draft instructions, and updated burden and cost estimates will be included in the 30day FRN issued by Treasury. Following the most expansive tax law changes in 30 years, Treasury asked the IRS to look at ways to improve the 1040 filing experience. In response, the IRS took a strategic look at the family of 1040 forms with a goal of simplifying the experience for taxpayers and our partners in the tax industry. The 2018 draft Form 1040 replaces the current Form 1040 as well as the Form 1040A and the Form 1040EZ. The 2018 draft Form 1040 uses a “building block” approach, which can be supplemented with additional schedules as needed. The 2018 draft Form 1040 goes from the current 79 lines to somewhere around 23 lines. Taxpayers with straightforward tax situations would only need to file this new 1040 with no additional schedules. The changes effective in 2018 and affecting the tax returns taxpayers will file in 2019 include (but are not limited to);
The Filing Status section was simplified. The filing status is “Single” if only one name is entered; “Married filing jointly” if two are entered and no filing status box is checked.
Information for the standard deduction was moved below the name entry spaces.
The checkbox for “Full-year health care coverage” was moved to the first page.
The “Exemptions” section was renamed “Dependents.” Taxpayers will continue to list individuals for whom they claim tax benefits associated with an exemption. Only two dependents can be listed on the form itself. Just as in 2017, dependents who cannot be listed on the form must be identified in an attached statement.
The entry spaces for subtotaling exemptions were removed; a new checkbox was added for dependents who qualify for the credit for other dependents.
The signature block was moved. An entry space was added for the spouse's identity protection PIN in lieu of the taxpayer's daytime phone number. The “Paid Preparers” section was shortened and a third-party designee box was added. Taxpayers with third-party designees or a foreign address must attach Schedule 6.
Line 4 (IRAs, pensions and annuities) combined 2017 Form 1040, lines 15 and 16.
Line 6 is a subtotal from Schedule 1, which includes less common types of income, as well as any adjustments to income.
Line 9 was added for the qualified business income deduction under section 199A.
Line 11 is the chapter 1 tax. Taxpayers with less common situations will enter an amount from Schedule 2, which generally includes lines 44 through 47 of the 2017 Form 1040.
Line 12 is the child tax credit and/or credit for other dependents. Taxpayers with other nonrefundable credits, will enter a subtotal from Schedule 3, which generally includes lines 48 through 55 of the 2017 Form 1040.
Line 14 is a subtotal from Schedule 4, which generally includes the items from the “Other Taxes” section of the 2017 Form 1040.
Line 17 is refundable credits and some payments. The earned income credit, additional child tax credit, and American opportunity tax credit remain on the form. Taxpayers with other credits and payments will enter an amount from Schedule 5, which generally includes items from the “Payments” section of the 2017 Form 1040. Treasury's Office of Tax Analysis projects that roughly 25% of projected 2018 individual income tax filers would be able to file the new form without any attachments (meaning any of the six new schedules or any existing forms or schedules that are retained). For context, in Tax Year 2015, 16% of 1040 series returns filed were Form 1040-EZ.
The Form W-4 was changed for 2019 as a result of PL 115-97 (Tax Reform Act of 2017), especially section 11041, which reduced the personal exemption amount to zero and modified the statute related to withholding of tax from wages. Even though most tax changes were effective for tax year 2018, PL 115-97 allowed these withholding changes to be delayed until 2019.
The Form W-4 is modified to remove the reliance on the personal exemption and discrete number of withholding allowances. The Form W-4 has separate instructions, which provide comprehensive guidance for employees and employers. For ease of use in simple situations, a summary version of the instructions has been added to the back of the 2019 W-4 form for quick reference. New lines were added to the W-4 in order to provide more accurate withholding amounts.
The Form W-4 provides more accurate withholding by addressing credits, other income, deductions and a graduated tax rate structure directly, rather than converting these items to a discrete number of withholding allowances tied to the personal exemption amount under prior law. The Form W-4 reduces complexity for employees by allowing them to directly report tax credits and adjustments to income, rather than using worksheets to convert these items to withholding allowances.
A thorough analysis of the impact of the Tax Cuts and Jobs Act (TCJA) of 2017 on the burden faced by individual taxpayers in complying with the Federal tax law is still underway but preliminary results indicate that the overall impact of the law on individuals will lower taxpayer burden. Currently, the average time to complete a tax year 2018 individual tax return is estimated
The expected impact of TCJA provisions by statutory and discretionary change are provided below:
Statutory Changes—Overall, the statutory changes are expected to lead to an overall decrease in burden. There are three major changes that are expected to have a material impact on burden in the TCJA.
1. The increase in the standard deduction and the limitation on the Schedule A tax deduction, taken together, are the most substantial changes introduced in the TCJA. These changes are expected to decrease the number of Schedule A filers from 46 million to 20 million. The 26 million drop in Schedule A filings is expected to lead to a material decrease in burden.
2. The change in thresholds on the Form 6251 for alternative minimum tax is expected to lead to a significant decrease in Form 6251 filings, from 10 million to 1 million or less. This change should also lead to a material drop in burden.
3. The new Sec 199A Deduction for qualified business income is expected to increase burden for many filers who report sole proprietor and passthrough income. The deduction is also expected to increase the number of filers with sole proprietors and passthrough income which should increase burden.
Overall, the decreases in burden from the change in Schedule A and Form 6251 filings are expected to more than offset the increase burden from the Sec 199A Deduction.
IRS Discretionary Changes—The largest discretionary change in place for tax year 2018 is the redesign of the Form 1040 and the discontinuance of Forms 1040A, and 1040EZ. Modest decreases in burden are expected for some taxpayers who prepare by hand without using a paid preparer or tax software but overall, the transition from Forms 1040, 1040A, and 1040EZ to the shortened Form 1040 is not expected to have a material impact on the burden individual taxpayers face. Approximately 95% of individual taxpayers use a paid preparer or tax software to complete their tax return and almost 90% of individual taxpayers e-file. Currently, these taxpayers using assisted methods interact with either a tax software interface or a paid prepare so they have limited interaction with the tax forms themselves. There is very little expectation for their experience to change so the form redesign is not expected to have a material impact on them.
The impact of the Form 1040 redesign on the approximately 5% of individual taxpayers who complete their taxes by hand without using a paid preparer or software is not expected to have a material impact on overall filing burden. The current expectation is that some taxpayers who prepare unassisted will have marginally lower burden while others will have marginally higher burden. For example, taxpayers who previously filed a Form 1040EZ may experience slightly more burden because they need to evaluate more information than before while a segment of taxpayers who previously filed the Form 1040 and 1040A may experience slightly less burden because they need to evaluate less information than before. In addition, some filers are expected to experience a reduction in burden from the separation of the components of the Form 1040 onto the new set of schedules while some are not. Overall, the minor increases and decreases that this population experiences are expected to mostly offset and lead to an immaterial change in burden.
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is proposing for public comment several amendments to the Commission's rules implementing its whistleblower program. Section 21F of the Securities Exchange Act of 1934 (“Exchange Act”) provides, among other things, that the Commission shall pay an award—under regulations prescribed by the Commission and subject to certain limitations—to eligible whistleblowers who voluntarily provide the Commission with original information about a violation of the federal securities laws that leads to the successful enforcement of a covered judicial or administrative action, or a related action. On May 25, 2011, the Commission adopted a comprehensive set of rules to implement the whistleblower program. The proposed rules would make certain changes and clarifications to the existing rules, as well as several technical amendments. The Commission is also including interpretive guidance concerning the terms “unreasonable delay” and “independent analysis.”
Comments should be received on or before September 18, 2018.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission's website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Emily Pasquinelli, Office of the Whistleblower, Division of Enforcement, at (202) 551-5973; Brian A. Ochs, Office of the General Counsel, at (202) 551-5067, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
The Commission is proposing to amend 17 CFR 240.21F-3 (“Rule 21F-3”), 240.21F-4 (“Rule 21F-4”), 240.21F-6 (“Rule 21F-6”), 240.21F-8 (“Rule 21F-8”) through 240.21F-13 (“Rule 21F-13”). The Commission is also proposing to add a new rule that would be codified as 17 CFR 240.21F-18 (“Rule 21F-18”).
In July 2010, Congress amended the Exchange Act to add new Section 21F.
In May 2011, the Commission adopted a comprehensive set of rules to implement the whistleblower program. Those rules, which are codified at 17 CFR 240.21F-1 through 240.21F-17, provide the operative definitions, requirements, and processes related to the whistleblower program. Among other things, these rules:
• Define key terms and phrases in Section 21F that determine whether an individual's information qualifies for an award—terms such as “original information,” “voluntary,” and “leads to successful enforcement”;
• specify the form and manner in which an individual must submit information to qualify as a whistleblower eligible for an award;
• establish the procedures for anonymous submissions;
• exclude certain individuals from eligibility, such as individuals who are, or were at the time that they acquired the original information provided to the Commission, a member, officer, or employee of a foreign government;
• explain which law-enforcement proceedings undertaken by other authorities may qualify for a related action award from the Commission;
• establish the procedures for determining awards both in Commission actions and related actions; and
• identify the criteria that the Commission will consider in setting the percentage amount of an award.
The Commission's whistleblower program has made significant contributions to the effectiveness of the Commission's enforcement of the federal securities laws. The Commission has received over 22,000 whistleblower tips since the inception of the program through the end of Fiscal Year 2017. Original information provided by whistleblowers has led to enforcement actions in which the Commission has obtained over $1.4 billion in financial remedies, including more than $740 million in disgorgement of ill-gotten gains and interest, the majority of which has been or is scheduled to be returned to harmed investors. The Commission has ordered over $266 million in whistleblower awards to 55 individuals whose information and cooperation assisted the Commission in bringing successful enforcement actions and, in some instances, other enforcement authorities in bringing related actions against wrongdoers. That said, approximately $112 million of that amount was paid to just four individuals in connection with two Commission enforcement actions and a related action.
We recognize that individuals who step forward to provide information to the Commission may do so at great personal peril and professional sacrifice. We view the three key tenets of the program—monetary awards, confidentiality, and retaliation protections—as complementary and critical to the success of the program.
After nearly seven years of experience administering the whistleblower program, we have identified various ways in which the program might benefit from additional rulemaking. We believe that the changes that we are proposing will build on the program's success by continuing to encourage individuals to come forward and by permitting us to more efficiently process award applications, among other potential benefits.
Based on our experience to date, we propose the following substantive amendments to our rules:
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The three proposed rule changes described above are intended to serve two important and related objectives.
We believe that using the IPF to compensate whistleblowers who come forward with original information that leads to a DPA or NPA entered into by DOJ or a state attorney general, or a settlement agreement entered into by the Commission outside of the context of a judicial or administrative proceeding (provided the total money required to be paid in the action, including any other proceedings that arise out of the same nucleus of operative facts, exceeds $1,000,000) achieves both of these objectives. We similarly believe that these objectives are furthered by providing the Commission with additional discretion to determine that an action does not qualify as a related action if Congress or another authority has established a more directly applicable or relevant award program. Additionally, we believe that these two objectives are furthered by authorizing the Commission to adjust upward the award percentage in certain cases where the award would otherwise yield a payout of $2 million or less to a whistleblower, as well as to consider whether, in the context of an award issued in connection with certain large Commission or related actions, any whistleblower award exceeds an amount that is reasonably necessary to advance the program's goals. Absent this last amendment, the Commission may find itself faced with the possibility of paying out significantly large awards that are in excess of the amounts appropriate to advance the goals of the whistleblower program. These awards could substantially diminish the IPF, requiring the Commission to direct more funds to replenish the IPF rather than making that money available to the United States Treasury, where they could be used for other important public purposes.
Beyond the amendments discussed above, we are proposing to modify Exchange Act Rule 21F-2.
In addition to the foregoing amendments, we are proposing several other amendments that are intended to clarify and enhance certain policies, practices, and procedures in implementing the program. We are proposing to revise Exchange Act Rule 21F-4(e)
Two further changes are designed to help increase the Commission's efficiency in processing whistleblower award applications. We are proposing to add paragraph (e) to Exchange Act Rule 21F-8
We are also proposing a technical correction to Exchange Act Rule 21F-4(c)(2)
We have included two additional items beyond the proposed amendments to our rules.
The proposed amendments are set forth below.
Section 21F of the Exchange Act authorizes us to pay whistleblower awards in relation to the “successful enforcement” of “covered judicial or administrative actions” brought by the Commission and certain “related actions” of other authorities, most notably DOJ.
Moreover, we also believe that the statutory term “administrative action” is sufficiently ambiguous and broad enough to permit us to interpret the term to include DPAs and NPAs when these instruments are employed by DOJ or a state attorney general, or settlement agreements entered into by the Commission outside of the context of judicial or administrative proceedings, as an appropriate resolution to a law-enforcement investigation.
The Commission has previously exercised its interpretive authority to pay a whistleblower award with respect to a DPA entered into by DOJ on the basis that such agreements are filed in a federal court action that charges the defendant with violations of law.
In arriving at this preliminary interpretation, we have found several considerations to be persuasive.
For similar reasons, we believe that the payments required of a company under the terms of the agreements that would be covered by the proposed rule should be deemed to be “monetary sanctions” within the meaning of Section 21F of the Exchange Act.
Finally, we are proposing conforming amendments to Rule 21F-11(b)
1. Should DPAs and NPAs entered by DOJ or a state attorney general in a criminal case be treated as administrative actions, and the monetary payments obtained through these DPAs and NPAs treated as monetary sanctions, for purposes of making whistleblower awards? Should the same result follow for settlement agreements entered by the Commission to resolve securities law violations? Why or why not?
2. Are there other types of arrangements (
3. Are there specific standards that we should apply in determining whether other vehicles for resolving investigations should be deemed to be administrative actions upon which whistleblower awards can be based? Is it sufficient that a resolution results in a monetary payment?
4. As discussed above, we are proposing conforming amendments to Rule 21F-11(b)
We propose to amend the definition of “monetary sanctions” to provide additional clarity concerning the class of payments that fall within the term's scope. The proposed definition, which is based on the Commission's experiences to date in administering the program, codifies the understanding of the term “monetary sanctions” that is already employed by the agency.
Under Section 21F, the determination of what qualifies as a monetary sanction is important for two reasons.
Section 21F(a)(4) of the Exchange Act defines the term “monetary sanctions,” when used with respect to any judicial or administrative action, to mean: (A) Any monies, including penalties, disgorgement, and interest, ordered to be paid; and (B) any monies deposited into a disgorgement fund or other fund pursuant to section 308(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7246(b)), as a result of such action or any settlement of such action.
Exchange Act Rule 21F-4(e) is substantively identical. Based on our experience to date in administering the program, we believe that it would be beneficial to provide additional clarity regarding the scope of the potential payments that are encompassed within subparagraph (A) of the statutory definition.
The language used in subparagraph (A) of Section 21F(a)(4), when read in isolation, could potentially be understood to direct that the Commission treat any order to pay money that is entered in a judicial or administrative action as a monetary sanction for purposes of the whistleblower award program. Interpreted in this way, monetary
We believe, however, that other portions of Section 21F counsel in favor of a narrower understanding of which money “ordered to be paid” in an action should be treated as monetary sanctions for purposes of the whistleblower program. We find particularly relevant the definition of a “covered action” in Section 21F(a)(1),
Finally, we find support for our proposed approach in the purpose of Section 21F to reward whistleblowers for their contributions to the “successful enforcement” of Commission actions and related actions,
Based on the language within Section 21F, therefore, we believe that the language in subparagraph (A) of the statutory definition is better understood to encompass only those required payments in a Commission action or related action that are designed as relief for the violations successfully resolved in the action. Accordingly, we propose to amend Exchange Act Rule 21F-4(e) to provide that the term “monetary sanctions” means: (1) A required payment that results from a Commission action or related action and which is either (i) expressly designated as disgorgement, a penalty, or interest thereon, or (ii) otherwise required as relief for the violations that are the subject of the covered action or related action; or (2) any money deposited into a disgorgement fund or other fund pursuant to section 308(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7246(b)), as a result of such action or any settlement of such action.
We believe that paragraph (e)(1)(i) of the proposed definition should generally be straightforward to apply. This part of the rule encompasses any payment requirement that is expressly designated as disgorgement, a penalty, or interest thereon. That money paid by a wrongdoer in satisfaction of a disgorgement or penalty obligation may thereafter be used to pay costs of a receiver, trustee, or fund administrator would not change the analysis under this part of the proposed rule. Because the wrongdoer was ordered to pay such money pursuant to a disgorgement or penalty obligation, paragraph (e)(1)(i) would be satisfied.
With respect to paragraph (e)(1)(ii), only requirements to pay money as relief for the underlying violations would qualify. Thus, for example, if a court orders an asset freeze and appoints a receiver in a Commission enforcement action, and, without separately entering a disgorgement order, the court subsequently issues an order approving the receiver's plan to distribute money to injured investors, we would treat that second order as a monetary sanction under paragraph (e)(1)(ii) of the proposed rule.
In proposing the amended rule language, we have also considered the legislative purpose underlying whistleblower award provisions generally. In our view, these types of award programs are intended to allow a whistleblower to receive a percentage of the monetary relief that the government is able to obtain as remedies for the violations that are the subject of the action to which the whistleblower's information led. The approach outlined above would comport with this understanding of how whistleblower award programs generally operate.
5. Should “monetary sanctions” be defined as those obligations to pay money that are obtained “as relief” for the violations that are charged in a Commission enforcement action or a related action? Why or why not?
6. Are there additional classes of monetary requirements or payment obligations (beyond those discussed above) that may be ordered in an action covered by the Commission's whistleblower award program that the
Under Exchange Act Section 21F(b)
The proposed amendment adding paragraph (b)(4) to Rule 21F-3 would apply in situations where both the Commission's whistleblower program and a second, separate whistleblower award scheme have potential application to the same action. During the implementation and administration of our whistleblower program, it has become increasingly apparent to us that additional, separate whistleblower award schemes might apply to an action that could otherwise qualify as a related action. In this regard we note that, since the adoption of our whistleblower program rules, two states have adopted their own whistleblower award programs in connection with state securities-law enforcement actions.
Proposed paragraph (b)(4) would expressly authorize two mechanisms for the Commission to use in situations where at least one other award scheme might also apply.
The proposed rule also provides that, in determining whether a potential related action has a more direct or relevant connection to the Commission's whistleblower program than another award program, the Commission would consider the nature, scope, and impact of the misconduct charged in the purported related action, and its relationship to the federal securities laws. This inquiry would include consideration of, among other things: (i) The relative extent to which the misconduct charged in the potential related action implicates the public policy interests underlying the federal securities laws (
In proposing paragraph (b)(4), we acknowledge that, on its face, Exchange Act Section 21F does not exclude from the definition of related actions those judicial or administrative actions that have a less direct or relevant connection to our whistleblower program than another whistleblower scheme. We nonetheless perceive ambiguity when considering this language in the context of the overall statutory scheme. We believe that an understanding focused exclusively on the statutory definition of related action would produce a result that Congress neither contemplated nor intended. We believe that our rulemaking authority under the Exchange Act and our authority to define Exchange Act terms permit us to reach this interpretation.
To illustrate the significance of our existing rule and the rule that we are proposing, consider a future DOJ enforcement action involving predominately tax claims that results from the same original information that a Commission whistleblower shared with both the Commission and the CFTC. In this scenario, it is entirely possible based purely on the words of the relevant statutes that the SEC and the CFTC could
In addition to the foregoing, we are also proposing two amendments to the definition of “related action” in Rule 21F-3(b)(1).
This new language to the definition of “related action” merely clarifies what is already required by Exchange Act Rule 21F-11(c),
We note that, under our existing interpretation of the “based upon” language in Section 21F(a)(5) and the clarifying rule that we are proposing, the other authority's enforcement action would not be a related action in circumstances where the other authority's enforcement action was in some manner “based upon” the results or findings of the Commission's enforcement action without the other authority ever actually receiving and utilizing the whistleblower's original information. Rather, in this situation the whistleblower's original information could, at best, be described as a derivative factor potentially contributing to the success of the other authority's action, and we deem this too attenuated a causal connection to meet the “based upon” standard, which in our view requires actual reliance on the whistleblower's original information by the other entity.
7. Is the proposed “direct or relevant” standard appropriate for assessing whether an action should qualify as a
8. Instead of adopting the proposed rule, which would authorize the Commission on a case-by-case basis to consider whether an action should qualify as a related action, should the Commission adopt a categorical exclusion from the definition of related action for any judicial or administrative action that may have an alternative applicable award scheme?
9. As part of this rulemaking, we are considering whether to repeal Exchange Act Rule 21F-3(b)(3), 17 CFR 240.21F-3(b)(3),
Rule 21F-6
Rule 21F-6 identifies four criteria that may increase an award percentage and three criteria that may decrease a whistleblower's award percentage. As provided in Rule 21F-6(a), the criteria that may increase an award percentage are: (1) Significance of the information provided by the whistleblower; (2) assistance provided by the whistleblower; (3) law-enforcement interest in making a whistleblower award; and (4) participation by the whistleblower in internal compliance systems. As provided in Rule 21F-6(b), the criteria that may decrease an award percentage are: (1) Culpability of the whistleblower; (2) unreasonable reporting delay by the whistleblower; and (3) interference with internal compliance and reporting systems by the whistleblower.
Proposed paragraph (c) would add to Rule 21F-6's existing analytical framework by providing a mechanism for the Commission to adjust upwards any awards that would potentially be below $2 million to a single whistleblower. Specifically, proposed Rule 21F-6(c) would provide that, if the resulting award after applying the award factors specified in paragraphs (a) and (b) would yield a potential payout to a single whistleblower below $2 million (or any such greater amount that the Commission may periodically establish through publication of an order in the
We believe that proposed paragraph (c) could provide an important new tool for the Commission to ensure that even in cases where the collected monetary sanctions may be relatively small (and award amounts correspondingly modest), whistleblowers could receive an appropriate award for their efforts in coming forward to the Commission. We also anticipate that, where the proposed rule is triggered, there would be a presumption in favor of some award enhancement, though the precise amount of the enhancement may vary from case to case depending on the unique facts and circumstances at issue. In this way, we believe proposed paragraph (c) could provide an important additional incentive for potential whistleblowers to come forward.
We note that the new authority proposed in paragraph (c) would come with important limitations. Specifically, the Commission will not adjust an award upward under the proposed provision if any of the negative award factors that are identified in Exchange Act Rule 21F-6(b)
In addition, we are proposing a new paragraph (d) that would add to Rule 21F-6's existing analytical framework by providing a mechanism for the Commission to conduct an enhanced review of awards in situations where a whistleblower has provided information that led to the success of one or more covered or related actions that, collectively, result in at least $100 million in collected monetary sanctions. As we explain below, under proposed paragraph (d), the Commission, first, would consider the dollar amount of an award at given percentage levels in determining whether and how to adjust the award based on the positive and negative factors in paragraphs (a) and (b) of this section; and second, the Commission could determine that an exceedingly large potential payout resulting from the assessment under paragraphs (a) and (b) was not reasonably necessary to fulfill the purposes of the program and thus exercise its discretion to reduce the award to an appropriate amount. The Commission's ability to reduce an award under this provision would be subject to two significant limitations.
An important principle underlying proposed paragraph (d) is that, as the dollar value of an award amount grows exceedingly large, there is a significant potential for a diminishing marginal benefit to the program in terms of compensating the whistleblower and incentivizing future whistleblowers. In these situations, we believe that it is in the public interest that we scrutinize the dollar impact of these awards more carefully in considering award enhancements and reductions under the existing award criteria of paragraphs (a) and (b) of this section and, further, where appropriate, adjust an award downward so that the dollar amount of the payout is more in line with the program's goals of rewarding whistleblowers and incentivizing future whistleblowers from a cost-benefit perspective (again, subject to the $30 million floor for any whistleblower subject to a reduction under this provision and the 10 percent statutory minimum referenced above).
As an illustration of a potential situation to which proposed paragraph (d) might be utilized, consider the settlements that the Commission and DOJ entered with Siemens AG in 2008. The total monetary sanctions collected in these two actions was $800 million (the Commission received $350 million in disgorgement of profits
Turning to the text of proposed paragraph (d), this new provision would do two important things that should help us ensure that any large awards are in fact aligned with the program's goals and not unnecessarily large to achieve the program's goals.
Critically, the $30 million reference in proposed rule (d)(2) would
We believe that the $100 million collected-monetary-sanctions threshold reflects the appropriate level at or above which it would be reasonable for the Commission to consider whether the likely award payout from the collected monetary sanctions will exceed an amount that is appropriate to achieve the program's goals. For matters involving collected sanctions at or above the $100 million threshold, we think the potential for a whistleblower award to exceed the amount necessary to achieve the program's goals exists and that awards based on $100 million or more are sufficiently large to warrant heightened scrutiny under the rule that we are proposing. Our proposed approach in triggering proposed paragraph (d) based on the amount of monetary sanctions collected is not unlike the approach that the DOJ utilizes (and which some courts also utilize) in the context of the False Claims Act (“FCA”) when determining the appropriate amount of an award to a relator. Specifically, DOJ has developed a series of guidelines to determine the appropriate size of an award, and one consideration that may lead to a downward adjustment is whether the “FCA recovery was relatively large.”
We similarly believe that the $30 million floor is appropriate. In our view, there is a potential that as the payout to a whistleblower grows beyond the $30 million floor, the marginal benefit of each additional dollar paid may decrease to such an extent that, in terms of furthering the program's overall goals, the payout may be more than is reasonably necessary. In our judgment $30 million represents a reasonable line at which to draw the floor.
While we believe that the $30 million floor should reflect an amount that in most cases would be an extremely attractive inducement for company insiders across many industries to come forward to report securities-law violations, we recognize that future experience in the years ahead could suggest that some adjustment is appropriate.
In considering the appropriateness of the $30 million floor below which we could not make a downward departure for any payouts stemming from a whistleblower's original information, we also note that the monetary incentive may often be an important reason a whistleblower comes forward, but it is typically not the only reason in our experience to date. In this regard, we note that the monetary incentive is one component in a package of reporting incentives made available under Section 21F, which includes employment retaliation protections and confidentiality requirements (including, critically, the ability of whistleblowers to remain anonymous through the course of an investigation and resulting enforcement action).
In advancing proposed paragraph (d), we are mindful of our own responsibility to investors and the general public to ensure that the Investor Protection Fund (IPF) that Congress established to fund awards is used efficiently and effectively to achieve the program's objectives.
In light of the foregoing, we believe that, where a whistleblower's original information leads to Commission or related actions that, collectively, involve at least $100 million in collected monetary sanctions, it is consistent with the interests of investors and the broader public interest that the Commission have a mechanism to ensure that the payout does not exceed an amount beyond what is reasonably necessary to achieve the program's goals and, to the extent that it is, to adjust the award percentage so that it better aligns with those goals. In our view, proposed paragraph (d) would provide such a mechanism if adopted.
We generally anticipate that the Commission's application of proposed paragraph (d) would be based on the unique facts and circumstances of each award matter. We believe that in determining whether a payout exceeds what is appropriate to achieve the program's objectives, the Commission would carefully assess the potential payout in relation to both any unusually detrimental circumstances that impact the whistleblower and the level of financial incentive that may be necessary to encourage future similarly situated whistleblowers to come forward. Facts that would be relevant to determining whether the large payout may be appropriate given the specific whistleblower's circumstances include, for example, whether the whistleblower made an extraordinary and highly unusual sacrifice by coming forward (such as placing himself or herself in legal jeopardy to bring the Commission information that it would otherwise not have been able to obtain or demonstrably suffering career-ending consequences commensurate with the potential large award). In a situation involving two or more individuals acting as a joint whistleblower, we would consider the need to appropriately incentivize individuals even when acting jointly to come forward and report to the Commission.
In making any downward adjustment to a large award, the Commission would retain discretion to determine the appropriate award amount and proposed paragraph (d) is not intended to mandate any specific reduction or one-size-fits-all result. Nonetheless, we anticipate that in those cases where proposed paragraph (d) is triggered and the Commission determines that a downward adjustment is warranted, the extent to which the Commission exercises its authority to decrease such awards would vary along a sliding scale that corresponds with the overall size of the potential award in dollar terms. For example, we generally anticipate that the nature and magnitude of any decrease applied to an award in the $35-40 million range would typically be less than the magnitude of the decrease applied to an award in the $100-$150 million range. In our view, this sliding-scale approach would make sense because the larger the dollar amount of a payout away from the $30 million floor, the greater the likelihood of diminishing marginal benefits to the program from each additional dollar paid to the whistleblower. In no event, however, would the Commission decrease an award below the $30 million floor (or whatever future floor the Commission might establish by order) using the authority afforded to the Commission pursuant to the proposed rule.
We preliminarily contemplate that proposed paragraph (d) would be applied in any instance where the Commission determines to process two or more separate covered actions together in the same final order, provided that both actions involve the same information submitted by the whistleblower. We would similarly expect that the Commission could apply this rule if, after having made an award to a whistleblower, the Commission subsequently processes an award application for that whistleblower (either in connection with a second covered action or a related action) and the subsequent award application is based on the same general information from the whistleblower as the earlier award determination.
We do not believe that the proposed rule conflicts with the statutory directive in Section 21F(c)(1)(B)(ii)
Finally, the proposed rule would provide certain standards for the Commission to consider in determining whether to issue an order that adjusts the $2 million award threshold, the $100 million threshold, and the $30 million award(s) floor under proposed paragraphs (c) or (d), respectively. Specifically, the proposed rule would state that in issuing such an order “the Commission shall consider (among other factors that it deems relevant) whether the adjustment is necessary or appropriate to encourage whistleblowers to come forward and the potential impact the adjustments might have on the Investor Protection Fund.”
10. With respect to proposed paragraph (c), is it appropriate to consider increasing smaller awards and would doing so help to further incentivize insiders and others to come forward with tips? If so, is the $2 million ceiling for invoking the rule appropriate or is it either too high or too low? Please explain.
11. With respect to proposed paragraph (c), should the enhancement authority be unavailable in the situation where a whistleblower's award was reduced under Rule 21F-6(b) or Rule 21F-16? Please explain.
12. Would the proposed amendments to paragraph (d) of Rule 21F-6 appropriately balance the Commission's various programmatic interests, in particular encouraging company insiders and others to come forward while also ensuring that awards are not unnecessarily large beyond an amount that is sufficient to compensate whistleblowers and achieve the Commission's law-enforcement interests? If not, is there an alternative formulation of the proposed rule that the Commission should adopt to guard against payouts that are in excess of amounts that are reasonably necessary to further the Commission's goals?
13. With respect to proposed paragraph (d), are the $100 million collected sanctions threshold and the $30 million floor appropriate? Is there another threshold or floor that the Commission should adopt? If so, please explain what should be the appropriate threshold or floor.
14. In considering whether to make a downward adjustment to a potential award under proposed paragraph (d), is it reasonable for the Commission to consider the likely amount of the award in relation to the whistleblower program's goals of rewarding meritorious whistleblowers and sufficiently incentivizing future similarly situated whistleblowers?
a. In the release, we explain that facts that would be relevant to determining whether the large payout may be appropriate given the specific whistleblower's circumstances include, for example, whether the whistleblower made an extraordinary and highly unusual sacrifice by coming forward (such as placing himself or herself in legal jeopardy to bring the Commission information that it would otherwise not have been able to obtain or demonstrably suffering career-ending consequences commensurate with the potential large award). Are there other (or additional) considerations that the Commission should assess in making that determination?
b. Also in the release, we explain that facts that would be relevant to determining whether the large payout is needed and appropriate to encourage future similarly situated whistleblowers to come forward include the industry in which knowledgeable whistleblowers might work, the type of position held by that whistleblower, and the compensation levels within that industry, and whether potential whistleblowers may be located overseas and the likely compensation levels in those countries (to the extent available). Are there other (or additional) considerations that the Commission should assess in making that determination?
15. In the context of two or more individuals acting together as a whistleblower, should the $30 million floor in proposed paragraph (d) apply where the aggregate award to both individuals exceeds $30 million or where the award to each individual would potentially exceed $30 million? Please explain the reasons for your views.
16. In determining whether the $100 million threshold has been met for application for the proposed rule, should the Commission consider not just the likely payout in any Commission covered action that results from the original information that the whistleblower provided to the Commission, but also any potential payout that might result from any related actions? Why or why not?
17. As discussed above, the Commission could apply proposed paragraph (d) if, after having made an award to a whistleblower, the Commission subsequently processes an award application for that whistleblower (either in connection with a second covered action or a related action) and the subsequent award application is based on the “same general information” from the whistleblower as the earlier award determination. Is there a different standard that the Commission should apply for invoking the rule in these situations? In particular, should the proposed rule be applicable in either a narrower or a broader set of circumstances where information provided by a whistleblower results in multiple actions? Please explain the reasons for your view.
18. Proposed paragraph (d) would permit the Commission to consider the potential dollar amount of the award when applying each of the existing award criteria in Exchange Act Rule 21F-6(a) and 6(b), provided that the Commission determined that the likely total payout to the whistleblower resulting from the original information that he or she provided was $100 million or greater. As explained above, this would allow the Commission to consider each award factor in dollar terms rather than to apply exclusively a percentage assessment that does not take into account what those percentage adjustments would translate to in actual dollars paid to the whistleblower.
a. Should the Commission consider the dollar value of an award that involves the collection of at least $100 million in monetary sanctions in determining the size of the award? Why or why not?
b. As part of this rulemaking, should we expand this approach so that it would cover all awards considered under Exchange Act Rule 21F-6, even those below the $100 million threshold? Would such a revision to the award determination approach under Exchange Act Rule 21F-6 allow us to better assess each enhancement or reduction in dollar terms (as well as percentage terms) so that we could more realistically and concretely assess the impact of each award factor on the overall award to ensure that we are appropriately rewarding the whistleblower and incentivizing future whistleblowers? Why or why not?
19. With respect to the interpretive guidance concerning “unreasonable delay,” is the 180-day rebuttable presumption of unreasonable delay appropriate? Does establishing such a presumption help to put individuals on notice that they should come forward without an inappropriate delay? Please explain.
As adopted by the Commission in 2011, Rule 21F-2(a)
Accordingly, we believe that it is appropriate to amend Rule 21F-2 to conform to the Supreme Court's construction of Section 21F. Proposed Rule 21F-2(a) would provide a uniform definition for whistleblower status to apply for all purposes under Section 21F—award eligibility, confidentiality protections, and anti-retaliation protections—consistent with the Supreme Court's application of the whistleblower definition in Section 21F(a)(6), which defines the term “whistleblower” as any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.
Proposed Rule 21F-2(a) would track this whistleblower definition by conferring whistleblower status only on (i) an individual (ii) who provides the Commission with information “in writing” and only if (iii) “the information relates to a possible violation of the federal securities laws (including any law, rule, or regulation subject to the jurisdiction of the Commission) that has occurred, is ongoing, or is about to occur.” We address these three points in turn.
15 U.S.C. 78c(a)(47).
Additionally, proposed Rule 21F-2(a) would confer whistleblower status “as of the time that” an individual meets all three of the above conditions. We believe that this language would clarify that whistleblower status is conferred only prospectively and not retrospectively once all three conditions to achieve whistleblower status are met.
Proposed Rule 21F-2(b), (c), and (d) would specify how the whistleblower status conferred by subsection (a) operates across the various contexts of awards eligibility, confidentiality protections, and anti-retaliation protections, respectively. Much like current Rule 21F-2(a), proposed Rule 21F-2(b) would specify that, to be eligible for an award in a Commission action based on information provided to the Commission, a person “must comply with the procedures and the conditions described in Rules 21F-4, 21F-8, and 21F-9 (respectively, sections 240.21F-4, 240.21F-8, and 240.21F-9 of this chapter).”
Proposed Rule 21F-2(c) would specify that, to qualify for confidentiality protections afforded by Section 21F(h)(2) of the Exchange Act
Proposed Rule 21F-2(d) would revise existing Rule 21F-2(b) to define the scope of anti-retaliation protections in a way that mirrors the Supreme Court's authoritative reading of Section 21F. As the Court explained in
In explaining who is eligible for employment retaliation protection, proposed Rule 21F-2(d)(1)(i) would first require that a person “qualify as a whistleblower under subsection (a) before experiencing the retaliation” for which redress is sought. We believe that this proposed rule implements the most natural reading of Section 21F(h)(1)(A), which prohibits retaliation “against[ ] a
In explaining what conduct is protected from retaliation, Rule 21F-2(d)(1)(iii) requires that a person must perform a “lawful act” that both is performed in connection with any of the activities described in Section 21F(h)(1)(A)(i)-(iii)
At the same time, proposed Rule 21F-2(d)(1)(iii) would limit anti-retaliation protection to lawful acts that “relate to the subject matter” of the person's submission to the Commission under proposed Rule 21F-2(a). Given the silence of Section 21F and the Supreme Court's reluctance to address whether any subject-matter connection should be required,
Proposed Rule 21F-2(d)(2) would address a timing issue under Section 21F's anti-retaliation provisions by clarifying that a person does not need to qualify as a whistleblower under Rule 21F-2(a) before performing the lawful act described in Rule 21F-2(d)(1)(iii), in order to be eligible for anti-retaliation protection. In other words, whether conduct is protected from retaliation would not depend on whether the person performing that conduct reported to the Commission beforehand or afterward (in order to qualify as a whistleblower). Section 21F is silent on this issue, and we believe that this clarification will help maintain appropriate incentives for persons to make the internal reports described in Section 21F(h)(1)(A)(iii) before or at the same time as reporting to the Commission. Proposed Rule 21F-2(d)(2) would reiterate, however, that a person must qualify as a whistleblower under proposed Rule 21F-2(a) before experiencing retaliation. Thus, for example, an individual who experiences repeated retaliation for a prior lawful act, and who first reports to the Commission while the retaliation is still ongoing, would be protected with respect to any retaliation experienced after the Commission report but not for any retaliation experienced before the Commission report.
Proposed Rule 21F-2(d)(3) would carry forward existing Rule 21F-2(b)(1)(iii)
Proposed Rule 21F-2(d)(4) would carry forward existing Rule 21F-2(b)(2)
To illustrate how we anticipate proposed Rule 21F-2 would operate in practice, consider the following hypothetical scenario: An employee at a
20. Is it reasonable to require that an individual provide information to the Commission “in writing” to qualify as a whistleblower? Is this approach either too restrictive or too broad? Are there situations in which only some other form of communication would be possible or preferred? Please explain.
21. Should our whistleblower rules enumerate any other “manner” of providing information to the Commission for purposes of anti-retaliation protection? For example, should our rules enumerate testifying under oath in an investigation or judicial or administrative action of the Commission as an additional “manner” of providing information to the Commission?
22. Does the proposed rule reasonably require that the lawful acts done by the whistleblower must relate to the subject matter of the whistleblower's submission to the Commission in order for the employment retaliation protections to apply? Should a different standard apply? Why or why not?
23. Does the proposed rule appropriately address the timing of an individual's report to the Commission relative to the protected conduct and to any retaliation?
24. In determining the amount of an award, the Commission considers participation in internal compliance systems. Given the change in anti-retaliation protections, should the Commission still use this criteria in determining the size of whistleblower awards? Why or why not?
25. Would it be necessary or appropriate to specify additional types of misconduct that fall within the prohibition in Section 21F(h)(1)(A) against “any other manner [of] discriminat[ion] against[ ] a whistleblower”? For example, should our rules clarify that if an employer rejects a prospective employee, or a past employer attempts to cause such rejection, because that individual had engaged in activity protected under Rule 21F-2, this would be a form of retaliation covered by Section 21F(h)(1)(A)?
Both statutes broadly prohibit “any . . . manner” of discrimination in the terms or conditions of employment.
Currently an applicant seeking to submit information to the Commission in order to qualify as a whistleblower (for purposes of the award and confidentiality components of the whistleblower program) must submit this information by using one of two methods: (1) By providing the information through an online portal on the Commission's website, or (2) by submitting the paper Form TCR that was adopted by the Commission as part of the original whistleblower rulemaking in 2011.
To provide the Commission with the ability to make timely corresponding adjustments to the Form TCR when the Commission determines to modify the online portal, the Commission proposes to modify Exchange Act Rule 21F-8
In addition to the paper Form TCR, the Commission also adopted a paper Form WB-APP when it adopted the existing rules for the whistleblower program. Individuals seeking awards must make their award request using Form WB-APP. Like Form TCR, Form WB-APP can only be modified by amending the Code of Federal Regulations. However, we believe that it may be beneficial to provide the Commission with greater administrative flexibility to modify the form. Providing the Commission with the ability to modify the form's informational requirements in a timely fashion should also help promote the program's overall efficiency. Accordingly, the Commission proposes to modify Exchange Act Rule 21F-8 by adding a new paragraph (d)(2) providing the Commission will also periodically designate on the Commission's web page a Form WB-APP for use by individuals seeking to apply for an award in connection with a Commission covered judicial or administrative action (15 U.S.C. 21F(a)(1)), or a related action (§ 240.21F-3(b)(1) of the chapter).
In proposing this additional flexibility, we note that both Form TCR and Form WB-APP elicit information used by the Commission to administer its whistleblower award program and are not public disclosure documents. Moreover, we anticipate that the forms designated on the Commission's website for use in the whistleblower program would be substantially similar to those currently referenced in the Code of Federal Regulations.
In accordance with the changes discussed above, the following corresponding amendments would be made.
26. Are there any additional considerations or limitations that the Commission should consider in connection with the proposed rule change? For example, should we provide that any revisions to paper Form TCR or Form WB-APP shall not take effect for a 30-day period after posting on the Commission website?
In our experience implementing the whistleblower award program to date, a small number of claimants have imposed an undue burden on the award determination process by submitting dozens and in some cases over a hundred award applications that lack any colorable connection between the tip that they provided and the Commission enforcement actions for which they are seeking awards. Processing these frivolous award applications uses staff resources that could otherwise be devoted to potentially meritorious award applications. Beyond the diversion of staff resources, we have found that, by utilizing the procedural opportunities to object to an award, these repeat applicants can significantly delay the processing of meritorious award applications and the eventual payment of awards.
To prevent these repeat submitters from continuing to abuse the award application process to the detriment of potentially meritorious applicants, we believe that it would be appropriate to adopt a rule that would permit the Commission to permanently bar any applicant from seeking an award after the Commission determines that the applicant has abused the process by submitting three frivolous award applications.
The proposed rule would expressly provide, however, that the Office of the Whistleblower shall as an initial matter (
In addition, the proposed rule would codify the Commission's current practice with respect to applicants who violate Rule 21F-8(c)(7).
In our view, it is appropriate to assess whether an applicant who engages in egregious behavior vis-à-vis the Commission in violation of Rule 21F-8(c)(7) should be permanently ineligible from obtaining an award. Such egregious conduct can result in the unnecessary and wasteful diversion of staff resources and in extreme cases it may expose investors and the public to potential harm (particularly where the misconduct concerns ongoing Commission law-enforcement actions).
Under the proposed rule, the Commission would consider a permanent bar in the context of processing an award application. We expect that the preliminary determination or preliminary disposition addressing the award application would include a recommendation that the applicant be permanently barred; this should serve to place the applicant on notice that a bar is being considered and afford the applicant an opportunity to advance any arguments in connection with a potential bar before the Commission issues a final order.
27. Is it appropriate for OWB to advise a claimant of the Office's assessment that the claimant's award application for a Commission action is frivolous, and to offer the claimant the opportunity to withdrawal his or her award application(s), such that the application(s) would not be considered by the Commission in determining whether to impose a bar?
28. Is it appropriate for the Commission to adopt a rule that would permanently bar any applicant after he or she has been found by either the Commission to have submitted at least three frivolous award applications? Should the number of frivolous award applications be fewer or greater before a bar would be imposed?
29. Are there any additional procedures, considerations, or limitations that the Commission should consider in connection with the proposed rule change?
As noted above, Exchange Act Rule 21F-9(a)
The revised language in Rule 21F-9(a) would provide that to submit information in a manner that satisfies § 240.21F-2(b) and (c) of the chapter, an individual must submit his or her information to the Commission by either of these methods: (1) Online, through the Commission's website located at
We are also proposing to add new paragraph (e) to Exchange Act Rule 21F-9 to clarify that the first time an individual provides information to the Commission that the individual will rely upon as a basis for claiming an award, the individual must provide that
Proposed paragraph (e) would also incorporate a limited exception that would permit the Commission, in its sole discretion, to make an award to a whistleblower who failed to comply with the procedural requirements of Rules 21F-9(a) and (b) when the individual first provided information to the Commission. The limited exception permitted by paragraph (e) would provide that notwithstanding the foregoing, the Commission, in its sole discretion, may waive an individual's non-compliance with paragraphs (a) and (b) of Rule 21F-9 if the Commission determines that the administrative record clearly and convincingly demonstrates that the individual would otherwise qualify for an award and the individual demonstrates that he or she complied with the requirements of paragraphs (a) and (b) within 30 days of the first communication with the staff about the information that the individual provided.
30. Does proposed Rule 21F-9(a) provide additional clarity and flexibility that may help make the submission of information by potential whistleblowers more user-friendly? Are there any additional factors that the Commission should assess in connection with the proposed rule amendments?
31. Please comment on the limited exception provided for in proposed Rule 9(e) appropriate. Should the exception be adopted? If so, should it be narrowed or broadened? Should the 30-day time period be extended or reduced?
Rule 21F-12
Accordingly, we propose amending Rule 21F-12(a)(3) to clarify that the Commission and the CRS (and the Office of the Whistleblower when processing a claim pursuant to proposed Rule 21F-18) may rely upon materials
32. Does the proposed amendment as to timeliness provide an appropriate safeguard against abusive supplemental filings by whistleblower award claimants?
33. Do the proposed amendments provide sufficient clarity? Is there alternative language that might provide greater clarity about the materials that the Commission and the CRS may rely upon in making an award determination?
Rule 21F-13
Some claimants have interpreted Rule 21F-13(b) as permitting them to designate materials for inclusion in the record on appeal that technically meet the descriptions in Rule 21F-12(a) but that were never actually before the Commission in issuing the Final Order. However, that interpretation creates significant tension with the basic principle of administrative law that, on appeal, “the court's review is limited to the administrative record before the agency at the time of its decision.”
The record on review or enforcement of an agency order consists of:
(1) The order involved;
(2) any findings or report
(3) the pleadings, evidence, and other parts of the proceedings
Fed. R. App. P. 16(a)(1)-(3) (emphases added).
As amended, Rule 21F-13(b) would eliminate the designation of items for inclusion in the record on appeal and instead would define the record on appeal in a manner that conforms more closely to Rule 16 of the Federal Rules of Appellate Procedure. Materials designated or submitted by a whistleblower for the first time after the Commission issues its Final Order
Under amended Rule 21F-13(b), the record on appeal therefore would include the Final Order of the Commission, any materials that were considered by the Commission in issuing the Final Order, and any materials that were part of the claims process leading from the Notice of Covered Action to the Final Order. In the interest of clarity, Rule 21F-13(b) would specify that this includes, but is not limited to, the materials that are part of the claims process described in Rules 21F-10 and 21F-11 and proposed Rule 21F-18: The Notice of Covered Action, whistleblower award applications filed by the claimant, the Preliminary Determination (or Preliminary Summary Disposition), materials that were considered by the Claims Review Staff in issuing the Preliminary Determination (or by the Office of the Whistleblower in issuing a Preliminary Summary Disposition), and materials that were timely submitted by the claimant in response to the Preliminary Determination (or the Preliminary Summary Disposition). Additional materials not specifically listed in the parenthetical in proposed Rule 21F-13(b) might become part of the claims process and therefore part of the record if, for example, the Office of the Whistleblower obtains materials from a third party and provides them to the Commission for its consideration in resolving a whistleblower award application.
In addition, we are proposing to amend the second sentence of Rule 21F-13(b) to clarify that the record on appeal would not include any pre-decisional or internal deliberative process materials that are prepared exclusively to assist
We also propose adding a third sentence to Rule 21F-13(b) providing that, when more than one claimant applies for an award under a single Notice of Covered Action, the Commission may exclude from the record on appeal any materials that exclusively concern any claimant other than the claimant who brought the appeal, as necessary to comply with the confidentiality protections in Section 21F(h)(2)(A) of the Exchange Act.
34. We seek comments about whether the proposed language sufficiently conforms to Rule 16 of the Federal Rules of Appellate Procedure and whether alternative language would provide greater conformity or clarity.
Over the course of the years that the Commission has implemented the whistleblower award program, it has become apparent to us that a significant number of award applications may be denied on relatively straightforward grounds because they do not implicate novel or important legal or policy questions. These grounds for denial include, among other things, the fact that the individual did not comply with the form-and-manner requirements as specified in Rule 21F-9 for submitting information to be eligible for an award, or that the information was not used by the staff responsible for investigating, preparing and litigating the covered action and thus the individual's information did not “lead to” the success of the covered action.
In an effort to provide a more timely resolution of relatively straightforward denials, we are proposing a summary disposition process. This process would be in lieu of the claims adjudication processes that are specified in Rule 21F-10 and Rule 21F-11.
The proposed summary disposition process incorporates two other modifications that should help expedite the processing of denials.
The proposed summary disposition process would be available for any non-meritorious award application that falls within any of the following five categories: (1) Untimely award application;
Under the proposed summary disposition process, the Office of the Whistleblower would issue a Preliminary Summary Disposition denying an application. This Preliminary Summary Disposition would be in lieu of the Preliminary Determination that the Claims Review Staff would issue under Rule 21F-10 or Rule 21F-11. A claimant would then have a 30-day period to reply with a written response explaining the grounds for contesting the denial. Failure to file a timely written response would constitute a failure to exhaust the administrative process and the Preliminary Summary Disposition would automatically become the final order with respect to that applicant's award claim. If an applicant does file a timely response, the Office of the Whistleblower would consider the full record, including the applicant's response (and any materials the applicant timely submitted therewith), and prepare a Proposed Final Summary Disposition to be provided to the Commission.
If the Commission has received more than one award application for a particular matter, the Office of the Whistleblower could use the summary disposition process for any of those award applications that qualify, even if other of the applications are subjected to the regular consideration processes specified in Rules 21F-10 and 21F-11. Even in the multiple whistleblower context, we believe that there could be efficiencies in summarily considering and disposing of applications that constitute reasonably straightforward denials. For example, this could free up staff resources to concentrate on the meritorious claims or the more difficult determinations. Relatedly, to the extent that a claim is denied under the summary disposition process while other claims may remain pending under the Rule 21F-10 or Rule 21F-11 process, this should allow the summarily denied claimant an earlier ability to exhaust his opportunities for judicial review.
Finally, the proposed rule would clarify that Rule 21F-12,
35. We seek comments about the proposed summary disposition process, including whether the categories of award applications that would be eligible for summary disposition are appropriate, whether the proposal would afford claimants sufficient process, and whether there are any specific modifications that we should consider making to the proposed process.
We propose to amend Rule 21F-4(c)(2)
Two core requirements of the whistleblower award program are: (1) That the whistleblower must have provided “original information” to the Commission; and (2) that such information must have “led to” the successful enforcement of an action. Congress defined “original information” in relevant part as information that is derived from
In formulating our views on how a whistleblower may satisfy the requirement of “original information” through the alternative of “independent analysis,” we have considered Congress's and the Commission's determinations to substantially restrict any role for publicly available information in potential whistleblower awards. When the Commission in 2011 adopted the rules implementing the whistleblower program, it explained that paying awards for publicly available information was not consistent with Congress's purpose in establishing the program. Specifically, the Commission stated that “Congress primarily intended our program `to motivate those with inside knowledge to come forward and assist the Government to identify and prosecute persons who have violated the securities laws[.]' ”
In the sections that follow, we explain the relevant background and reasoning for the standards that we have set forth above.
In formulating this guidance, we have considered the
In Section 21F, Congress similarly limited awards to “original information”—defining the term to require a whistleblower's own, independent information rather than publicly available information.
In promulgating rules to implement the whistleblower program, the Commission further restricted any role for publicly available information in a potential whistleblower award. While Congress had defined “original information” as that which is derived from a whistleblower's “independent knowledge” or “independent analysis,” Congress did not define either of these terms. The Commission's definitional rules, however, effectively preclude awards merely for the submission of publicly available information.
Significantly, the Commission considered—and rejected—a suggestion that the proposed definition of “independent analysis” be revised to permit an award to a whistleblower whose tip brings publicly available information to the staff's attention:
We believe that “independent analysis” requires that the whistleblower do more than merely point the staff to disparate publicly available information that the whistleblower has assembled, whether or not the staff was previously “aware of” the information. “Independent analysis” requires that the whistleblower bring to the public information some additional evaluation, assessment, or insight.
In setting forth the standard for “independent analysis” in this guidance, we are particularly mindful that the appropriate standard should be sufficiently demanding that it would not undermine the clear exclusion of public information from the definition of “independent knowledge.” Any other approach would, in our view, undermine the overall framework that was established by the Commission in 2011 when it adopted the definitions of “independent knowledge” and “independent analysis.”
As noted, the Commission defined “analysis” as the whistleblower's “examination and evaluation of information that may be publicly available, but which reveals information that is not generally known or available to the public.”
To “reveal” means to make something known that was previously secret or hidden, or to open something up to view.
As a principal illustration of how to apply our rule on “independent analysis,” we look to the model that Congress had before it at the time it enacted the whistleblower program; the work of Harry Markopolos in his efforts to expose Bernard Madoff's Ponzi scheme.
Markopolos's submissions included information that would qualify as “independent analysis” as defined in our whistleblower rules (and explained further in this guidance) if submitted today. Markopolos's information was “highly-probative,”
Importantly, this is not to suggest that “independent analysis” is limited to persons with technical expertise or other specialized training. In each case, the touchstone is whether the whistleblower's submission is revelatory in utilizing publicly available information in a way that goes beyond the information itself and affords the Commission with important insights or information about possible violations.
While “independent analysis” is evident in Markopolos's tips, other submissions that utilize publicly available information may not be so clear. However, we believe that case law interpreting the False Claims Act's public disclosure bar generally suggests a helpful framework for distinguishing tips in which the whistleblower's “independent analysis” of publicly available information reveals important information about possible violations beyond the public sources themselves. The public disclosure bar precludes recovery when “substantially the same allegations or transactions” as alleged by the
Relying in part on the False Claims Act framework to assist us in formulating a proposed standard for interpreting Exchange Act Rule 21F-4(b)(3), we believe the following is appropriate: A whistleblower's examination and evaluation of publicly available information does not constitute “analysis” if the facts disclosed in the public materials on which the whistleblower relies and in other publicly available information are sufficient to raise an inference of the possible violations alleged in the whistleblower's tip. This is because, where the violations that the whistleblower alleges can be inferred by the Commission from the face of public materials, those violations are not “reveal[ed]” to the Commission by the whistleblower's tip or any purported analysis that the whistleblower has submitted. Rather, in order for a whistleblower to be credited with providing “independent analysis,” the whistleblower's examination and evaluation should contribute “significant independent information” that “bridges the gap” between the publicly available information and the possible securities violations.
As noted, “significant independent information” that “bridges the gap” in revealing violations may be found in the application of technical expertise, but this is not required.
Thus, in each case the Commission should consider whether publicly available information (both that supplied by the whistleblower and other public sources) was sufficient to give rise to an inference of the violations alleged by the whistleblower, or whether the whistleblower's examination and evaluation of public source material revealed new, significant, and independent information that “bridged the gap” for the staff in demonstrating the possibility of violations. Moreover, under our rules the whistleblower will be notified of any preliminary determination that his or her tip did not constitute “independent analysis,” and will have an opportunity to contest that determination in a written submission to the Commission.
Assuming that a whistleblower's submission meets the threshold requirement that it constitute “independent analysis,” for the whistleblower to be eligible for an award the “information that . . . is derived from the . . . [whistleblower's] analysis” must also lead to a successful enforcement action. This determination turns “on an evaluation of whether the analysis is of such high quality that it either causes the staff to open an investigation, or significantly contributes to a successful enforcement action, as set forth in Rule 21F-4(c).”
Thus, even an otherwise compelling analysis may not satisfy the “leads to” requirement depending on the nature of other information already in the staff's possession. For example, if the staff has already obtained testimony from insiders describing the facts of a violation, a subsequent whistleblower submission that demonstrates the possibility of the violation through independent analysis of publicly available information would not likely qualify for an award because, against the backdrop of the facts already known to the staff, the whistleblower's analysis would not significantly contribute to the staff's investigation.
30. We seek comment on the interpretation of “independent analysis” in light of the background set forth above. Are there additional considerations that the Commission should factor into the interpretation? For example, should the interpretation address more explicitly cases in which an individual selects, compiles, and presents publicly available information in a new way for the staff? If so, how?
31. Should any aspect of the interpretation be codified in rule text? For example, should the Commission adopt rule text that would make clear that for a whistleblower to be credited with providing “original information” through “independent analysis,” the whistleblower's examination and evaluation should contribute “significant independent information” that “bridges the gap” between the publicly available information and the possible securities violations?
Beyond the specific rule proposals and interpretations expressly advanced above, we invite public comment on whether the Commission could at a future point propose a rule that would permit the Commission on a discretionary basis to pay awards to whistleblowers in Commission enforcement actions that do not result in an order for monetary sanctions that exceeds $1,000,000
We request and encourage any interested person to submit comments
Finally, other than the items specifically identified in this release, persons wishing to comment are expressly advised that the Commission is not proposing any other changes to the whistleblower program rules (
The proposed amendments would affect certain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
“Electronic Data Base Collection System—TCR” (OMB Control No. 3235-0672); and “Form TCR” and
“Form WB-APP” (OMB Control No. 3235-0686).
Currently an applicant seeking to submit information to the Commission in order to qualify as a whistleblower must submit this information by using one of two methods: (1) By providing the information through an online portal on the Commission's website that is designed for receiving electronic submissions, or (2) by submitting the paper Form TCR that was initially adopted by the Commission as part of the original whistleblower rulemaking in 2011.
As described in more detail above, to provide the Commission with the ability to make timely corresponding adjustments to the paper Form TCR when it determines to modify the online portal, the Commission proposes to modify Exchange Act Rule 21F-8
In connection with these proposed amendments, we propose to reorganize the OMB control numbers and associated burden estimates for the collections of information contained in the Commission's online portal, Form TCR and Form WB-APP. Although the online portal and Form TCR collect substantially the same type of information—information alleging potential securities law violations—they currently have separate OMB control numbers. In addition, although Form TCR and Form WB-APP collect different types of information, the latter of which collects information from individuals applying for whistleblower awards, these collections of information are currently gathered pursuant to the same OMB control number.
Pursuant to the proposed reorganization, both the online portal and Form TCR would fall under the same OMB control number (No. 3235-0672). The title for this collection of information and the associated burden estimate would be adjusted accordingly to reflect the submission of relevant information through both the online portal and the paper Form TCR (
We do not anticipate that the proposed amendments would increase the burden or cost to individuals preparing and submitting the required information through the online portal and affected forms. Although we intend to make certain modifications to Form TCR so that the information elicited by the form is consistent with the information collected through the online portal, we do not believe that these conforming modifications will increase appreciably the burden for individuals completing the form.
We estimate that the combined burden associated with both paper Form TCR and the online complaint form is 9,050 hours annually. We anticipate that the burdens imposed by the online complaint form will vary depending on the complexity of the alleged violations that are the subject of the tip and the amount of information possessed by the individual submitting the tip. We estimate that it takes a complainant, on average, 30 minutes to complete the online complaint form. Based on an estimate of 16,000 annual responses, we estimate that the annual PRA burden for the online complaint form is 8,000 hours. Although the completion time will depend on the complexity of the alleged violation and the amount of information the whistleblower possesses in support of the allegations, we estimate that it takes a whistleblower, on average, one and one-half hours to complete and submit Form TCR. We estimate that it may take individuals more time to complete Form TCR than the online complaint form because a person will have to hand write in the required information and spend time mailing and faxing the form to the Commission. Based on the receipt of an average of approximately 700 annual Form TCR submissions for the past three fiscal years, the Commission estimates that the annual reporting burden of Form TCR is 1,050 hours.
We estimate that it takes a whistleblower, on average, one hour to complete Form WB-APP, though the completion time depends largely on the complexity of the alleged violation and the amount of information the whistleblower possesses in support of his or her application for an award. Based on the receipt of an average of approximately 110 annual properly filed Form WB-APP submissions for the past
We do not believe that the proposed amendments would increase the professional costs associated with preparing and submitting the affected forms. Under the whistleblower rules, an anonymous whistleblower who is seeking an award is required, and a whistleblower whose identity is known may elect, to retain counsel to represent the whistleblower in the whistleblower program. We expect that in most instances the whistleblower's counsel will complete, or assist in the completion, of some or all of the required forms on behalf of the whistleblower. However, we expect that in the vast majority of cases in which a whistleblower is represented by counsel, the whistleblower will enter into a contingency fee arrangement with counsel, providing that counsel be paid for the representation through a fixed percentage of any recovery by the whistleblower under the program. Thus, we expect most whistleblowers will not incur any direct out of pocket expenses for attorneys' fees for the completion of the affected forms.
We expect that a very small number of whistleblowers (no more than 5%) enter into hourly fee arrangements with counsel.
(i) The Commission will continue to receive on average approximately 700 Forms TCR and 110 Forms WB-APP annually;
(ii) Individuals will pay hourly fees to counsel for the submission of approximately 35 Forms TCR and 6 Forms WB-APP annually;
(iii) Counsel retained by whistleblowers pursuant to an hourly fee arrangement will charge on average $400 per hour;
(iv) Counsel will bill on average: (i) Three hours to complete a Form TCR, and (ii) two hours to complete a Form WB-APP.
For purposes of the PRA, we estimate that each year whistleblowers will incur the following total amounts of attorneys' fees in connection with completing Forms TCR and WB-APP: (i) $42,000
The tables below summarize the burden and cost estimates associated with the online portal and affected forms both currently and after the proposed reorganization of the relevant control numbers:
A whistleblower is required to complete either a hardcopy Form TCR or submit his or her information electronically through the online portal and to complete Form WB-APP to qualify for a whistleblower award.
As explained above, the statute provides that the Commission must maintain the confidentiality of the identity of each whistleblower, subject to certain exceptions. Section 21F(h)(2) states that, except as expressly provided the Commission and any officer or employee of the Commission shall not disclose any information, including information provided by a whistleblower to the Commission, which could reasonably be expected to reveal the identity of a whistleblower, except in accordance with the provisions of section 552a of title 5, United States Code, unless and until required to be disclosed to a defendant or respondent in connection with a public proceeding instituted by the Commission or certain specific entities listed in paragraph (C) of Section 21F(h)(2).
Further, as discussed above, we are proposing Rule 21F-2(c) to require that an individual who is seeking this heightened confidentiality protection must submit his or her information to the Commission using the online portal or by completing a hardcopy Form TCR. If an individual fails to do so, then
Section 21F(h)(2) also permits the Commission to share information received from whistleblowers with certain domestic and foreign regulatory and law enforcement agencies. However, the statute requires the domestic entities to maintain such information as confidential, and requires foreign entities to maintain such information in accordance with such assurances of confidentiality as the Commission deems appropriate.
In addition, Section 21F(d)(2) provides that a whistleblower may submit information to the Commission anonymously and still be eligible for an award, so long as the whistleblower is represented by counsel. However, the statute provides that a whistleblower must disclose his or her identity prior to receiving payment of an award.
Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comment in order to:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility;
• Evaluate the accuracy of our assumptions and estimates of the burden of the proposed collection of information;
• Determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected;
• Evaluate whether there are ways to minimize the burden of the collection of information on those who respond, including through the use of automated collection techniques or other forms of information technology; and
• Evaluate whether the proposed amendments would have any effects on any other collection of information not previously identified in this section.
Any member of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing these burdens. Persons submitting comments on the collection of information requirements should direct their comments to the Office of Management and Budget, Attention: Desk Officer for the U.S. Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and send a copy to, Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549, with reference to File No. S7-08-17. Requests for materials submitted to OMB by the Commission with regard to the collection of information should be in writing, refer to File No. S7-08-17 and be submitted to the U.S. Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this proposed rule. Consequently, a comment to OMB is best assured of having its full effect if the OMB receives it within 30 days of publication.
The Commission is sensitive to the economic consequences of its rules, including the benefits, costs, and effects on efficiency, competition, and capital formation. Section 23(a)(2)
The economic analysis in this part focuses on the proposed amendments to Rule 21F-2, Rule 21F-4(d)(3), Rule 21F-6, Rule 21F-3(b)(4), Rule 21F-8, newly proposed Exchange Act Rule 21F-18, and the proposed interpretive guidance. As discussed above, the proposed amendments to Rule 21F-2 are in response to the Supreme Court's recent decision in
Many of the benefits and costs discussed below are difficult to quantify. For example, although the analysis that follows details the specific ways in which we expect the proposed rules to affect whistleblower incentives, we lack the data necessary to estimate the magnitudes of these effects separately or in the aggregate. Similarly, we do not know the precise cost—in terms of awards paid out of the IPF—of defining a non-prosecution agreement or deferred prosecution agreement entered into by the DOJ or a state attorney general or a settlement agreement entered into by the Commission as an “administrative action” and any money required to be paid thereunder as a “monetary sanction.” Moreover, we do not know the funds that might be conserved in the IPF by the avoidance of double recoveries for the same action and the avoidance of large awards that are not reasonably necessary to achieve the goals of the whistleblower program. Therefore, while we have attempted to quantify economic impacts where possible, much of the discussion of economic effects is qualitative in nature.
To examine the potential economic effects of the amendments, we employ as a baseline the comprehensive set of rules that the Commission adopted in May 2011 to implement the whistleblower program. The baseline also includes: The Supreme Court's recent decision in
In this section, we discuss a non-exhaustive list of the various federal and state whistleblower programs that are currently administered by other agencies or authorities and which might be implicated by the proposed rules.
The Supreme Court recently held in
In Section 21F(g) of the Exchange Act, Congress established the IPF to provide funding for the payment of whistleblower awards. The IPF has a permanent indefinite appropriation that is available without further appropriation or fiscal year limitation for the purpose of funding awards to whistleblowers (and to fund the Office of Inspector General's Employee Suggestion Program).
As of the end of Fiscal Year 2017, the balance of the IPF was approximately $322 million.
From August 2012 through April 2018, the Commission's whistleblower program issued 50 whistleblower awards to 55 individuals (including, as explained above, individuals who acted as joint whistleblowers).
In addition to summarizing the distribution of awards to whistleblowers, we also summarize the distribution of awards by enforcement action. For each enforcement action, we identify all whistleblowers who receive an award for that enforcement action and sum up their awards to arrive at the aggregate award for that enforcement action. Table 2 of section VII(A)(3) indicates that between August 2012 and April 2018, there were 45 enforcement actions for which the Commission issued whistleblower awards.
Prospective whistleblowers' annual wages are potentially relevant to various aspects of the proposed rules. Table 3 of Section VII(A)(3) presents, by industry, the pre-tax annual wages per employee (“average wages”) estimated by the Bureau of Labor Statistics for 2016.
These averages do not reflect the substantial degree of within-industry wage variation. For example, more senior employees involved in financial activities likely earn higher wages than their more junior counterparts, and staff that supply significant expertise may earn more than those that do not. A survey of 2,499 firms registered with the Commission and included in the Russell 3000 Index as of May 2017 revealed median total CEO compensation at approximately $3.8 million.
In this section, we discuss the potential benefits, costs, and economic effects of the proposed rules. For proposed Rule 21F-6(c), we also discuss alternatives to the approach contemplated in the proposed rule as well as reasons for rejecting those alternatives.
Most of the proposed amendments to Rule 21F-2 are either in response to the Supreme Court's decision in
Proposed Rule 21F-2(a)(1) could potentially impose a burden on those individuals who want to report potential violations to the Commission and wish to qualify as a “whistleblower” solely for employment retaliation protection. Such individuals might decide not to report to the Commission if the reporting burden is perceived to outweigh the benefits associated with retaliation protection. Our experience to date in the awards context suggests that requiring that information be provided in writing presents, at most, a minimal burden to individuals who want to report violations to the Commission. To the extent that this experience is informative about the reporting burden in the retaliation context, such a burden would also be, at most, minimal. Accordingly, the proposed rule would likely not have an adverse impact on the whistleblowing incentives of those individuals who wish to qualify as a “whistleblower” solely for employment retaliation protection.
We have considered several alternatives to the approach contemplated in proposed Rule 21F-2(a). The first alternative is to require information to be provided to the Commission through the online portal at
We rejected the first alternative because it would, in our view, unnecessarily limit the means of reporting to the Commission by individuals who are merely seeking employment retaliation protection. Limiting whistleblower status to those individuals who follow the first alternative could result in the unnecessary exclusion of individuals from the benefits of Section 21F(h)(2)'s employment retaliation protections without providing any accompanying benefit to the Commission, whistleblowers, or the public generally. Further, requiring individuals to report “in writing” could potentially impose lower costs (including time spent) on these individuals than the costs they would have borne under the first alternative.
We rejected the second alternative because of potential costs that could arise if the Commission's staff became ensnared by disputes in private anti-retaliation lawsuits over what information was provided to whom on what dates. Requiring that any reporting be done in writing obviates these potential costs.
Proposed Rule 21F-2(d)(1)(iii) helps avoid the result that an individual could qualify just once as a whistleblower and then receive lifetime protection for any non-Commission reports described in clause (iii) of Section 21F(h)(1)(A). For individuals who want to make non-Commission reports about potential violations to their employers and desire employment retaliation protection for such lawful acts, the proposed rule could increase the incentives of these individuals to instead report directly to the Commission. These individuals would only qualify for employment retaliation protection if they report to the Commission under the proposed rule. Reporting to the Commission “in writing” as contemplated under proposed Rule 21F-2(a) could potentially impose a burden on these individuals. In light of the analysis of proposed Rule 21F-2(a)(1)
Proposed Rule 21F-3(b)(4) would provide that a law-enforcement action will not qualify as a related action if the Commission determines that there is a separate whistleblower award scheme that more appropriately applies to the enforcement action. Further, proposed Rule 21F-3(b)(4) would provide that the Commission will not make an award to the whistleblower for the related action if the whistleblower has already been granted an award by the authority responsible for administering the more applicable whistleblower award program. Further, under proposed Rule 21F-3(b)(4), if the whistleblower was denied an award by the other award program, the whistleblower would not be permitted to readjudicate any issues before the Commission that the authority responsible for administering the other whistleblower award program resolved as part of the award denial.
The proposed rule would prevent a whistleblower from adjudicating his or her contributions in separate forums and potentially obtaining two separate awards on the same enforcement action. While the existing rules preclude this result when an action is applicable to both the Commission's whistleblower program and the CFTC's whistleblower program,
The proposed rule would likely not have an adverse impact on the incentives of individuals who may report violations that result in enforcement actions potentially implicating both the Commission's whistleblower program and the whistleblower program of another authority other than the CFTC. As discussed earlier in Section II(C), to date, the Commission has never paid an award on a matter where a second whistleblower program also potentially applied to the same matter, nor has the Commission ever indicated that it would do so. Given that the proposed rule codifies the Commission's current practice, we believe that these potential whistleblowers would have already taken such current practice into account when deliberating on whether to report.
Proposed Rule 21F-4(d)(3) would provide that, for purposes of making a whistleblower award, a non-prosecution agreement or deferred prosecution agreement entered into by the DOJ or a state attorney general in a criminal case, or a settlement agreement entered into by the Commission outside of the context of a judicial or administrative proceeding to address violations of the securities laws will be deemed to be an “administrative action” and any money required to be paid thereunder will be deemed a “monetary sanction.” The proposed rule will result in more awards being paid from the IPF because awards would be paid for non-prosecution and deferred prosecution agreements entered into by the U.S. Department of Justice or a state attorney general as well as settlement agreements entered into by the Commission in addition to judicial or administrative proceedings covered by the existing rules. While potentially increasing payouts from the IPF, the proposed rule should enhance the incentives for whistleblowers to come forward in a timely manner to the extent that it signals to prospective whistleblowers that a wider array of enforcement resolutions may result in awards.
Proposed Rule 21F-6(c) would provide a mechanism for the Commission to adjust upwards any awards that would potentially be below $2 million to a single whistleblower. However, this new authority would come with important limitations. Specifically, the Commission will not adjust an award upward if any of the negative award factors that are identified in Exchange Act Rule 21F-6(b)
The proposed rule could enhance the whistleblowing incentives of those individuals who anticipate receiving awards below $2 million and do not expect to be subject to any of the above conditions that would preclude an application of the award enhancement mechanism. The prospect of a larger award could encourage these individuals to report violations to the Commission. By withholding the upward adjustment if a whistleblower unreasonably delayed reporting to the Commission after learning the relevant facts, the proposed rule could increase whistleblowing incentives by encouraging individuals to report violations promptly and thereby facilitate the Commission's ability to protect investors.
The proposed rule could have a deterrent effect on potential violators because these individuals understand that they would lose the opportunity for an award enhancement if they engage in securities law violations and subsequently act as whistleblowers of those violations. Similarly, the proposed rule could have a deterrent effect on potential whistleblowers who contemplated interfering with an internal compliance and reporting system by denying award enhancements to such potential whistleblowers.
From a cost perspective, the proposed rule could potentially result in larger awards being paid from the IPF because an award that would yield a potential payout to a single whistleblower below $2 million may be adjusted upward. As indicated in Table 1 of Section VII(A)(3), the Commission has granted 31 whistleblower awards (
Proposed Rule 21F-6(d) would provide a mechanism for the Commission to conduct an enhanced review of awards where the total monetary sanctions collected in the Commission or related actions would equal at least $100 million and where the potential payout to a single whistleblower in connection with those actions would exceed $30 million. Where these two conditions are met, the proposed rule would afford the Commission the discretion to determine if it is appropriate to adjust the award downward. The goal of any downward adjustment is to ensure that the likely total award payout to the whistleblower does not exceed an amount that the Commission determines is appropriate to achieve the program's objectives of rewarding meritorious whistleblowers and sufficiently incentivizing future whistleblowers. However, consistent with the statutory mandate, in no event
As whistleblowers consider their reporting decisions, they weigh, among other things, the expected size of the award and the expected costs associated with their whistleblowing. We acknowledge that proposed paragraph 6(d) could shift the upper end of the distribution of expected awards. However, we recognize that realized awards to date are typically substantially smaller in magnitude. In addition, according to the Office of the Whistleblower, of the 55 individuals who have received awards, approximately 10 percent are high-ranking corporate executives at companies of varying sizes and a large majority of these executives received awards that were under $5 million. This indicates to us that, as a practical matter, even those whistleblowers with the most to lose in terms of potential income have been willing to come forward for a recovery below the proposed $30 million floor. Thus, the data available does not indicate that proposed paragraph 6(d) would discourage whistleblowers from coming forward.
Additional factors further support the view that potential whistleblowers will not be discouraged from coming forward as a result of proposed paragraph 6(d). As discussed earlier, $30 million would be a floor, not a ceiling on large awards. Rather, $30 million is the point above which we would begin to consider whether the likely award is consistent with the program's objectives; we may choose not to reduce the award.
Further, the operation of proposed paragraph 6(d) would likely affect only a small subset of potential whistleblowers. As discussed in Section VII(A)(3) above, to date we have issued 50 whistleblower awards to 55 individuals (including, as explained above, individuals who acted as joint whistleblowers) and only three awards (
Additionally, our review of the academic literature relevant to whistleblower incentives indicates that whistleblowers are often willing to report notwithstanding the absence of financial incentives. Non-monetary incentives that can motivate individuals to report include: (i) A desire to see wrongdoers punished, (ii) an interest in “doing the right thing” for the sake of investors or others who might be harmed by the wrongdoing, or (iii) a desire to protect one's own self-interests.
Moreover, even at the $30 million floor that we are proposing, it appears to us that a $30 million award could yield a lump sum that, if invested in an annuity, could generate an annual return that is attractive in light of the wage and salary data presented in Section VII(A)(4).
To illustrate the annual income that a whistleblower could potentially receive by investing the lump sum residual award that remains after accounting for the factors discussed above, we annuitize a range of possible lump sums to generate different streams of payments. Such payments could potentially replace the stream of wage payments that a whistleblower would lose by leaving his or her employer. Alternatively, if the whistleblower experiences no change in his or her employment situation, the payments could be interpreted as additional income.
In Table 4 in Section VII(B)(5)(a), we report the annual income that could be generated over twenty years by
The annuity figures in Tables 4 through 7 in Section VII(B)(5)(a) are consistent with our belief that the proposed $30 million floor should not negatively impact the overall pecuniary incentives faced by most potential whistleblowers considering whether to come forward to the Commission to report potential misconduct.
In addition, to the extent that the costs associated with whistleblowing include social stigma and a possible job loss for the whistleblower, the employment anti-retaliation protections and confidentiality requirements (including, critically, the ability of whistleblowers to remain anonymous) can serve to reduce the costs associated with whistleblowing to some extent.
The Commission has sought to provide a quantitative estimate of the incentives to provide information via the whistleblower program. We acknowledge that a rigorous approach to analyzing the potential impact of the proposed changes on whistleblower incentives, would be to compare the number of whistleblower tips that resulted in successful enforcement actions before and after the establishment of the Commission's whistleblower program. Such a comparison could elucidate changes in behavior due to the whistleblower program, including potentially those due to the provision of monetary awards. However, data on whistleblower tips that led to successful enforcement actions prior to the establishment of the Commission's whistleblower program is not available, thus rendering such a comparison infeasible. Even absent such data, the Commission has engaged in a limited comparison of a pre-2011 awards program with the current whistleblower program. Section 21A(e) of the Exchange Act, added in 1988, authorized the Commission to award a bounty to a person who provides information leading to the recovery of a civil penalty from an insider trader, from a person who tipped information to an insider traders, or from a person who directly or indirectly controlled an insider trader. Section 21A(e) also established a limit on bounties of 10% of the amount recovered.
A March 2010 report by the SEC's Office of the Inspector General documented bounty applications and awards under the Commission's bounty program since its inception in 1989.
Any comparison of the bounty program and the whistleblower program is limited by substantial differences between the bounty program and the whistleblower program in scope and process. Although the number of payments in insider trading cases has declined under the current program, the larger scope and breadth of the whistleblower program has resulted in a substantial increase in the number and magnitude of payments overall. Differences in measures of whistleblower incentives before and after the establishment of the whistleblower program likely will reflect a combination of changes to Commission processes that occurred simultaneously or very close in time, limiting our ability to identify the impact of any single change on whistleblower incentives. For example, while the 2011 rules implemented an increase in the maximum award percentage to 30% from the previous 10% maximum, they also established a 10% minimum award percentage.
The Commission has considered several alternatives to proposed Rule 21F-6(d). We discuss each of those alternatives below.
The first alternative is to set the floor at $5 million, and the second alternative is to set the floor at $50 million.
We believe that a $5 million floor could potentially apply to awards that are not the focus of the proposed amendment. As indicated in Table 1 of Section VII(A)(3), approximately 16% of past whistleblower awards are at least $5 million. To the extent that the distribution of past awards is a reasonable estimate of the distribution of likely future awards, this floor could result in the enhanced review of awards that are aligned with the program's goals. Because the focus of the proposed rule is on large awards that are not reasonably necessary to achieve the program's goals and that could disproportionately diminish the IPF, the $5 million floor is not preferable to the proposed approach.
A $50 million floor is not preferable to the proposed approach. We have not granted awards that are at least $50 million. Even if there were some cases where the proposed rule might be triggered, our discretion to make a meaningful and appropriate downward adjustment would be substantially reduced. Thus, the $50 million floor would likely not support the proposed rule's goal of ensuring that the likely total award payout to the whistleblower does not exceed an amount that the Commission determines is appropriate to further the goals of the whistleblower program. Because of this concern, we believe that the $50 million floor is not preferable to the proposed approach.
Under proposed Rule 21F-8(e), if an applicant submits three or more award applications that the Commission finds to be frivolous or lacking a colorable connection between the tip and the Commission action, the Commission may permanently bar the applicant from submitting any additional award applications (either for Commission actions or related actions) and the Commission would not consider any other award applications that the claimant has submitted or may seek to submit in the future.
The proposed rule would expressly provide, however, that the Office of the Whistleblower shall as a preliminary matter advise any claimant of the Office's assessment that the claimant's award application for a Commission action is frivolous or lacking a colorable connection between the tip and the action for which the applicant has sought an award. If the applicant withdraws the application at that time, it would not be considered by the Commission in determining whether to exercise its authority to impose a bar.
In addition, the proposed rule would generally codify the Commission's current practice with respect to applicants who violate Rule 21F-8(c)(7).
The proposed rule could increase the speed and efficiency of the award determination process.
The abovementioned benefit would also potentially arise from the proposed rule's deterrent effect to the extent that the proposed rule discourages individuals from submitting frivolous award applications because they recognize that the submission of frivolous award applications may ultimately permanently disqualify them from obtaining a whistleblower award.
Overall, the proposed rule could increase the speed and efficiency of the award determination process by expediting the processing of potentially meritorious award applications, as well as the payment of awards. To the extent that faster award application processing and award payment motivate whistleblowing, individuals are more likely to come forward and report potential violations as a result of the proposed rule.
The proposed rule could help protect investors and the public from potential harm (particularly where the misconduct concerns ongoing Commission actions) that may flow from the provision of false, fictitious, or fraudulent statement or representation, or false writing or document with intent of misleading or otherwise hindering the Commission or another authority. This benefit would potentially arise because the proposed rule would grant the Commission discretion to permanently bar applicants that violated Rule 21F-8(c)(7) from submitting any future award applications.
Individuals who are permanently barred under the proposed rule might subsequently have information about possible securities law violations that could be provided to the Commission. To the extent that these barred individuals' decision to report is based solely on the pecuniary motivation of obtaining a whistleblowing award, these individuals may decide not to report even if they have information about possible violations because they can no longer obtain a whistleblower award as a result of the proposed rule. We believe that this potential cost of the proposed rule could be mitigated by a number of factors.
Finally, as discussed in the adopting release that accompanied the original whistleblower rules, whistleblowing is an individual decision that is generally guided by a complex mix of pecuniary elements and non-pecuniary elements.
We also acknowledge the possibility that individuals who have made fewer than three frivolous award applications
Proposed Rule 21F-18(a) provides that the Office of the Whistleblower may use a summary disposition process to deny any award application that falls within any of the following categories: (1) Untimely award application;
The proposed rule could reduce the diversion of staff resources and time that it might otherwise take to process claims that may be rejected on straightforward grounds. An award application that is processed by the proposed summary disposition process would not require the Claims Review Staff to review the record, issue a Preliminary Determination, consider any written response filed by the claimant, or issue the Proposed Final Determination; these functions would be assumed by the Office of the Whistleblower. The summary disposition process incorporates two other modifications.
As with Proposed Rule 21F-8(e), staff resources that are freed up as a result of the proposed rule could be devoted to processing potentially meritorious award applications. This, in turn, could expedite the processing of potentially meritorious award applications. To the extent that faster processing of potentially meritorious award applications motivates whistleblowing, individuals may be more likely to come forward and report potential violations as a result of the proposed rule. Further, as noted in the discussion of proposed Rule 21F-8(e) above, staff resources that are freed up as a result of the proposed rule could be devoted to other work related to the whistleblower program.
We acknowledge the potential that certain aspects of the proposed rule might make it more difficult for whistleblowers to respond to the denial of award applications. The proposed rule might reduce the whistleblowing incentives of those individuals who consider the ease of responding to award application denials when deciding whether to come forward and report potential violations.
However, certain factors limit this potential for increased difficulties for whistleblowers.
The proposed interpretive guidance helps to clarify the meaning of “independent analysis” as that term is defined in Exchange Act Rule 21F-4 and utilized in the definition of “original information.” As discussed earlier, a whistleblower's examination and evaluation of publicly available information does not constitute “analysis” if the facts disclosed in the public materials on which the whistleblower relies and in other publicly available information are sufficient to raise an inference of the possible violations alleged in the whistleblower's tip. In order for a whistleblower to be credited with “analysis,” the whistleblower's examination and evaluation should contribute “significant independent information” that “bridges the gap” between the publicly available information and the possible securities violations. Assuming that a whistleblower's submission meets the threshold requirement that it constitutes “independent analysis,” for the whistleblower to be eligible for an award the “information that . . . is derived from the . . . [whistleblower's] analysis” must also be of such high quality that it leads to a successful enforcement action.
The interpretive guidance could potentially reduce the whistleblowing incentives of those individuals who wish to satisfy the “independent analysis” prong of the “original information” requirement by examining publicly available information and providing observations that do not go beyond the information itself and reasonable inferences to be drawn therefrom. In light of the interpretive guidance, these individuals may decide not to provide such public information knowing that such information would not be credited as “independent analysis” and therefore not eligible for a whistleblower award. To the extent that the provision of public information improves Commission enforcement or otherwise provides a benefit, any potential reduction in such provision would be a cost associated with the interpretive guidance. Nevertheless, individuals who are aware that public information would not be credited with “independent analysis” may still come forward and provide public information to the Commission if they are sufficiently motivated by non-pecuniary elements.
The interpretive guidance could increase the whistleblowing incentives of those individuals who possess “significant independent information” that “bridges the gap” between the publicly available information (and reasonable inferences therefrom) and the conclusion that possible securities violations are indicated, but may decide against reporting to the Commission because they do not fully understand the meaning of “independent analysis” in the absence of the interpretive guidance. To the extent that these individuals come forward and report such significant independent information to the Commission in light of the interpretive guidance, the quantity and quality of reported information might increase, which in turn might improve the Commission's ability to enforce Federal securities laws, detect violations and deter potential future violations. Further, the clarification afforded by the interpretive guidance might also reduce the number of award applications that are made solely on the basis of the provision of public information and do not meet the “independent analysis” threshold. To the extent that the number of such claims declines as a result of the interpretive guidance, staff resources could be freed up and devoted to processing potentially meritorious award applications and other work related to the whistleblower program as discussed earlier.
As discussed earlier, the Commission is sensitive to the economic consequences of its rules, including the benefits, costs, and effects on efficiency, competition, and capital formation. The Commission believes that the proposed amendments will make incremental changes to its whistleblower program. Thus, the Commission does not anticipate the effects on efficiency, competition, and capital formation to be significant.
The proposed rules could have a positive indirect impact on investment efficiency and capital formation by increasing the incentives of potential whistleblowers to provide information on possible violations.
Additionally, to the extent that the proposed rules increase deterrence of potential future violations, investors' trust in the securities markets would also increase. This increased investor trust will promote lower capital costs as more investment funds enter the market, and as investors generally demand a lower risk premium due to a reduced likelihood of securities fraud.
At the same time, some proposed rules could reduce whistleblowing incentives in certain cases, although any such reduction in whistleblowing incentives—to the extent that it occurs—is justified in light of the positive indirect impact on investment efficiency and capital formation discussed earlier. Proposed Rule 21F-6(d) could reduce the whistleblowing incentives of those potential whistleblowers who anticipate receiving awards in excess of $30 million and make their reporting decision by trading off the expected size of the award against the expected costs associated with whistleblowing.
The proposed rules that provide the Commission with additional considerations for awards may have opposite, albeit indirect, impacts on investment efficiency and capital formation by potentially altering the level of monetary incentives that whistleblower would expect at different recovery levels. On one hand, proposed Rule 21F-6(d) could reduce the whistleblowing incentives of those individuals who anticipate receiving awards in excess of $30 million by reducing their anticipated award to an amount of $30 million or greater; on the other hand proposed Rule 21F-6(c) could enhance the whistleblowing incentives of those individuals who anticipate receiving awards below $2 million by increasing their anticipated award to an amount of up to $2 million.
The proposed rules could also improve other forms of efficiency. Proposed Rule 21F-3(b)(4) and proposed Rule 21F-6(d) could foster a more efficient use of the IPF by avoiding awards that are not reasonably necessary in light of the whistleblower program's goals and the interests of investors and the broad public interest. Further, certain proposed rules could promote efficiency in the processing of award applications. By permanently barring applicants that make frivolous or fraudulent award applications, proposed Rule 21F-8(e) could help free up staff resources that could be used to expedite the processing of potentially meritorious award applications as well as the payment of awards. Staff resources that are freed up as a result of proposed Rule 21F-18 could also expedite the processing of potentially meritorious award applications. As discussed in Sections VII(B)(6) and VII(B)(7) above, to the extent that faster award application processing and award payment motivate whistleblowing, individuals are more likely to come forward and report potential violations as a result of proposed Rule 21F-8(e) and proposed Rule 21F-18. To the extent that the proposed rules promote the timely reporting of possible violations by increasing whistleblowing incentives and prevent the provision of false, fictitious, or fraudulent statement or representation, or a false writing or document with intent of misleading or otherwise hindering the Commission or another authority,
Similar to the effects on capital formation, the effects of the proposed rules on competition would be indirect, and would flow from their effects on whistleblowing incentives. To the extent that the proposed rules increase the likelihood of detecting misconduct by increasing whistleblowing incentives, the proposed rules could reduce the unfair competitive advantages that some companies can achieve by engaging in undetected violations.
The Commission seeks commenters' views on all aspects of its economic analysis of the proposed amendments. In particular, the Commission asks commenters to consider the following questions:
1. Are there costs and benefits associated with the proposed amendments that the Commission has not identified? If so, please identify them and if possible, offer ways of estimating these costs and benefits.
2. Do, and if so at what point, awards become unreasonably large in light of the goals of the whistleblower program? Please explain and provide details.
3. Are there effects on efficiency, competition, and capital formation stemming from the proposed amendments that the Commission has not identified? If so, please identify them and explain how the identified effects result from one or more amendments.
4. How will lowering award amounts based on dollar figures impact the incentives of whistleblowers to provide the Commission with information on misconduct? Will potential whistleblowers view the $30 million floor as a cap? Why or why not?
5. Are there data sources or data sets that can help the Commission refine its estimates of the lost wages earned by whistleblowers from their previous jobs? Besides lost wages, are there other ways to determine the effectiveness of whistleblower awards?
6. Are there alternatives to the proposed rules that the Commission has not identified? If so, please identify and describe them.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”),
• An annual effect on the economy of $100 million or more (either in the form of an increase or a decrease);
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment, or innovation.
Commenters should provide empirical data on (a) the potential annual effect on the economy; (b) any increase in costs or prices for consumers or individual industries; and (c) any potential effect on competition, investment or innovation.
Section 603(a) of the Regulatory Flexibility Act
Small entity is defined in 5 U.S.C. 601(6) to mean “small business,” “small organization,” and “small governmental jurisdiction” as defined in 5 U.S.C. 601(3)-(5). The definition of “small entity” does not include individuals. The proposed rules apply only to an individual, or individuals acting jointly, who provide information to the Commission relating to the violation of the securities laws. Companies and other entities are not eligible to participate in the whistleblower program as whistleblowers. Consequently, the persons that would be subject to the proposed rule are not “small entities” for purposes of the Regulatory Flexibility Act.
For the reasons stated above, the Commission certifies, pursuant to 5 U.S.C. 605(b) of the Regulatory Flexibility Act, that the proposed rules would not have a significant economic impact on a substantial number of small entities.
The Commission proposes the rule amendments, as well as the removal of references to various forms, contained in this document under the authority set forth in Sections 3(b), 21F, and 23(a) of the Exchange Act.
Securities, Whistleblowing.
For the reasons set out in the preamble, title 17, chapter II of the Code of Federal Regulations is proposed to be amended as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78
Section 240.21F is also issued under Pub. L. 111-203, § 922(a), 124 Stat. 1841 (2010).
(a)
(2) A whistleblower must be an individual. A company or other entity is not eligible to be a whistleblower.
(b)
(c)
(d)
(i) You must qualify as a whistleblower under paragraph (a) of this section before experiencing the retaliation for which you seek redress;
(ii) You must reasonably believe that the information you provide to the Commission under paragraph (a) of this section relates to a possible violation of the federal securities laws; and
(iii) You must perform a lawful act that meets the following two criteria:
(A) First, the lawful act must be performed in connection with any of the activities described in Section 21F(h)(1)(A)(i) through (iii) of the Exchange Act (15 U.S.C. 78u-6(h)(1)(A)(i) through (iii)); and
(B) Second, the lawful act must relate to the subject matter of your submission to the Commission under paragraph (a) of this section.
(2) To receive retaliation protection for a lawful act described in paragraph (d)(1)(iii) of this section, you do not need to qualify as a whistleblower under paragraph (a) of this section before performing the lawful act, but you must qualify as a whistleblower under paragraph (a) of this section before experiencing retaliation for the lawful act.
(3) To qualify for retaliation protection, you do not need to satisfy the procedures and conditions for award eligibility in §§ 240.21F-4, 240.21F-8, and 240.21F-9.
(4) Section 21F(h)(1) of the Exchange Act (15 U.S.C. 78u-6(h)(1)), including any rules promulgated thereunder, shall be enforceable in an action or proceeding brought by the Commission.
The revision and addition read as follows:
(b) * * *
(1)(i) A
(A) The Attorney General of the United States;
(B) An appropriate regulatory authority;
(C) A self-regulatory organization; or
(D) A state attorney general in a criminal case.
(ii) The terms
(4)(i) Notwithstanding paragraph (b)(1) of this section, if a judicial or administrative action is subject to a separate monetary award program established by the Federal Government, a state government, or a self-regulatory organization, the Commission will deem the action a related action only if the Commission finds (based on the unique facts and circumstances of the action) that its whistleblower program has the more direct or relevant connection to the action.
(ii) In determining whether a potential related action has a more direct or relevant connection to the Commission's whistleblower program than another award program, the Commission will consider the nature, scope, and impact of the misconduct charged in the potential related action, and its relationship to the federal securities laws. This inquiry may include consideration of, among other things:
(A) The relative extent to which the misconduct charged in the potential related action implicates the public policy interests underlying the federal securities laws (such as investor protection) versus other law-enforcement or regulatory interests (such as tax collection or fraud against the Federal Government);
(B) The degree to which the monetary sanctions imposed in the potential related action are attributable to conduct that also underlies the federal securities law violations that were the subject of the Commission's enforcement action; and
(C) Whether the potential related action involves state-law claims and the extent to which the state may have a whistleblower award scheme that potentially applies to that type of law-enforcement action.
(iii) If the Commission does determine to deem the action a related action, the Commission will not make an award to you for the related action if you have already been granted an award by the authority responsible for administering the other whistleblower award program. Further, if you were denied an award by the other award program, you will not be permitted to readjudicate any issues before the Commission that the authority responsible for administering the other whistleblower award program resolved against you as part of the award denial. Additionally, if the Commission makes an award before an award determination is finalized by the authority responsible for administering the other award scheme, the Commission shall condition its award on the meritorious whistleblower making a prompt, irrevocable waiver of any claim to an award from the other award scheme.
The revisions and addition read as follows:
(c) * * *
(2) You gave the Commission original information about conduct that was already under examination or investigation by the Commission, the Congress, any other authority of the federal government, a state Attorney General or securities regulatory authority, any self-regulatory organization, or the PCAOB (except in cases where you were an original source of this information as defined in paragraph (b)(5) of this section), and your submission significantly contributed to the success of the action.
(d) * * *
(3) For purposes of making an award under §§ 240.21F-10 and 240.21F-11, the following will be deemed to be an administrative action and any money required to be paid thereunder will be deemed a monetary sanction under paragraph (e) of this section:
(i) A non-prosecution agreement or deferred prosecution agreement entered into by the U.S. Department of Justice or a state attorney general in a criminal case; or
(ii) A settlement agreement entered into by the Commission outside of the context of a judicial or administrative proceeding to address violations of the securities laws.
(e)
(1) A required payment that results from a Commission action or related action and which is either:
(i) Expressly designated as disgorgement, a penalty, or interest thereon; or
(ii) Otherwise required as relief for the violations that are the subject of the covered action or related action; or
(2) Any money deposited into a disgorgement fund or other fund pursuant to section 308(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7246(b)), as a result of such action or any settlement of such action.
(c)
(1) The Commission may make an upward adjustment that it determines is appropriate to ensure that the total payout to the whistleblower more appropriately achieves the program's objectives of rewarding meritorious whistleblowers and sufficiently incentivizing future whistleblowers who might otherwise be concerned about the low dollar amount of a potential award;
(2) The Commission shall not adjust an award upward under this paragraph (c) if any of the negative award factors specified in paragraph (b) of this section were found present with respect to the whistleblower's award claim, or if the award claim triggers § 240.21F-16 (concerning awards to whistleblowers who engage in culpable conduct);
(3) In no event shall the Commission make an upward adjustment under this section to raise a potential payout (as assessed by the Commission at the time it makes the award determination) above $2 million (or by such other amount as the Commission may designate by order); and
(4) The total amount awarded to all whistleblowers in the aggregate may not be greater than 30 percent of the total monetary sanctions collected, or likely to be collected, in any action (as assessed by the Commission at the time it makes the award determination).
(d)
(1) When applying the award factors in paragraphs (a) and (b) of this section, the Commission shall make any upward or downward adjustments by considering the impact of the adjustments on both the award percentage and the approximate corresponding dollar amount of the award. If the resulting payout would be below $30 million (or such greater alternative amount that the Commission may periodically establish through publication of an order in the
(2) After completing the award analysis required by paragraph (d)(1) of this section and determining the total dollar amount of the potential award for any action(s) based upon the whistleblower's original information, the Commission shall consider whether that amount exceeds what is reasonably necessary to reward the whistleblower and to incentivize similarly situated whistleblowers. If the Commission finds that the total payout for any action(s) based upon the whistleblower's original information would exceed an amount that is reasonably necessary, it may adjust the total payout for the action(s) downward to an amount that it finds is sufficient to achieve those goals. As is the case with every aspect of any award determination under this section, the Commission shall not consider the balance of the Investor Protection Fund (“IPF”) when determining whether to make an adjustment to an award under this paragraph (c).
(3) Any downward adjustment to a whistleblower's award for any actions based upon the whistleblower's original information under paragraph (d)(2) of this section shall under no circumstances yield a potential total payout on all the actions, collectively, (as assessed by the Commission at the time that it makes the award determination) of less than either $30 million or such greater alternative amount that the Commission may periodically establish through publication of an order in the
(4) Further, any adjustments under paragraph (d)(2) of this section shall in no event result in the total amount awarded to all meritorious whistleblowers, collectively, for each covered or related action constituting less than 10 percent of the monetary sanctions collected in that action.
(e)
(a) Pursuant to Section 21F(h)(2) of the Exchange Act (15 U.S.C. 78u-6(h)(2)) and § 240.21F-2(c), the Commission will not disclose information that could reasonably be expected to reveal the identity of a whistleblower provided that the whistleblower has submitted information utilizing the processes specified in § 240.21F-9(a), except that the Commission may disclose such information in the following circumstances:
The revision and addition read as follows:
(d)(1) The Commission will periodically designate on the Commission's web page a Form TCR (Tip, Complaint, or Referral) that individuals seeking to be eligible for an award through the process identified in § 240.21F-9(a)(2) shall use.
(2) The Commission will also periodically designate on the Commission's web page a Form WB-APP for use by individuals seeking to apply for an award in connection with a Commission-covered judicial or administrative action (15 U.S.C. 21F(a)(1)), or a related action (§ 240.21F-3(b)(1)).
(e) Submissions or applications that are frivolous or fraudulent, or that would otherwise hinder the effective and efficient operation of the Whistleblower Program may result in the Commission issuing a permanent bar as part of a final order in the course of considering a whistleblower award application from you. If such a bar is issued, the Office of the Whistleblower will not accept or act on any other applications from you, in the following circumstances:
(1) If you make three or more award applications for Commission actions that the Commission finds to be frivolous or lacking a colorable connection between the tip (or tips) and the Commission actions for which you are seeking awards; or
(2) If the Commission finds that you have violated paragraph (c)(7) of this section. Before any Preliminary Determination or Preliminary Summary Disposition is issued, the Office of the Whistleblower shall advise you of any assessment by that Office that your award application is frivolous or lacking a colorable connection between the tip and the action for which you have sought an award. If you withdrawal your application at that time, it will not be considered by the Commission in determining whether to exercise its authority under paragraph (e)(1) of this section. The Commission will consider whether to issue a permanent bar in connection with an award application that would trigger such a bar; the Preliminary Determination or Preliminary Disposition must state that a bar is being recommended and the applicant would thereafter have an opportunity to submit a response in accordance with the award processing procedures specified in §§ 240.21F-10(e)(2) and 240.21F-18(b)(3).
The revisions and addition read as follows:
(a) To submit information in a manner that satisfies § 240.21F-2(b) and (c) you must submit your information to the Commission by any of these methods:
(1) Online, through the Commission's website located at
(2) Mailing or faxing a Form TCR to the SEC Office of the Whistleblower at the mailing address or fax number designated on the SEC's web page for making such submissions; or
(3) By any other such method that the Commission may expressly designate on
(b) Further, to be eligible for an award, you must declare under penalty of perjury at the time you submit your information pursuant to paragraph (a)(1), (2), or (3) of this section that your information is true and correct to the best of your knowledge and belief.
(e) You must follow the procedures specified in paragraphs (a) and (b) of this section the first time you provide the Commission with information that you rely upon as a basis for claiming an award. If you fail to do so, then you will be deemed ineligible for an award in connection with that information (even if you later resubmit that information in accordance with paragraphs (a) and (b) of this section). Notwithstanding the foregoing, the Commission, in its sole discretion, may waive your noncompliance with paragraphs (a) and (b) of this section if the Commission determines that the administrative record clearly and convincingly demonstrates that you would otherwise qualify for an award and you demonstrate that you complied with the requirements of paragraphs (a) and (b) of this section within 30 days of the first communication with the staff about the information that you provided.
(b) To file a claim for a whistleblower award, you must file Form WB-APP, Application for Award for Original Information Provided Pursuant to Section 21F of the Securities Exchange Act of 1934. You must sign this form as the claimant and submit it to the Office of the Whistleblower by mail or fax (or any other manner that the Office permits). All claim forms, including any attachments, must be received by the Office of the Whistleblower within ninety (90) calendar days of the date of the Notice of Covered Action in order to be considered for an award.
(c) If you provided your original information to the Commission anonymously, you must disclose your identity on the Form WB-APP, and your identity must be verified in a form and manner that is acceptable to the Office of the Whistleblower prior to the payment of any award.
(d) Once the time for filing any appeals of the Commission's judicial or administrative action has expired, or where an appeal has been filed, after all appeals in the action have been concluded, the staff designated by the Director of the Division of Enforcement (“Claims Review Staff”) will evaluate all timely whistleblower award claims submitted on Form WB-APP in accordance with the criteria set forth in these rules. In connection with this process, the Office of the Whistleblower may require that you provide additional information relating to your eligibility for an award or satisfaction of any of the conditions for an award, as set forth in § 240.21F-8(b). Following that evaluation, the Office of the Whistleblower will send you a Preliminary Determination setting forth a preliminary assessment as to whether the claim should be allowed or denied and, if allowed, setting forth the proposed award percentage amount.
(b) You must also use Form WB-APP to submit a claim for an award in a potential related action. You must sign this form as the claimant and submit it to the Office of the Whistleblower by mail or fax (or any other manner that the Office permits) as follows:
(1) If a final order imposing monetary sanctions has been entered in a potential related action at the time you submit your claim for an award in connection with a Commission action, you must submit your claim for an award in that related action on the same Form WB-APP that you use for the Commission action. For purposes of this paragraph (b)(1) and paragraph (b)(2) of this section, a final order imposing monetary sanctions is entered on the date of a court or administrative order imposing the monetary sanctions; however, with respect to any agreement covered by § 240.21F-4(d) (such as a deferred prosecution agreement or a nonprosecution agreement entered by the Department of Justice), the Commission will deem the date of the entry of the final order to be the date of the earliest public availability of the instrument reflecting the arrangement if evidenced by a press release or similar dated publication notice; otherwise, the date of the last signature necessary for the agreement.
(2) If a final order imposing monetary sanctions in a potential related action has not been entered at the time you submit your claim for an award in connection with a Commission action, you must submit your claim on Form WB-APP within ninety (90) days of the issuance of a final order imposing sanctions in the potential related action.
(d) Once the time for filing any appeals of the final judgment or order in a potential related action has expired, or if an appeal has been filed, after all appeals in the action have been concluded, the Claims Review Staff will evaluate all timely whistleblower award claims submitted on Form WB-APP in connection with the related action. The evaluation will be undertaken pursuant to the criteria set forth in these rules. In connection with this process, the Office of the Whistleblower may require that you provide additional information relating to your eligibility for an award or satisfaction of any of the conditions for an award, as set forth in § 240.21F-8(b). Following this evaluation, the Office of the Whistleblower will send you a Preliminary Determination setting forth a preliminary assessment as to whether the claim should be allowed or denied and, if allowed, setting forth the proposed award percentage amount.
The revisions read as follows:
(a) The following items constitute the materials that the Commission, the Claims Review Staff, and the Office of the Whistleblower may rely upon to make an award determination pursuant to §§ 240.21F-21F-10, 240.21F-11, and 240.21F-18:
(3) The whistleblower's Form WB-APP, including attachments, any supplemental materials submitted by the whistleblower before the deadline to file a claim for a whistleblower award for the relevant Notice of Covered Action, and any other materials timely submitted by the whistleblower in response either:
(i) To a request from the Office of the Whistleblower or the Commission; or
(ii) To the Preliminary Determination or Preliminary Summary Disposition;
(6) Any other documents or materials from third parties (including sworn declarations) that are received or
(b) The record on appeal shall consist of the Final Order, any materials that were considered by the Commission in issuing the Final Order, and any materials that were part of the claims process leading from the Notice of Covered Action to the Final Order (including, but not limited to, the Notice of Covered Action, whistleblower award applications filed by the claimant, the Preliminary Determination or Preliminary Summary Disposition, materials that were considered by the Claims Review Staff in issuing the Preliminary Determination or that were provided to the claimant by the Office of the Whistleblower in connection with a Preliminary Summary Disposition, and materials that were timely submitted by the claimant in response to the Preliminary Determination or Preliminary Summary Disposition). The record on appeal shall not include any pre-decisional or internal deliberative process materials that are prepared exclusively to assist the Commission and the Claims Review Staff in deciding the claim (including the staff's Draft Final Determination in the event that the Commissioners reviewed the claim and issued the Final Order). When more than one claimant has sought an award based on a single Notice of Covered Action, the Commission may exclude from the record on appeal any materials that do not relate directly to the claimant who is seeking judicial review.
(a) Notwithstanding the procedures specified in §§ 240.21F-10(d) through (g) and in 240.21F-11(d) through (g), the Office of the Whistleblower may determine that an award application that meets any of the following conditions for denial shall be resolved through the summary disposition process described further in paragraph (b) of this section:
(1) You submitted an untimely award application;
(2) You did not comply with the requirements of § 240.21F-9 when submitting the tip upon which your award claim is based;
(3) The information that you submitted was never provided to or used by the staff handling the covered action or the underlying investigation (or examination), and those staff members otherwise had no contact with you;
(4) You did not comply with § 240.21F-8(b);
(5) You failed to specify in the award application the submission pursuant to § 240.21F-9(a) upon which your claim to an award is based; and
(6) Your application does not raise any novel or important legal or policy questions and the Office of the General Counsel concurs that the matter is appropriate for summary disposition.
(b) The following procedures shall apply to any award application designated for summary disposition:
(1) The Office of the Whistleblower shall issue a Preliminary Summary Disposition that notifies you that your award application has been designated for resolution through the summary disposition process. The Preliminary Summary Disposition shall also state that the Office has preliminarily determined to recommend that the Commission deny the award application and identify the basis for the denial.
(2) Prior to issuing the Preliminary Summary Disposition, the Office of the Whistleblower shall prepare a staff declaration that sets forth any pertinent facts regarding the Office's recommendation to deny your application. At the same time that it provides you with the Preliminary Summary Disposition, the Office of the Whistleblower shall, in its sole discretion, either:
(i) Provide you with the staff declaration; or
(ii) Notify you that a staff declaration has been prepared and advise you that you may obtain the declaration only if within fifteen (15) calendar days you sign and complete a confidentiality agreement in a form and manner acceptable to the Office of the Whistleblower pursuant to § 240.21F-8(b)(4). If you fail to return the signed confidentiality agreement within fifteen (15) calendar days, you will be deemed to have waived your ability to receive the staff declaration.
(3)(i) You may reply to the Preliminary Summary Disposition by submitting a response to the Office of the Whistleblower within thirty (30) calendar days of the later of:
(A) The date of the Preliminary Summary Disposition; or
(B) The date that the Office of the Whistleblower sends the staff declaration to you following your timely return of a signed confidentiality agreement.
(ii) The response should identify the grounds for your objection to the denial (or in the case of paragraph (a)(5) of this section, correct the defect). The response must be in the form and manner that the Office of the Whistleblower shall require. You may include documentation or other evidentiary support for the grounds advanced in your response.
(4) If you fail to submit a timely response pursuant to paragraph (b)(3) of this section, the Preliminary Summary Disposition will become the Final Order of the Commission. Your failure to submit a timely written response will constitute a failure to exhaust administrative remedies.
(5) If you submit a timely response pursuant to paragraph (b)(3) of this section, the Office of the Whistleblower will consider the issues and grounds advanced in your response, along with any supporting documentation that you provided, and will prepare a Proposed Final Summary Disposition. The Office of the Whistleblower may supplement the administrative record as appropriate. (This paragraph (b)(5) does not prevent the Office of the Whistleblower from determining that, based on your written response, the award claim is no longer appropriate for summary disposition and that it should be resolved through the claims adjudication procedures specified in either § 240.21F-10 or § 240.21F-11).
(6) The Office of the Whistleblower will then notify the Commission of the Proposed Final Summary Disposition. Within thirty (30) calendar days thereafter, any Commissioner may request that the Proposed Final Summary Disposition be reviewed by the Commission. If no Commissioner requests such a review within the 30-day period, then the Proposed Final Summary Disposition will become the Final Order of the Commission. In the event a Commissioner requests a review, the Commission will consider the award application and issue a Final Order.
(7) The Office of the Whistleblower will provide you with the Final Order of the Commission.
(c) In considering an award determination pursuant to this rule, the Office of the Whistleblower and the Commission may rely upon the items specified in § 240.21F-12(a). Further, § 240.21F-12(b) shall apply to summary dispositions.
15 U.S.C. 78a
By the Commission.
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |