Federal Register Vol. 83, No.162,
Federal Register Volume 83, Issue 162 (August 21, 2018)
Federal Register Volume 83, Issue 162 (August 21, 2018)
| Page Range | 42205-42435 | |
| FR Document |
![42205
Rules and Regulations Federal Register
Vol. 83, No. 162
Tuesday, August 21, 2018
This section of the FEDERAL REGISTER 30, West Building Ground Floor, Room several Bell Model 427 and Model 429
contains regulatory documents having general W12–140, 1200 New Jersey Avenue SE, helicopters. These check valves may be
applicability and legal effect, most of which Washington, DC 20590, between 9 a.m. installed as engine oil check valves on
are keyed to and codified in the Code of and 5 p.m., Monday through Friday, Bell Model 212 helicopters. Similar
Federal Regulations, which is published under except Federal holidays. check valves, part number 209–062–
50 titles pursuant to 44 U.S.C. 1510.
For service information identified in 607–001, may be installed as fuel check
The Code of Federal Regulations is sold by this final rule, contact Bell Helicopter valves on Bell Model 212 or 412
the Superintendent of Documents. Textron, Inc., P.O. Box 482, Fort Worth, helicopters. These check valves may
TX 76101; telephone (817) 280–3391; have a condition induced during
fax (817) 280–6466; or at http:// assembly that can cause the valve body
DEPARTMENT OF TRANSPORTATION www.bellcustomer.com/files/. You may to crack, resulting in oil or fuel leakage.
view this service information at the This condition could result in loss of
Federal Aviation Administration FAA, Office of the Regional Counsel, lubrication or fuel to the engine, failure
Southwest Region, 10101 Hillwood of the engine or a fire, and subsequent
14 CFR Part 39 Pkwy, Room 6N–321, Fort Worth, TX loss of control of the helicopter. To
[Docket No. FAA–2018–0738; Product 76177. For information on the address this condition, AD 2017–15–02
Identifier 2017–SW–132–AD; Amendment availability of this material at the FAA, required replacing the engine oil and
39–19355; AD 2018–17–01] call (817) 222–5110. fuel check valves and prohibited
RIN 2120–AA64 installing an affected check valve on any
Examining the AD Docket
helicopter.
Airworthiness Directives; Bell You may examine the AD docket on
the internet at http:// Actions Since AD 2017–15–02 Was
Helicopter Textron, Inc. (Bell) Issued
Helicopters www.regulations.gov by searching for
and locating Docket No. FAA–2018– Since we issued AD 2017–15–02, we
AGENCY: Federal Aviation 0738; or in person at Docket Operations discovered an error in that Bell Model
Administration (FAA), DOT. between 9 a.m. and 5 p.m., Monday 412CF and 412EP helicopters should
ACTION: Final rule; request for through Friday, except Federal holidays. have been included in the applicability
comments. The AD docket contains this final rule, of the AD. Additionally, Bell revised its
the regulatory evaluation, any service information to exclude check
SUMMARY: We are superseding comments received, and other valves identified with ‘‘TQL’’ regardless
Airworthiness Directive (AD) 2017–15– information. The street address for of manufacture date. Check valves
02 for Bell Model 212 and 412 Docket Operations (phone: 800–647– marked ‘‘TQL’’ were manufactured
helicopters. AD 2017–15–02 required 5527) is listed above. Comments will be using a different process and are not
replacing certain oil and fuel check available in the AD docket shortly after affected by the unsafe condition.
valves and prohibited installing them on receipt. Therefore, we are superseding AD 2017–
any helicopter. This AD retains the FOR FURTHER INFORMATION CONTACT: 15–02 to add Bell Model 412CF and
requirements of AD 2017–15–02 and Jurgen E. Priester, Aviation Safety 412EP helicopters to the applicability
adds certain model helicopters to the Engineer, DSCO Branch, Compliance and to exclude check valves marked
applicability. This AD was prompted by and Airworthiness Division, FAA, ‘‘TQL.’’
the discovery of an error in the affected 10101 Hillwood Pkwy., Fort Worth, TX
models. We are issuing this AD to Related Service Information
76177; telephone (817) 222–5159; email
address the unsafe condition on these jurgen.e.priester@faa.gov. We reviewed Bell Alert Service
products.
SUPPLEMENTARY INFORMATION: Bulletin (ASB) 212–15–153, Revision A,
DATES: This AD is effective September 5, dated October 6, 2017 (212–15–153),
2018. Discussion and Bell ASB 212–15–155, Revision A,
We must receive any comments on We issued AD 2017–15–02, dated October 6, 2017 (212–15–155), for
this AD by October 5, 2018. Amendment 39–18962 (82 FR 33439, Model 212 helicopters; Bell ASB 412–
ADDRESSES: You may send comments, July 20, 2017), (‘‘AD 2017–15–02’’). AD 15–165, Revision A, dated October 6,
using the procedures found in 14 CFR 2017–15–02 applied to Bell Model 212 2017 (412–15–165), and Bell ASB 412–
11.43 and 11.45, by any of the following and 412 helicopters with an engine oil 15–168, Revision A, dated October 6,
methods: or fuel check valve part number (P/N) 2017 (ASB 412–15–168), for Model 412
• Federal eRulemaking Portal: Go to 209–062–520–001 or P/N 209–062–607– and 412 EP helicopters; and Bell ASB
http://www.regulations.gov. Follow the 001 that was manufactured by Circor 412CF–15–57, Revision A, dated
instructions for submitting comments. Aerospace, marked ‘‘Circle Seal’’ and October 6, 2017 (412CF–15–57), and
• Fax: 202–493–2251. marked with a manufacturing date code Bell ASB 412CF–15–59, Revision A,
sradovich on DSK3GMQ082PROD with RULES
• Mail: U.S. Department of of ‘‘10/11’’ (October 2011) through ‘‘03/ dated October 6, 2017 (412CF–15–59),
Transportation, Docket Operations, M– 15’’ (March 2015) installed. AD 2017– for Model 412CF helicopters. ASB 212–
30, West Building Ground Floor, Room 15–02 resulted from a report that certain 15–153, ASB 412–15–165, and ASB
W12–140, 1200 New Jersey Avenue SE, part numbered 209–062–520–001 check 412–CF–15–57 contain procedures for
Washington, DC 20590. valves manufactured by Circor inspecting and replacing engine oil
• Hand Delivery: U.S. Department of Aerospace as replacement parts have check valve P/N 209–062–520–001. ASB
Transportation, Docket Operations, M– been found cracked or leaking on 212–15–155, ASB 412–15–168, and ASB
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412CF–15–59 contain procedures for closing date and may amend this final For the reasons discussed above, I
inspecting and replacing fuel check rule because of those comments. certify that this AD:
valve P/N 209–062–607–001. Revision We will post all comments we (1) Is not a ‘‘significant regulatory
A of the service information clarifies receive, without change, to http:// action’’ under Executive Order 12866,
that check valves identified with ‘‘TQL’’ www.regulations.gov, including any (2) Is not a ‘‘significant rule’’ under
are not affected by the ASB procedures. personal information you provide. We DOT Regulatory Policies and Procedures
FAA’s Determination will also post a report summarizing each (44 FR 11034, February 26, 1979),
substantive verbal contact we receive
(3) Will not affect intrastate aviation
We are issuing this AD because we about this final rule.
in Alaska, and
evaluated all the relevant information
Costs of Compliance (4) Will not have a significant
and determined the unsafe condition
described previously is likely to exist or We estimate that this AD affects 161 economic impact, positive or negative,
develop in other products of these same (59 Model 212 and 102 Model 412) on a substantial number of small entities
type designs. helicopters of U.S. Registry. under the criteria of the Regulatory
We estimate that operators may incur Flexibility Act.
AD Requirements
the following costs in order to comply List of Subjects in 14 CFR Part 39
This AD requires, within 25 hours with this AD. At an average labor rate
time-in-service (TIS), replacing the of $85, replacing each check valve Air transportation, Aircraft, Aviation
engine oil and fuel check valves. This (engine oil or fuel) will require about 1 safety, Incorporation by reference,
AD also prohibits installing on any work-hour, and required parts will cost Safety.
helicopter a check valve P/N 209–062– $85. For the Model 212, we estimate a Adoption of the Amendment
520–001 or P/N 209–062–607–001 that total cost of $340 per helicopter and
was manufactured by Circor Aerospace, $20,060 for the U.S. fleet. For the Model Accordingly, under the authority
marked ‘‘Circle Seal’’ and marked with 412, we estimate a total cost of $170 per delegated to me by the Administrator,
a manufacturing date code of ‘‘10/11’’ helicopter and $17,340 for the U.S. fleet. the FAA amends part 39 of the Federal
(October 2011) through ‘‘03/15’’ (March According to Bell’s service Aviation Regulations (14 CFR part 39) as
2015), except if ‘‘TQL’’ is marked next information some of the costs of this AD follows:
to the manufacturing date code. may be covered under warranty, thereby
PART 39—AIRWORTHINESS
FAA’s Justification and Determination reducing the cost impact on affected
DIRECTIVES
of the Effective Date individuals. We do not control warranty
coverage by Bell. Accordingly, we have
An unsafe condition exists that ■ 1. The authority citation for part 39
included all costs in our cost estimate.
requires the immediate adoption of this continues to read as follows:
Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701.
AD without providing an opportunity
for public comments prior to adoption. Title 49 of the United States Code
§ 39.13 [Amended]
The FAA has found that the risk to the specifies the FAA’s authority to issue
flying public justifies waiving notice rules on aviation safety. Subtitle I, ■ 2. The FAA amends § 39.13 by
and comment prior to adoption of this Section 106, describes the authority of removing Airworthiness Directive (AD)
rule because the actions required by this the FAA Administrator. Subtitle VII, 2017–15–02, Amendment 39–18962 (82
AD must be accomplished within 25 Aviation Programs, describes in more FR 33439, July 20, 2017) and adding the
hours TIS, a very short interval for detail the scope of the Agency’s following new AD:
helicopters used in firefighting and authority. 2018–17–01 Bell Helicopter Textron, Inc.:
logging operations. Therefore, we find We are issuing this rulemaking under Amendment 39–19355; Docket No.
good cause that notice and opportunity the authority described in Subtitle VII, FAA–2018–0738; Product Identifier
for prior public comment are Part A, Subpart III, Section 44701, 2017–SW–132–AD.
impracticable. In addition, for the ‘‘General requirements.’’ Under that (a) Effective Date
reason stated above, we find that good section, Congress charges the FAA with
cause exists for making this amendment This AD is effective September 5, 2018.
promoting safe flight of civil aircraft in
effective in less than 30 days. air commerce by prescribing regulations (b) Affected ADs
Comments Invited for practices, methods, and procedures This AD replaces AD 2017–15–02,
the Administrator finds necessary for Amendment 39–18962 (82 FR 33439, July 20,
This AD is a final rule that involves safety in air commerce. This regulation 2017).
requirements affecting flight safety, and is within the scope of that authority (c) Applicability
we did not provide you with notice and because it addresses an unsafe condition
an opportunity to provide your This AD applies to Bell Model 212, 412,
that is likely to exist or develop on
412CF, and 412EP helicopters, certificated in
comments before it becomes effective. products identified in this rulemaking any category, with an engine oil check valve
However, we invite you to send any action. part number (P/N) 209–062–520–001 or fuel
written data, views, or arguments about check valve P/N 209–062–607–001
Regulatory Findings
this final rule. Send your comments to manufactured by Circor Aerospace, marked
an address listed under the ADDRESSES This AD will not have federalism ‘‘Circle Seal’’ and with a manufacturing date
section. Include the docket number implications under Executive Order code of ‘‘10/11’’ (October 2011) through ‘‘03/
sradovich on DSK3GMQ082PROD with RULES
FAA–2018–0738 and product identifier 13132. This AD will not have a 15’’ (March 2015), except a check valve
2017–SW–132–AD at the beginning of substantial direct effect on the States, on marked ‘‘TQL’’ next to the manufacturing
your comments. We specifically invite the relationship between the national date code, installed.
comments on the overall regulatory, government and the States, or on the (d) Subject
economic, environmental, and energy distribution of power and Joint Aircraft Service Component (JASC)
aspects of this final rule. We will responsibilities among the various Codes: 7900 Engine Oil System and 2800
consider all comments received by the levels of government. Aircraft Fuel System.
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(e) Unsafe Condition DEPARTMENT OF TRANSPORTATION information, regulatory evaluation, any
This AD defines the unsafe condition as a comments received, and other
cracked or leaking check valve, which could Federal Aviation Administration information. The address for Docket
result in loss of lubrication or fuel to the Operations (phone: 800–647–5527) is
engine, failure of the engine or a fire, and 14 CFR Part 39 Document Operations, U.S. Department
subsequent loss of control of the helicopter. [Docket No. FAA–2017–1108; Product of Transportation, Docket Operations,
Identifier 2012–NE–44–AD; Amendment 39– M–30, West Building Ground Floor,
(f) Compliance
19362; AD 2018–17–08] Room W12–140, 1200 New Jersey
Comply with this AD within the Avenue SE, Washington, DC 20590.
compliance times specified, unless already RIN 2120–AA64
FOR FURTHER INFORMATION CONTACT:
done.
Airworthiness Directives; Rolls-Royce Herman Mak, Aerospace Engineer, ECO
(g) Required Actions plc Turbojet Engines Branch, FAA, 1200 District Avenue,
(1) Within 25 hours time-in-service: Burlington, MA 01803; phone: 781–
AGENCY: Federal Aviation 238–7147; fax: 781–238–7199; email:
(i) Replace each fuel check valve. Administration (FAA), DOT.
(ii) For Model 212, 412CF, and 412EP herman.mak@faa.gov.
ACTION: Final rule. SUPPLEMENTARY INFORMATION:
helicopters, replace each engine oil check
valve. SUMMARY: We are superseding Discussion
(2) After the effective date of this AD, do Airworthiness Directive (AD) 2016–03–
not install on any helicopter a check valve P/ 03 for all Rolls-Royce plc (RR) Viper We issued a notice of proposed
N 209–062–520–001 or P/N 209–062–607– Mk. 521, Viper Mk. 522, and Viper Mk. rulemaking (NPRM) to amend 14 CFR
001 manufactured by Circor Aerospace, 601–22 turbojet engines. AD 2016–03– part 39 to supersede AD 2016–03–03,
marked ‘‘Circle Seal’’ and with a
03 required reducing the life of certain Amendment 39–18390 (81 FR 12585,
manufacturing date code of ‘‘10/11’’ (October
critical parts. This AD requires reducing March 10, 2016) (‘‘AD 2016–03–03’’).
2011) through ‘‘03/15’’ (March 2015), except
the life of certain critical parts and adds AD 2016–03–03 applied to all RR Viper
for a check valve marked ‘‘TQL’’ next to the
additional engine parts to the Mk. 521, Viper Mk. 522, and Viper Mk.
manufacturing date code. 601–22 turbojet engines. The NPRM
applicability. This AD was prompted by
(h) Alternative Methods of Compliance a determination made by RR that published in the Federal Register on
(AMOCs) additional parts for the applicable RR December 15, 2017 (82 FR 59560). The
Viper turbojet engine models are NPRM was prompted by RR
(1) The Manager, DSCO Branch, FAA, has determining that additional compressor
the authority to approve AMOCs for this AD, affected. We are issuing this AD to
address the unsafe condition on these rotating shrouds and the compressor
if requested using the procedures found in 14
products. main shaft, installed on the affected
CFR 39.19. In accordance with 14 CFR 39.19,
Viper turbojet engines, require a
send your request to your principal inspector DATES: This AD is effective September reduction in their cyclic life limits. Also
or local Flight Standards District Office, as 25, 2018. since we issued AD 2016–03–03, the
appropriate. If sending information directly The Director of the Federal Register European Aviation Safety Agency
to the manager of the certification office, approved the incorporation by reference (EASA) has issued AD 2017–0148, dated
send it to the attention of the person of certain publications listed in this AD
identified in paragraph (i) of this AD.
August 15, 2017, which requires
as of September 25, 2018. reducing the cyclic life limits of the
(2) Before using any approved AMOC,
ADDRESSES: For service information affected parts. The NPRM proposed to
notify your appropriate principal inspector,
identified in this final rule, contact DA add additional engine parts to the
or lacking a principal inspector, the manager
of the local flight standards district office/
Services Operations Room at Rolls- applicability. We are issuing this AD to
certificate holding district office.
Royce plc, Defense Sector Bristol, WH– address the unsafe condition on these
70, P.O. Box 3, Filton, Bristol BS34 7QE, products.
(i) Related Information United Kingdom; phone: +44 (0) 117 97
90700; fax: +44 (0) 117 97 95498; email: Comments
For more information about this AD,
contact Jurgen E. Priester, Aviation Safety defence-operations-room@rolls- We gave the public the opportunity to
Engineer, DSCO Branch, Compliance and royce.com. You may view this service participate in developing this AD. We
Airworthiness Division, FAA, 10101 information at the FAA, Engine & received no comments on the NPRM or
Hillwood Pkwy., Fort Worth, TX 76177; Propeller Standards Branch, 1200 on the determination of the cost to the
telephone (817) 222–5159; email District Avenue, Burlington, MA, 01803. public.
jurgen.e.priester@faa.gov. For information on the availability of
Conclusion
Issued in Fort Worth, Texas, on August 10,
this material at the FAA, call 781–238–
7759. It is also available on the internet We reviewed the relevant data and
2018.
at http://www.regulations.gov by determined that air safety and the
Lance T. Gant, public interest require adopting this AD
searching for and locating Docket No.
Director, Compliance & Airworthiness FAA–2017–1108. as proposed except for minor editorial
Division, Aircraft Certification Service. changes.
[FR Doc. 2018–17905 Filed 8–20–18; 8:45 am] Examining the AD Docket
You may examine the AD docket on Related Service Information Under 1
BILLING CODE 4910–13–P
the internet at http:// CFR Part 51
sradovich on DSK3GMQ082PROD with RULES
www.regulations.gov by searching for We reviewed RR Alert Service
and locating Docket No. FAA–2017– Bulletin (ASBs) Mk. 521 Number 72–
1108; or in person at Docket Operations A408, Circulation A; Mk. 521 Number
between 9 a.m. and 5 p.m., Monday 72–A408, Circulation B; Mk. 522
through Friday, except Federal holidays. Number 72–A413, Circulation A; Mk.
The AD docket contains this final rule, 522 Number 72–A412, Circulation B;
the mandatory continuing airworthiness and Mk. 601–22 Number 72–A207; all
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![42208 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations
identified as Revision 1 and all dated the Viper Mk. 522 turbojet engine. The This service information is reasonably
June 2017. content of Circulation A and B of these available because the interested parties
RR ASBs Mk. 521 Number 72–A408, respective ASBs is identical. RR uses have access to it through their normal
Circulation A (Revision 1) and Mk. 521 the designations ‘‘Circulation A’’ and course of business or by the means
Number 72–A408, Circulation B ‘‘Circulation B’’ to determine identified in the ADDRESSES section.
(Revision 1) describe applicable part distribution of service information,
numbers (P/Ns) and revised cyclic life Costs of Compliance
based on the capabilities of maintenance
limits for parts installed on the Viper facilities.
Mk. 521 turbojet engine. RR ASBs Mk. We estimate that this AD affects 46
522 Number 72–A413, Circulation A RR ASB Mk. 601–22 Number 72– engines installed on airplanes of U.S.
(Revision 1), and Mk. 522 Number 72– A207, Rev. 1, describes applicable P/Ns registry.
A412, Circulation B (Revision 1) and revised cyclic life limits for parts We estimate the following costs to
describe applicable P/Ns and revised installed on the Viper Mk. 601–22 comply with this AD:
cyclic life limits for parts installed on turbojet engine.
ESTIMATED COSTS
Cost per Cost on U.S.
Action Labor cost Parts cost product operators
Remove and replace parts ............................. 4 work-hours × $85 per hour = $340 ............. $75,000 $75,340 $3,465,640
Authority for This Rulemaking or on the distribution of power and No. FAA–2017–1108; Product Identifier
responsibilities among the various 2012–NE–44–AD.
Title 49 of the United States Code
specifies the FAA’s authority to issue levels of government. (a) Effective Date
rules on aviation safety. Subtitle I, For the reasons discussed above, I This AD is effective September 25, 2018.
Section 106, describes the authority of certify that this AD:
(1) Is not a ‘‘significant regulatory (b) Affected ADs
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more action’’ under Executive Order 12866, This AD replaces AD 2016–03–03,
detail the scope of the Agency’s (2) Is not a ‘‘significant rule’’ under Amendment 39–18390 (81 FR 12585, March
authority. DOT Regulatory Policies and Procedures 10, 2016).
We are issuing this rulemaking under (44 FR 11034, February 26, 1979), (c) Applicability
the authority described in Subtitle VII, (3) Will not affect intrastate aviation
This AD applies to all Rolls-Royce plc (RR)
Part A, Subpart III, Section 44701, in Alaska, and Viper Mk. 521, Viper Mk. 522, and Viper Mk.
‘‘General requirements.’’ Under that (4) Will not have a significant 601–22 turbojet engines.
section, Congress charges the FAA with economic impact, positive or negative,
promoting safe flight of civil aircraft in on a substantial number of small entities (d) Subject
air commerce by prescribing regulations under the criteria of the Regulatory Joint Aircraft System Component (JASC)
for practices, methods, and procedures Flexibility Act. Code 7230, Compressor Section.
the Administrator finds necessary for (e) Unsafe Condition
List of Subjects in 14 CFR Part 39
safety in air commerce. This regulation
Air transportation, Aircraft, Aviation This AD was prompted by a review by RR
is within the scope of that authority of the lives of certain critical parts. We are
because it addresses an unsafe condition safety, Incorporation by reference, issuing this AD to prevent failure of life-
that is likely to exist or develop on Safety. limited parts. This unsafe condition, if not
products identified in this rulemaking Adoption of the Amendment addressed, could result in uncontained part
action. release, damage to the engine, and damage to
This AD is issued in accordance with Accordingly, under the authority the airplane.
authority delegated by the Executive delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as (f) Compliance
Director, Aircraft Certification Service,
as authorized by FAA Order 8000.51C. follows: Comply with this AD within the
In accordance with that order, issuance compliance times specified, unless already
PART 39—AIRWORTHINESS done.
of ADs is normally a function of the
Compliance and Airworthiness DIRECTIVES (g) Required Actions
Division, but during this transition (1) Remove from service any Group A
■ 1. The authority citation for part 39
period, the Executive Director has component listed in Table 1 of the RR Alert
continues to read as follows:
delegated the authority to issue ADs Service Bulletins (ASBs) listed in paragraphs
applicable to engines, propellers, and Authority: 49 U.S.C. 106(g), 40113, 44701. (g)(1)(i) through (v) of this AD within 30 days
associated appliances to the Manager, after the effective date of this AD, or before
§ 39.13 [Amended] the part exceeds the revised life limit
Engine and Propeller Standards Branch,
Policy and Innovation Division. ■ 2. The FAA amends § 39.13 by specified in the applicable ASB, whichever
removing Airworthiness Directive (AD) occurs later.
sradovich on DSK3GMQ082PROD with RULES
Regulatory Findings 2016–03–03, Amendment 39–18390 (81 (i) RR ASB Mk. 521 Number 72–A408,
Circulation A (Revision 1), dated June 2017.
We have determined that this AD will FR 12585, March 10, 2016), and adding (ii) RR ASB Mk. 521 Number 72–A408,
not have federalism implications under the following new AD: Circulation B (Revision 1), dated June 2017.
Executive Order 13132. This AD will 2018–17–08 Rolls-Royce plc (Type (iii) RR ASB Mk. 522 Number 72–A413,
not have a substantial direct effect on Certificate previously held by Rolls- Circulation A (Revision 1), dated June 2017.
the States, on the relationship between Royce (1971) Limited, Bristol Engine (iv) RR ASB Mk. 522 Number 72–A412,
the national government and the States, Division): Amendment 39–19362; Docket Circulation B (Revision 1), dated June 2017.
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(v) RR ASB Mk. 601–22 Number 72–A207, (4) You may view this service information ADDRESSES: For service information
Rev. 1, dated June 2017. at FAA, Engine & Propeller Standards identified in this final rule, contact
(2) Reserved. Branch, 1200 District Avenue, Burlington, Bombardier, Inc., Q-Series Technical
MA, 01803. For information on the
(h) Installation Prohibition Help Desk, 123 Garratt Boulevard,
availability of this material at the FAA, call
After the effective date of this AD, do not 781–238–7759. Toronto, Ontario M3K 1Y5, Canada;
install any Group A component identified in (5) You may view this service information telephone: 416–375–4000; fax: 416–
Table 1 of the RR ASBs in paragraph (g)(1)(i) that is incorporated by reference at the 375–4539; email: thd.qseries@
through (v) of this AD into any engine, or National Archives and Records aero.bombardier.com; internet: http://
return any engine to service with any affected Administration (NARA). For information on www.bombardier.com. You may view
part installed, if the affected part exceeds the the availability of this material at NARA, call this referenced service information at
revised life limit specified in the applicable 202–741–6030, or go to: http:// the FAA, Transport Standards Branch,
ASB. www.archives.gov/federal-register/cfr/ibr-
2200 South 216th St., Des Moines, WA.
locations.html.
(i) Alternative Methods of Compliance For information on the availability of
(AMOCs) Issued in Burlington, Massachusetts, on this material at the FAA, call 206–231–
August 10, 2018. 3195. It is also available on the internet
(1) The Manager, ECO Branch, FAA, may
Karen M. Grant, at http://www.regulations.gov by
approve AMOCs for this AD, if requested,
using the procedures found in 14 CFR 39.19. Acting Manager, Engine and Propeller searching for and locating Docket No.
In accordance with 14 CFR 39.19, send your Standards Branch, Aircraft Certification FAA–2018–0072.
request to your principal inspector or local Service.
Flight Standards District Office, as [FR Doc. 2018–18021 Filed 8–20–18; 8:45 am] Examining the AD Docket
appropriate. If sending information directly BILLING CODE 4910–13–P You may examine the AD docket on
to the manager of the certification office, the internet at http://
send it to the attention of the person
www.regulations.gov by searching for
identified in paragraph (j)(1) of this AD. You DEPARTMENT OF TRANSPORTATION
may email your request to: ANE-AD-AMOC@ and locating Docket No. FAA–2018–
faa.gov. 0072; or in person at Docket Operations
Federal Aviation Administration
(2) Before using any approved AMOC, between 9 a.m. and 5 p.m., Monday
notify your appropriate principal inspector, through Friday, except Federal holidays.
14 CFR Part 39
or lacking a principal inspector, the manager The AD docket contains this final rule,
of the local flight standards district office/ [Docket No. FAA–2018–0072; Product the regulatory evaluation, any
certificate holding district office. Identifier 2017–NM–082–AD; Amendment comments received, and other
39–19363; AD 2018–17–09] information. The address for Docket
(j) Related Information
(1) For more information about this AD, RIN 2120–AA64 Operations (phone: 800–647–5527) is
contact Herman Mak, Aerospace Engineer, Docket Operations, U.S. Department of
ECO Branch, FAA, 1200 District Avenue, Airworthiness Directives; Bombardier, Transportation, Docket Operations,
Burlington, MA 01803; phone: 781–238– Inc., Airplanes M–30, West Building Ground Floor,
7147; fax: 781–238–7199; email: Room W12–140, 1200 New Jersey
herman.mak@faa.gov.
AGENCY: Federal Aviation
Avenue SE, Washington, DC 20590.
(2) Refer to European Aviation Safety Administration (FAA), Department of
Transportation (DOT). FOR FURTHER INFORMATION CONTACT:
Agency (EASA) AD 2017–0148, dated August
15, 2017, for more information. You may ACTION: Final rule.
Darren Gassetto, Aerospace Engineer,
examine the EASA AD on the internet at Airframe and Mechanical Systems
http://www.regulations.gov by searching for SUMMARY: We are superseding Section, FAA, New York ACO Branch,
and locating Docket No. FAA–2017–1108. Airworthiness Directive (AD) 2014–05– 1600 Stewart Avenue, Suite 410,
28, which applied to certain Westbury, NY 11590; telephone 516–
(k) Material Incorporated by Reference
Bombardier, Inc., Model DHC–8–400 228–7323; fax 516–794–5531; email 9-
(1) The Director of the Federal Register series airplanes. AD 2014–05–28 avs-nyaco-cos@faa.gov.
approved the incorporation by reference
(IBR) of the service information listed in this
required revising the maintenance or SUPPLEMENTARY INFORMATION:
paragraph under 5 U.S.C. 552(a) and 1 CFR inspection program, as applicable. This
AD requires revising the maintenance or Discussion
part 51.
(2) You must use this service information inspection program, as applicable, to We issued a notice of proposed
as applicable to do the actions required by include a revised task. This AD was rulemaking (NPRM) to amend 14 CFR
this AD, unless the AD specifies otherwise. prompted by a determination that the part 39 to supersede AD 2014–05–28,
(i) Rolls-Royce plc (RR) Alert Service interval from Maintenance Review Amendment 39–17800 (79 FR 18611,
Bulletin (ASB) Mk. 521 Number 72–A408, Board (MRB) task number 323100–202 April 3, 2014) (‘‘AD 2014–05–28’’). AD
Circulation A (Revision 1), dated June 2017. should not be escalated, and that 2014–05–28 applied to certain
(ii) RR ASB Mk. 521 Number 72–A408,
Circulation B (Revision 1), dated June 2017.
Certification Maintenance Requirements Bombardier, Inc., Model DHC–8–400
(iii) RR ASB Mk. 522 Number 72–A413, (CMR) task number 323100–102 should series airplanes. The NPRM published
Circulation A (Revision 1), dated June 2017. be applicable to all Model DHC–8–400 in the Federal Register on February 9,
(iv) RR ASB Mk. 522 Number 72–A412, series airplanes, regardless of which 2018 (83 FR 5746). The NPRM was
Circulation B (Revision 1), dated June 2017. main landing gear (MLG) up-lock prompted by our determination that the
(v) RR ASB Mk. 601–22 Number 72–A207, assembly is installed. We are issuing interval from MRB task number 323100–
Rev. 1, dated June 2017. this AD to address the unsafe condition 202 should not be escalated, and that
sradovich on DSK3GMQ082PROD with RULES
(3) For service information identified in on these products. CMR task number 323100–102 should
this AD, contact DA Services Operations
DATES: This AD is effective September be applicable to all Model DHC–8–400
Room at Rolls-Royce plc, Defense Sector
Bristol, WH–70, P.O. Box 3, Filton, Bristol 25, 2018. series airplanes, regardless of which
BS34 7QE, United Kingdom; phone: +44 (0) The Director of the Federal Register MLG up-lock assembly is installed.
117 97 90700; fax: +44 (0) 117 97 95498; approved the incorporation by reference Transport Canada Civil Aviation
email: defence-operations-room@rolls- of a certain publication listed in this AD (TCCA), which is the aviation authority
royce.com. as of September 25, 2018. for Canada, has issued Canadian AD
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![42210 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations
CF–2017–15, effective May 29, 2017 We do not agree with the commenter’s rules on aviation safety. Subtitle I,
(referred to after this as the Mandatory request. We contacted the commenter section 106, describes the authority of
Continuing Airworthiness Information, and, upon further discussion, it was the FAA Administrator. Subtitle VII:
or ‘‘the MCAI’’), to correct an unsafe determined that paragraph (i) of this AD Aviation Programs, describes in more
condition for certain Bombardier, Inc., does address the commenter’s request detail the scope of the Agency’s
Model DHC–8–400 series airplanes. The regarding what operators that already authority.
MCAI states: have CMR task number 323100–102 in We are issuing this rulemaking under
[Canadian] AD CF–2012–21 [which place should do. The commenter stated the authority described in Subtitle VII,
corresponds to FAA AD 2014–05–28] was that it originally submitted the comment Part A, Subpart III, Section 44701:
issued to mandate the incorporation of based on a misunderstanding and it ‘‘General requirements.’’ Under that
Maintenance Review Board (MRB) task intended to withdraw the comment. We section, Congress charges the FAA with
number 323100–202. As in-service have not changed this AD regarding this promoting safe flight of civil aircraft in
experience has shown that the interval for issue. air commerce by prescribing regulations
MRB task number 323100–202 should not be for practices, methods, and procedures
escalated, Bombardier has introduced one- Conclusion
the Administrator finds necessary for
star CMR task number 323100–102 to prevent We reviewed the available data,
task escalation. Bombardier has also revised safety in air commerce. This regulation
including the comment received, and is within the scope of that authority
the applicability of MRB task number
323100–202 to be applicable to the entire determined that air safety and the because it addresses an unsafe condition
DHC–8–400/-401/-402 fleet, regardless of public interest require adopting this AD that is likely to exist or develop on
which main landing gear (MLG) up-lock as proposed, except for minor editorial products identified in this rulemaking
assembly part number is installed. This changes. We have determined that these action.
revised applicability has resulted in CMR minor changes: This AD is issued in accordance with
task number 323100–102 also being made • Are consistent with the intent that authority delegated by the Executive
applicable to the entire DHC–8–400/-401/- was proposed in the NPRM for
402 fleet, regardless of MLG up-lock
Director, Aircraft Certification Service,
correcting the unsafe condition; and as authorized by FAA Order 8000.51C.
assembly part number installation. • Do not add any additional burden
This [Canadian] AD mandates the In accordance with that order, issuance
upon the public than was already of ADs is normally a function of the
incorporation of CMR task number 323100–
102 [into the maintenance or inspection proposed in the NPRM. Compliance and Airworthiness
program, as applicable]. Related Service Information Under Division, but during this transition
You may examine the MCAI in the 1 CFR Part 51 period, the Executive Director has
AD docket on the internet at http:// delegated the authority to issue ADs
Bombardier has issued Q400 Dash 8
www.regulations.gov by searching for applicable to transport category
(Bombardier) Temporary Revision (TR)
and locating Docket No. FAA–2018– airplanes to the Director of the System
ALI–0168, dated October 31, 2016. The
0072. Oversight Division.
service information describes CMR task
Comments number 323100–102, ‘‘Functional Check Regulatory Findings
of the Main Landing Gear Uplock
We gave the public the opportunity to We determined that this AD will not
Assembly Latch.’’ This service
participate in developing this AD. The have federalism implications under
information is reasonably available
following presents the comment Executive Order 13132. This AD will
because the interested parties have
received on the NPRM and the FAA’s not have a substantial direct effect on
access to it through their normal course
response to that comment. the States, on the relationship between
of business or by the means identified
the national government and the States,
Request To Provide Actions for in the ADDRESSES section.
or on the distribution of power and
Operators With Task Already Included Costs of Compliance responsibilities among the various
in Maintenance or Inspection Program levels of government.
We estimate that this AD affects 69
Horizon Air requested that the airplanes of U.S. registry. We estimate For the reasons discussed above, I
proposed AD be revised to address the following costs to comply with this certify that this AD:
operators that have already revised their AD: 1. Is not a ‘‘significant regulatory
maintenance or inspection program to We have determined that revising the action’’ under Executive Order 12866;
include the information specified in maintenance or inspection program 2. Is not a ‘‘significant rule’’ under the
CMR task number 323100–102 of Q400 takes an average of 90 work-hours per DOT Regulatory Policies and Procedures
Dash 8 (Bombardier) Temporary operator, although we recognize that (44 FR 11034, February 26, 1979);
Revision (TR) ALI–0168, dated October this number may vary from operator to 3. Will not affect intrastate aviation in
31, 2016 (‘‘Bombardier TR ALI–0168’’). operator. In the past, we have estimated Alaska; and
The commenter stated that paragraphs that this action takes 1 work-hour per 4. Will not have a significant
(h) and (i) of the proposed AD airplane. Since operators incorporate economic impact, positive or negative,
established compliance times and a maintenance or inspection program on a substantial number of small entities
method for the initial functional check changes for their affected fleet(s), we under the criteria of the Regulatory
of CMR task number 323100–102. The have determined that a per-operator Flexibility Act.
commenter also noted that the method estimate is more accurate than a per-
of compliance for the initial functional List of Subjects in 14 CFR Part 39
airplane estimate. Therefore, we
sradovich on DSK3GMQ082PROD with RULES
check in paragraph (i) of the proposed estimate the total cost per operator to be Air transportation, Aircraft, Aviation
AD is based on accomplishing CMR task $7,650 (90 work-hours × $85 per work- safety, Incorporation by reference,
number ‘‘32100–202.’’ We infer the hour). Safety.
commenter meant CMR task number
Authority for This Rulemaking Adoption of the Amendment
‘‘323100–102.’’ The commenter stated
that this does not address operators that Title 49 of the United States Code Accordingly, under the authority
have the CMR task already in place. specifies the FAA’s authority to issue delegated to me by the Administrator,
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![Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations 42211
the FAA amends 14 CFR part 39 as Part 2, Bombardier Q400 Dash 8 Maintenance or lacking a principal inspector, the manager
follows: Requirements Manual, Product Support of the local flight standards district office/
Manual (PSM) 1–84–7. When this temporary certificate holding district office.
PART 39—AIRWORTHINESS revision has been included in general (2) Contacting the Manufacturer: For any
DIRECTIVES revisions of the PSM, the general revisions requirement in this AD to obtain corrective
may be inserted in the maintenance or actions from a manufacturer, the action must
■ 1. The authority citation for part 39 inspection program, as applicable, provided be accomplished using a method approved
the relevant information in the general by the Manager, New York ACO Branch,
continues to read as follows: revision is identical to that in Bombardier TR FAA; or Transport Canada Civil Aviation
Authority: 49 U.S.C. 106(g), 40113, 44701. ALI–0168. (TCCA); or Bombardier, Inc.’s, TCCA Design
Approval Organization (DAO). If approved by
§ 39.13 [Amended] (h) Initial Functional Check Compliance
the DAO, the approval must include the
Times
■ 2. The FAA amends § 39.13 by DAO-authorized signature.
For MLG up-lock assembly latches that
removing Airworthiness Directive (AD) (k) Related Information
have accumulated flight cycles which exceed
2014–05–28, Amendment 39–17800 (79 the CMR task number 323100–102 interval (1) Refer to Mandatory Continuing
FR 18611, April 3, 2014), and adding specified in Bombardier TR ALI–0168: Airworthiness Information (MCAI) Canadian
the following new AD: Perform the initial CMR task number AD CF–2017–15, effective May 29, 2017, for
2018–17–09 Bombardier, Inc.: Amendment 323100–102 functional check as specified in related information. This MCAI may be
39–19363; Docket No. FAA–2018–0072; Bombardier TR ALI–0168 using the found in the AD docket on the internet at
Product Identifier 2017–NM–082–AD. applicable compliance time specified in http://www.regulations.gov by searching for
paragraph (h)(1), (h)(2), or (h)(3) of this AD. and locating Docket No. FAA–2018–0072.
(a) Effective Date (1) For MLG up-lock assembly latches that (2) For more information about this AD,
This AD is effective September 25, 2018. have 14,200 total flight cycles or more as of contact Darren Gassetto, Aerospace Engineer,
the effective date of this AD: The compliance Airframe and Mechanical Systems Section,
(b) Affected ADs time for doing the initial functional check is FAA, New York ACO Branch, 1600 Stewart
This AD replaces AD 2014–05–28, within 800 flight cycles after the effective Avenue, Suite 410, Westbury, NY 11590;
Amendment 39–17800 (79 FR 18611, April 3, date of this AD. telephone 516–228–7323; fax 516–794–5531;
2014). (2) For MLG up-lock assembly latches that email 9-avs-nyaco-cos@faa.gov.
have 11,600 total flight cycles or more, but (3) Service information identified in this
(c) Applicability fewer than 14,200 total flight cycles, as of the AD that is not incorporated by reference is
This AD applies to Bombardier, Inc., effective date of this AD: The compliance available at the addresses specified in
Model DHC–8–400, -401, and -402 airplanes, time for doing the initial functional check is paragraphs (l)(3) and (l)(4) of this AD.
certificated in any category, serial numbers within 1,600 flight cycles after the effective
4001, 4003 and subsequent. date of this AD, but not to exceed 15,000 total (l) Material Incorporated by Reference
flight cycles on the up-lock assembly latch. (1) The Director of the Federal Register
(d) Subject (3) For MLG up-lock assembly latches with approved the incorporation by reference
Air Transport Association (ATA) of fewer than 11,600 total flight cycles as of the (IBR) of the service information listed in this
America Code 32, Landing gear. effective date of this AD: The compliance paragraph under 5 U.S.C. 552(a) and 1 CFR
time for doing the initial functional check is part 51.
(e) Reason
within 3,000 flight cycles after the effective (2) You must use this service information
This AD was prompted by reports of date of this AD, but not to exceed 13,200 total as applicable to do the actions required by
excessive wear on the lower latch surface of flight cycles on the up-lock assembly latch. this AD, unless this AD specifies otherwise.
the main landing gear (MLG) up-lock hook. (i) Q400 Dash 8 (Bombardier) Temporary
This AD was also prompted by a (i) Method of Compliance for Initial
Revision (TR) ALI–0168, dated October 31,
determination that, the maintenance or Functional Check
2016.
inspection program, as applicable, must be Accomplishing CMR task number 323100– (ii) Reserved.
revised to include a new task. We are issuing 102 of Bombardier TR MRB–66, dated (3) For service information identified in
this AD to detect and correct up-lock hooks December 7, 2011, to Section 1–32, Landing this AD, contact Bombardier, Inc., Q-Series
worn beyond the wear limit, which could Gear Maintenance Program, of MRB Report Technical Help Desk, 123 Garratt Boulevard,
prevent the successful extension of the MLG Part 1, Bombardier Q400 Dash 8 Maintenance Toronto, Ontario M3K 1Y5, Canada;
using the primary landing gear extension Requirements Manual, PSM 1–84–7, within telephone: 416–375–4000; fax: 416–375–
system, which in combination with an 3,000 flight cycles before the effective date of 4539; email: thd.qseries@
alternate extension system failure could this AD, is a method of compliance for the aero.bombardier.com; internet: http://
result in the inability to extend the MLG. initial functional check required by CMR task www.bombardier.com.
number 323100–102 as specified in (4) You may view this service information
(f) Compliance
Bombardier TR ALI–0168. at the FAA, Transport Standards Branch,
Comply with this AD within the
(j) Other FAA AD Provisions 2200 South 216th St., Des Moines, WA. For
compliance times specified, unless already
information on the availability of this
done. The following provisions also apply to this
material at the FAA, call 206–231–3195.
AD:
(g) Maintenance or Inspection Program (5) You may view this service information
(1) Alternative Methods of Compliance
Revision that is incorporated by reference at the
(AMOCs): The Manager, New York ACO
Within 30 days after the effective date of National Archives and Records
Branch, FAA, has the authority to approve
this AD, revise the maintenance or inspection Administration (NARA). For information on
AMOCs for this AD, if requested using the
program, as applicable, to incorporate the the availability of this material at NARA, call
procedures found in 14 CFR 39.19. In
information specified in Certification 202–741–6030, or go to: http://
accordance with 14 CFR 39.19, send your
Maintenance Requirements (CMR) task www.archives.gov/federal-register/cfr/ibr-
request to your principal inspector or local
number 323100–102 of Q400 Dash 8 Flight Standards District Office, as locations.html.
sradovich on DSK3GMQ082PROD with RULES
(Bombardier) Temporary Revision (TR) ALI– appropriate. If sending information directly Issued in Des Moines, Washington, on
0168, dated October 31, 2016 (‘‘Bombardier to the manager of the ACO, send it to ATTN: August 9, 2018.
TR ALI–0168’’). The applicable maintenance Program Manager, Continuing Operational Michael Kaszycki,
or inspection program revision required by Safety, FAA, New York ACO Branch, 1600
Acting Director, System Oversight Division,
this paragraph may be done by inserting a Stewart Avenue, Suite 410, Westbury, NY
Aircraft Certification Service.
copy of Bombardier TR ALI–0168, to Section 11590; telephone: 516–228–7300; fax: 516–
1–32, Landing Gear Maintenance Program, of 794–5531. Before using any approved AMOC, [FR Doc. 2018–17754 Filed 8–20–18; 8:45 am]
Maintenance Review Board (MRB) Report notify your appropriate principal inspector, BILLING CODE 4910–13–P
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![42212 Federal Register / Vol. 83, No. 162 / Tuesday, August 21, 2018 / Rules and Regulations
DEPARTMENT OF EDUCATION explaining that this requirement does blind projects, including university-
not apply to the National Technical based projects, have operated effectively
34 CFR Chapter III Assistance and Dissemination Center for while applying indirect costs at or
[Docket ID ED–2018–OSERS–0024] Children Who Are Deaf-Blind. This is below 10 percent of their modified total
not a substantive change because we direct costs. For this reason, we do not
Final Requirement—State Technical explained in the Background section of believe that the 10 percent cap
Assistance Projects To Improve the NPR that it was not our intent to established in this final rule will
Services and Results for Children Who apply this requirement to that Center. deprive the Deaf-Blind program of
Are Deaf-Blind and National Technical Public Comment: In response to our university-based applicants. We also
Assistance and Dissemination Center invitation in the NPR, 10 parties believe that limiting the indirect cost
for Children Who Are Deaf-Blind submitted comments on the proposed rate, for university-based and non-
(TA&D–DB) requirement. Generally, we do not university based projects, will not
address technical and other minor undermine sound administrative
AGENCY: Office of Special Education and changes, or suggested changes that the oversight of projects, but rather will be
Rehabilitative Services, Department of law does not authorize us to make under beneficial to the program and its
Education. applicable statutory authority. In intended beneficiaries and can be
ACTION: Final requirement. addition, we do not address general achieved with minimal disruption to
comments that raised concerns not project activities.
Catalog of Federal Domestic Assistance directly related to the proposed Finally, since this is a competitive
(CFDA) Number: 84.326T. priorities or definitions. grant competition, it would be
SUMMARY: The Assistant Secretary for Analysis of the Comments and inappropriate, as one commenter
Special Education and Rehabilitative Changes: An analysis of the comments suggests, to have separate requirements
Services announces a requirement follows. for incumbent grantees unavailable to
Comment: The majority of other grantees.
under the Technical Assistance and
commenters expressed support for Changes: None.
Dissemination to Improve Services and
limiting the indirect cost rate to 10 Comment: One commenter stated that
Results for Children with Disabilities percent, indicating that this would
(TA&D) program. The Assistant changes to the indirect cost rate for this
allow more funding for the State Deaf- program could cause confusion if a
Secretary may use this requirement for Blind Projects to provide TA to families
competitions in fiscal year (FY) 2018 grantee also has other approved indirect
and caregivers, professionals, and others cost rates from a Federal agency.
and later years. providing services to children who are Discussion: We appreciate the
DATES: This requirement is effective deaf-blind. commenter’s concern about potential
September 20, 2018. Discussion: We appreciate the confusion if a grantee has another
FOR FURTHER INFORMATION CONTACT: Jo commenters’ support and agree with the negotiated indirect cost rate granted by
Ann McCann, U.S. Department of comments for the reasons stated. either the Department of Education or
Education, 400 Maryland Avenue SW., Changes: None. another Federal agency. We believe that
Room 5162, Potomac Center Plaza, Comment: One commenter expressed grantees with sufficient administrative
Washington, DC 20202–5076. support for the cap on indirect cost rates capacity to participate in this program
Telephone: (202) 245–7434. Email: but raised a concern that some current will not find it difficult to apply
Jo.Ann.McCann@ed.gov. State Deaf-Blind Projects that are different indirect cost rates to grants
If you use a telecommunications university-based may not apply for from different agencies. However, to
device for the deaf (TDD) or a text future competitions because of the cap, minimize the risk of confusion cited by
telephone (TTY), call the Federal Relay leading to a loss of services for children the commenter, the Department is
Service (FRS), toll free, at 1–800–8339. who are deaf-blind within those States. prepared to provide all necessary
SUPPLEMENTARY INFORMATION: Purpose of The commenter suggested that the technical assistance to grantees under
Program: The purpose of the Technical Department consider allowing this program to ensure that they
Assistance and Dissemination to universities to reach individual understand the new requirement and
Improve Services and Results for agreements with the Department on charge the appropriate indirect cost rate
Children with Disabilities program is to indirect cost rates. Another commenter to the grant.
promote academic achievement and to opposed the proposed cap, arguing that Changes: None.
improve results for children with negotiated indirect cost rates better
disabilities by providing technical ensure that necessary administrative Final Requirement
assistance (TA), supporting model costs for university-based State projects The Assistant Secretary establishes
demonstration projects, disseminating are covered and, therefore, that the the following requirement for this
useful information, and implementing proposed cap on indirect cost rates program. We may apply this
activities that are supported by could jeopardize sound administration requirement in any fiscal year in which
scientifically based research. of State projects. this program is in effect.
Program Authority: 20 U.S.C. 1461, Discussion: We appreciate the Final Requirement:
1463, 1481, and 1482. commenters’ concern regarding the Allowable indirect costs.
We published a notice of proposed potential for disruption of services for A grantee may recover the lesser of (a)
requirement (NPR) in the Federal children who are deaf-blind within a its actual indirect costs as determined
Register on June 20, 2018 (83 FR 28566). State in the event an incumbent by the grantee’s negotiated indirect cost
sradovich on DSK3GMQ082PROD with RULES
That notice contained background applicant does not apply for a new rate agreement and (b) 10 percent of its
information and our reasons for award under this program. We also modified total direct costs. If a grantee’s
proposing this particular requirement. appreciate the commenter’s concern allocable indirect costs exceed 10
The only difference between the about the proper administrative percent of its modified total direct costs,
proposed requirement and this final oversight of State projects and we agree the grantee may not recoup the excess
requirement is that we included a that strong administrative oversight is by shifting the cost to other grants or
footnote within the final requirement essential. However, many State deaf- contracts with the U.S. Government,
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Document Created: 2017-12-29 23:38:35
Document Modified: 2017-12-29 23:38:35
| Page and Subject | |
|---|---|
| 83 FR 42354 - Delegation of Authority To Concur With Department of Defense Humanitarian and Civic Assistance Activities | |
| 83 FR 42319 - Sunshine Act Meetings | |
| 83 FR 42318 - Sunshine Act Meetings | |
| 83 FR 42328 - Sunshine Act Meetings | |
| 83 FR 42223 - Air Plan Approval and Air Quality Designation; AL; Redesignation of the Etowah County Unclassifiable Area | |
| 83 FR 42286 - Settlement Agreement and Order on Consent: Eagle Mine Superfund Site, Minturn, Eagle County, Colorado | |
| 83 FR 42224 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Ordnance Works Disposal Areas Superfund Site | |
| 83 FR 42312 - 60-Day Notice of Proposed Information Collection: Application for FHA Insured Mortgages | |
| 83 FR 42312 - 60-Day Notice of Proposed Information Collection: Builder's Certification of Plans, Specifications and Site | |
| 83 FR 42278 - Agency Information Collection Extension | |
| 83 FR 42212 - Final Requirement-State Technical Assistance Projects To Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind (TA&D-DB) | |
| 83 FR 42266 - Applications for New Awards; Technical Assistance and Dissemination To Improve Services and Results for Children With Disabilities-State Technical Assistance Projects To Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind | |
| 83 FR 42276 - Meeting Notice | |
| 83 FR 42252 - Submission for OMB Review; Comment Request | |
| 83 FR 42309 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 42318 - Appointment of Members of Senior Executive Service Performance Review Board | |
| 83 FR 42207 - Airworthiness Directives; Rolls-Royce plc Turbojet Engines | |
| 83 FR 42292 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
| 83 FR 42303 - Request for Information About Inorganic Lead (CAS No. 7439-92-1) | |
| 83 FR 42315 - Agency Information Collection Activities: Maintenance of State Programs and Procedures for Substituting Federal Enforcement of State Programs and Withdrawing Approval of State Programs | |
| 83 FR 42314 - Agency Information Collection Activities: Bond and Insurance Requirements for Surface Coal Mining and Reclamation Operations Under Regulatory Programs | |
| 83 FR 42316 - Agency Information Collection Activities: Surface and Underground Mining Permit Applications-Minimum Requirements for Information on Environmental Resources | |
| 83 FR 42227 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area | |
| 83 FR 42293 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 83 FR 42323 - New Postal Products | |
| 83 FR 42322 - Federal Prevailing Rate Advisory Committee; Open Committee Meetings | |
| 83 FR 42358 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple IRS Information Collection Requests | |
| 83 FR 42258 - Call for Applications for the International Buyer Program Select for Quarters 2 and 3 Calendar Year 2019 | |
| 83 FR 42256 - Call for Applications for the International Buyer Program Quarters 2 and 3 Calendar Year 2019 | |
| 83 FR 42354 - Commission Meeting; Correction | |
| 83 FR 42280 - Little Falls Hydroelectric Associates, LP; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-filing Process, and Scoping; Request for Comments on the Pad and Scoping Document, and Identification of Issues and Associated Study Requests | |
| 83 FR 42284 - Shell Energy North America (US), L.P.; Notice of Meeting | |
| 83 FR 42279 - Sequitur Permian, LLC; Notice of Request for Temporary Waiver | |
| 83 FR 42281 - Notice of Petition for Declaratory Order; Cactus II Pipeline LLC | |
| 83 FR 42282 - Commission Information Collection Activities (FERC-537); Comment Request | |
| 83 FR 42285 - Combined Notice of Filings #1 | |
| 83 FR 42279 - Gateway Energy Storage, LLC; Notice of Filing | |
| 83 FR 42282 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; Plumsted 537 LLC | |
| 83 FR 42279 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; Stryker 22, LLC | |
| 83 FR 42284 - Combined Notice of Filings #1 | |
| 83 FR 42276 - Advanced Scientific Computing Advisory Committee | |
| 83 FR 42277 - Environmental Management Site-Specific Advisory Board Chairs | |
| 83 FR 42277 - Environmental Management Advisory Board Meeting | |
| 83 FR 42304 - Submission for OMB Review; Comment Request | |
| 83 FR 42285 - Buckleberry Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 42228 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the Bering Sea and Aleutian Islands Management Area | |
| 83 FR 42323 - Product Change-Priority Mail Express and Priority Mail Negotiated Service Agreement | |
| 83 FR 42324 - Product Change-Priority Mail Negotiated Service Agreement | |
| 83 FR 42320 - Entergy Nuclear Operations, Inc.; Vermont Yankee Nuclear Power Station | |
| 83 FR 42354 - Fixing America's Surface Transportation Act Correlation Study | |
| 83 FR 42290 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Emissions Certification and Compliance Requirements for Nonroad Compression-Ignition Engines and On-Highway Heavy Duty Engines (Revision) | |
| 83 FR 42319 - Interim Staff Guidance for Decommissioning Funding Plans for Materials Licensees; Extension of Comment Period | |
| 83 FR 42252 - Notice of Public Meetings of the Nebraska Advisory Committee to the U.S. Commission on Civil Rights | |
| 83 FR 42301 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 42300 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 42299 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 42244 - Fees for the Unified Carrier Registration Plan and Agreement | |
| 83 FR 42298 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 83 FR 42298 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 83 FR 42305 - Submission for OMB Review; Comment Request | |
| 83 FR 42308 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; The Maternal, Infant, and Early Childhood Home Visiting Program Statewide Needs Assessment Update | |
| 83 FR 42313 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Pipelines and Pipeline Rights-of-Way | |
| 83 FR 42323 - International Product Change-GEPS 10 Contracts | |
| 83 FR 42306 - Quality Attribute Considerations for Chewable Tablets; Guidance for Industry; Availability | |
| 83 FR 42310 - Agency Information Collection Activities: Guam-CNMI Visa Waiver Information | |
| 83 FR 42261 - Submission for OMB Review; Comment Request | |
| 83 FR 42296 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 83 FR 42261 - Vietnam War Commemoration Advisory Committee; Notice of Federal Advisory Committee Meeting | |
| 83 FR 42262 - Submission for OMB Review; Comment Request | |
| 83 FR 42307 - Microdose Radiopharmaceutical Diagnostic Drugs: Nonclinical Study Recommendations; Guidance for Industry; Availability | |
| 83 FR 42329 - 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 42344 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Permit the Listing and Trading of Options That Overlie the Mini-SPX Index, the Russell 2000 Index, and the Dow Jones Industrial Average | |
| 83 FR 42340 - Order Granting Petition for Review and Scheduling Filing of Statements | |
| 83 FR 42330 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Permit the Listing and Trading of Options That Overlie the Mini-SPX Index, the Russell 2000 Index, and the Dow Jones Industrial Average | |
| 83 FR 42340 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing of Proposed Rule Change To Apply Government Securities Division Corporation Default Rule to Sponsored Members and Make Other Changes | |
| 83 FR 42262 - Privacy Act of 1974; System of Records | |
| 83 FR 42234 - Privacy Act of 1974; Implementation | |
| 83 FR 42253 - Proposed Information Collection; Comment Request; Foreign National Request Form | |
| 83 FR 42358 - Agency Information Collection Activity Under OMB Review: On-the-Job and Apprenticeship Training | |
| 83 FR 42316 - Certain Lithography Machines and Systems and Components Thereof (II); Institution of Investigation | |
| 83 FR 42317 - Certain Lithography Machines and Systems and Components Thereof (I); Institution of Investigation | |
| 83 FR 42275 - The Historically Black Colleges and Universities Capital Financing Advisory Board; Meeting | |
| 83 FR 42225 - Adoption and Foster Care Analysis and Reporting System | |
| 83 FR 42355 - Proposed Collection; Comment Request for Regulation Project | |
| 83 FR 42294 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 83 FR 42356 - Proposed Collection; Comment Request on Information Collection for T.D. 9308 | |
| 83 FR 42357 - Proposed Collection; Comment Request on Information Collection for Notice 2007-70 | |
| 83 FR 42357 - Proposed Collection; Comment Request for Regulation Project | |
| 83 FR 42253 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance | |
| 83 FR 42324 - AXA Equitable Life Insurance Company, et al. | |
| 83 FR 42214 - Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; Arizona; Infrastructure Requirements for Nitrogen Dioxide and Sulfur Dioxide | |
| 83 FR 42235 - Air Plan Approval; Ohio; Attainment Plan for the Lake County SO2 | |
| 83 FR 42287 - Proposed Second Interim Settlement Agreement, Clean Water Act Claims | |
| 83 FR 42259 - Glycine From India, Japan, and Thailand: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations | |
| 83 FR 42205 - Airworthiness Directives; Bell Helicopter Textron, Inc. (Bell) Helicopters | |
| 83 FR 42230 - Airworthiness Directives; Leonardo S.p.A. Helicopters | |
| 83 FR 42232 - Airworthiness Directives; Bell Helicopter Textron Canada Limited Helicopters | |
| 83 FR 42295 - Next Meeting of the North American Numbering Council | |
| 83 FR 42291 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Polymeric Coating of Supporting Substrates Facilities (Renewal) | |
| 83 FR 42289 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Background Checks for Contractor Employees (Renewal) | |
| 83 FR 42288 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Exchange Network Grants Progress Reports (Renewal) | |
| 83 FR 42291 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Emission Guidelines for Sewage Sludge Incinerators (Renewal) | |
| 83 FR 42260 - Certain Pneumatic Off-the-Road Tires From India: Rescission of Countervailing Duty Administrative Review; 2016-2017 | |
| 83 FR 42254 - Uncovered Innerspring Units From the People's Republic of China: Preliminary Affirmative Determination of Circumvention of the Antidumping Duty Order | |
| 83 FR 42209 - Airworthiness Directives; Bombardier, Inc., Airplanes | |
| 83 FR 42303 - Notice of Availability of Record of Decision for 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 42362 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Three Plant Species on Hawaii Island | |
| 83 FR 42219 - Air Plan Approval; Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide and 2012 Fine Particulate Matter Standards |
Issue
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Energy Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
Substance Abuse and Mental Health Services Administration
U.S. Customs and Border Protection
Bureau of Safety and Environmental Enforcement
Fish and Wildlife Service
Surface Mining Reclamation and Enforcement Office
Federal Aviation Administration
Federal Motor Carrier Safety Administration
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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Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2017-15-02 for Bell Model 212 and 412 helicopters. AD 2017-15-02 required replacing certain oil and fuel check valves and prohibited installing them on any helicopter. This AD retains the requirements of AD 2017-15-02 and adds certain model helicopters to the applicability. This AD was prompted by the discovery of an error in the affected models. We are issuing this AD to address the unsafe condition on these products.
This AD is effective September 5, 2018.
We must receive any comments on this AD by October 5, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at
You may examine the AD docket on the internet at
Jurgen E. Priester, Aviation Safety Engineer, DSCO Branch, Compliance and Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5159; email
We issued AD 2017-15-02, Amendment 39-18962 (82 FR 33439, July 20, 2017), (“AD 2017-15-02”). AD 2017-15-02 applied to Bell Model 212 and 412 helicopters with an engine oil or fuel check valve part number (P/N) 209-062-520-001 or P/N 209-062-607-001 that was manufactured by Circor Aerospace, marked “Circle Seal” and marked with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015) installed. AD 2017-15-02 resulted from a report that certain part numbered 209-062-520-001 check valves manufactured by Circor Aerospace as replacement parts have been found cracked or leaking on several Bell Model 427 and Model 429 helicopters. These check valves may be installed as engine oil check valves on Bell Model 212 helicopters. Similar check valves, part number 209-062-607-001, may be installed as fuel check valves on Bell Model 212 or 412 helicopters. These check valves may have a condition induced during assembly that can cause the valve body to crack, resulting in oil or fuel leakage. This condition could result in loss of lubrication or fuel to the engine, failure of the engine or a fire, and subsequent loss of control of the helicopter. To address this condition, AD 2017-15-02 required replacing the engine oil and fuel check valves and prohibited installing an affected check valve on any helicopter.
Since we issued AD 2017-15-02, we discovered an error in that Bell Model 412CF and 412EP helicopters should have been included in the applicability of the AD. Additionally, Bell revised its service information to exclude check valves identified with “TQL” regardless of manufacture date. Check valves marked “TQL” were manufactured using a different process and are not affected by the unsafe condition. Therefore, we are superseding AD 2017-15-02 to add Bell Model 412CF and 412EP helicopters to the applicability and to exclude check valves marked “TQL.”
We reviewed Bell Alert Service Bulletin (ASB) 212-15-153, Revision A, dated October 6, 2017 (212-15-153), and Bell ASB 212-15-155, Revision A, dated October 6, 2017 (212-15-155), for Model 212 helicopters; Bell ASB 412-15-165, Revision A, dated October 6, 2017 (412-15-165), and Bell ASB 412-15-168, Revision A, dated October 6, 2017 (ASB 412-15-168), for Model 412 and 412 EP helicopters; and Bell ASB 412CF-15-57, Revision A, dated October 6, 2017 (412CF-15-57), and Bell ASB 412CF-15-59, Revision A, dated October 6, 2017 (412CF-15-59), for Model 412CF helicopters. ASB 212-15-153, ASB 412-15-165, and ASB 412-CF-15-57 contain procedures for inspecting and replacing engine oil check valve P/N 209-062-520-001. ASB 212-15-155, ASB 412-15-168, and ASB
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This AD requires, within 25 hours time-in-service (TIS), replacing the engine oil and fuel check valves. This AD also prohibits installing on any helicopter a check valve P/N 209-062-520-001 or P/N 209-062-607-001 that was manufactured by Circor Aerospace, marked “Circle Seal” and marked with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), except if “TQL” is marked next to the manufacturing date code.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the actions required by this AD must be accomplished within 25 hours TIS, a very short interval for helicopters used in firefighting and logging operations. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 161 (59 Model 212 and 102 Model 412) helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85, replacing each check valve (engine oil or fuel) will require about 1 work-hour, and required parts will cost $85. For the Model 212, we estimate a total cost of $340 per helicopter and $20,060 for the U.S. fleet. For the Model 412, we estimate a total cost of $170 per helicopter and $17,340 for the U.S. fleet.
According to Bell's service information some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Bell. Accordingly, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 5, 2018.
This AD replaces AD 2017-15-02, Amendment 39-18962 (82 FR 33439, July 20, 2017).
This AD applies to Bell Model 212, 412, 412CF, and 412EP helicopters, certificated in any category, with an engine oil check valve part number (P/N) 209-062-520-001 or fuel check valve P/N 209-062-607-001 manufactured by Circor Aerospace, marked “Circle Seal” and with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), except a check valve marked “TQL” next to the manufacturing date code, installed.
Joint Aircraft Service Component (JASC) Codes: 7900 Engine Oil System and 2800 Aircraft Fuel System.
This AD defines the unsafe condition as a cracked or leaking check valve, which could result in loss of lubrication or fuel to the engine, failure of the engine or a fire, and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 25 hours time-in-service:
(i) Replace each fuel check valve.
(ii) For Model 212, 412CF, and 412EP helicopters, replace each engine oil check valve.
(2) After the effective date of this AD, do not install on any helicopter a check valve P/N 209-062-520-001 or P/N 209-062-607-001 manufactured by Circor Aerospace, marked “Circle Seal” and with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), except for a check valve marked “TQL” next to the manufacturing date code.
(1) The Manager, DSCO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (i) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Jurgen E. Priester, Aviation Safety Engineer, DSCO Branch, Compliance and Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5159; email
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding Airworthiness Directive (AD) 2016-03-03 for all Rolls-Royce plc (RR) Viper Mk. 521, Viper Mk. 522, and Viper Mk. 601-22 turbojet engines. AD 2016-03-03 required reducing the life of certain critical parts. This AD requires reducing the life of certain critical parts and adds additional engine parts to the applicability. This AD was prompted by a determination made by RR that additional parts for the applicable RR Viper turbojet engine models are affected. We are issuing this AD to address the unsafe condition on these products.
This AD is effective September 25, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 25, 2018.
For service information identified in this final rule, contact DA Services Operations Room at Rolls-Royce plc, Defense Sector Bristol, WH-70, P.O. Box 3, Filton, Bristol BS34 7QE, United Kingdom; phone: +44 (0) 117 97 90700; fax: +44 (0) 117 97 95498; email:
You may examine the AD docket on the internet at
Herman Mak, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-03-03, Amendment 39-18390 (81 FR 12585, March 10, 2016) (“AD 2016-03-03”). AD 2016-03-03 applied to all RR Viper Mk. 521, Viper Mk. 522, and Viper Mk. 601-22 turbojet engines. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes.
We reviewed RR Alert Service Bulletin (ASBs) Mk. 521 Number 72-A408, Circulation A; Mk. 521 Number 72-A408, Circulation B; Mk. 522 Number 72-A413, Circulation A; Mk. 522 Number 72-A412, Circulation B; and Mk. 601-22 Number 72-A207; all
RR ASBs Mk. 521 Number 72-A408, Circulation A (Revision 1) and Mk. 521 Number 72-A408, Circulation B (Revision 1) describe applicable part numbers (P/Ns) and revised cyclic life limits for parts installed on the Viper Mk. 521 turbojet engine. RR ASBs Mk. 522 Number 72-A413, Circulation A (Revision 1), and Mk. 522 Number 72-A412, Circulation B (Revision 1) describe applicable P/Ns and revised cyclic life limits for parts installed on the Viper Mk. 522 turbojet engine. The content of Circulation A and B of these respective ASBs is identical. RR uses the designations “Circulation A” and “Circulation B” to determine distribution of service information, based on the capabilities of maintenance facilities.
RR ASB Mk. 601-22 Number 72-A207, Rev. 1, describes applicable P/Ns and revised cyclic life limits for parts installed on the Viper Mk. 601-22 turbojet engine.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 46 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 25, 2018.
This AD replaces AD 2016-03-03, Amendment 39-18390 (81 FR 12585, March 10, 2016).
This AD applies to all Rolls-Royce plc (RR) Viper Mk. 521, Viper Mk. 522, and Viper Mk. 601-22 turbojet engines.
Joint Aircraft System Component (JASC) Code 7230, Compressor Section.
This AD was prompted by a review by RR of the lives of certain critical parts. We are issuing this AD to prevent failure of life-limited parts. This unsafe condition, if not addressed, could result in uncontained part release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Remove from service any Group A component listed in Table 1 of the RR Alert Service Bulletins (ASBs) listed in paragraphs (g)(1)(i) through (v) of this AD within 30 days after the effective date of this AD, or before the part exceeds the revised life limit specified in the applicable ASB, whichever occurs later.
(i) RR ASB Mk. 521 Number 72-A408, Circulation A (Revision 1), dated June 2017.
(ii) RR ASB Mk. 521 Number 72-A408, Circulation B (Revision 1), dated June 2017.
(iii) RR ASB Mk. 522 Number 72-A413, Circulation A (Revision 1), dated June 2017.
(iv) RR ASB Mk. 522 Number 72-A412, Circulation B (Revision 1), dated June 2017.
(v) RR ASB Mk. 601-22 Number 72-A207, Rev. 1, dated June 2017.
(2) Reserved.
After the effective date of this AD, do not install any Group A component identified in Table 1 of the RR ASBs in paragraph (g)(1)(i) through (v) of this AD into any engine, or return any engine to service with any affected part installed, if the affected part exceeds the revised life limit specified in the applicable ASB.
(1) The Manager, ECO Branch, FAA, may approve AMOCs for this AD, if requested, using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Herman Mak, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email:
(2) Refer to European Aviation Safety Agency (EASA) AD 2017-0148, dated August 15, 2017, for more information. You may examine the EASA AD on the internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Rolls-Royce plc (RR) Alert Service Bulletin (ASB) Mk. 521 Number 72-A408, Circulation A (Revision 1), dated June 2017.
(ii) RR ASB Mk. 521 Number 72-A408, Circulation B (Revision 1), dated June 2017.
(iii) RR ASB Mk. 522 Number 72-A413, Circulation A (Revision 1), dated June 2017.
(iv) RR ASB Mk. 522 Number 72-A412, Circulation B (Revision 1), dated June 2017.
(v) RR ASB Mk. 601-22 Number 72-A207, Rev. 1, dated June 2017.
(3) For service information identified in this AD, contact DA Services Operations Room at Rolls-Royce plc, Defense Sector Bristol, WH-70, P.O. Box 3, Filton, Bristol BS34 7QE, United Kingdom; phone: +44 (0) 117 97 90700; fax: +44 (0) 117 97 95498; email:
(4) You may view this service information at FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA, 01803. For information on the availability of this material at the FAA, call 781-238-7759.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 2014-05-28, which applied to certain Bombardier, Inc., Model DHC-8-400 series airplanes. AD 2014-05-28 required revising the maintenance or inspection program, as applicable. This AD requires revising the maintenance or inspection program, as applicable, to include a revised task. This AD was prompted by a determination that the interval from Maintenance Review Board (MRB) task number 323100-202 should not be escalated, and that Certification Maintenance Requirements (CMR) task number 323100-102 should be applicable to all Model DHC-8-400 series airplanes, regardless of which main landing gear (MLG) up-lock assembly is installed. We are issuing this AD to address the unsafe condition on these products.
This AD is effective September 25, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 25, 2018.
For service information identified in this final rule, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone: 416-375-4000; fax: 416-375-4539; email:
You may examine the AD docket on the internet at
Darren Gassetto, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; email
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-05-28, Amendment 39-17800 (79 FR 18611, April 3, 2014) (“AD 2014-05-28”). AD 2014-05-28 applied to certain Bombardier, Inc., Model DHC-8-400 series airplanes. The NPRM published in the
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD
[Canadian] AD CF-2012-21 [which corresponds to FAA AD 2014-05-28] was issued to mandate the incorporation of Maintenance Review Board (MRB) task number 323100-202. As in-service experience has shown that the interval for MRB task number 323100-202 should not be escalated, Bombardier has introduced one-star CMR task number 323100-102 to prevent task escalation. Bombardier has also revised the applicability of MRB task number 323100-202 to be applicable to the entire DHC-8-400/-401/-402 fleet, regardless of which main landing gear (MLG) up-lock assembly part number is installed. This revised applicability has resulted in CMR task number 323100-102 also being made applicable to the entire DHC-8-400/-401/-402 fleet, regardless of MLG up-lock assembly part number installation.
This [Canadian] AD mandates the incorporation of CMR task number 323100-102 [into the maintenance or inspection program, as applicable].
You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to that comment.
Horizon Air requested that the proposed AD be revised to address operators that have already revised their maintenance or inspection program to include the information specified in CMR task number 323100-102 of Q400 Dash 8 (Bombardier) Temporary Revision (TR) ALI-0168, dated October 31, 2016 (“Bombardier TR ALI-0168”). The commenter stated that paragraphs (h) and (i) of the proposed AD established compliance times and a method for the initial functional check of CMR task number 323100-102. The commenter also noted that the method of compliance for the initial functional check in paragraph (i) of the proposed AD is based on accomplishing CMR task number “32100-202.” We infer the commenter meant CMR task number “323100-102.” The commenter stated that this does not address operators that have the CMR task already in place.
We do not agree with the commenter's request. We contacted the commenter and, upon further discussion, it was determined that paragraph (i) of this AD does address the commenter's request regarding what operators that already have CMR task number 323100-102 in place should do. The commenter stated that it originally submitted the comment based on a misunderstanding and it intended to withdraw the comment. We have not changed this AD regarding this issue.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD as proposed, except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Bombardier has issued Q400 Dash 8 (Bombardier) Temporary Revision (TR) ALI-0168, dated October 31, 2016. The service information describes CMR task number 323100-102, “Functional Check of the Main Landing Gear Uplock Assembly Latch.” This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 69 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator,
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 25, 2018.
This AD replaces AD 2014-05-28, Amendment 39-17800 (79 FR 18611, April 3, 2014).
This AD applies to Bombardier, Inc., Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001, 4003 and subsequent.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of excessive wear on the lower latch surface of the main landing gear (MLG) up-lock hook. This AD was also prompted by a determination that, the maintenance or inspection program, as applicable, must be revised to include a new task. We are issuing this AD to detect and correct up-lock hooks worn beyond the wear limit, which could prevent the successful extension of the MLG using the primary landing gear extension system, which in combination with an alternate extension system failure could result in the inability to extend the MLG.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Certification Maintenance Requirements (CMR) task number 323100-102 of Q400 Dash 8 (Bombardier) Temporary Revision (TR) ALI-0168, dated October 31, 2016 (“Bombardier TR ALI-0168”). The applicable maintenance or inspection program revision required by this paragraph may be done by inserting a copy of Bombardier TR ALI-0168, to Section 1-32, Landing Gear Maintenance Program, of Maintenance Review Board (MRB) Report Part 2, Bombardier Q400 Dash 8 Maintenance Requirements Manual, Product Support Manual (PSM) 1-84-7. When this temporary revision has been included in general revisions of the PSM, the general revisions may be inserted in the maintenance or inspection program, as applicable, provided the relevant information in the general revision is identical to that in Bombardier TR ALI-0168.
For MLG up-lock assembly latches that have accumulated flight cycles which exceed the CMR task number 323100-102 interval specified in Bombardier TR ALI-0168: Perform the initial CMR task number 323100-102 functional check as specified in Bombardier TR ALI-0168 using the applicable compliance time specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD.
(1) For MLG up-lock assembly latches that have 14,200 total flight cycles or more as of the effective date of this AD: The compliance time for doing the initial functional check is within 800 flight cycles after the effective date of this AD.
(2) For MLG up-lock assembly latches that have 11,600 total flight cycles or more, but fewer than 14,200 total flight cycles, as of the effective date of this AD: The compliance time for doing the initial functional check is within 1,600 flight cycles after the effective date of this AD, but not to exceed 15,000 total flight cycles on the up-lock assembly latch.
(3) For MLG up-lock assembly latches with fewer than 11,600 total flight cycles as of the effective date of this AD: The compliance time for doing the initial functional check is within 3,000 flight cycles after the effective date of this AD, but not to exceed 13,200 total flight cycles on the up-lock assembly latch.
Accomplishing CMR task number 323100-102 of Bombardier TR MRB-66, dated December 7, 2011, to Section 1-32, Landing Gear Maintenance Program, of MRB Report Part 1, Bombardier Q400 Dash 8 Maintenance Requirements Manual, PSM 1-84-7, within 3,000 flight cycles before the effective date of this AD, is a method of compliance for the initial functional check required by CMR task number 323100-102 as specified in Bombardier TR ALI-0168.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2017-15, effective May 29, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Darren Gassetto, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; email
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(3) and (l)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Q400 Dash 8 (Bombardier) Temporary Revision (TR) ALI-0168, dated October 31, 2016.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone: 416-375-4000; fax: 416-375-4539; email:
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Office of Special Education and Rehabilitative Services, Department of Education.
Final requirement.
The Assistant Secretary for Special Education and Rehabilitative Services announces a requirement under the Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities (TA&D) program. The Assistant Secretary may use this requirement for competitions in fiscal year (FY) 2018 and later years.
This requirement is effective September 20, 2018.
Jo Ann McCann, U.S. Department of Education, 400 Maryland Avenue SW., Room 5162, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 245-7434. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-8339.
We published a notice of proposed requirement (NPR) in the
Finally, since this is a competitive grant competition, it would be inappropriate, as one commenter suggests, to have separate requirements for incumbent grantees unavailable to other grantees.
The Assistant Secretary establishes the following requirement for this program. We may apply this requirement in any fiscal year in which this program is in effect.
A grantee may recover the lesser of (a) its actual indirect costs as determined by the grantee's negotiated indirect cost rate agreement and (b) 10 percent of its modified total direct costs. If a grantee's allocable indirect costs exceed 10 percent of its modified total direct costs, the grantee may not recoup the excess by shifting the cost to other grants or contracts with the U.S. Government,
This notice does not preclude the Department from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement 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 stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2018, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions, unless required by law or approved in writing by the Director of OMB. However, Executive Order 13771 does not apply to “transfer rules” that cause only income transfers between taxpayers and program beneficiaries, such as those regarding discretionary grant programs. Because this final requirement would be utilized in connection with a discretionary grant program, the requirement to offset new regulations in Executive Order 13771 does not apply.
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing this final requirement based on a reasoned determination that the benefits would justify the costs. In choosing among alternative regulatory approaches, we selected this approach to maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. This regulatory action may result in a subset of grantees under this program recovering less funds for indirect costs than they would otherwise have recovered prior to this final new maximum indirect cost rate, which could impact their operations. Further, it could result in particular entities not seeking funding under this program because of an inability to operate under this final new maximum indirect cost rate. However, we believe that the benefits to program beneficiaries of utilizing a higher percentage of program funds for direct services outweigh these costs.
You may also access documents of the Department published in the
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is partially approving and partially disapproving several state implementation plan (SIP) submissions from the State of Arizona pursuant to the requirements of section 110(a)(1) and 110(a)(2) of the Clean Air Act (CAA or “the Act”) for the implementation, maintenance, and enforcement of the 2010 nitrogen dioxide (NO
This rule is effective on September 20, 2018.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2015-0472. All documents in the docket are listed on the
John Ungvarsky, Air Planning Office (AIR-2), EPA Region IX, (415) 972-3963,
Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.
Section 110(a)(1) of the CAA requires states to make a SIP submission within three years after the promulgation of a new or revised primary NAAQS. Section 110(a)(2) includes a list of specific elements that the SIP must include. Many of the section 110(a)(2) SIP elements relate to the general information and authorities that constitute the “infrastructure” of a state's air quality management program. SIP submittals that address these requirements are referred to as “infrastructure SIP submissions” or “I-SIP submissions.” The I-SIP elements required by section 110(a)(2) are as follows:
• Section 110(a)(2)(A): Emission limits and other control measures;
• section 110(a)(2)(B): Ambient air quality monitoring/data system;
• section 110(a)(2)(C): Program for enforcement of control measures and regulation of new and modified stationary sources (excluding the requirements applicable only in nonattainment areas);
• section 110(a)(2)(D)(i): Interstate pollution transport;
• section 110(a)(2)(D)(ii): Interstate and international pollution abatement;
• section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies;
• section 110(a)(2)(F): Stationary source monitoring and reporting;
• section 110(a)(2)(G): Emergency episodes;
• section 110(a)(2)(H): SIP revisions;
• section 110(a)(2)(J): Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection;
• section 110(a)(2)(K): Air quality modeling and submittal of modeling data;
• section 110(a)(2)(L): Permitting fees; and
• section 110(a)(2)(M): Consultation/participation by affected local entities.
Two elements identified in section 110(a)(2) are not governed by the three-year submittal deadline of section 110(a)(1) and are therefore not addressed in this action. These two elements are: Section 110(a)(2)(C) to the extent it refers to nonattainment new source review (NSR) permit programs required under part D, and section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address SIP requirements for the nonattainment NSR portion of section 110(a)(2)(C) or of section 110(a)(2)(I).
In 2010, the EPA promulgated revised NAAQS for NO
• 2010 NO
• 2010 SO
On May 16, 2016, the EPA proposed to partially approve and partially disapprove the Arizona infrastructure SIP submissions as meeting the requirements of sections 110(a)(1) and 110(a)(2) of the Act for the implementation, maintenance, and enforcement of the 2010 NO
During the public comment period, the EPA received one brief and anonymous comment on the proposed action.
Nonetheless and as explained further below, we are finalizing a partial disapproval of a narrow portion of the PSD program elements of the I-SIP submissions for the 2010 NO
Under CAA section 110(k)(3), and based on the evaluation and rationale presented in the proposed rule, the related TSD, and this final rule, the EPA is approving in part and disapproving in part Arizona infrastructure SIP submissions addressing requirements of CAA section 110(a)(1) and (2), as applicable, with respect to the 2010 NO
In this final action we are also making several administrative changes to clarify inconsistencies between our notice of proposed rulemaking and TSD. In the May 16, 2016 action we inadvertently listed several elements under the Proposed Approvals and Partial Approvals section of the notice. The portions of the infrastructure SIP submissions that the EPA listed under the Proposed Approvals and Partial Approvals section of the notice, but instead should have been listed under the Proposed Partial Disapprovals section of the notice, include: Section 110(a)(2)(C) prevention of significant deterioration (ADEQ and Pinal County);
We are approving the 2010 NO
• Section 110(a)(2)(A)—emission limits and other control measures (for all jurisdictions and both pollutants);
• section 110(a)(2)(B)—ambient air quality monitoring/data system (for all jurisdictions and both pollutants);
• section 110(a)(2)(C)—program for enforcement of control measures and regulation of minor sources and minor modifications (for all jurisdictions and both pollutants)
• section 110(a)(2)(D)—interstate pollution transport;
• section 110(a)(2)(E)—adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies (for all jurisdictions and both pollutants);
• section 110(a)(2)(F)—stationary source monitoring and reporting (for all jurisdictions and both pollutants);
• section 110(a)(2)(G)—emergency episodes (for all jurisdictions and both pollutants);
• section 110(a)(2)(H)—SIP revisions (for all jurisdictions and both pollutants);
• section 110(a)(2)(J)—consultation with government officials in section 121 (for all jurisdictions and both pollutants) and public notification of exceedances in section 127 (for all jurisdictions and both pollutants);
• section 110(a)(2)(K)—air quality modeling and submission of modeling data (for all jurisdictions and both pollutants);
• section 110(a)(2)(L)—permitting fees (for all jurisdictions and both pollutants); and
• section 110(a)(2)(M)—consultation/participation by affected local entities (for all jurisdictions and both pollutants).
The EPA is taking no action at this time on section 110(a)(2)(D)(i)(I)—significant contribution to nonattainment and interference with maintenance—for the 2010 SO
The EPA is partially approving and partially disapproving Arizona's 2010 NO
• Section 110(a)(2)(C)—PSD permit program (for ADEQ and Pinal County and both pollutants);
• section 110(a)(2)(D)—interstate pollution transport (see below); and
• section 110(a)(2)(J)—PSD permit program (for ADEQ and Pinal County and both pollutants);
The EPA is disapproving Arizona's 2010 NO
• Section 110(a)(2)(C)—PSD permit program (for Maricopa County and Pima County and both pollutants);
• section 110(a)(2)(D)—interstate pollution transport (see below); and
• section 110(a)(2)(J)—PSD permit program (for Maricopa County and Pima County and both pollutants).
CAA section 110(c)(1) provides that the EPA must promulgate a FIP within two years after finding that a state has failed to make a required submission or disapproving a state's SIP submission in whole or in part, unless the EPA approves a SIP revision correcting the deficiencies within that two-year period. As explained below and in the TSD for this action, today's final disapproval and final partial approval and partial disapproval actions do not result in any new FIP obligations because FIPs are already in place for the deficient portions of Arizona's I-SIP submissions for the 2010 SO
We are disapproving the Pima County and Maricopa County portions of Arizona's infrastructure SIP submissions, and partially approving and partially disapproving the ADEQ and Pinal County portions of Arizona's infrastructure SIP submissions, with respect to the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J). The Arizona SIP does not fully satisfy the statutory and regulatory requirements for PSD permit programs under part C, title I of the Act, because Maricopa County and Pima County do not have SIP-approved PSD programs, while ADEQ and Pinal County do not have SIP-approved PSD programs that cover GHGs. Maricopa County and Pima County currently implement the federal PSD program in 40 CFR 52.21 for all regulated NSR pollutants, pursuant to delegation agreements with the EPA, while ADEQ and Pinal County implement 40 CFR 52.21 for GHGs pursuant to delegation agreements with the EPA. Accordingly, although the Arizona SIP remains deficient with respect to certain PSD requirements in the ADEQ, Pinal County, Maricopa County, and Pima County portions of the SIP, these deficiencies are adequately addressed in all areas by the federal PSD program in 40 CFR 52.21 and do not create new FIP obligations.
We are also disapproving all jurisdictions in Arizona for the visibility-related requirements of section 110(a)(2)(D)(i)(II). Because ADEQ, Pinal County, Maricopa County, and Pima County rely on an existing FIP to control sources under the Regional Haze Rule, and they have not demonstrated that emissions within their respective jurisdictions do not interfere with other states' programs to protect visibility, they do not meet the infrastructure SIP obligations for the visibility requirements of section 110(a)(2)(D)(i)(II) for the 2010 NO
The EPA is approving ARS sections 49-104(A)(3) and (B)(1) into the Arizona SIP in order to meet the air quality modeling and data submission requirements of 110(a)(2)(K) for the 2010 NO
Based on Arizona's 2013-2017 air quality data for Pima County, we are reclassifying this region from Priority II to Priority III for SO
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements, and Sulfur dioxide.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The additions read as follows:
(e) * * *
The Arizona plan is evaluated on the basis of the following classifications:
(l)
(m)
(n)
(o)
(p)
(q)
(r)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia (the Commonwealth or Virginia) on July 16, 2015. This SIP submittal changes Virginia's reliance on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State Air Pollution Rule (CSAPR) for certain elements of Virginia's regional haze program. EPA is approving the visibility portion of Virginia's infrastructure SIP submittals for the 2010 sulfur dioxide (SO
This final rule is effective on September 20, 2018.
EPA has established a docket for this action under Docket ID
Ellen Schmitt, (215) 814-5787, or by email at
On July 16, 2015, the Virginia Department of Environmental Quality (VA DEQ) submitted a revision to its SIP to update the Commonwealth's regional haze plan and to meet the visibility requirements in section 110(a)(2)(D) of the CAA for the 2010 SO
On March 1, 2018 (83 FR 8814), EPA published a notice of proposed rulemaking (NPR) addressing SIP revisions from the Commonwealth. In the NPR, EPA proposed to take the following actions: (1) To approve Virginia's July 16, 2015 SIP submission that changed Virginia's reliance on CAIR to reliance on CSAPR for certain elements of Virginia's regional haze program; (2) to convert EPA's limited approval/limited disapproval
In order to correct the deficiencies identified in the June 7, 2012 limited disapproval of Virginia's regional haze program by EPA, the Commonwealth submitted a SIP revision to the Agency on July 16, 2015 to replace reliance on CAIR with reliance on CSAPR in its regional haze SIP.
As did EPA's partial regional haze FIP for Virginia, the Commonwealth's July 16, 2015 regional haze SIP revision relies on CSAPR to address the deficiencies identified in EPA's June 2012 limited disapproval of Virginia's regional haze SIP. As discussed in the NPR in greater detail, EPA finds that this revision satisfies Virginia's BART requirements for its EGUs and reasonable progress requirements and therefore allows for a fully approvable regional haze program. With today's final approval, the Commonwealth has a SIP in place to address all of its regional haze requirements. EPA finds that Virginia's reliance in its SIP upon CSAPR for certain BART and reasonable progress requirements is in accordance with the CAA and regional haze rule requirements (including 40 CFR 51.308(e)(2)), as EPA has recently affirmed that CSAPR remains an appropriate alternative to source-specific BART controls for EGUs participating in CSAPR.
The specific details of Virginia's July 16, 2015 SIP revision and the rationale for EPA's approval are discussed in the NPR
EPA is taking the following actions: (1) Approving Virginia's July 16, 2015 SIP submission that changed Virginia's reliance on CAIR to reliance on CSAPR for certain elements of Virginia's regional haze program; (2) converting EPA's limited approval/limited disapproval of Virginia's regional haze program to a full approval; (3) withdrawing the FIP provisions that address the limited disapproval of Virginia's regional haze program; (4) approving the portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities because small entities are not subject to the requirements of this rule. 83 FR 8814 (March 1, 2018) and 83 FR 20002 (May 7, 2018).
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. There are no Indian reservation lands in Virginia. Thus, Executive Order 13175 does not apply to this rule.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur oxides, Visibility.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
(g) EPA converts its limited approval/limited disapproval of Virginia's regional haze program to a full approval. This SIP revision changes Virginia's reliance from the Clean Air Interstate Rule to the Cross-State Air Pollution Rule to meet the regional haze SIP best available retrofit technology
Environmental Protection Agency (EPA).
Final rule.
On March 22, 2018, the State of Alabama, through the Alabama Department of Environmental Management (ADEM), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Etowah County, Alabama fine particulate matter (PM
This rule will be effective September 20, 2018.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2018-0173. All documents in the docket are listed on the
Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Sanchez can be reached by telephone at (404) 562-9644 or via electronic mail at
On September 21, 2006, EPA revised the primary and secondary 24-hour NAAQS for PM
The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the Clean Air Act (CAA). EPA and state air quality agencies initiated the monitoring process for the 1997 PM
On March 22, 2018, Alabama submitted a request for EPA to redesignate the Etowah County Area to unclassifiable/attainment for the 2006 24-hour PM
EPA is approving Alabama's redesignation request and redesignating the Etowah County Area from unclassifiable to unclassifiable/attainment for the 2006 24-hour PM
Under the CAA, redesignation of an area to unclassifiable/attainment is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to unclassifiable/attainment does not in and of itself create any new requirements. Accordingly, this action merely redesignates an area to unclassifiable/attainment and does not impose 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 redesignations 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
• 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
• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
This final redesignation action is not approved to apply to 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, National parks, Wilderness areas.
40 CFR part 81 is amended as follows:
42.U.S.C. 7401,
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) Region 3 announces the deletion of the Ordnance Works Disposal Areas Superfund Site (Site) located in Morgantown, West Virginia, from the National Priorities List (NPL). 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 West Virginia, through the West Virginia Department of Environmental Protection (WVDEP), have determined that all appropriate response actions under CERCLA, other than operation and maintenance,
This action is effective August 21, 2018.
U.S. EPA Region III, Superfund Records Center, 6th Floor, 1650 Arch Street, Philadelphia, PA 19103-2029; (215) 814-3157, Monday through Friday 8:00 a.m. to 5:00 p.m.
Morgantown Public Library, 373 Spruce Street, Morgantown, WV 26505; (304) 291-7425, Monday through Saturday 9:00 a.m. to 4:00 p.m.
Jeffrey Thomas, Remedial Project Manager, U.S. Environmental Protection Agency, Region 3, 3HS23 1650 Arch Street Philadelphia, PA 19103, (215) 814-3377, email
The site to be deleted from the NPL is: Ordnance Works Disposal Areas, Morgantown, West Virginia. A Notice of Intent to Delete for this Site was published in the
The closing date for comments on the Notice of Intent to Delete was July 20, 2018. No public comments were received and EPA believes the deletion action remains appropriate.
EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion from the NPL does not preclude further remedial action. 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. Deletion of a site from the NPL does not affect responsible party liability in the unlikely event that future conditions warrant further actions.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For reasons set out in the preamble, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Children's Bureau (CB); Administration on Children, Youth and Families (ACYF); Administration for Children and Families (ACF); Department of Health and Human Services (HHS).
Final rule; delay of compliance and effective dates.
The Children's Bureau will delay the compliance and effective dates in the Adoption and Foster Care Analysis and Reporting System (AFCARS) 2016 final rule for title IV-E agencies to comply with agency rules for an additional one fiscal year. We are delaying the effective date due to our advanced notice of proposed rulemaking (ANPRM), published on March 15, 2018, seeking public comment on suggestions for streamlining the AFCARS data elements and removing any undue burden related to reporting AFCARS data.
This rule is effective on August 21, 2018. As of August 21, 2018, the effective date for amendatory instructions 3 and 5, published December 14, 2016 at 81 FR 90524, is delayed to October 1, 2020.
Kathleen McHugh, Division of Policy, Children's Bureau at (202) 401-5789,
In the AFCARS final rule issued on December 14, 2016 (81 FR 90524), ACF provided an implementation timeframe of two fiscal years for title IV-E agencies to comply with §§ 1355.41 through 1355.47 (81 FR 90529). On February 24, 2017, the President issued Executive Order 13777 entitled “Enforcing the Regulatory Reform Agenda”. In response to the President's direction that federal agencies establish a Regulatory Reform Task Force to review existing regulations and make recommendations regarding their repeal, replacement, or modification, the HHS Task Force identified the AFCARS regulation as one where there may be areas for reducing reporting burden.
On March 15, 2018, ACF published a notice of proposed rulemaking (NPRM) proposing to revise the effective date in the regulation to provide an additional two fiscal years to comply with §§ 1355.41 through 1355.47 (83 FR 11450). The comment period ended on April 16, 2018. In response to the NPRM, we received 43 comments from 12 states, six Indian tribes or consortia, three organizations representing tribal interests, and 22 other organizations and anonymous entities. The analysis of the comments may be found in the section-by-section discussion of this final rule.
Based on our analysis of the comments, in this final rule ACF revised § 1355.40 to provide an additional fiscal year to comply with §§ 1355.41 through 1355.47. This also serves as a notice to title IV-E agencies that we are delaying the implementation timeframe for title IV-E agencies to make revisions to their systems to comply with §§ 1355.41 through 1355.47.
ACF finds good cause for these amendments to become effective on the date of publication of this action. The APA allows an effective date less than 30 days after publication as “provided by the agency for good cause found and published with the rule” (5 U.S.C. 553(d)(3)). A delayed effective date is unnecessary in this case because, as stated above, any delay might lead to
We revised the effective dates in the regulation to provide an additional fiscal year to comply with §§ 1355.41 through 1355.47. State and tribal title IV-E agencies must continue to report AFCARS data in the same manner they do currently, per § 1355.40 and appendices A through E of part 1355 until September 30, 2020. As of October 1, 2020, state and tribal title IV-E agencies must comply with §§ 1355.41 through 1355.47.
In general, all state commenters supported the delay and all of the Indian tribes, organizations representing tribal interests, and all but one organization opposed delaying implementation of the AFCARS 2016 final rule. Commenters in support of the delay stated that the delay will provide time for states to fully analyze system, cost, and training work needed to meet new AFCARS requirements, revise and update systems (which may include instituting a Comprehensive Child Welfare Information System) to move to a CCWIS, and allows ACF time to provide needed technical assistance and guidance on the new AFCARS requirements. Commenters in opposition of a delay of the 2016 final rule stated that a delay deprives federal, state, and tribal governments of critical case-level data on information that is not currently reported to AFCARS that can be used to build an evidence base for federal, state, and tribal policymaking and guide budget decisions for achieving positive outcomes. They also stated that interested parties were already provided ample notice and opportunities to comment and the 2016 final rule thoroughly responded to comments.
We understand both the support and opposition for a delay expressed by commenters. We understand that information reported to AFCARS is important and the 2016 final rule is the first update to the AFCARS regulations since 1993. We must balance the need for updated data with the needs of our grantees, the title IV-E agencies, that must revise their systems to meet new AFCARS requirements and will ultimately be held accountable via compliance and penalties to report the data (see 45 CFR 1355.46 and 1355.47). Therefore, we believe that a balanced compromise is to delay implementation of the 2016 final rule for one year. This means that as of October 1, 2020, state and tribal title IV-E agencies must comply with the revision to AFCARS made by the 2016 final rule (§§ 1355.41 through 1355.47).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. ACF consulted with the Office of Management and Budget (OMB) and determined that this rule does meet the criteria for a significant regulatory action under E.O. 12866. Thus, it was subject to OMB review. ACF determined that the costs to title IV-E agencies as a result of this rule will not be significant as defined in Executive Order 12866 (have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities). Because the rule is not economically significant as defined in E.O. 12866, no cost-benefit analysis needs to be included in this final rule. This final rule is considered an E.O. 13771 deregulatory action.
The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this final rule will not result in a significant impact on a substantial number of small entities. This final rule does not affect small entities because it is applicable only to state and tribal title IV-E agencies.
The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies to prepare an assessment of anticipated costs and benefits before proposing any rule that may result in an annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $146 million. This final rule does not impose any mandates on state, local, or tribal governments, or the private sector that will result in an annual expenditure of $146 million or more.
This regulation is not a major rule as defined in 5 U.S.C. 8.
Executive Order 13132 requires that federal agencies consult with state and local government officials in the development of regulatory policies with Federalism implications. Consistent with E.O. 13132 and
• “A description of the extent of the agency's prior consultation with State and local officials”—ACF held an informational call for the NPRM on April 5, 2018 and the public comment period was open from March 15, 2018 to April 16, 2018 where we solicited comments via
• “A summary of the nature of their concerns and the agency's position supporting the need to issue the regulation”—As we discussed in the preamble to this final rule, state commenters support delaying the compliance date for the 2016 AFCARS final rule; however, Indian tribes, organizations representing tribal interests, and all but one organization opposed delaying implementation of the 2016 final rule. Our need for issuing this final rule is to provide the title IV-E agencies that must submit AFCARS time to revise systems to meet new AFCARS requirements. We provide an additional year to balance the need for updated data with the needs of our grantees.
• “A statement of the extent to which the concerns of State and local officials have been met” (Secs. 6(b)(2)(B) &
Section 654 of the Treasury and General Government Appropriations Act of 2000 (Pub. L. 106-58) requires federal agencies to determine whether a policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. This final rule will not have an impact on family well-being as defined in the law.
Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), all Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. PRA rules require that ACF estimate the total burden created by this proposed rule regardless of what information is available. ACF provides burden and cost estimates using the best available information. Information collection for AFCARS is currently authorized under OMB number 0970-0422. This final rule does not make changes to the AFCARS requirements for title IV-E agencies; it delays the effective date and provides title IV-E agencies with additional time to comply with §§ 1355.41 through 1355.47. Thus, the annual burden hours for recordkeeping and reporting does not change from those currently authorized under OMB number 0970-0422. Therefore, we are not seeking comments on any information collection requirements through this final rule.
ACF is committed to consulting with Indian tribes and tribal leadership to the extent practicable and permitted by law, prior to promulgating any regulation that has tribal implications. During the comment period, CB held an information session on April 5, 2018 where the NPRM was presented by CB officials. Prior to this information session, the NPRM was linked to on the CB website, a link to the NPRM was emailed to CB's tribal lists (on March 13, 2018 when the NPRM was available for public inspection and March 15, 2018 when the NPRM was published), and CB issued ACYF-CB-IM-18-01 (issued March 16, 2018). Additionally, ACF held a tribal consultation on November 6, 2017 during which tribes requested that ACF leave the 2016 final rule in place, stating that the ICWA-related data elements are very important for accountability. At a meeting with tribal representatives at the Secretary's Tribal Advisory Committee on May 9 and 10, 2018, representatives stated the following: they support the 2016 final rule; they have concerns that states are not following ICWA; the ICWA-related data elements are critical to informing Congress, HHS, states, and tribes on how Native children and families are doing in state child welfare systems; and AFCARS information would help inform issues such as foster care disproportionality.
As we developed this final rule, we carefully considered the comments from Indian tribes and organizations representing tribal interests, whose comments were to not delay the implementation of the 2016 final rule. However, we must balance the need for data with the needs of our grantees, the title IV-E agencies, that must revise their systems to meet new AFCARS requirements and will ultimately be held accountable via compliance and penalties to report the data.
Adoption and foster care, Child welfare, Grant programs—social programs.
For the reasons set forth in the preamble, we amend 45 CFR part 1355 as follows:
42 U.S.C. 620
(a)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod total allowable catch (TAC) from vessels using jig gear and catcher vessels greater than or equal to 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line gear to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2018 TAC of Pacific cod to be harvested.
Effective August 16, 2018, through 2400 hours, Alaska local time (A.l.t.), December 31, 2018.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2018 Pacific cod TAC specified for vessels using jig gear in the BSAI is 1,149 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the
The 2018 Pacific cod TAC specified for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear in the BSAI is 363 mt as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).
The 2018 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 5,027 mt as established by final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and inseason adjustment (83 FR 2932, January 22, 2018).
The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 900 mt of the 2018 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(
The harvest specifications for Pacific cod included in final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and inseason adjustment (83 FR 2932, January 22, 2018) are revised as follows: 249 mt to the annual amount for vessels using jig gear, 0 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear, and 6,290 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from jig vessels and catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 15, 2018.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch in the Central Aleutian district (CAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access fishery. This action is necessary to prevent exceeding the 2018 total allowable catch (TAC) of Pacific ocean perch in the CAI allocated to vessels participating in the BSAI trawl limited access fishery.
Effective 1200 hrs, Alaska local time (A.l.t.), August 16, 2018, through 2400 hrs, A.l.t., December 31, 2018.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2018 TAC of Pacific ocean perch, in the CAI, allocated to vessels participating in the BSAI trawl limited access fishery was established as a directed fishing allowance of 658 metric tons by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).
In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the CAI by vessels participating in the BSAI trawl limited access fishery.
After the effective dates of this closure, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Leonardo S.p.A. (Type Certificate Previously Held by Finmeccanica S.p.A., AgustaWestland S.p.A.) Model AW109SP helicopters. This proposed AD would require inspecting and altering the rescue hoist. This proposed AD is prompted by a report of a damaged hoist cable that detached after load application. The actions of this proposed AD are intended to address an unsafe condition on these products.
We must receive comments on this proposed AD by October 22, 2018.
You may send comments by any of the following methods:
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You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Leonardo S.p.A. Helicopters, Matteo Ragazzi, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-711756; fax +39-0331-229046; or at
David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
EASA, which is the Technical Agent for the Member States of the European Union, has issued AD No. 2017-0025, dated February 14, 2017, to correct an unsafe condition for Leonardo S.p.A. (formerly Finmeccanica S.p.A, AgustaWestland S.p.A.) Model AW109SP helicopters. EASA advises that a hoist cable became snagged behind a hoist handle assembly nut and broke during a dummy load application. EASA further advises that this condition could result in detachment of an external load, and subsequent personal injury or injury to persons on the ground. To address this unsafe condition, the EASA AD requires inspecting the hoist cable, modifying the rescue hoist handle, and amending the rescue hoist pre-flight inspection described in the rotorcraft flight manual.
These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other helicopters of the same type design.
We reviewed Leonardo Helicopters Bollettino Tecnico No. 109SP-110, dated February 13, 2017 (BT 109SP-110), which contains procedures for inspecting the hoist handle, the passenger-side cabin doorframe, and the hoist cable. This service information also specifies replacing the attaching hardware on the rescue hoist handle and adding a temporary pre-flight check of the hoist cable to the Rotorcraft Flight Manual.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This proposed AD would require, within 10 hours time-in-service (TIS) or before the next hoist operation, whichever occurs first, inspecting the hoist handle assembly and the upper section of the cabin doorframe for chafing caused by the hoist cable. If there is any chafing, this proposed AD would require, before further flight, repairing the damage and inspecting the first 6 meters (20 feet) of the hoist cable for cable diameter, broken wires, kinks, bird caging, flattened areas, abrasion, and necking. If the cable dimension is less than 4.70 mm (0.185 inch), or if there are any broken wires, kinks, bird caging, flattened areas, abrasion, or necking, this proposed AD would require, before the next hoist operation, replacing the hoist cable.
This proposed AD would also require, within 25 hours TIS, replacing the rescue hoist handle attaching hardware.
The EASA AD requires amending the rotorcraft flight manual by adding a daily rescue hoist cable preflight inspection, this proposed AD does not since the actions in this proposed AD would correct the unsafe condition.
We estimate that this proposed AD would affect 30 helicopters of U.S. Registry.
At an average labor rate of $85 per hour, we estimate that operators may incur the following costs in order to comply with this AD. Inspecting the hoist handle assembly, cabin doorframe, and hoist cable would require about 2 hours, for a cost of $170 per helicopter and $5,100 for the U.S. fleet. Replacing the hardware on the hoist handle assembly would require about 1 hour and required parts cost would be minimal, for a cost of $85 per helicopter and $2,550 for the U.S. fleet.
If required, replacing a hoist cable would require about 3 hours and required parts would cost $3,150, for a cost per helicopter of $3,405.
According to Leonardo Helicopter's service information some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Leonardo Helicopters. Accordingly, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model AW109SP helicopters, certificated in any category, with a rescue hoist part number 109-B810-16-101 or 109-B810-16-201 installed.
This AD defines the unsafe condition as chafing of a rescue hoist cable. This condition could result in detachment of an external load and subsequent injury to persons being lifted.
We must receive comments by October 22, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 10 hours time-in-service (TIS) or before the next hoist operation, whichever occurs first, inspect the rescue hoist handle assembly and the upper part of the cabin doorframe for chafing. The inspection area of the cabin doorframe is depicted in Figure 3 of Leonardo Helicopters Bollettino Tecnico No. 109SP-110, dated February 13, 2017 (BT 109SP-110). Examples of chafing are shown in Figures 10 and 11 of BT 109SP-110. If there is any chafing, before further flight, repair the chafed areas and inspect the first 6 meters (20 feet) of the hoist cable as follows:
(i) Measure the diameter of the hoist cable as described in the Compliance Instructions, Part I, paragraphs 3.4.1 through 3.4.2 of BT 109SP-110.
(ii) Average the two measurements at each location. If at any location the diameter of the hoist cable is less than 4.7 mm (0.185 inch), before the next hoist operation, remove the hoist cable from service.
(iii) Inspect the hoist cable for broken wires, kinks, bird caging, flattened areas, abrasion, and necking, referencing the examples shown and depicted in Figures 5 through 9 of BT 109SP-110. If there are any broken wires, kinks, bird caging, flattened areas, abrasion, or necking, before the next hoist operation, remove the hoist cable from service.
(2) Within 25 hours TIS, replace the rescue hoist handle attaching hardware as described in the Compliance Instructions, Part II, paragraphs 3 through 6, of BT 109SP-110.
A one-time special flight permit may be granted provided that the hoist is not used.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0025, dated February 14, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: Cabin/Equipment Furnishings.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Bell Helicopter Textron Canada Limited (Bell) Model 206A, 206B, 206L, 206L-1, 206L-3, 206L-4, and 407 helicopters. This proposed AD would require inspecting and cleaning the oil supply restrictor (restrictor) to the freewheel assembly. This proposed AD is prompted by reports of a blocked oil line restrictor in the freewheel lubrication system. The proposed actions are intended to address an unsafe condition on these products.
We must receive comments on this proposed AD by October 22, 2018.
You may send comments by any of the following methods:
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•
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•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
Transport Canada, which is the aviation authority for Canada, has issued Canadian AD No. CF-2016-13, dated May 16, 2016 (AD No. CF-2016-13), to correct an unsafe condition for Bell Model 206A, 206B, 206L, 206L-1, 206L-3, 206L-4, and 407 helicopters. Transport Canada advises that they have received two reports of torsional overload failure of the main rotor mast caused by a blocked oil line restrictor in the freewheel lubrication system. Transport Canada states the restrictor may become contaminated during maintenance, causing blockage. Transport Canada further states that a blocked restrictor could cause the freewheel assembly to malfunction and result in failure of the main rotor mast and loss of control of the helicopter.
Additionally, the Canadian AD advises that although certain later versions of these helicopters are equipped with a filter in the freewheel lubrication system that is designed to trap contaminants and prevent blockage of the restrictor, installation of the filter does not guarantee the restrictor will remain free of contaminants. According to Transport Canada, one occurrence of restrictor blockage resulted from contaminants being introduced downstream from the filter, which subsequently caused failure of the freewheel assembly. For these reasons, AD No. CF-2016-13 requires inspecting and cleaning the restrictors and filters to reduce the risk of freewheel failure.
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport
We reviewed Bell Alert Service Bulletin (ASB) 206-14-132 for Model 206A/B and TH-67 helicopters; ASB 206L-14-174 for Model 206L, 206L-1, 206L-3, and 206L-4 helicopters; and ASB 407-14-106 for Model 407 helicopters. Each ASB is Revision A and dated February 9, 2016. This service information specifies removing, cleaning, inspecting, and reinstalling certain freewheel assembly components. ASB 206-14-132 and ASB 206L-14-174 also describe procedures for replacing the reducer with a filter if not already installed.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
For all affected models, this AD would require, within 100 hours time-in-service, inspecting and cleaning the freewheel oil supply system. If there is blockage in the restrictor, disassembling and inspecting the freewheel assembly for condition and wear would be required before further flight. Additionally, for Model 206A, 206B, 206L, 206L-1, 206L-3, and 206L-4 helicopters, this proposed AD would require replacing the reducer with a filter, part number 50-075-1.
We estimate that this proposed AD would affect 2,227 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this proposed AD. At an average labor rate of $85 per hour, inspecting and cleaning the freewheel oil supply system would require about 1 work-hour, for a cost per helicopter of $85 and $189,295 for the U.S. fleet, per inspection cycle.
If required, inspecting the freewheel assembly would require about 1 work-hour, for a cost per helicopter of $85.
If required, replacing a restrictor with a filter would require about 1 work-hour and required parts would cost $125, for a cost per helicopter of $210.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Bell Model 206A, 206B, 206L, 206L-1, 206L-3, 206L-4, and 407 helicopters, certificated in any category.
This AD defines the unsafe condition as a blocked oil line restrictor. This condition could cause failure of the freewheel assembly, which could result in failure of the main rotor mast and subsequent loss of control of the helicopter.
We must receive comments by October 22, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 100 hours time-in-service:
(1) For all helicopters:
(i) Inspect the oil line restrictor for blockage. If there is any blockage in the restrictor, before further flight, inspect the freewheel assembly clutch, inner shaft, outer shaft, forward seal, cap, and bearings for wear, corrosion, nicks, scratches, and cracks; the splines for wear, cracks, chipped teeth, and broken teeth; the housing for flaking; and for free rotation and engagement of the clutch and bearing. If there is any damage that exceeds allowable limits or if the clutch or bearing does not engage or freely rotate, before further flight, repair or replace the freewheel assembly.
(ii) Clean, inspect, and flush each removed fitting, restrictor, tube, hose, and filter with dry cleaning solvent. Do not approve for return to service until each restrictor is free from contamination.
(2) For Model 206A, 206B, 206L, 206L-1, 206L-3, and 206L-4 helicopters with a reducer, replace the reducer with a filter part number 50-075-1.
Special flight permits are prohibited.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA,
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in Transport Canada AD No. CF-2016-13, dated May 16, 2016. You may view the Transport Canada AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6300, Main Rotor Drive System.
Office of the Secretary of Defense, DoD.
Notice of proposed rulemaking.
The Office of the Secretary of Defense proposes to exempt some records maintained in DMDC 18 DoD, “Synchronized Predeployment and Operational Tracker Enterprise Suite (SPOT-ES) Records,” from subsection (d) of the Privacy Act. A system of records notice for this system has been published elsewhere in this issue of the
In accordance with 5 U.S.C. 553(b)(1), (2) and (3), the public is given a 30-day period in which to comment. Therefore, please submit any comments by September 20, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
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•
Ms. Luz D. Ortiz, Chief, Records, Privacy and Declassification Division (RPDD), 1155 Defense Pentagon, Washington, DC 20311-1155, or by phone at (571) 372-0478.
This proposed modification to 32 CFR part 311 adds a new Privacy Act exemption rule for the Synchronized Redeployment and Operational Tracker Enterprise Suite (SPOT-ES), which is used at installations to manage, track, account for, monitor, and report on contracts, companies, and contractor employees supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require contractor support. Contract scope, installations, and/or activities requiring contractor support as documented in SPOT-ES may be classified under Executive Order (E.O.) 13526, “Classified National Security Information.” Information classified under E.O. 13526, as implemented by DoD Manual (DoDM) 5200.01 Volume 1, and DoD Instruction (DoDI) 5200.01, may be exempt pursuant to 5 U.S.C. 552a(k)(1). Granting unfettered access to information that is properly classified pursuant to those authorities may cause damage to the national security.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 also emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action under E.O. 12866.
This proposed rule is not a deregulatory action but a modification to an existing rule.
This proposed rule is not subject to the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532) because it does not contain a federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100M or more in any one year.
It has been certified that this rule does not have a significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within DoD. A Regulatory Flexibility Analysis is not required.
It has been determined that this rule does not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This proposed rule will not have a substantial effect on State and local governments.
Privacy.
Accordingly, 32 CFR part 311 is proposed to be amended as follows:
5 U.S.C. 552a.
(c) * * *
(28)
(i)
(ii)
(iii)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision which Ohio submitted to EPA on April 3, 2015, and supplemented in October 2015 and March 2017, as its plan for attaining the 1-hour sulfur dioxide (SO
Comments must be received on or before September 20, 2018.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0699 (nonattainment SIP) or EPA-R05-OAR-2017-0165 (SO
Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954,
Throughout this document, whenever “we,” “us,” or ”our” is used, we mean EPA. The docket number EPA-R05-OAR-2015-0699 refers to Ohio's nonattainment SIP submittal of April 3, 2015, supplemented on October 13, 2015. This state submittal addressed Ohio's Lake County, Muskingum River, and Steubenville OH-WV SO
The following outline is provided to aid in locating information regarding EPA's proposed action on Ohio's Lake County SO
On June 22, 2010, EPA promulgated a new 1-hour primary SO
In response to the requirement for SO
Nonattainment SIPs must meet the applicable requirements of the CAA, and specifically CAA sections 110, 172, 191 and 192. EPA's regulations governing nonattainment SIPs are set forth at 40 CFR part 51, with specific procedural requirements and control strategy requirements residing at subparts F and G, respectively. Soon after Congress enacted the 1990 Amendments to the CAA, EPA issued comprehensive guidance on SIPs, in a document entitled the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published at 57 FR 13498 (April 16, 1992) (General Preamble). Among other things, the General Preamble addressed SO
On April 23, 2014, EPA issued recommended guidance for meeting the statutory requirements in SO
In order for EPA to fully approve a SIP as meeting the requirements of CAA sections 110, 172 and 191-192 and EPA's regulations at 40 CFR part 51, the SIP for the affected area needs to demonstrate to EPA's satisfaction that each of the applicable requirements have been met. Under CAA sections 110(l) and 193, EPA may not approve a SIP that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement, and no requirement in effect (or required to be adopted by an order, settlement, agreement, or plan in effect before November 15, 1990) in any area which is a nonattainment area for any air pollutant, may be modified in any manner unless it insures equivalent or greater emission reductions of such air pollutant.
CAA section 172(c)(1) directs states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. The regulations at 40 CFR part 51, subpart G, further delineate the control strategy requirements that SIPs must meet. EPA has long required that all SIPs and control strategies reflect four fundamental principles of quantification, enforceability, replicability, and accountability. General Preamble, at 13567-13568. SO
In all cases, the emission limits and control measures must be accompanied by appropriate methods and conditions to determine compliance with the respective emission limits and control measures and must be quantifiable (
EPA's April 2014 SO
The April 2014 SO
EPA considered that the 1-hour primary SO
At issue is whether a source operating in compliance with a properly set longer-term average could cause exceedances, and if so, what are the resulting frequency and magnitude of such exceedances. Specifically, EPA must determine with reasonable confidence whether a properly set longer-term average limit will provide that the 3-year average of the annual fourth highest daily maximum 1-hour value will be at or below 75 ppb. A synopsis of EPA's review of how to judge whether such plans provide for attainment in light of the NAAQS' form, based on modeling of projected allowable emissions for determining attainment at monitoring sites, is given below.
For plans for SO
EPA recognizes that some sources have highly variable emissions, for example due to variations in fuel sulfur content and operating rate, that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the critical emission value. EPA also acknowledges the concern that longer-term emission limits can allow short periods with emissions above the “critical emissions value,” which, if coincident with meteorological conditions conducive to high SO
First, from a practical perspective, EPA expects the actual emission profile of a source subject to an appropriately set longer-term average limit to be similar to the emission profile of a source subject to an analogous 1-hour average limit. EPA expects this similarity because it has recommended that the longer-term average limit be set at a level that is comparably stringent to the otherwise applicable 1-hour limit (reflecting a downward adjustment from the critical emissions value) and that takes the source's emissions profile into account. As a result, EPA expects either form of emission limit to yield comparable air quality.
Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer-term limit, as compared to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the critical emission level, and in the longer-term average limit scenario, the source is presumed occasionally to emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,” compliance with the 1-hour limit is expected to result in three exceedance days (
As a hypothetical example to illustrate these points, suppose there is a source that always emits 1000 pounds of SO
This simplified example illustrates the findings of a more complicated statistical analysis that EPA conducted using a range of scenarios using actual plant data. As described in appendix B of EPA's April 2014 SO
The question then becomes whether this approach—which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the critical emission value—meets the requirements in sections 110(a)(1), 172(c)(1), 172(c)(6), and 192(a) for emission limitations in state implementation plans to “provide for attainment” of the NAAQS. For SO
Additional policy considerations, such as in this case the desirability of accommodating real world emissions variability without significant risk of violations, are also appropriate factors for EPA to weigh in judging whether a plan provides a reasonable degree of confidence that the plan will lead to attainment. Based on these considerations, especially given the high likelihood that a continuously enforceable limit averaged over as long as 30 days, determined in accordance with EPA's guidance, will result in attainment, EPA believes as a general matter that such limits, if appropriately determined, can reasonably be considered to provide for attainment of the 2010 SO
The April 2014 SO
The guidance also addresses a variety of related topics, such as the potential utility of setting supplemental emission limits, such as mass-based limits, to reduce the likelihood and/or magnitude of elevated emission levels that might occur under the longer-term emission rate limit.
EPA anticipates that most modeling used to develop long-term average emission limits and to prepare full attainment demonstrations will be performed using one of EPA's preferred air quality models. Preferred air quality models for use in regulatory applications are described in appendix A of EPA's
As stated previously, attainment demonstrations for the 2010 1-hour primary SO
The meteorological data used in the analysis should generally be processed with the most recent version of AERMET. Estimated concentrations should include ambient background concentrations, should follow the form of the standard, and should be calculated as described in section 2.6.1.2 of the August 23, 2010 clarification memo on “Applicability of appendix W Modeling Guidance for the 1-hr SO
As part of its SIP development process, Ohio used EPA's regulatory dispersion model, AERMOD, to help determine the SO
For the Lake County SIP attainment demonstration, Ohio used the AERMOD model, version 14134. AERMOD is EPA's preferred model for this application, and version 14134 was the current, appropriate model version when the modeling was performed. Occasionally, EPA releases updates to the model between the time that a state completes its modeling analysis and the time that EPA acts on the state's submittal.
If the state's modeling was properly performed using an appropriate model version and submitted as expeditiously as practicable, EPA considers that model version acceptable, as long as the newer model version available at the time of EPA's review does not contain revisions or error corrections that are expected to significantly damage the credibility of the older modeled results. The more recently released versions of AERMOD, 15181 (2015), 16216r (2017), and 18081 (2018), provided revisions to the model which EPA does not expect to have a significant effect on the modeled results for the analysis that Ohio performed for Lake County.
Ohio ran the AERMOD model in regulatory default mode, with rural dispersion coefficients. Ohio performed a land use analysis which considered land use within a 3 kilometer (km) radius of each facility, using National Land Cover Database data from 1992 and 2011. Ohio considered the urban and rural land use percentages both with and without the portion of Lake Erie within the 3 km radius. In both cases, the land use analyses indicated that running the AERMOD model in rural mode was appropriate.
The state used a set of nested grids of receptors centered on the modeled Lake County facilities. The analysis included a total of 14,680 receptors. Receptors were placed every 50 meters (m) within 1 km of the three facilities, then every 100 m to 2.5 km, and every 250 m out to a 5 km distance from the facilities. Between 5 and 10 km, a 500-m receptor spacing was used, and beyond 10 km from the facilities, receptors were placed every 1000 m. Ohio placed receptors along the fenceline of these three facilities, and did not place receptors within plant property where public access is precluded. EPA requires assessing whether violations within plant property may be occurring as the result of emissions from other plants in the area. As discussed below in Section IV.F, EPA believes that Ohio's submitted modeling results, based on modeling without receptors on plant property, are adequate to demonstrate that no such violations are occurring.
Ohio used the AERMAP terrain preprocessor, version 11103, with USGS Digital Elevation Data to include terrain heights at the receptor locations. EPA finds the model selection and these modeling options appropriate.
Ohio used five years (2008-2012) of National Weather Service meteorological data from Cleveland Hopkins International Airport (Station 14820) with upper air data from Buffalo Niagara International Airport (Station 14733). This data was processed with AERMINUTE version 14237 and AERMET version 14134. Cleveland Hopkins International Airport is located at the southwestern edge of the city of Cleveland, in Cuyahoga County, approximately 45-60 km southwest of the Lake County power plants. Lake County borders Cuyahoga County to the northeast. The Cleveland surface data adequately represents the typical prevailing winds in Lake County, the influences of generally similar topography, and the meteorological influence from nearby Lake Erie.
The upper air station in Buffalo, New York, is also considered to be representative of Lake County, Ohio. The Buffalo upper air station is about 250 km from Painesville, but it is located at the eastern end of Lake Erie and south of Lake Ontario, so it is likely to experience upper air meteorological conditions similar to those affecting the Lake County SO
Ohio used AERSURFACE version 13016 to determine the AERMOD surface characteristics of albedo, Bowen ratio, and roughness length, which were then input into AERMOD. Ohio used National Land Cover Database data from 1992, twelve sectors, and four seasons, including moisture conditions at the surface meteorological station which were determined from 30-year precipitation data. EPA finds that this procedure for preparing the input values for AERMOD surface characteristics is acceptable.
Ohio considered three significant facilities in Lake County for inclusion in the Lake County analysis and attainment demonstration: The FirstEnergy Generation, LLC, Eastlake Plant (Eastlake plant), the Painesville Municipal Electric Plant (Painesville plant), and Carmeuse Lime Grand River Operations (Carmeuse Lime). These three facilities were responsible for 98 percent of Lake County's total SO
The Eastlake plant had five large boilers, but at the time of Ohio's analysis, two of those boilers had been retired and were no longer emitting SO
The second facility in Lake County which Ohio included in its attainment strategy was the Painesville plant. This facility has three boilers (numbered 3, 4 and 5). Boilers 3 and 4 exhaust from a single stack, 52 m tall. Boiler 5 exhausts from a separate stack, 47 m tall. Ohio's modeling analyses indicated that reductions in the Painesville plant's SO
The third facility, Carmeuse Lime, was included in the final cumulative attainment modeling analysis with emissions of 230 lb/hr at Lime kiln #4 and 260 lb/hr at Lime kiln #5. These emission rates represent Carmeuse Lime's permitted emission rates. Since it was not necessary, Ohio did not revise Carmeuse Lime's emission limits as part of its Lake County nonattainment SIP.
An important prerequisite for approval of a nonattainment plan is that the emission limits that provide for attainment be quantifiable, fully enforceable, replicable, and accountable.
Ohio's nonattainment plan for Lake County relies on revised emission limits for the Painesville plant, existing SO
As of April 2015, none of the Eastlake plant's five large boilers operate or emit SO
For the Painesville plant, Ohio placed new 30-day and 24-hour emission limits in OAC 3745-18-49(F), effective on October 23, 2015, and submitted its SIP rule package to EPA. In accordance with EPA policy, the 30-day average limit is set at a lower level than the hourly emission rate used in the modeled attainment demonstration; the relationship between these two values is discussed in more detail in the following section.
In its initial review, EPA identified an issue with the Painesville plant's limits and their associated compliance requirements as given in Ohio's October 2015 submittal. The method stated in Ohio's rule OAC 3745-18-04 (D)(10) for calculating compliance with the Painesville plant's 30-day emission limits in OAC 3745-18-49 (F) could have been interpreted to allow a boiler's non-operating hours to be included in its 30-day average heat input calculation. Since OAC 3745-18-49 (F) also requires that the Painesville plant's boilers must not operate simultaneously, the three boilers may each have a number of non-operating hours in any given 30-day period. Allowing multiple hours of zero heat input to be averaged into the 30-day compliance calculations could have had the effect of allowing the boilers to operate frequently at heat input rates well in excess of the limit which was developed as an equivalent to the short-term limit required for attainment. On February 6, 2017, Ohio revised OAC 3745-18-04 (D)(10) to clarify the heat input averaging procedure, that compliance shall be determined by averaging heat input values only while the boiler operates.
EPA finds that this revised approach provides acceptable confidence that, consistent with EPA's policy on longer-term average limits, occasions with emissions above the otherwise applicable 1-hour limit will be infrequent and of moderate magnitude. As discussed further below, with these revisions, EPA finds that the revised rule assures that the Painesville plant's 30-day emission limits now appropriately correspond to the 1-hour emission limits Ohio demonstrated to be protective of the NAAQS. Therefore, EPA proposes to conclude that the revised rules for the Painesville plant are acceptable.
Ohio's revised SIP includes emission limits for the Painesville plant which require compliance based on a thirty-operating-day average of one-hour emission rates. This longer-term averaged limit provides operating flexibility for the facility while continuing to maintain the NAAQS. The 30-day SO
Ohio calculated the Painesville plant's 30-day emission limits in accordance with EPA's recommended method. See section III. Ohio used dispersion modeling to determine a 1-hour critical emission value for each boiler which would provide for attainment of the NAAQS. These critical 1-hour values necessary for modeled attainment were 430.499 for Boilers 3 and 4 and 362.997 lb/hr at Boiler 5. Ohio then applied an adjustment factor to determine the (lower) level of the longer-term average emission limit that would be estimated to have a stringency comparable to the critical 1-hour emission value. Ohio was not able to calculate a source-specific adjustment factor for the Painesville plant, due to the facility's expected operations. The Painesville plant has accepted enforceable operating limits which will meet the Federal Boiler Maximum Achievable Control Technology (MACT)
After reviewing the state's 2015 and 2017 submittals, EPA concurs that the 30-day-average limits for the Painesville plant in OAC 3745-18-49 (F), as amended effective February 16, 2017, and as supplemented by the 24-hour operation level restriction, provide an acceptable alternative to establishing a 1-hour average emission limit for this source. The state has used suitable data in an appropriate manner and has applied an appropriate adjustment, yielding an emission limit that has comparable stringency to the 1-hour average limit that the state determined would otherwise have been necessary to provide for attainment. While the 30-day-average limit can allow occasions in which emissions may be higher than the level that would be allowed with the 1-hour limit, the state's limit compensates by requiring average emissions to be lower than the level that would otherwise have been required by a 1-hour average limit.
For reasons described above and explained in more detail in EPA's April 2014 guidance for SO
The modeled attainment demonstration for a nonattainment area specifically includes the maximum allowable emissions and the individual dispersion characteristics of the most significant emission sources in the area. To ensure that the demonstration also represents the cumulative impacts of additional sources which are individually too small or too distant to be expected to show a significant concentration gradient within the modeling domain, a background concentration is added to the modeled results. Data from a nearby air quality monitor can be used to determine a background value which approximates the diffuse impacts of these sources within the modeling domain.
For the Lake County attainment demonstration, Ohio used a background concentration of 10.3 ppb. This value was based on 2008-2012 monitored data at the Eastlake monitor (39-085-0003), which is located 1 km east of the Eastlake plant, 15 km west southwest of the Painesville and Carmeuse Lime plants, and 8 km northeast of the Cuyahoga County/Lake County border. This monitor is expected to be reasonably representative of SO
Since the Eastlake plant's emissions were specifically input into the model for Lake County's attainment demonstration, Ohio selected a 20-degree sector for which the monitor's readings are expected to be primarily due to the Eastlake plant's emissions. Monitored values measured when winds were blowing from this 20-degree wind sector were not included in Ohio's determination of a background concentration for the Lake County analysis. Using the remaining monitored data, Ohio calculated that a background value of 10.3 ppb would account for the significant power plant emission reductions which were expected to occur in Cuyahoga and Lorain Counties over the next few years. Although EPA generally recommends against projecting future background concentrations, the monitoring data that have subsequently become available indicate that Ohio's estimates of applicable background concentrations have proven to be appropriate. EPA notes that the most recent years' 99th percentile values measured at the Eastlake monitor are 10 ppb for 2016 and 5 ppb for 2017, which are lower than Ohio's background estimate. Therefore, EPA finds that the
Ohio's attainment modeling analyses resulted in a predicted 1-hour design value of 196.2 micrograms per cubic meter (µg/m
EPA policy also requires that one facility must not cause or contribute to exceedances of the NAAQS on another facility's property. Ohio's final submittal does not specifically address the impacts of each modeled facility within the plant property boundaries of the other modeled facilities, but the final modeled results indicate that no facility is causing or contributing to violations within another facility's property. The maximum impacts from each facility alone occurred within a kilometer of its own fenceline. The two closest facilities, Carmeuse Lime and the Painesville plant, are almost 4 km from each other. With maximum impacts below the NAAQS and decreasing with distance, EPA finds Ohio's submitted modeling results to provide adequate evidence that no facility or combination of facilities is causing or contributing to violations on another facility's property.
EPA concurs with the results of Ohio's analysis and proposes to conclude that Ohio has demonstrated that its revised emission limits are adequate to provide for attainment and maintenance of the 2010 SO
The emissions inventory and source emission rate data for an area serve as the foundation for air quality modeling and other analyses that enable states to: (1) Estimate the degree to which different sources within a nonattainment area contribute to violations within the affected area; and (2) assess the expected improvement in air quality within the nonattainment area due to the adoption and implementation of control measures. As noted above, the state must develop and submit to EPA a comprehensive, accurate and current inventory of actual emissions from all sources of SO
Ohio prepared an emissions inventory using 2011 as the base year and 2018, the SO
Emissions from the non-EGU facilities which were not required to reduce emissions under the Lake County SO
Ohio's projected inventory indicates that SO
Section 172(c)(1) of the CAA requires states to adopt and submit all RACM, including reasonably available control technology (RACT), as needed to attain the standards as expeditiously as practicable. Section 172(c)(6) requires the SIP to contain enforceable emission limitations and control measures necessary to provide for timely attainment of the standard. Ohio's plan for attaining the 1-hour SO
While Ohio's demonstration included emission reductions from the Eastlake plant, Ohio did not include SO
Ohio's plan includes new emission limits at the Painesville plant and requires timely compliance. Ohio has determined that these measures suffice to provide for timely attainment. EPA concurs and proposes to conclude that the state has satisfied the requirements in sections 172(c)(1) and 172(c)(6) to adopt and submit all RACM and enforceable limitations and control measures as are needed to attain the standards as expeditiously as practicable.
Section 172 of the CAA requires the state to have an adequate new source review program. EPA approved Ohio's nonattainment new source review rules on January 22, 2003 (68 FR 2909).
Section 172 of the CAA requires Ohio's Lake County nonattainment SIP to provide for reasonable further progress toward attainment. For SO
Section 172 of the CAA requires that nonattainment plans include additional measures which will take effect if an area fails to meet RFP or fails to attain the standard by the attainment date. As noted above, EPA guidance describes special features of SO
On March 13, 2017, Ohio submitted revisions to its rule OAC 3745-18, which contains the state's sulfur dioxide emission regulations. This submittal consisted of SO
EPA is proposing to approve Ohio's SIP submission for attaining the 2010 1-hour SO
EPA proposes to conclude that Ohio has appropriately demonstrated that the plan provisions provide for attainment of the 2010 1-hour primary SO
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference OAC 3745-18-03 (B)(9), OAC 3745-18-03 (C)(11), OAC 3745-18-04(D)(10), and OAC 3745-18-49, effective on February 16, 2017. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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, Reporting and recordkeeping requirements, Sulfur oxides.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed rulemaking.
FMCSA proposes reductions in the annual registration fees States collect from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies for the Unified Carrier Registration (UCR) Plan and Agreement for the 2019, 2020, and subsequent registration years. The proposed fees for the 2019 registration year would be reduced below the 2017 registration fee level that was in effect by approximately 17.59 percent to ensure that fee revenues do not exceed the statutory maximum, and to account for the excess funds held in the depository. The proposed fees for the 2020 registration year would be reduced below the 2017 level by approximately 9.5 percent. The reduction of the current 2019 registration year fees (finalized on January 5, 2018) would range from approximately $10 to $9,530 per entity, depending on the number of vehicles owned or operated by the affected entities. The reduction in fees for subsequent registration years would range from approximately $4 to $3,565 per entity.
Comments on this notice of proposed rulemaking (NPRM) must be received on or before August 31, 2018.
You may submit comments identified by Docket Number FMCSA-2018-0068 using any of the following methods:
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•
•
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To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
Mr. Gerald Folsom, Office of Registration and Safety Information, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 by telephone at 202-385-2405. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone 202-366-9826.
This NPRM is organized as follows:
If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2018-0068), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. 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
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act (5 U.S.C. 552), CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this NPRM, it
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(g), added by section 5202 of the Fixing America's Surface Transportation or FAST Act, Public Law 114-94, 129 Stat.1312, 1534 (Dec. 4, 2015), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM) or conduct a negotiated rulemaking “if a proposed rule is likely to lead to the promulgation of a major rule.” 49 U.S.C. 31136(g)(1). As this proposed rule is not likely to result in the promulgation of a major rule, the Agency is not required to issue an ANPRM or to proceed with a negotiated rulemaking.
The UCR Plan and the 41 States participating in the UCR Agreement establish and collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement are administered by a 15-member board of directors; 14 appointed from the participating States and the industry, plus the Deputy Administrator of FMCSA. Revenues collected are allocated to the participating States and the UCR Plan. In accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), fee adjustments must be requested by the UCR Plan when annual revenues exceed the maximum allowed. Also, if there are excess funds after payments to the States and for administrative costs, they are retained in the UCR Plan's depository and subsequent fees must be reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct provisions are the reasons for the two-stage adjustment proposed in this rule. This NPRM proposes to reduce the annual registration fees established pursuant to the UCR Agreement for 2019, 2020, and subsequent years.
Currently the UCR Plan estimates that by December 31, 2018, total revenues will exceed the statutory maximum for the 2017 registration year by approximately $9.17 million. Therefore, in January 2018, the UCR Plan made a formal recommendation that FMCSA adjust the fees in a two-stage process. The proposed fees for the 2019 registration year, with collection beginning on or about October 1, 2018, the fees would be reduced below the 2017 registration fee level that was in effect by approximately 17.59 percent to ensure that fee revenues do not exceed the statutory maximum, and to reduce the excess funds held in the depository. The proposed fees for the 2020 registration year, with collection beginning on or about October 1, 2019, the fees would be reduced below the 2017 level by approximately 9.5 percent to ensure the fee revenues in that and future years do not exceed the statutory maximum. The UCR Plan requested that the adjusted fees be adopted no later than August 31, 2018, to enable the participating States and the UCR Plan to reflect the new fees when collections for the 2019 registration year begin on or about October 1, 2018. The adoption of the adjusted fees must be accomplished by rulemaking by FMCSA under authority delegated from the Secretary of Transportation (Secretary).
The UCR Plan's formal recommendation requested that FMCSA publish a rule reducing the fees paid per motor carrier, motor private carrier of property, broker, freight forwarder, and leasing company based on an analysis of current collections and past trends. The UCR Plan's recommendation reduces fees based on collections over the statutory cap in 2017, and also includes a reduction in the amount of the administrative cost allowance from $5,000,000 to $3,500,000 for the 2019 and 2020 UCR Agreement registration years. The Board completed an analysis estimating the amount of administrative cost allowance needed for the 2019 and 2020 registration period and has determined that an allowance of $3,500,000 will be needed each year for those registration years. The Agency reviewed the UCR Plan's formal recommendation and concluded that the UCR Plan's projection of the total revenues received for registration year 2017 is acceptable.
The changes proposed in this NPRM would reduce the fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. While each motor carrier would realize a reduced burden, fees are considered by the Office of Management and Budget (OMB) Circular A-4, Regulatory Analysis, as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. Therefore, transfers are not considered in the monetization of societal costs and benefits of rulemakings.
The following is a list of abbreviations and acronyms used in this document.
This rule proposes to adjust the annual registration fees required by the UCR Agreement established by 49 U.S.C. 14504a. The requested fee adjustments are required by 49 U.S.C. 14504a because, for registration year 2017, the total revenues collected are expected to exceed the total revenue entitlements of $107.78 million distributed to the 41 participating States plus the $5 million established for the administrative costs associated with the UCR Plan and Agreement. The requested adjustments have been submitted by the UCR Plan in accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), which requires the UCR Plan to request an adjustment by the Secretary when the annual revenues exceed the maximum allowed. In addition, 49 U.S.C. 14504a(h)(4) states that any excess funds held by the UCR Plan in its depository, after payments to the States and for administrative costs, shall be retained “and the fees charged . . . shall be reduced by the Secretary accordingly.”
The UCR Plan is also requesting approval of a revised total revenue to be collected because of a reduction in the amount for costs of administering the UCR Agreement. No changes in the revenue allocations to the participating States have been recommended by the UCR Plan. The revised total revenue must be approved in accordance with 49 U.S.C. 14504a(d)(7).
The Secretary also has broad rulemaking authority in 49 U.S.C. 13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C. subtitle IV, part B. Authority to administer these statutory provisions has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and (7).
The statute states that the “Unified Carrier Registration Plan . . . mean[s] the organization . . . responsible for developing, implementing, and administering the unified carrier registration agreement.” (49 U.S.C. 14504a(a)(9)) (UCR Plan). The UCR Agreement developed by the UCR Plan is the “interstate agreement . . . governing the collection and distribution of registration and financial responsibility information provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders, and leasing companies . . .” (49 U.S.C. 14504a(a)(8)).
The legislative history of the statute indicates that the purpose of the UCR Plan and Agreement is both to replace the Single State Registration System (SSRS) for registration of interstate motor carrier entities with the States and to “ensure that States don't lose current revenues derived from SSRS” (S. Rep. 109-120, at 2 (2005)). The statute provides for a 15-member board of directors for the UCR Plan to be appointed by the Secretary. The statute specifies that the board of directors should consist of one individual from DOT (either the FMCSA Deputy Administrator or another Presidential appointee); four directors from among the chief administrative officers of the State agencies responsible for administering the UCR Agreement (one from each of the four FMCSA service areas); five directors from among the professional staffs of State agencies responsible for administering the UCR Agreement (who are nominated by the National Conference of State Transportation Specialists); and five directors from the motor carrier industry (at least one must be from a national trade association representing the general motor carrier of property industry and one from a motor carrier that falls within the smallest fleet fee bracket).
The UCR Plan and the participating States are authorized by 49 U.S.C. 14504a(f) to establish and collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The current annual fees charged for registration year 2018 are set out in 49 CFR 367.40 and for registration years 2019 and thereafter in § 367.50. These fees were adopted by FMCSA in January 2018 after a rulemaking proceeding. See Fees for the Unified Carrier Registration Plan and Agreement, 83 FR 605 (Jan. 5, 2018).
For carriers and freight forwarders, the fees vary according to the size of the vehicle fleets, as required by 49 U.S.C. 14504a(f). The fees collected are allocated to the States and the UCR Plan in accordance with 49 U.S.C. 14504a(h).
The statute specifies that the fees set by the Agency are to be based on the recommendation of the UCR Plan (49 U.S.C. 14504a(f)(1)(B)). In recommending the level of fees to be charged in any registration year, and in setting the fee level, both the UCR Plan and the Agency shall consider the following factors:
• Administrative costs associated with the UCR Plan and Agreement;
• Whether the revenues generated in the previous year and any surplus or shortage from that or prior years enable the participating States to achieve the revenue levels set by the UCR Plan; and
• Provisions governing fees in 49 U.S.C. 14504a(f)(1)
Overall, the fees charged under the UCR Agreement must produce the level of revenue established by statute. Section 14504a(g) establishes the revenue entitlements for States that choose to participate in the UCR Agreement. That section provides that a participating State, which participated in SSRS in the registration year prior to the enactment of the Unified Carrier Registration Act of 2005, is entitled to receive revenues under the UCR Agreement equivalent to the revenues it received in the year before that enactment. Participating States that also collected intrastate registration fees from interstate motor carrier entities (whether they participated in SSRS or not) are also entitled to receive revenues of this type under the UCR Agreement, in an amount equivalent to the amount received in the year before the Act's enactment. The section also provides that States that did not participate in SSRS, but which choose to participate in the UCR Plan, may receive revenues not to exceed $500,000 per registration year.
FMCSA's interpretation of its responsibilities under 49 U.S.C. 14504a in setting fees for the UCR Plan and Agreement is guided by the primacy the statute places on the need both to set and to adjust the fees to ensure they “provide the revenues to which the States are entitled” (49 U.S.C.14504a(f) (1)(E)(i)). The statute links the requirement that the fees be adjusted “within a reasonable range” to the provision of sufficient revenues to meet the entitlements of the participating States (49 U.S.C. 14504a(f)(1)(E)). See also 49 U.S.C. 14504a(d)(7)(A)(ii)).
Section 14504a(h)(4) gives additional support for this interpretation. This provision explicitly requires FMCSA to reduce the fees charged in the registration year following any year in which the depository retains any funds in excess of the amount necessary to satisfy the revenue entitlements of the participating States and the UCR Plan's administrative costs.
On December 14, 2017, the board of directors voted unanimously to submit
As indicated in the analysis attached to the January 11, 2018 recommendation letter, as of the end of November 2017, the UCR Plan had already collected $7.30 million more than the statutory maximum of $112.78 million for registration year 2017. The UCR Plan estimates that by the end of 2018, total revenues will exceed the statutory maximum by $9.17 million, or approximately 8.13 percent. The excess revenues collected will be held in a depository maintained by the UCR Plan as required by 49 U.S.C. 14504a(h)(4).
The UCR Plan's recommendation estimated the minimum projection of revenue collections for December 2017 through December 2018 by summing the collections within each of the registration years 2013 through 2015
Under 49 U.S.C. 14504a(d)(7), the costs incurred by the UCR Plan to administer the UCR Agreement are eligible for inclusion in the total revenue to be collected, in addition to the revenue allocations for the participating States. The total revenue for registration years 2010 to 2018, as approved in the 2010 final rule (75 FR 21993 (April, 27, 2010)), has been $112,777,059.81, including $5,000,000 for administrative costs. The UCR Plan's latest recommendation includes a reduction in the amount of the administrative cost allowance to $3,500,000 for the 2019 and 2020 registration years. The reduction of $1,500,000 recommended by the UCR Plan was based on estimates of future administrative cost allowances needed to operate the UCR Plan and Agreement. No changes in the State revenue entitlements are recommended, and the entitlement figures for 2019 and 2020 for the 41 participating States are the same as those previously approved for the years 2010 through 2018. Therefore, for registration years 2019 and 2020, the UCR Plan recommends total revenue to be collected of $111,277,060 (rounded to the nearest dollar). FMCSA proposes to approve this recommendation for the total revenue to be collected by the UCR Plan, as shown in the following table.
FMCSA has reviewed the formal recommendation from the UCR Plan and proposes to approve it, including the reduction in the allowance for administrative costs necessary to continue administering the UCR Agreement and the UCR Plan. Overall, the UCR Plan and the Agency agree on the reduction of the current fees for 2019 and subsequent registration years, and that there would be no change in the State UCR revenue entitlements.
Motor carriers and other entities involved in interstate and foreign transportation in the United States that do not have a principal office in the United States, are nonetheless subject to the fees for the UCR Plan. They are required to designate a participating State as a base State and pay the appropriate fees to that State (49 U.S.C. 14504a(a)(2)(B)(ii) and (f)(4)).
In this NPRM, FMCSA proposes that the provisions of 49 CFR 367.50 (which were just adopted in the January 5, 2018 final rule) would be revised to establish new reduced fees applicable only to registration year 2019. A new 49 CFR 367.60 would establish the proposed fees for registration year 2020, which would remain in effect for subsequent registration years unless revised in the future.
FMCSA performed an analysis of the impacts of the proposed rule and determined it is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), as supplemented by E.O. 13563, Improving Regulation and Regulatory Review (76 FR 3821, January 21, 2011). Accordingly, OMB has not reviewed it under those Orders. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979).
The changes proposed by this rule would reduce the registration fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. While each motor carrier would realize a reduced burden, fees are considered by OMB Circular A-4, Regulatory Analysis, as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. By definition, transfers are not considered in the monetization of societal costs and benefits of rulemakings.
This rule would establish reductions in the annual registration fees for the UCR Plan and Agreement. The entities affected by this rule are the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Because the State UCR revenue entitlements would remain unchanged, the participating States would not be impacted by this rule. The primary impact of this rule would be a reduction in fees paid by individual motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The reduction of the current 2019 registration year fees (finalized on January 5, 2018) would range from approximately $10 to $9,530 per entity, depending on the number of vehicles owned or operated by the affected entities. The reduction in fees for subsequent registration years would range from approximately $4 to $3,565 per entity.
E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” does not apply to this action because it is nonsignificant and has zero costs; therefore, it is not subject to the “2 for 1” and budgeting requirements.
This rulemaking is not a significant regulatory action as defined in section 3(f) of E.O. 12866.
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601
This proposed rule would directly affect the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Under the standards of the RFA, as amended by
The Small Business Administration's size standard for a small entity (13 CFR 121.201) differs by industry code. The entities affected by this rule fall into many different industry codes. In order to determine if this rule would have an impact on a significant number of small entities, FMCSA examined the 2012 Economic Census
However, FMCSA has determined that this rule would not have a significant impact on the affected entities. The effect of this rule would be to reduce the annual registration fee motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies are currently required to pay. The reduction will range from approximately $10 to $9,530 per entity, in the first year, and from approximately $4 to $3,565 per entity in subsequent years, depending on the number of vehicles owned and/or operated by the affected entities. Accordingly, I certify that this rule will not have a significant economic impact on a substantial number of small entities.
In accordance with section 213(a) of the SBREFA, FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, Gerald Folsom, listed in the
Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any one year. Though this proposed rule would not result in such an expenditure, the Agency does discuss the effects of this rule elsewhere in this preamble.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “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.” FMCSA determined that this proposal would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.
FMCSA reviewed this proposed rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a privacy impact assessment of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Pub. L. 107-347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a privacy impact assessment.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
FMCSA has analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
This proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (
FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
FMCSA also analyzed this rule under section 176(c) of the Clean Air Act, as amended (CAA) (42 U.S.C. 7406(c)), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement because it does not affect direct or indirect emissions of criteria pollutants.
Under E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this proposed rule in accordance with the E.O., and has determined that no environmental justice issue is associated with this proposed rule, nor is there any collective environmental impact that would result from its promulgation.
E.O. 13783 directs executive departments and agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources, and to appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources. In accordance with E.O. 13783, DOT prepared and submitted a report to the Director of OMB that provides specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency action that burden domestic energy production. This proposed rule has not been identified by DOT under E.O. 13783 as potentially alleviating unnecessary burdens on domestic energy production.
Insurance, Intergovernmental relations, Motor carriers, Surety bonds.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter III, part 367 to read as follows:
49 U.S.C. 13301, 14504a; and 49 CFR 1.87.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Nebraska Advisory Committee (Committee) will hold a meeting on Tuesday September 11, 2018 at 3 p.m. Central time. The Committee will discuss civil rights concerns in the state as they work to identify their next topic of study.
The meeting will take place on Tuesday September 11, 2018 at 3 p.m. Central.
Melissa Wojnaroski, DFO, at
Members of the public may listen to this discussion through the above call in number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
The income data from the ASEC are used by social planners, economists, government officials, and market researchers to gauge the economic well-being of the country as a whole, and selected population groups of interest. Government planners and researchers use these data to monitor and evaluate the effectiveness of various assistance programs. Market researchers use these data to identify and isolate potential customers. Social planners use these data to forecast economic conditions and to identify special groups that seem to be especially sensitive to economic fluctuations. Economists use ASEC data to determine the effects of various economic forces, such as inflation, recession, recovery, and so on, and their differential effects on various population groups.
The ASEC is the official source of national poverty estimates calculated in accordance with the Office of Management and Budget's Statistical Policy Directive 14. Two other important national estimates derived
The ASEC also contains questions related to: (1) Medical expenditures; (2) presence and cost of a mortgage on property; (3) child support payments; and (4) amount of child care assistance received. These questions enable analysts and policymakers to obtain better estimates of family and household income, and more precisely gauge poverty status.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Office of the Secretary/Office of Security (OSY), Commerce.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the Department of Commerce (DOC) provides notice that it will submit an information collection request (ICR) to the Office of Management and Budget (OMB) for emergency approval of a proposed information collection. Upon receiving the requested six-month emergency approval by OMB, DOC will follow the general Paperwork Reduction Act procedures to obtain extended approval for this proposed information collection.
Written comments must be submitted on or before August 28, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 1401 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 Philip Bennett, NIST, 100 Bureau Drive, Gaithersburg, MD 20899-1090, tel. (301) 975-6306, or
The purpose of this collection is to gather information to mitigate variances in foreign access management program implementation and registration information requirements needed to reach risk-based determinations of physical and logical access by Foreign National Visitors and Guests to Commerce facilities and resources. Due to the increasing diversity of foreign national participation in Departmental programs, considerable efforts have been made to baseline requirements as a means to define uniform program standards as well as to expand current guidance beyond foreign visitor control to manage emerging risks associated with physical and logical access to the Department' s facilities and resources.
This information is collected in both paper form and electronically.
Commerce invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (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.
Economic Development Administration, U.S. Department of Commerce.
Notice and opportunity for public comment.
The Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of the firms contributed importantly to the total or partial separation of the firms' workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
Enforcement and Compliance, International Trade Administration, Department of Commerce
The Department of Commerce (Commerce) preliminarily determines that imports of uncovered innerspring units (innersprings) into the United States exported from Macau, which were assembled or completed in Macau by the Macao Commercial Group using materials sourced from the People's Republic of China (China), are circumventing the antidumping duty (AD) order on innersprings from China.
Applicable August 21, 2018.
Matthew Renkey AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2312.
On December 31, 2007, Leggett and Platt, Incorporated (the petitioner) filed a petition seeking imposition of antidumping duties on imports of uncovered innerspring units from, among other countries, China.
In the sixth administrative review of the
Commerce self-initiated an anti-circumvention inquiry pursuant to section 781(b) of the Tariff Act of 1930, as amended, (the Act) and 19 CFR 351.225(h) to determine whether innersprings produced by Macao Commercial in Macao from materials
As explained further in the Preliminary Decision Memorandum, we find, based on the record evidence, that Macao Commercial is affiliated, pursuant to sections 771(33)(A), (E) and (F), of the Act, with Tai Wa Machinery, Tai Wa Commercial, Wa Cheong Hong, and Heshan Tai Hua Jian Ye Machinery Co., Ltd. Further, based on Macao Commercial's own statements and record evidence, we find that, pursuant to 19 CFR 351.401(f), these companies should be treated as a single entity, the Macao Commercial Group.
The products covered by the
The products covered by this inquiry are innersprings that are manufactured in Macau by the Macao Commercial Group with Chinese-origin components and materials and are then subsequently exported from Macau to the United States.
Commerce is conducting this anti-circumvention inquiry in accordance with section 781(b) of the Act. For a full description of the methodology underlying the Commerce's preliminary determination,
As detailed in the Preliminary Decision Memorandum, we preliminarily determine that innersprings exported from Macau, which were manufactured in Macau by the Macao Commercial Group using components and/or materials from China, are circumventing the
As stated above, Commerce has made a preliminary affirmative finding of circumvention of the
The suspension of liquidation instructions will remain in effect until further notice. Commerce will instruct CBP to require AD cash deposits equal to the China-wide rate of 234.51 percent, unless the importer/exporter can demonstrate to CBP that the Chinese-origin innersprings assembled or completed in Macau by the Macao Commercial Group were supplied by a Chinese manufacturer with a separate rate. In that instance, the cash deposit rate will be the rate of the Chinese innersprings manufacturer that has its own rate.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 14 days after the publication of this preliminary determination in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Commerce, consistent with section 781(e)(1)(B) of the Act and 19 CFR 351.225(f)(7)(i)(B), has notified the ITC of this preliminary determination to include the merchandise subject to this anti-circumvention inquiry within the scope of the
This determination is issued and published in accordance with section 781(b) of the Act and 19 CFR 351.225(f).
Industry and Analysis, International Trade Administration, Department of Commerce.
Notice and call for applications.
In this notice, the U.S. Department of Commerce (DOC) International Trade Administration (ITA) announces that it will accept applications for the International Buyer Program (IBP) for quarters 2 and 3 of calendar year 2019 (April 1, 2019, through September 30, 2019). The IBP is currently undergoing a program review that may result in new ITA products and services for trade shows and it will take ITA some time to implement the recommended changes. Therefore, IBP is only moving forward with the current program until September 30, 2019. Should the program review result in new ITA products and services for trade shows, they will be announced separately in the
Applications for the IBP for quarters 2 and 3 of calendar year 2019 must be received by October 5, 2018.
The application form can be found at
Vidya Desai, Senior Advisor for Trade Events, Trade Promotion Programs, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230; Telephone (202) 482-2311; Email:
The IBP was established in the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, title II, § 2304, codified at 15 U.S.C. 4724) to bring international buyers together with U.S. firms by promoting leading U.S. trade shows in industries with high export potential. The IBP emphasizes cooperation between the DOC and trade show organizers to benefit U.S. firms exhibiting at selected shows and provides practical, hands-on assistance such as export counseling and market analysis to U.S. companies interested in exporting. Shows selected for the IBP will provide a venue for U.S. companies interested in expanding their sales into international markets.
Through the IBP, ITA selects U.S. trade shows, with participation by U.S. firms interested in exporting, that ITA determines to be leading international trade shows, for promotion in overseas markets by U.S. Embassies and Consulates. The DOC is authorized to provide successful applicants with services in the form of overseas promotion of the show; outreach to show participants about exporting; recruitment of potential buyers to attend the events; and staff assistance in setting up international trade centers at the shows. Worldwide promotion is executed through ITA offices at U.S. Embassies and Consulates in more than 70 countries representing the United States' major trading partners, and also in Embassies in countries where ITA does not maintain offices.
ITA is accepting applications from trade show organizers for the IBP for trade shows taking place between April 1, 2019, and September 30, 2019. Selection of a trade show is valid for one show,
For the IBP in quarters 2 and 3 of calendar year 2019, the ITA expects to select approximately 8 shows from among the applicants. The ITA will select those shows that are determined to most clearly meet the statutory mandate in 15 U.S.C. 4721 to promote U.S. exports, especially those of small- and medium-sized enterprises, and the selection criteria articulated below.
There is no fee required to submit an application. If accepted into the program for quarter 2 or 3 of calendar year 2019, a participation fee of $9,800 is required for shows of five days or fewer. For trade shows more than five days in duration, or requiring more than one International Trade Center, a participation fee of $15,000 is required. For trade shows ten days or more in duration, and/or requiring more than two International Trade Centers, the participation fee will be determined by DOC and stated in the written notification of acceptance calculated on a full cost recovery basis. Successful applicants will be required to enter into a Memorandum of Agreement (MOA) with ITA within 10 days of written notification of acceptance into the program. The participation fee (by check or credit card) is due within 30 days of written notification of acceptance into the program.
The MOA constitutes an agreement between ITA and the show organizer specifying which responsibilities for international promotion and export assistance services at the trade shows are to be undertaken by ITA as part of
Selection as an IBP partner does not constitute a guarantee by DOC of the show's success. IBP selection is not an endorsement of the show except as to its international buyer activities. Non-selection of an applicant for the IBP should not be viewed as a determination that the show will not be successful in promoting U.S. exports.
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The Office of Management and Budget (OMB) has approved the information collection requirements of the application to this program (Form OMB 0625-0143) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Industry and Analysis, International Trade Administration, Department of Commerce.
Notice and call for applications.
The U.S. Department of Commerce (DOC), International Trade Administration (ITA) announces that it will accept applications for the International Buyer Program (IBP) Select for quarters 2 and 3 of calendar year 2019 (April 1, 2019, through September 30, 2019). The IBP Select is currently undergoing a program review that may result in new ITA products and services for trade shows and it will take ITA some time to implement the recommended changes. Therefore, IBP is only moving forward with the current program until September 30, 2019. Should the program review result in new ITA products and services for trade shows, they will be announced separately in the
This announcement sets out the objectives, procedures and application review criteria for IBP Select. Under IBP Select, ITA recruits international buyers to U.S. trade shows to meet with U.S suppliers exhibiting at those shows. The main difference between IBP and IBP Select is that IBP offers worldwide promotion, whereas IBP Select focuses on promotion and recruitment in up to five international markets. Specifically, through the IBP Select, the DOC selects domestic trade shows that will receive ITA services in the form of targeted promotion and recruitment in up to five foreign markets, as well as export counseling to exhibitors at the trade show. This notice covers selection for IBP Select participation during quarters 2 and 3 of calendar year 2019.
Applications for IBP Select for quarters 2 and 3 of calendar year 2019 must be received by October 5, 2018.
The application form can be found at
Vidya Desai, Senior Advisor, Trade Promotion Programs, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Ave. NW, Mailstop 52024, Washington, DC 20230; Telephone (202) 482-2311; Email:
The IBP was established in the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, title II, § 2304, codified at 15 U.S.C. 4724) to bring international buyers together with U.S. firms by promoting leading U.S. trade shows in industries with high export potential. The IBP emphasizes cooperation between the DOC and trade show organizers to benefit U.S. firms exhibiting at selected shows and provides practical, hands-on assistance such as export counseling and market analysis to U.S. companies interested in exporting. Shows selected for the IBP Select will provide a venue for U.S. companies interested in expanding their sales into international markets.
Through the IBP Select, ITA selects U.S. trade shows, with participation by U.S. firms interested in exporting, that ITA determines to be leading international trade shows. DOC provides successful applicants with services in the form of targeted overseas promotion of the show by U.S. Embassies and Consulates; outreach to show participants about exporting; recruitment of potential buyers to attend the shows; and staff assistance in setting up and staffing international trade centers at the shows. Targeted promotion in up to five markets can be executed through the overseas offices of ITA or by U.S. Embassies in countries where ITA does not maintain offices.
ITA is accepting applications for IBP Select from trade show organizers of trade shows taking place between April 1, 2019, and September 30, 2019. Selection of a trade show for IBP Select is valid for one show. A trade show organizer seeking selection for a recurring show must submit a new application for selection for each occurrence of the show. For shows that occur more than once in a calendar year, the trade show organizer must submit a separate application for each show.
There is no fee required to submit an application. For IBP Select in quarters 2 and 3 of calendar year 2019, ITA expects to select approximately 2 shows from among the applicants. ITA will select those shows that are determined to most clearly support the statutory mandate in 15 U.S.C. 4721 to promote U.S. exports, especially those of small- and medium-sized enterprises, and that best meet the selection criteria articulated below. Once selected, applicants will be required to enter into a Memorandum of Agreement (MOA) with the DOC, and submit payment of the $6,000 participation fee (by check or credit card) within 30 days of written notification of acceptance into IBP Select. The MOA constitutes an agreement between the DOC and the show organizer specifying which responsibilities for international promotion and export assistance services at the trade shows are to be undertaken by the DOC as part of the IBP Select and, in turn, which responsibilities are to be undertaken by the show organizer. Anyone requesting application information will be sent a sample copy of the MOA along with the application form and a copy of this
Selection as an IBP Select show does not constitute a guarantee by DOC of the show's success. IBP Select selection is not an endorsement of the show except as to its international buyer activities. Non-selection of an applicant for IBP Select status should not be viewed as a determination that the show will not be successful in promoting U.S. exports.
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The Office of Management and Budget (OMB) has approved the information collection requirements of the application to this program (0625-0143) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable August 21, 2018.
Edythe Artman at (202) 482-3931 (India); Madeline Heeren at (202) 482-9179 (Japan); Brian Smith at (202) 482-1766 (Thailand), AD/CVD Operations,
On April 17, 2018, the Department of Commerce (Commerce) initiated less-than-fair-value (LTFV) investigations of imports of glycine from India, Japan, and Thailand.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1)(A) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On June 28, 2018, the petitioners
For the reasons stated above and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determinations by 50 days (
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the countervailing duty (CVD) order on certain pneumatic off-the-road tires (OTR tires) from India for the period June 20, 2016, through December 31, 2017.
Applicable August 21, 2018.
Gene H. Calvert, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3586.
On March 5, 2018, Commerce published a notice of opportunity to request an administrative review of the CVD order on OTR tires from India for the period of review (POR) June 20, 2016, through December 31, 2017.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party, or parties, that requested the review withdraw(s) its request(s) for review within 90 days of the date of publication of the notice of initiation of the requested review. In this case, both Balkrishna and ATC each timely withdrew its request for review within the 90-day deadline, and no other party requested an administrative review of the CVD order. Therefore, in accordance with 19 CFR 351.213(d)(1), Commerce is rescinding this administrative review in its entirety.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. Because Commerce is rescinding this administrative review in its entirety, entries of OTR tires from India during the period June 20, 2016, through December 31, 2017, shall be assessed countervailing duties at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in
This notice serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Chief Management Officer, Vietnam War Commemoration Advisory Committee, Department of Defense.
Notice of federal advisory committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Vietnam War Commemoration Advisory Committee will take place.
Open to the public Thursday, September 20th, 2018 from 1:00 p.m. to 4:00 p.m.
The address of the open meeting is 241 18th Street South, Room 101, Arlington VA 22202.
Mrs. Marcia L. Moore, 703-571-2005 (Voice), 703-692-4691 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. All members of the public who wish to attend the public meeting must contact Mrs. Marcia Moore or Mr. Mark Franklin at the number listed in the
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 20, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Mr. Licari at
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 20, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Mr. Licari at
Office of the Secretary of Defense, DoD.
Notice of a modified system of records.
The Office of the Secretary of Defense (OSD) proposes to modify a system of records titled, “Synchronized Predeployment and Operational Tracker Enterprise Suite (SPOT-ES) Records, DMDC 18 DoD.” SPOT-ES is used at installations to manage, track, account for, monitor and report on contracts, companies, and contractor employees supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require contractor support. This modification enables DoD to comply with an existing treaty which requires tracking of contractor employees' collocated dependents. The modification also reflects changes to the the following sections: System manager, authorities, purpose, categories of individuals, categories of records, routine uses, safeguards, record access procedures, notification procedures, and exemptions.
Comments will be accepted on or before September 20, 2018. This proposed action will be effective the
You may submit comments, identified by docket number and title, by any of the following methods:
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Ms. Luz D. Ortiz, Chief, Records, Privacy and Declassification Division (RPDD), 1155 Defense Pentagon, Washington, DC 20311-1155, or by phone at (571) 372-0478.
The OSD proposes to modify a system of records subject to the Privacy Act of 1974, 5 U.S.C. 552a. The DoD uses the system of records at installations to manage, track, account for, monitor and report on contracts, companies, and contractor employees supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require contractor support. As a part of maintaining DoD installations in other nations, the Department must comply with existing treaties between the United States and host nations. This modification ensures DoD complies with an existing treaty between the U.S. and Japan by collecting additional information on the co-located dependents of contractor employees. This modification updates the following sections: Category of individuals, category of records, the authority for the maintenance, and the purpose and also reflects the reformatting of the notice to ensure compliance with Office of Management and Budget Circular Number A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act.”
The OSD notices for systems of records subject to the Privacy Act of 1974, as amended, have been published in the
The proposed systems reports, as required by of the Privacy Act, as amended, were submitted on August 3, 2018, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to Section 6 to OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” revised December 23, 2016 (December 23, 2016, 81 FR 94424).
Synchronized Predeployment and Operational Tracker Enterprise Suite (SPOT-ES) Records, DMDC 18 DoD.
Unclassified and Classified. This system is comprised of two databases: An unclassified database that serves as the primary repository of contract and contractor personnel records and a classified database containing only classified records [related to a specific category of individuals].
Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6784.
Stand-alone Joint Asset Movement Management System (JAMMS) machines are deployed as needed to locations within and outside the United States. A list of current JAMMS locations are available upon written request to the system manager.
Director, Defense Manpower Data Center, 4800 Mark Center Drive, Alexandria, VA 22350-6000. Email:
10 U.S.C. 113, Secretary of Defense; 10 U.S.C. 133, Under Secretary of Defense for Acquisition, Technology, and Logistics; 10 U.S.C. 2302 note, Contractors Performing Private Security Functions in Areas of Combat Operations or Other Significant Military Operations; Treaty of Mutual Cooperation and Security Between the United States of America and Japan, January 19, 1960; Department of Defense (DoD) Directive (DoDD) 1404.10, DoD Civilian Expeditionary Workforce; DoDD 3020.49, Orchestrating, Synchronizing, and Integrating Program Management of Contingency Acquisition Planning and Its Operational Execution; DoD Instruction (DoDI) 1000.25, DoD Personnel Identity Protection (PIP) Program; DoDI 3020.41, Operational Contract Support (OCS); DoDI 3020.50, Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises; DoDI 6490.03, Deployment Health; and E.O. 9397 (SSN), as amended.
The Synchronized Predeployment and Operational Tracker Enterprise Suite (SPOT-ES) allows federal agencies and Combatant Commanders to plan, manage, track, account for, monitor and report on contracts, companies, and contractor employees supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require contractor support within and outside the United States. Authorized dependents may also be accounted for in designated locations as part of the sponsor's record. SPOT is a web-based system in the SPOT-ES providing a repository of military, Government civilian and contractor personnel, and contract information for DoD, Department of State (DOS), United States Agency for International Development (USAID), other federal agencies, and Combatant Commanders to centrally manage their supporting, deploying, deployed, and redeploying assets via a single authoritative source for up-to-date visibility of personnel assets and contract capabilities. The system is also used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness, and conducting research.
The Joint Asset Movement Management System (JAMMS) is a stand-alone application in the SPOT-ES that scans identity credentials (primarily held by military, Government civilians, and contractors) at key decentralized locations. The Total Operational Picture Support System (TOPSS) is a web-based application in the SPOT-ES that integrates information from SPOT and JAMMS to provide trend analysis, widgets and reports from different views based on the user access level and parameters selected to support
DoD military personnel and civilian personnel supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, events, and other activities that require support within and outside the U.S.
DoD contractor personnel supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require contractor support within and outside the U.S.
DOS and USAID contractor personnel supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations both within and outside of the U.S., and during other missions or scenarios.
DOS and USAID civilian employees supporting contingency operations led by DoD or the DOS Office of Security Cooperation outside of the U.S. Government civilian and contractor personnel of other agencies.
Personnel of agencies such as the Department of Interior, Department of Homeland Security, Department of Treasury, Department of Justice, Department of Health and Human Services, Environmental Protection Agency, Department of Transportation, Department of Energy, and General Services Administration that may use the system to account for their personnel when supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, exercises, events, and other activities within and outside the U.S.
The system may also include civilians in private sector organizations and private citizens, including first responders, who are in the vicinity, are supporting, or are impacted by operations,
For contractor personnel: Full name; blood type; Social Security Number (SSN); DoD Identification (ID) Number; Federal/foreign ID number or Government-issued ID number,
For contractors deployed to Japan these additional items will be captured: Status of Forces Agreement (SOFA) status and expiration date; affirmation that the contractor possesses a residency permit or residency visa for Japan; number of dependents, and Japan-specific authorized government services.
For dependents authorized to accompany contractor personnel in Japan: Full name, date of birth, family relationship, sponsoring family member full name, passport number, and passport country.
For DoD military and civilian personnel: Full name, SSN, DoD ID Number, category of person (civilian or military), and movements in the area of operations.
For other federal agency personnel: Full name, SSN, Government-issued ID number (
For non-Government personnel: Full name, Government-issued ID number (
For contractor personnel: Contract information data: contract number, task order number, contractor company name, contract capabilities, contract/task order period of performance, theater business clearance, company contact name, office address and phone number. Equipment and weapons data: Contractor owned/contractor operated equipment in designated areas, type of equipment (roll-on/roll-off, self-propelled, containerized), authorized weapons assigned to specific contractor employees, contract number, contractor company name, and other official deployment-related information,
Individual's employer (military, Government civilians and contractor personnel), Defense Enrollment Eligibility Reporting System (DEERS), and federal entities supporting contingency, humanitarian assistance, peacekeeping, and disaster relief operations.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
a. To DOS and USAID to account for their Government civilian and contractor personnel supporting operations outside of the U.S., and to determine status of processing and deployment documentation, contracts, weapons and equipment, current and historical locations, company or organization where an individual is employed, and contact information.
b. To Federal agencies associated with the categories of individuals covered by the system to account for their Government civilian and contractor personnel supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require support within and outside the U.S.
c. To contractor companies to account for their employees supporting contingency operations, humanitarian assistance operations, peace operations, disaster relief operations, military exercises, events, and other activities that require contractor support within and outside the U.S.
d. To applicable private sector organizations to account for their personnel located in an operational area.
e. To applicable facilities managers where JAMMS are deployed to account for Government services consumed and depict usage trends.
f. To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
g. To any component of the Department of Justice for the purpose of representing the DoD, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
h. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other agency representing the DoD determines that the records are relevant and necessary to the proceeding; or in an appropriate
i. To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
j. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
k. To appropriate agencies, entities, and persons when (1) the DoD suspects or has confirmed that there has been a breach of the system of records; (2) the DoD has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
l. To another Federal agency or Federal entity, when the DoD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
Records are maintained in electronic storage media.
Within SPOT-ES, records are retrieved by full name, SSN, DoD Identification Number, or federal/foreign ID number.
Within JAMMS, records may be retrieved by last name at the specific machine used at a location within specified start and ending dates.
Permanent. Close all files upon end of individual's deployment. Transfer to the National Archives and Records Administration when 25 years old.
Electronic records in SPOT and TOPSS are maintained in a Government-controlled area accessible only to authorized personnel. Entry to these areas is restricted to those personnel with a valid requirement and authorization to enter. Physical entry is restricted by the use of lock, guards, and administrative procedures. Physical and electronic access is restricted to designated individuals having a need-to-know in the performance of official duties. Access to personal information is further restricted by the use of Public Key Infrastructure or login/password authorization. Information is accessible only by authorized personnel with appropriate clearance/access in the performance of their duties. For JAMMS, physical and electronic access is restricted to designated individuals having a need-to-know in the performance of official duties. Access to personal information is further restricted by the use of login/password authorization or may use two-factor authentication with CAC and PIN. Physical entry is restricted to authorized personnel. Data transferred to SPOT-ES are encrypted.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act, Requester Service Center, Office of Freedom of Information, 1155 Defense Pentagon, Washington, DC 20301-1155. Foreign nationals seeking access to their records must submit requests under the Freedom of Information Act at the above address.
Signed, written requests should contain the individual's full name, last four digits of the SSN, DoD ID Number or federal/foreign ID number, current address, telephone number, when and where they were assigned during the named operation or event, and the name and number of this system of records notice.
In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format: If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).'
The Office of the Secretary of Defense (OSD) rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6784.
Signed, written requests should contain the individual's full name, last four digits of the SSN, DoD Identification Number or federal/foreign ID number, current address, telephone number, and when and where they were assigned during the named operation or event.
In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format: If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).'
The Department of Defense is exempting records maintained in DMDC 18 DoD, from subsection (d) of the Privacy Act pursuant to 5 U.S.C. 552a (k)(1). Such information has been determined to be classified under criteria established by an Executive Order in the interest of national defense or foreign policy and is properly classified pursuant to such Executive Order. An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 311. For additional information contact the system manager.
May 26, 2015, 80 FR 30057; October 24, 2013, 78 FR 63455; March 18, 2010, 75 FR 13103.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for new awards for fiscal year (FY) 2018 for Technical Assistance and Dissemination to Improve Services and Results for Children With Disabilities—State Technical Assistance Projects to Improve Services and Results for Children who are Deaf-Blind and National Technical Assistance and Dissemination Center for Children who are Deaf-Blind, Catalog of Federal Domestic Assistance (CFDA) number 84.326T.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Jo Ann McCann, U.S. Department of Education, 400 Maryland Avenue SW., Room 5162, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 245-7434, Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
The purpose of the TA&D program is to promote academic achievement and to improve results for children with disabilities by providing technical assistance (TA), supporting model demonstration projects, disseminating useful information, and implementing activities that are supported by scientifically based research.
The purposes of the PD program are to: (1) Help address State-identified needs for personnel—in special education, related services, early intervention, and regular education—to work with children with disabilities; and (2) ensure that those personnel have the skills and knowledge—derived from practices that have been determined through research and experience to be successful—that are needed to serve those children.
This priority is:
The purpose of this priority is to establish and operate State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and a National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind that will provide TA and support to the State projects.
The State Technical Assistance Projects to Improve Services and Results for Children who are Deaf-Blind (State Deaf-Blind Projects) will help State educational agencies (SEAs), Part C lead agencies (LAs), local educational agencies (LEAs)—including charter school LEAs, early intervention services (EIS) providers, teachers, service providers, and families to address the educational, related services, transitional, and early intervention needs of children who are deaf-blind.
The National Technical Assistance and Dissemination Center for Children who are Deaf-Blind (National Center) will provide TA and support to the State Deaf-Blind Projects in addressing these needs. This support includes providing specialized TA, training, dissemination, and informational services to agencies and organizations, professionals, families, and others involved in providing services to children who are deaf-blind.
Children who are deaf-blind have complex needs and are among the most diverse groups of learners served under the IDEA. Approximately 90 percent of children who are deaf-blind also have additional physical, learning, or cognitive disabilities. As a result, children who are deaf-blind face a unique set of challenges not commonly faced by their peers with, and without, disabilities. Therefore, SEAs, LAs, LEAs, EIS providers, teachers, service providers, State TA providers, and families need significant support to address the intense educational, related services, transitional, and early intervention needs of children who are deaf-blind to ensure that these children are prepared for lifelong learning and successfully transition to postsecondary education or employment.
This priority will fund discretionary grants to establish and operate State Technical Assistance Projects to Improve Services and Results for Children Who are Deaf-Blind. For more than 20 years, the Office of Special Education Programs (OSEP) has
This priority will also fund a cooperative agreement to establish and operate a National Technical Assistance and Dissemination Center for Children Who are Deaf-Blind. The National Center will work with the State Deaf-Blind Projects to ensure that family members and caregivers, EIS providers, special and regular education teachers, and related services personnel have access to the specialized training and tools needed to support the educational and social success of children who are deaf-blind.
The goals of this priority are to (1) expand upon a national TA network to improve outcomes for children who are deaf-blind; (2) expand the use of training modules to support personnel development of teachers and qualified personnel; (3) expand the body of knowledge and use of high-quality practices to facilitate emerging and developing literacy and numeracy for children who are deaf-blind; (4) facilitate increased parental involvement in the education and transition opportunities for children who are deaf-blind through providing networking opportunities for families, dissemination of knowledge, and engagement with deaf-blind family organizations; and (5) collaborate with the State Deaf-Blind Projects in collecting information to provide a State-by-State needs assessment, including disability and demographic information and trends, in order to ensure that children who are deaf-blind are identified early and receive appropriate services and supports. In addition, State Deaf-Blind Projects in States that utilize or plan to utilize certified paraprofessionals will collaborate with the National Center to (1) increase the number of certified paraprofessionals and qualified teachers within the State who have demonstrated skills to improve the classroom experience of children who are deaf-blind; and (2) increase the use of paraprofessional evaluation systems leading to increased availability of qualified paraprofessionals to support children who are deaf-blind.
This priority is consistent with the Secretary's Final Supplemental Priorities and Definitions for Discretionary Grant Programs, published in the
For the purpose of this competition, we have separated the absolute priority into two focus areas: State Deaf-Blind Projects (Focus Area A) and a National Center (Focus Area B). Applicants must identify whether they are applying under Focus Area A, Focus Area B, or both.
Each focus area will be reviewed and scored separately if an applicant is applying under both focus areas. As the program and application requirements for the two focus areas are different, applicants must ensure that they have met all applicable requirements.
Under Focus Area A, the Department will fund discretionary grants to establish and operate State Deaf-Blind Technical Assistance Projects (State Deaf-Blind Projects) to improve services and results for children who are deaf-blind. Grants under Focus Area A are available to support projects in all States, including the District of Columbia, Puerto Rico, the outlying areas and the freely associated States. A grant may be awarded to an entity to serve a single State or a multi-State consortium. Funds awarded under this priority may not be used to provide direct early intervention services under Part C of IDEA or direct special education and related services under Part B of IDEA.
State Deaf-Blind Projects funded under this priority must achieve, at a minimum, the following expected outcomes:
(a) Provide TA and training on improving outcomes to personnel who serve children who are deaf-blind;
(b) Increase early identification and referral of children who are deaf-blind for appropriate services and supports;
(c) Facilitate emerging and developing literacy and numeracy for children who are deaf-blind by promoting access to the general education curriculum and grade-level academic content standards through the use of high-quality practices;
(d) Continue and expand support to children who are deaf-blind and their families during the transition to postsecondary education or employment;
(e) Increase support to families to facilitate their involvement in the education and transition opportunities for children who are deaf-blind; and
(f) In collaboration with the National Center, collect information to provide a State-by-State needs assessment.
Also, State Deaf-Blind Projects in States that use, or plan to use, certified paraprofessionals will collaborate with the National Center to—
(a) Increase the number of certified paraprofessionals and qualified teachers within the State who have demonstrated skills to improve the educational, social, and communication outcomes and the classroom experience of children who are deaf-blind; and
(b) Increase the use of paraprofessional evaluation systems leading to increased availability of qualified paraprofessionals for children who are deaf-blind.
In addition to these programmatic requirements, to be considered for funding under Focus Area A of this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will—
(1) Provide EIS providers, special education teachers, regular education teachers, related services personnel, and SEA, LEA, LA, and EIS provider administrators with the training and information needed to develop and implement individualized supports to ensure that children who are deaf-blind have access to and progress in the
(2) In conjunction with State Parent Training and Information Centers (PTIs), ensure that family members and caregivers of children who are deaf-blind have the training and information needed to maintain and improve productive partnerships with service providers.
To address the requirements of paragraphs (1) and (2) of this section, the applicant must—
(i) Present applicable State, regional, or local data (and, in the case of an application for a consortium, data for each State that the consortium will serve) demonstrating training and information needs of EIS providers, special and regular education teachers, related services personnel, and family members and caregivers identified in paragraphs (1) and (2) of this section, taking into account the critical needs of the diverse deaf-blind population and the geographical distribution of children who are deaf-blind; and
(ii) Demonstrate knowledge of current educational issues and policy initiatives in educating children who are deaf-blind, including any State-specific policy initiatives and how the applicant will support their implementation; and
(3) Improve educational, social, and communication outcomes for children who are deaf-blind, and indicate the likely magnitude or importance of the outcomes.
(b) Demonstrate, in the narrative section of the application under “Quality of the Project Services,” how the proposed project will—
(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—
(i) Identify the needs of the intended recipients for TA and information;
(ii) Ensure that services meet the needs of the intended recipients of the grant and that any products are first approved by the OSEP project officer and then developed in coordination with the National Center;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide measureable intended project outcomes;
(3) Be based on current research and make use of high-quality practices. To meet this requirement, the applicant must describe—
(i) The current research and high-quality practices on ensuring access to the general education curriculum, grade-level academic content standards, and high-quality educational opportunities that lead to successful transitions to postsecondary education or employment;
(ii) How the project will provide high-quality training and TA to the family members and caregivers of children who are deaf-blind and TA and professional development to practitioners identified in paragraph (a) of the application and administrative requirements in this section; and
(iii) The process the proposed project will use to incorporate current research and high-quality practices in the development and delivery of its products and services;
(4) Develop and provide services that are of sufficient quality, intensity, and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) Its proposed approach to universal, general TA,
(ii) Its proposed approach to targeted, specialized TA,
(iii) Its proposed approach to intensive, sustained TA,
(A) Its proposed approach to collaborate with SEAs, LEAs, LAs, EIS providers, PTIs, or other relevant entities, as appropriate, to support project initiatives and to leverage their available resources, ability to build supports for families, and ability to provide TA and training to teachers, EIS providers, and other service providers;
(B) Its proposed plan for assisting LEAs and EIS providers to address the needs of children who are deaf-blind based on best practices and current research on effective training and professional development; and
(C) Its proposed plan for working with individuals and entities at each level of the education system (
(6) Implement services in collaboration with the National Center to meet the TA objectives within the State(s) served. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the intended project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration;
(iii) How the proposed project will use non-project resources to achieve the intended project outcomes; and
(iv) How the applicant will facilitate States' ability to use and benefit from the National Center's initiatives, products, and TA, including those initiatives that cross State boundaries.
(c) Demonstrate, in the narrative section of the application under “Quality of the Evaluation Plan,” how—
(1) The proposed project will collect and analyze data on specific and measurable goals, objectives, and outcomes of the project. To address this requirement, the applicant must describe—
(i) The proposed evaluation methodologies, including instruments, data collection methods, and possible analyses;
(ii) The proposed standards or targets for determining effectiveness; and
(iii) The proposed methods for collecting data on implementation supports and fidelity of implementation.
(2) The proposed project will use the evaluation results to examine the project's implementation strategies and
(3) The methods of evaluation will produce quantitative and qualitative data that demonstrate whether the project achieved the intended outcomes.
(d) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as appropriate; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients;
(4) The proposed project will benefit from a diversity of perspectives, including families, educators, TA providers, researchers, and policy makers, among others, in its development and operation;
(5) If applicable, the States within a consortium will receive appropriate services; and
(6) If applicable, the proposed project will ensure that the distribution of resources is equitable within a consortium.
(f) In the narrative under “Required Project Assurances” or appendices as directed, meet the following application requirements—
(1) Include, in Appendix A, charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) Include, in the budget, attendance at the following:
(i) A one-day planning meeting preceding the OSEP-hosted project directors' conference held in Washington, DC, in coordination with the National Center and an annual planning meeting with the OSEP project officer and other relevant staff during each subsequent year of the project period;
(ii) A two and one-half day project directors' conference in Washington, DC, during each year of the project period; and
(3) If the project maintains a website, ensure that it will be of high quality, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility.
The purpose of Focus Area B of this priority is to fund a cooperative agreement to establish and operate a National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind (National Center). The Center must achieve, at a minimum, the following expected outcomes:
(a) Increase the ability of State Deaf-Blind Projects to assist personnel in SEAs, LEAs, LAs, and EIS providers to use high-quality practices and products to improve outcomes for children who are deaf-blind;
(b) Increase assistance to State Deaf-Blind Projects in supporting families in order to facilitate family involvement in the education and transition opportunities for children who are deaf-blind;
(c) Increase collaboration between the OSEP-funded PTIs and State Deaf-Blind Projects to increase their ability to assist the families of children who are deaf-blind to support the development of self-advocacy;
(d) Increase early identification of children who are deaf-blind;
(e) In collaboration with State Deaf-Blind Projects, expand the use by SEAs, LAs and LEAs of paraprofessional evaluation systems (
(f) Increase ability of school-based personnel to meet State-identified competencies for educators serving children who are deaf-blind; and
(g) Promote access to, and progress in, the general education curriculum and grade-level academic content standards through the use of high-quality practices. The Center must also collect information to provide a State-by-State needs assessment, and develop and disseminate high-quality tools to State Deaf-Blind Projects and individuals and entities at each level of the education system to improve outcomes for children who are deaf-blind.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will—
(1) Address the current and emerging needs of State Deaf-Blind Projects, SEAs, LEAs, LAs, EIS providers, and organizations serving children who are deaf-blind to ensure they have the training and information needed to implement and sustain high-quality, effective, and efficient systems that have the implementation supports in place to ensure children who are deaf-blind have access to and progress in the general education curriculum and grade-level academic content standards, and have access to high-quality educational opportunities that lead to successful transitions to postsecondary education or employment. To meet this requirement the applicant must—
(i) Present applicable data demonstrating current State capacity to deliver high-quality IDEA services for children who are deaf-blind, and ensure they have access to and progress in the general education curriculum and grade-level academic content standards, and have access to high-quality educational opportunities that lead to successful transitions to postsecondary education or employment;
(ii) Demonstrate knowledge of current issues and ongoing challenges in ensuring children who are deaf-blind have access to and progress in the general education curriculum and grade-level academic content standards, and have access to high-quality educational opportunities that lead to successful transitions to postsecondary education or employment; and
(iii) Present information about the current level of implementation and
(2) Improve educational outcomes for children who are deaf-blind, and indicate the likely magnitude or importance of the outcomes.
(b) Demonstrate, in the narrative section of the application under “Quality of the Project Services,” how the proposed project will—
(1) Ensure equal access and treatment to members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—
(i) Identify the needs of the intended recipients for TA and information; and
(ii) Ensure that TA services and products meet the needs of the intended recipients of the grant;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measurable intended project outcomes; and
(ii) In Appendix A, the logic model (as defined in this notice) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;
(3) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;
(4) Be based on current research and make use of high-quality practices. To meet this requirement, the applicant must describe—
(i) The current research on the effectiveness of systems change efforts, capacity building, and inclusive practices that will inform the TA and related high-quality practices; and
(ii) The current research about adult learning principles and implementation science that will inform the proposed TA and products; and
(5) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) How it proposes to identify and develop the knowledge base on high-quality practices addressing the early intervention, related services, educational, transitional, and functional needs of children who are deaf-blind;
(ii) Its proposed approach to universal, general TA,
(A) A plan for ensuring that State Deaf-Blind Projects, as well as SEAs, LEAs, LAs, and EIS providers, can easily access and use products and services developed by the proposed project; and
(B) A plan for increasing awareness and recognition at the national level of how children who are deaf-blind can benefit from high-quality practices addressing their early intervention, related services, educational, transitional, and functional needs.
(iii) Its proposed approach to targeted, specialized TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach;
(B) Its proposed approach to measure the readiness of State Deaf-Blind Projects to work with the proposed project, assessing, at a minimum, their current infrastructure, available resources, and ability to build capacity at the LEA and EIS program level;
(C) Its proposed plan for assisting State Deaf-Blind Projects to build professional development systems to support children who are deaf-blind; and
(D) Its proposed plan for working with individuals and entities at each level of the education system (
(iv) Its proposed approach to intensive, sustained TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach;
(B) Its proposed approach to measure the readiness of State Deaf-Blind Projects to work with the proposed project, including their commitment to the initiative, alignment of the initiative to their needs, current infrastructure, available resources, and ability to build capacity at the local district and EIS program level;
(C) Its proposed plan for assisting State Deaf-Blind Projects to build training systems that include professional development based on adult learning principles and coaching;
(D) The process by which the proposed project will collaborate with OSEP-funded centers (see
(E) The process by which the proposed project will ensure the use of effective TA practices and continuously evaluate the practices to improve the delivery of TA;
(6) Develop products and implement services that maximize efficiency. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the intended project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration; and
(iii) How the proposed project will use non-project resources to achieve the intended project outcomes.
(c) In the narrative section of the application under “Quality of the Evaluation Plan,” include an evaluation plan for the project as described in the following paragraphs. The evaluation plan must describe: measures of progress in implementation, including the criteria for determining the extent to which the project's products and services have met the goals for reaching the project's target population; measures of intended outcomes or results of the project's activities in order to evaluate those activities; and how well the goals or objectives of the proposed project, as described in its logic model, have been met.
The applicant must provide an assurance that, in designing the evaluation plan, it will—
(1) Designate, with the approval of the OSEP project officer, a project liaison staff person with sufficient dedicated time, experience in evaluation, and knowledge of the project to work in collaboration with the Center to Improve Program and Project Performance (CIP3),
(i) Revise, as needed, the logic model submitted in the grant application to provide for a more comprehensive measurement of implementation and outcomes and to reflect any changes or clarifications to the model discussed at the kick-off meeting;
(ii) Refine the evaluation design and instrumentation proposed in the grant application consistent with the logic model (
(iii) Revise, as needed, the evaluation plan submitted in the grant application such that it clearly—
(A) Specifies the measures and associated instruments or sources for data appropriate to the evaluation questions, suggests analytic strategies for those data, provides a timeline for conducting the evaluation, and includes staff assignments for completion of the plan;
(B) Delineates the data expected to be available by the end of the second project year for use during the project's evaluation (3+2 review) for continued funding described under the heading
(C) Can be used to assist the project director and the OSEP project officer, with the assistance of CIP3, as needed, to specify the performance measures to be addressed in the project's Annual Performance Report;
(2) Cooperate with CIP3 staff in order to accomplish the tasks described in paragraph (1) of this section; and
(3) Dedicate sufficient funds in each budget year to cover the costs of carrying out the tasks described in paragraphs (1) and (2) of this section and implementing the evaluation plan.
(d) Demonstrate in the narrative section of the application under “Adequacy of Project Resources,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients; and
(4) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, doctoral and post-doctoral scholars, researchers, and policy makers, among others, in its development and operation.
(f) Address the following application requirements. The applicant must—
(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) Include, in the budget, attendance at the following:
(i) A one and one-half day kick-off meeting in Washington, DC, after receipt of the award, and an annual planning meeting.
(ii) A two and one-half day project directors' conference in Washington, DC, during each year of the project period;
(iii) Four annual two-day trips to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP; and
(iv) A one-day intensive 3+2 review meeting in Washington, DC, during the last half of the second year of the project period;
(3) Include, in the budget, a line item for an annual set-aside of five percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with and approved by the OSEP project officer. With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period;
(4) Maintain a high-quality website, with an easy to navigate design, that meets government or industry-recognized standards for accessibility; and
(5) Include, in Appendix A, an assurance to assist OSEP with the
In deciding whether to continue funding the project for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), as well as—
(a) The recommendation of a 3+2 review team consisting of experts selected by the Secretary. This review will be conducted during a one-day intensive meeting that will be held during the last half of the second year of the project period;
(b) The timeliness with which, and how well, the requirements of the negotiated cooperative agreement have been or are being met by the project; and
(c) The quality, relevance, and usefulness of the project's products and services and the extent to which the project's products and services are aligned with the project's objectives and likely to result in the project achieving its intended outcomes.
This requirement is from the notice of final requirement for this program published elsewhere in this issue of the
This requirement is:
A grantee under Focus Area A may recover the lesser of (a) its actual indirect costs as determined by the grantee's negotiated indirect cost rate agreement and (b) 10 percent of its modified total direct costs. If a grantee's allocable indirect costs exceed 10 percent of its modified total direct costs, the grantee may not recoup the excess by shifting the cost to other grants or contracts with the U.S. Government, unless specifically authorized by legislation. The grantee must use non-Federal revenue sources to pay for such unrecovered costs.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2019 from the list of unfunded applicants from this competition.
(1) The total number of children from birth through age 21 in the State.
(2) The number of people in poverty in the State.
(3) The previous funding levels.
(4) The maximum and minimum funding amounts.
Focus Area B: We will not make an award exceeding 2,100,000 for any single budget period of 12 months.
1.
With respect to Focus Area A of the priority, in order to provide SEAs with greater flexibility in how TA is delivered and ensure high-quality TA, individual States have the following options: (1) Participating as a member of a multi-State consortium; or (2) applying directly for funds as a single State. Therefore, eligible applicants for funds awarded under Focus Area A of this absolute priority may be an entity serving a multi-State consortium, or a single State.
Eligible applicants under Focus Area A are invited to submit single-State or consortium applications to provide deaf-blind TA services to individual States, as they have done in the past. If a State is included in more than one application as a member of a consortium or submits an individual State application, and more than one application is determined to be fundable for the State, the State will be given the option to choose the award (individual State or consortium) under which it will receive funding. A State may not be funded under multiple awards. The maximum level of funding for a consortium will reflect the combined total that the eligible entities comprising the consortium would have received if they had applied separately. For States within a consortium, each State must receive services consistent with its identified funding level.
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(b) Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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2.
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
1.
(a)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The significance of the problem or issue to be addressed by the proposed project.
(ii) The extent to which the proposed project is likely to build local capacity to provide, improve, or expand services that address the needs of the target population.
(b)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the services to be provided by the proposed project are appropriate to the needs of the intended recipients or beneficiaries of those services.
(ii) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(iii) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice.
(iv) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
(v) The extent to which the technical assistance services to be provided by the proposed project involve the use of efficient strategies, including the use of technology, as appropriate, and the leveraging of non-project resources.
(c)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation are appropriate to the context within which the project operates.
(d)
(1) The Secretary considers the adequacy of resources for the proposed project.
(2) In determining the adequacy of resources for the proposed project, the Secretary considers the following factors:
(i) The qualifications, including relevant training and experience, of the project director or principal investigator.
(ii) The qualifications, including relevant training and experience, of key project personnel.
(iii) The qualifications, including relevant training and experience, of project consultants or subcontractors.
(iv) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
(e)
(1) The Secretary considers the quality of the management plan for the proposed project.
(2) In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(ii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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5.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
• Program Performance Measure #1: The percentage of Technical Assistance and Dissemination products and services deemed to be of high quality by an independent review panel of experts qualified to review the substantive content of the products and services.
• Program Performance Measure #2: The percentage of Special Education Technical Assistance and Dissemination products and services deemed by an independent review panel of qualified experts to be of high relevance to educational and early intervention policy or practice.
• Program Performance Measure #3: The percentage of all Special Education Technical Assistance and Dissemination products and services deemed by an independent review panel of qualified experts to be useful to improve educational or early intervention policy or practice.
• Program Performance Measure #4: The cost efficiency of the Technical Assistance and Dissemination Program includes the percentage of milestones achieved in the current annual performance report period and the percentage of funds spent during the current fiscal year.
• Long-term Program Performance Measure: The percentage of States receiving Special Education Technical Assistance and Dissemination services regarding scientifically or evidence-based practices for infants, toddlers, children, and youth with disabilities that successfully promote the implementation of those practices in school districts and service agencies.
The measures apply to projects funded under this competition, and grantees are required to submit data on these measures as directed by OSEP.
Grantees will be required to report information on their project's performance in annual and final performance reports to the Department (34 CFR 75.590).
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Historically Black Colleges and Universities Capital Financing Board, Office of Postsecondary Education, U.S. Department of Education.
Announcement of an open meeting.
This notice sets forth the agenda, time, and location of an upcoming open meeting of the Historically Black Colleges and Universities Capital Financing Advisory Board (Board). Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of the opportunity to attend.
The Board meeting will be held on Wednesday, September 19, 2018, 9:30 a.m.-12:00 p.m., Eastern Time, at Room 1W128, Lyndon Baines Johnson Building, 400 Maryland Avenue SW, Washington, DC 20202.
Adam H. Kissel, Deputy Assistant Secretary for Higher Education Programs and the Designated Federal Official for the Board, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202; telephone: (202) 453-6808; email:
There will be an opportunity for members of the public to provide oral comment on Wednesday, September 19, 2018, 11:30 a.m.-12:00 p.m. Please be advised that comments cannot exceed five (5) minutes and must pertain to issues within the scope of the Board's authority. Members of the public interested in submitting written comments may do so by submitting comments to the attention of Adam H. Kissel, 400 Maryland Avenue SW, Washington, DC, 20202. Comments must be postmarked no later than Wednesday, September 12, 2018, to be considered for discussion during the meeting. Comments should pertain to the work of the Board or the Program.
Pursuant to the FACA, 5 U.S.C. App. as amended, Section 10(b), the public may also inspect meeting materials at
Title III, Part D, Section 347, of the Higher Education Act of 1965, as amended in 1998 (20 U.S.C. 1066f).
U.S. Election Assistance Commission.
Notice of Public Quarterly Conference Call for EAC Board of Advisors.
To listen and monitor the event as an attendee:
1. Go to
2. Click “Join Now”.
To join the audio conference only:
1. To receive a call back, provide your phone number when you join the event, or
2. call the number below and enter the access code.
(See toll-free dialing restrictions at
For assistance: Contact the host, Mark Abbott at
This Conference Call Will Be Open to the Public.
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the Advanced Scientific Computing Advisory Committee (ASCAC). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
Monday, September 17, 2018; 8:30 a.m. to 5:00 p.m., and Tuesday, September 18, 2018; 9:00 a.m. to 12:00 p.m.
Holiday Inn Capital, 550 C Street SW, Washington, DC 20024.
Christine Chalk, Office of Advanced Scientific Computing Research; SC-21/Germantown Building; U.S. Department of Energy; 1000 Independence Avenue SW, Washington, DC 20585-1290; Telephone (301) 903-7486.
• Report from Subcommittee on 40 years of investments by the Department of Energy in advanced computing and networking
• Update on Oak Ridge Leadership Computing Facility—Summit
• Technical presentations
• Public Comment (10-minute rule)
The meeting agenda includes an update on the budget, accomplishments and planned activities of the Advanced Scientific Computing Research program and the exascale computing project; an update on the Office of Science; technical presentations from funded researchers; and there will be an opportunity comments from the public. The meeting will conclude at 12:00 p.m. on September 18, 2018. Agenda updates and presentations will be posted on the ASCAC website prior to the meeting:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Advisory Board (EMAB). The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Tuesday, September 11, 2018, 8:30 a.m.-3:45 p.m.
Hilton Alexandria Mark Center, 5000 Seminary Road, Alexandria, VA 22311.
Jennifer McCloskey, Federal Coordinator, EMAB (EM-4.3), U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585. Phone (301) 903-7427; fax (202) 586-0293 or email:
Purpose of the Board: The purpose of EMAB is to provide the Assistant Secretary for Environmental Management (EM) with advice and recommendations on corporate issues confronting the EM program. EMAB contributes to the effective operation of the program by providing individual citizens and representatives of interested groups an opportunity to present their views on issues facing EM and by helping to secure consensus recommendations on those issues.
Tentative Agenda Topics:
Department of Energy (DOE).
Notice of Open Meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB) Chairs. The Federal Advisory Committee Act requires that
Tuesday, September 11, 2018, 8:30 a.m.-4:45 p.m.
Hilton Alexandria Mark Center, Magnolia Room, 5000 Seminary Road, Alexandria, Virginia 22311.
David Borak, EM SSAB Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585; Phone: (202) 586-9928.
U.S. Energy Information Administration (EIA), U.S. Department of Energy (DOE).
Notice.
EIA submitted an information collection request for extension as required by the Paperwork Reduction Act of 1995. The information collection requests a three-year extension with changes to Form EIA-886
Comments on this information collection must be received no later than September 20, 2018. If you anticipate any difficulties in submitting your comments by the deadline, contact the DOE Desk Officer at 202-395-4718.
Written comments should be sent to DOE Desk Officer: Brandon Debruhl, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW, Washington, DC 20503,
Cynthia Sirk, 202-586-9753, email
This information collection request contains:
(1)
(2)
(3)
(4)
(4a)
• Changes to Vehicle Type and Weight Classifications: EIA will standardize the break out of weight classes to reflect industry standards by simplifying the list of vehicle type codes and adding a column for detailed weight classifications in Parts 2 and 3 of Form EIA-886. The changes to vehicle weight classifications support EPA's Motor Vehicle Emission Simulator model (MOVES) by making the weight classifications on the Form EIA-886 data collection consistent with the weight classifications used by EPA.
• Questions for Electric Vehicle Users: EIA will add the following two questions to Part 2 of Form EIA-886 to collect information on electric vehicle power consumption to establish parameters for estimating electricity consumption on charging patterns, and electric utility billing for electric vehicles:
1. How do you charge your electric/plug-in hybrid electric vehicles?
2. Does your electric utility provide separate billing on kilowatt hours used for refueling vehicles?
(5)
(6)
(7)
(8)
Section 13(b) of the Federal Energy Administration Act of 1974, Pub. L. 93-275, codified as 15 U.S.C. 772(b) and the DOE Organization Act of 1977, Pub. L. 95-91, codified at 42 U.S.C. 7101
This is a supplemental notice in the above-referenced proceeding of Stryker 22, 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 September 4, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that on August 14, 2018, pursuant to section 211 of the Federal Power Act,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on August 10, 2018, pursuant to Rule 204 of the Federal
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
a.
b.
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g.
h. Potential
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k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402, and (b) the State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Little Falls Associates as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
m. On June 15, 2018, Little Falls Associates filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
Register online at
o. With this notice, we are soliciting comments on the PAD and Commission's staff Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.
The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at
All filings with the Commission must bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by October 13, 2018.
p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this meeting will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the time and place noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
Phone: (315) 823-4954.
SD1, which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The potential applicant and Commission staff will conduct an environmental site review of the project on Wednesday, September 12, 2018, starting at 10:00 a.m. All participants should meet at the Little Falls Hydroelectric Plant, located at 499 Canal Place, Little Falls, NY 13365. Participants should proceed over the Canal Place Bridge, take a left, and continue approximately 600 yards down Seeley Street to the designated parking area. To attend the environmental site review, please RSVP via email to
At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.
The meetings will be recorded by a stenographer and will be placed in the public records of the project.
Take notice that on August 9, 2018, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2) (2017), Cactus II Pipeline LLC (Cactus II Pipeline or Petitioner), filed a petition for a declaratory order to approve the specified rate structure, terms of service, and open season procedures for its proposed Cactus II Pipeline Project, which will transport crude oil from various West Texas Counties in the Permian Basin to Corpus Christi, Texas, all as more fully explained in the petition.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Plumsted 537 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 September 4, 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
Federal Energy Regulatory Commission, Department of Energy.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is submitting its information collection FERC-537 (Gas Pipeline Certificates: Construction, Acquisition, and Abandonment) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission previously issued a Notice in the
Comments on the collection of information are due by September 20, 2018.
Comments filed with OMB, identified by the OMB Control No. 1902-0060, should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Commission, in Docket No. IC18-13-000, by either of the following methods:
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Ellen Brown may be reached by email at
The data required to be submitted in a normal certificate filing consists of identification of the company and responsible officials, factors considered in the location of the facilities and the impact on the area for environmental considerations. Also to be submitted are the following, as applicable to the specific request:
• Flow diagrams showing the design capacity for engineering design verification and safety determination;
• Cost of proposed facilities, plans for financing, and estimated revenues and expenses related to the proposed facility for accounting and financial evaluation.
• Existing and proposed storage capacity and pressures and reservoir
• An affidavit showing the consent of existing customers for abandonment of service requests.
Additionally, requests for an increase of pipeline capacity must include a statement that demonstrates compliance with the Commission's Certificate Policy Statement by making a showing that the cost of the expansion will not be subsidized by existing customers and that there will not be adverse economic impacts to existing customers, competing pipelines or their customers, nor to landowners and to surrounding communities.
To the comment received from Ms. Joanne Collins on 5/30/2018, FERC responds:
Commenter points out that the collection of data and information from applicants requesting authorization to construct and operate natural gas pipelines can create a secondary burden on the general citizenry to learn about the Commission's rules and process; and further to perhaps take costly and time consuming efforts to participate in the Commission's proceedings. The Paperwork Reduction Act of 1995 was not intended to measure this type of secondary burden; only the primary burden on those applicant entities to collect and compile the information necessary for the Government to make an informed decision and take appropriate action. The Commission has multiple ways, times, and methods for the general citizenry to appropriately input their views on the Commission's rules and process, or its individual proceedings.
To the comment received from Ms. Laurie Lubsen on 6/4/2018, FERC responds:
Commenter concurs in the collection of information necessary for the Commission to make an informed decision and take appropriate action is appropriate, but does not want less information that is needed to not be collected solely because it is a burden on those seeking authorizations. We confirm that all the information required by FERC-537 continues to be necessary and that no data collections have been revised in this current review on FERC-537. Commenter notes that automated ways to collect information, such as eFiling are good, as long as they are not ultimately required of all fliers.
Environmental staff of the Federal Energy Regulatory Commission (Commission) will participate in a meeting, via telephone, with representatives of Shell Energy North America, the Confederated Tribes of the Colville Reservation, and the U.S. Army Corps of Engineers to continue the on-going discussion of potential impacts to cultural resources from the proposed Hydro Battery Pearl Hill Pumped Storage Project. The meeting will be held at the location and time listed below:
Members of the public and intervenors in the referenced proceeding may attend and observe this meeting, in person or via telephone. If tribal representatives decide to disclose information about a specific location which could create a risk or harm to an archeological site or Native American cultural resource, the public will be excused for that portion of the meeting. A summary of the meeting will be entered into the Commission's administrative record.
If you plan to attend this meeting, in person or via telephone, please contact Brent Hicks of HRA Associates (contractor for Shell Energy) at (206) 343-0226 or
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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 Buckleberry Solar, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 4, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
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 settlement under section 122(h)(1) of CERCLA, between the U.S. Environmental Protection Agency (“EPA”), the Colorado Department of Public Health and Environment (“CDPHE”), and Battle North, LLC and Battle South, LLC (“Owners”). The proposed Settlement Agreement provides for the performance of work by Owners, the payment of certain response costs incurred, or to be incurred, by the United States, and the release and waiver of a lien at or in connection with the Property. The Owners consent to and will not contest the authority of the United States to enter into the Agreement or to implement or enforce its terms. CDPHE and Owners recognize that the Agreement has been negotiated in good faith and that the Agreement is entered into without the admission or adjudication of any issue of fact or law.
Comments must be submitted on or before September 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 proposed agreement and additional background information relating to the agreement, as well as the Agency's response to any comments are or will be available for public inspection at the EPA Superfund Record Center, 1595 Wynkoop Street, Denver, Colorado, by appointment. Comments and requests for a copy of the proposed agreement should be addressed to Matt Hogue, Enforcement Specialist, Environmental Protection Agency—Region 8, Mail Code 8ENF-RC, 1595 Wynkoop Street, Denver, Colorado
Kayleen Castelli, Enforcement Attorney, Legal Enforcement Program, Environmental Protection Agency—Region 8, Mail Code 8ENF-L, 1595 Wynkoop Street, Denver, Colorado 80202, (303) 312-6174.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the EPA Administrator's October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is hereby given of a proposed Second Interim Settlement Agreement in a lawsuit filed by the West Goshen Sewer Authority (“WGSA” or “Plaintiff”) in the United States District Court for the Eastern District of Pennsylvania:
Written comments on the proposed Second Interim Settlement Agreement must be received by September 20, 2018.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2018-0591, online at
Jim Curtin, Water Law Office (7451), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-5482; email address:
On June 30, 2008, EPA established a nutrient total maximum daily load (“TMDL”) for the Goose Creek Watershed in Chester and Delaware Counties, Pennsylvania. EPA established that TMDL pursuant to the April 9, 1997 Consent Decree entered in
WGSA filed a complaint against EPA on September 19, 2012, alleging that in establishing the Goose Creek TMDL EPA failed to comply with requirements of the Clean Water Act (CWA) and Administrative Procedure Act (APA). In July 2013, the Court granted intervener status to the Delaware Riverkeeper Network (“DRN”).
The Court placed the case in “civil suspense” following the parties' execution in January 2014 of a first “Interim Settlement Agreement” (“the 2014 Agreement”) under which EPA reassessed the water quality of Goose Creek and WGSA made voluntary improvements in its operations to achieve phosphorus reductions. The parties have now reached agreement on the terms of a “Second Interim Settlement Agreement” in which (1) WGSA commits, among other things, to install a “CoMag” ballasted flocculation system at its wastewater treatment plant and achieve certain specified discharge limits for phosphorus and (2) EPA commits to reassess the water quality of Goose Creek and decide whether to withdraw, revise or retain the Goose Creek TMDL.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed Second Interim Settlement Agreement from persons who are not named as parties or intervenors to the litigation in question. If so requested, EPA will also consider holding a public hearing on whether to enter into the proposed Second Interim Settlement Agreement. EPA or the Department of Justice may withdraw or withhold consent to the proposed Second Interim Settlement Agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to this proposed Second Interim Settlement Agreement should be withdrawn, the parties intend to sign the Agreement and inform the Court.
The official public docket for this action (identified by EPA-HQ-OGC-2018-0591) contains a copy of the proposed Second Interim Settlement Agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number
An electronic version of the public docket is available on EPA's website at
EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), Exchange Network Grants Progress Reports (EPA ICR No. 2207.07, OMB Control No. 2025-0006) 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 August 31, 2018. Public comments were previously requested via the
Additional comments may be submitted on or before September 20, 2018.
Submit your comments, referencing Docket ID Number EPA-HQ-OEI-2006-0037, 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.
Edward Mixon, Information Exchange Services Division, Office of Information Management (2823T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-2142; fax number: 202-566-1684; 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
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Background Checks for Contractor Employees (EPA ICR No. 2159.07, OMB Control No. 2030-0043) 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 August 31, 2018. Public comments were previously requested via the
Additional comments may be submitted on or before September 20, 2018.
Submit your comments, referencing Docket ID Number EPA-HQ-OARM-2017-0752, 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.
Thomas Valentino, Policy, Training and Oversight Division, Office of Acquisition Management (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-4522; 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
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Emissions Certification and Compliance Requirements for Nonroad Compression-ignition Engines and On-highway Heavy Duty Engines (EPA ICR Number 1684.20, OMB Control No. 2060-0287) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Public comments were previously requested via the
Additional comments may be submitted on or before September 20, 2018.
Submit your comments, referencing Docket ID Number referencing the Docket ID No. EPA-HQ-OAR-2007-1182 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.
Nydia Yanira Reyes-Morales, Office of Transportation and Air Quality, Mail Code 6405J, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-343-9264; email address:
Supporting documents, which explain in detail the information EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Title II of the Clean Air Act (CAA), charges EPA with issuing certificates of conformity for those engines and vehicles that comply with applicable emission requirements. Such a certificate must be issued before those products may be legally introduced into commerce. To apply for a certificate of conformity, manufacturers are required to submit descriptions of their planned production, descriptions of emission control systems and test data. The emission values achieved during certification testing may also be used in the Averaging, Banking, and Trading (ABT) Program, which allows engine manufacturers to bank credits for engine families that emit below the standard and use the credits to certify engine families that emit above the standard.
The CAA also mandates EPA verify that manufacturers have translated their certified prototypes into mass produced engines; and that these engines comply with emission standards throughout their useful lives. EPA verifies this through Compliance Programs, including Production Line Testing (PLT), In-use Testing and Selective Enforcement Audits (SEAs). PLT is a self-audit program that allows marine engine manufacturers to monitor their products' emissions profile with statistical certainty and minimize the cost of correcting errors through early detection. In-use testing verifies compliance with emission standards throughout an engine family's useful life. Through SEAs, EPA verifies that test data submitted by engine manufacturers is reliable and testing is performed according to EPA regulations.
Under the Transition Program for Equipment Manufacturers (TPEM), NRCI equipment manufacturers may delay compliance with Tier 4 standards for up to seven years if they comply with certain limitations. The Program seeks to ease the impact of new emission standards on equipment manufacturers as they often need to redesign their products.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Polymeric Coating of Supporting Substrates Facilities (EPA ICR No. 1284.11, OMB Control No. 2060-0181), 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 August 31, 2018. Public comments were previously requested, via the
Additional comments may be submitted on or before September 20, 2018.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0043, 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.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; 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
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR),
Additional comments may be submitted on or before September 20, 2018.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2013-0311, 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.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; 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 either online at
In general, all emission guidelines require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to emission guidelines.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to
Written comments should be submitted on or before September 20, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The information collection burdens associated with these complaints is being transferred from OMB Control Number 3060-1162 (Closed Captioning of Video Programming Delivered Using internet Protocol, and Apparatus Closed Caption Requirements) to OMB Control Number 3060-0874 to enable consumers to file complaints related to the Commission's apparatus closed caption requirements through the Commission's online complaint portal.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before October 22, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
This information is used to determine if an applicant's proposed system is necessary in light of communications facilities it already owns. Such a determination helps the Commission to equitably distribute limited spectrum and prevents spectrum warehousing.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before October 22, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
In September 2011, the Commission's Media Bureau (Bureau) had released an MDCL Public Notice, in which it stated that it would permit AM stations, by rule waiver or experimental authorization, to use MDCL control technologies, which are transmitter control techniques that vary either the carrier power level or both the carrier and sideband power levels as a function of the modulation level. This allows AM licensees to reduce power consumption while maintaining audio quality and their licensed station coverage areas.
There are two basic types of MDCL control technologies. In one type, the carrier power is reduced at low modulation levels and increased at higher modulation levels. In the other type, there is full carrier power at low modulation levels and reduced carrier power and sideband powers at higher modulation levels. Use of any of these MDCL control technologies reduces the station's antenna input power to levels not permitted by Section 73.1560(a) of the Commission's rules.
The MDCL Public Notice permitted AM station licensees wanting to use MDCL control technologies to seek either a permanent waiver of Section 73.1560(a) for those licensees already certain of the particular MDCL control technology to be used, or an experimental authorization pursuant to Section 73.1510 of the Rules for those licensees wishing to determine which of the MDCL control technologies would result in maximum cost savings and minimum effects on the station's coverage area and audio quality. Between release of the MDCL Public Notice and release of the Notice of Proposed Rule Making in MB Docket No. 13-249, FCC 13-139 (NPRM), 33 permanent waiver requests and 20 experimental requests authorizing use of MDCL control technologies had been granted by the Bureau.
AM station licensees using MDCL control technologies have reported significant savings on electrical power costs and few, if any, perceptible effects on station coverage area and audio quality. Accordingly, the NPRM tentatively concluded that use of MDCL control technologies reduces AM broadcasters' operating costs while maintaining a station's current level of service to the public, without interference to other stations. The Commission therefore, proposed to allow an AM station to commence operation using MDCL control technology by notification to the Commission, without prior Commission authority.
Consistent with the Commission's new rule allowing AM broadcasters to implement MDCL technologies without prior authorization, by electronic notification within 10 days of commencing MDCL operations, the Commission created FCC Form 338, AM Station Modulation Dependent Carrier Level (MDCL) Notification. In addition to the standard general contact information, FCC Form 338 solicits minimal technical data, as well as the date that MDCL control operation commenced. This information collection regarding FCC Form 338 needs OMB review and approval.
The following rule section is covered by this information collection: 47 CFR 73.1560(a)(1) specifies the limits on antenna input power for AM stations. AM stations using MDCL control technologies are not required to adhere to these operating power parameters. AM stations may, without prior Commission authority, commence MDCL control technology use, provided that within ten days after commencing such operation, the licensee submits an electronic notification of commencement of MDCL operation using FCC Form 338.
The Commission is now requesting a three year extension for this collection from the Office of Management and Budget (OMB).
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing the next meeting of the North American Numbering Council (NANC). At this meeting, the NANC will consider a report from its Numbering Administration Oversight Working Group on the technical requirements to consolidate the services of the North American Numbering Plan Administrator and the Pooling Administrator. In addition, the FCC will provide more information on the new Interoperable Video Calling Working Group. The NANC will also continue its discussions on how to modernize and foster more efficient number administration in the United States.
Thursday, September 13, 2018, 9:30 a.m.
Requests to make an oral statement or provide written comments to the NANC should be sent to Darlene Biddy, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Portals II, 445 12th Street SW, Room 5-C150, Washington, DC 20554.
Darlene Biddy at (202) 418-1585 or
The NANC meeting is open to the public. The FCC will accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will also provide audio coverage of the meeting. Other reasonable accommodations for people with disabilities are available upon request. Request for such accommodations should be submitted via email to
Members of the public may submit comments to the NANC in the FCC's Electronic Comment Filing System, ECFS, at
More information about the NANC is available at
This is a summary of the Commission's document in CC Docket No. 92-237, DA 18-815 released August 6, 2018. The complete text in this document is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW, Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the internet at
* The Agenda may be modified at the discretion of the NANC Chairman with the approval of the Designated Federal Officer (DFO).
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend, with revision, the mandatory Reporting Requirements Associated with Regulation QQ (OMB No. 7100-0346). 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 Federal Reserve 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 Board is exploring ways to improve the resolution planning process. Such improvements could include, for example, extending the cycle for plan submissions; focusing certain filings on key topics of interest and material changes; or reducing the submission requirements for firms with small, simple, and domestically focused activities. The Board will solicit comments on the effects that any such changes would have on paperwork burden if and when the changes are proposed.
The Board and the FDIC will assess the confidentiality of resolution plans and related material in accordance with FOIA and the Board's and the FDIC's implementing regulations (12 CFR part 261 (Board); 12 CFR part 309 (FDIC)). The Board and the FDIC expect that large portions of the submissions will contain or consist of “trade secrets and commercial or financial information obtained from a person and privileged or confidential” and information that is “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” This information is subject to withholding under exemptions 4 and 8 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4) and 552(b)(8).
In addition to any responses to guidance from the Agencies, the public section of the resolution plan should consist of an executive summary of the resolution plan that describes the business of the covered company and includes, to the extent material to an understanding of the covered company: (i) The names of material entities; (ii) a description of core business lines; (iii) consolidated or segment financial information regarding assets, liabilities, capital and major funding sources; (iv) a description of derivative activities and hedging activities; (v) a list of memberships in material payment, clearing, and settlement systems; (vi) a description of foreign operations; (vii) the identities of material supervisory authorities; (viii) the identities of the principal officers; (ix) a description of the corporate governance structure and processes related to resolution planning; (x) a description of material management information systems; and (xi) a description, at a high level, of the covered company's resolution strategy, covering such items as the range of potential purchasers of the covered company, its material entities and core business lines.
While the information in the public section of a resolution plan should be sufficiently detailed to allow the public to understand the business of the covered company, such information can be high level in nature and based on publicly available information. The public section will be made available to the public exactly as submitted by the covered companies as soon as possible following receipt by the agencies. A covered company should submit a properly substantiated request for confidential treatment of any details in the confidential section that it believes are subject to withholding under exemption 4 of the FOIA. In addition, the Board and the FDIC will make formal exemption and segregability determinations if and when a plan is requested under the FOIA.
(i) Extending the annual resolution plan filing cycle to a two-year cycle;
(ii) providing additional clarity on filing deadlines;
(iii) requiring that any agency guidance be provided more than 12 months in advance of each filing deadline;
(iv) allowing firms to satisfy some of their Regulation QQ requirements by incorporating their IDI plans by reference;
(v) providing for further tailoring based on the systemic risk posed by each firm,
(vi) further reducing the need for duplicative reporting;
(vii) adjusting the forecasting expected from the firms;
(viii) providing greater guidance regarding regulatory expectations related to the resolution of financial market utilities;
(ix) eliminating the strategic analysis section from tailored plans;
(x) providing an opportunity for notice and comment on any new information requirements, the framework used for assessing resolution plans, and the procedures related to remediation;
(xi) requiring the agencies to provide feedback on plans within six months of plan submission;
(xii) refraining from making feedback provided to the firms public or providing firms more time to consider the feedback before it is made public; and
(xiii) reconsidering the procedures the Board and FDIC undertake to engage with firms.
The Board is not adopting any of the recommended changes at this time. Either a revision to the Board's Regulation QQ or joint action with the FDIC would be necessary to implement each of the recommended changes. Most of the recommendations would require changes to the Board's Regulation QQ, which could only be accomplished pursuant to a rulemaking. In addition, the Board could not unilaterally take the actions requested by these comments, even those that would not require a rulemaking, as they fall under the purview of a rule that the Board proposed jointly with the FDIC and a process that is jointly administered by the two agencies.
The companies listed in this notice have given notice under section 10 of the Home Owners' Loan Act (12 U.S.C. 1467a) (HOLA) and Regulation LL, (12 CFR part 238) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 10(c)(4)(B) of the HOLA 12 U.S.C. 1467a(c)(4)(B).
Unless otherwise noted, comments regarding the notices must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 4, 2018.
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 September 18, 2018.
1.
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 continuing information collection project titled List of Ingredients Added to Tobacco in the Manufacture of Cigarette Products.
CDC must receive written comments on or before October 22, 2018.
You may submit comments, identified by Docket No. CDC-2018-0069 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 Jeffery 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.
List of Ingredients Added to Tobacco in the Manufacture of Cigarette Products—Extension (OMB# 0920-0210 Exp.Date 12/31/2018)—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Cigarette smoking is the leading preventable cause of premature death and disability in our Nation. Each year more than 480,000 deaths occur as the result of cigarette smoking-related diseases.
The CDC's Office on Smoking and Health (OSH) has the primary responsibility for the HHS smoking and health program. Since 1986, as required by the Comprehensive Smoking Education Act (CSEA) of 1984, which amended the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1335a, CDC has collected information about the ingredients used in cigarette products. HHS has delegated responsibility for implementing the required information collection to CDC's OSH. Respondents are commercial cigarette manufacturers, packagers, or importers (or their representatives), who are required by the CSEA to submit ingredient reports to HHS on an annual basis.
Respondents are not required to submit specific forms; however, they are required to submit a list of all ingredients used in their products. CDC requires the ingredient report to be submitted by chemical name and Chemical Abstract Service (CAS) Registration Number, consistent with accepted reporting practices for other companies currently required to report ingredients added to other consumer products. The information collected is subject to strict confidentiality provisions.
Ingredient reports are due annually on March 31. Information is submitted to CDC by mailing or faxing a written report on the respondent's letterhead. All faxed lists should be followed up with a mailed original. Data may also be submitted to CDC by CD, three-inch floppy disk, or thumb drive. Electronic mail submissions are not accepted. Mail Annual Ingredient Submissions to Attention: FCLAA Program Manager, Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, Centers for Disease Control and Prevention, 4770 Buford Highway, NE, MS S107-7, Atlanta, GA 30341-3717
Upon receipt and verification of the annual ingredient report, CDC issues a Certificate of Compliance to the respondent. As deemed appropriate by the Secretary of HHS, HHS is authorized to use the information to report to Congress the health effects of ingredients, research activities related to the health effects of ingredients, and other information that the Secretary determines to be of public interest. There are no costs to respondents other
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 Report of Illness or Death Interstate Travel of Persons (42 CFR part 70) (OMB Control Number 0920-0488, Expiration Date 5/31/2019) which specifies the required reporting of ill persons or deaths occurring during interstate travel, primarily air travel.
CDC must receive written comments on or before October 22, 2018.
You may submit comments, identified by Docket No. CDC-2018-0071 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 Jeffery M. Zorger, 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.
Report of Illness or Death Interstate Travel of Persons (42 CFR part 70)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Section 361 of the Public Health Service Act (42 U.S.C. 264) authorizes the Secretary of the Department of Health and Human Services to make and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States, or from one State or possession into any other State or possession. CDC administers regulations pertaining to interstate control of communicable diseases (42 CFR part 70), and sections 42 CFR parts 70.4 and 70.11 include requirements reports of ill persons or death if occurring during interstate travel.
The intended use of the information is to ensure that CDC can assess and respond to reports of ill persons or death that occur on conveyances engaged in interstate travel, and assist state and local health authorities if an illness or death occurs that poses a risk to public health. Generally, the primary source of this information is aircraft traveling within the United States.
For reports of ill persons or death on a conveyance engaged in interstate
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 Identification of Behavioral and Clinical Predictors of Early HIV Infection (Project DETECT), which collects information from people testing for HIV in order to compare the performance characteristics of new point of care HIV tests for detection of early HIV infection and to identify behavioral and clinical predictors of early HIV infection.
CDC must receive written comments on or before October 22, 2018.
You may submit comments, identified by Docket No. CDC-2018-0070 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 Jeffery 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.
Identification of Behavioral and Clinical Predictors of Early HIV Infection (Project DETECT)—(OMB No. 0920-1100 Exp: 2/29/2019)—Extension—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
CDC provides guidelines for HIV testing and diagnosis for the United States, as well as technical guidance for its grantees. The purpose of this project is to assess characteristics of HIV testing technologies to update these guidance documents to reflect the latest available testing technologies, their performance characteristics, and considerations regarding their use. Specifically, CDC will describe behavioral and clinical characteristics of persons with early infection to help HIV test providers (including CDC grantees) choose which HIV tests to use, and target tests appropriately to persons at different levels of risk. This information will be disseminated primarily through guidance documents and articles in peer-reviewed journals.
The primary study population will be persons at high risk for or diagnosed with HIV infection, many of whom will be men who have sex with men (MSM) because the majority of new HIV infections occur each year among this population. The goals of the project are to: (1) Characterize the performance of new HIV tests for detecting established and early HIV infection at the point of care, relative to each other and to currently used gold standard, non-POC tests, and (2) identify behavioral and clinical predictors of early HIV infection.
Project DETECT will enroll 1,667 persons annually at the primary study site clinic in Seattle, and an additional 200 persons will be enrolled from other clinics in the greater Seattle area. The study will be conducted in two phases.
The follow-up schedule will consist of up to nine visits scheduled at regular intervals over a 70-day period. At each follow-up visit, participants will be tested with the new HIV tests and additional oral fluid and blood specimens will also be collected for storage and use in future HIV test evaluations at CDC. Participants will be followed up only to the point at which all their test results become concordant. At each time point, participants will be asked to complete the Phase 2 HIV Symptom and Care survey that collects information on symptoms associated with early HIV infection as well as access to HIV care and treatment since the last Phase 2 visit. When all tests become concordant (i.e., at the last Phase 2 visit) participants will complete the Phase 2 behavioral survey to identify any behavioral changes during follow-up. Of the 50 Phase 2 participants; it is estimated that no more than 26, annually, will have early HIV infection.
All data for the proposed information collection will be collected via an electronic Computer Assisted Self- Interview (CASI) survey. Participants will complete the surveys on an encrypted computer, with the exception of the Phase 2 Symptom and Care survey, which will be administered by a research assistant and then electronically entered into the CASI system. Data to be collected via CASI include questions on sociodemographic characteristics, medical care, HIV testing, pre-exposure prophylaxis, antiretroviral treatment, sexually transmitted diseases (STD) history, symptoms of early HIV infection, substance use and sexual behavior.
Data from the surveys will be merged with HIV test results and relevant clinical data using the unique identification (ID) number. Data will be stored on a secure server managed by the University of Washington Department of Medicine Information Technology (IT) Services.
The participation of respondents is voluntary. There is no cost to the respondents other than their time. The total estimated annual burden hours for the proposed project are 2,110 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
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 Record of Decision (ROD) for the acquisition of a site in Cincinnati, Ohio, and development of this site into a new, consolidated CDC/National Institute for Occupational Safety and Health (NIOSH) campus (Proposed Action). The site to be acquired 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.
CDC published a Final Environmental Impact Statement (EIS) for this action on July 20, 2018 pursuant to the requirements of the National Environmental Policy Act (NEPA) of 1969 as implemented by the Council on Environmental Quality (CEQ) Regulations (40 CFR parts 1500-1508). CDC carefully considered the findings of the Final EIS when making its decision.
The ROD is available for viewing on the Federal eRulemaking Portal:
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. To address these issues, CDC proposed to relocate and consolidate its Cincinnati-based functions and personnel (approximately 550 employees) currently housed at the three existing campuses to a new, consolidated campus in Cincinnati.
Potential locations for the 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. In compliance with NEPA, CDC published a Draft EIS for the proposed site acquisition and campus consolidation on February 9, 2018 and a Final EIS on July 20, 2018. The Draft EIS was available for public review and comment for 45 days. All comments received were considered when preparing the Final EIS. The Draft and Final EIS analyzed 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). The Final EIS identified the Proposed Action Alternative as CDC's Preferred Alternative.
After carefully considering the Final EIS and all comments received, CDC has made the decision to implement the Proposed Action Alternative. CDC's rationale for this decision is detailed in the ROD. The ROD incorporates all the mitigation and minimization measures described in the Final EIS.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Request for information.
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) intends to evaluate the scientific data on inorganic lead, to develop updated recommendations on the potential health risks, medical surveillance, recommended measures for safe handling, and to establish an updated Recommended Exposure Limit (REL).
Electronic or written comments must be received by October 22, 2018.
You may submit comments, identified by CDC-2018-0059 and Docket Number NIOSH-315, by any of the following methods:
•
•
R. Todd Niemeier, NIOSH, Robert A. Taft Laboratories, MS C32, 1090 Tusculum Avenue, Cincinnati, Ohio 45226-1998, telephone (513) 533-8166 (not a toll free number).
Inorganic lead is a naturally occurring soft, gray metal used in various forms since ancient times. Occupational exposures occur in a wide range of industries including, but not limited to, the following: Construction, smelting and refining, firing ranges, automobile repair, electronic waste recycling, metal recycling, and many others. Significant occupational exposures to inorganic lead are through inhalation, ingestion, and through the skin, principally through damaged skin.
The current NIOSH REL for inorganic lead is 50 micrograms per cubic meter (μg/m
NIOSH is requesting information on the following: (1) De-identified (without personally identifiable information such as name, social security number, date of birth, etc.) inorganic lead breathing zone airborne exposure measurements with corresponding blood lead level concentrations; (2) information on possible health effects observed in workers exposed to inorganic lead, including exposure data (airborne, blood, and/or surface) and the method(s) used for sampling and analyzing exposures; (3) description of work tasks and scenarios with a potential for exposure to inorganic lead; (4) information on control measures (
(1) Identification of industries or occupations in which exposures to inorganic lead may occur.
(2) Trends in the production and use of inorganic lead.
(3) Description of work tasks and scenarios with a potential for exposure to inorganic lead.
(4) Workplace exposure measurement data of inorganic lead (airborne and surface) in various types of industries and jobs with an emphasis on de-identified, breathing zone airborne inorganic lead exposures with corresponding blood lead levels. De-identified data do not contain personally identifiable information that can be used to distinguish or trace an individual's identity.
(5) Case reports or other health information demonstrating potential health effects in workers exposed to inorganic lead.
(6) Information on control measures (
(7) Educational materials for worker safety and training on the safe handling of inorganic lead.
(8) Data pertaining to the feasibility of establishing a more protective REL for inorganic lead.
The IRG information collection activities are authorized by: (1) 42 U.S.C. 652(a)(7), which requires the federal Office of Child Support Enforcement (OCSE) to provide technical assistance to state child support enforcement agencies to help
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of a final guidance for industry entitled “Quality Attribute Considerations for Chewable Tablets.” This guidance finalizes the draft guidance issued June 16, 2016, which provides manufacturers of chewable tablets for human use with the Center for Drug Evaluation and Research's current thinking on the critical quality attributes that should be assessed during the development of these drug products.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances 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.”
•
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Nallaperumal Chidambaram, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1339.
FDA is announcing the availability of a guidance for industry entitled “Quality Attribute Considerations for Chewable Tablets.” Chewable tablets are an immediate release oral dosage form intended to be chewed and then swallowed by the patient, rather than swallowed whole. This guidance describes the critical quality attributes that should be considered when developing chewable tablet dosage forms and recommends that the selected acceptance criteria be appropriate and meaningful indicators of product performance throughout the shelf life of the product.
This guidance finalizes the draft guidance issued June 16, 2016, (81 FR 39673) which described the Chewing Difficulty Index (CDI), a new quality attribute concept that was developed internally and findings were published in a peer reviewed journal. We received comments primarily seeking clarity how this new parameter would be assessed during regulatory review. The Agency provided additional clarifications in this guidance whereby sponsors and/or applicants would accrue CDI data during drug product development and submit it in their applications. We intend to evaluate the data to inform future guidance on this topic, as needed.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Quality Attribute
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collection of information in investigational new drug applications is approved by OMB under control number 0910-0014; the collection of information (including prescription drug labeling) in new drug applications and abbreviated new drug applications, as well as supplements to these applications, is approved by OMB under control number 0910-0001; the collection of biologics license applications is approved by OMB under control number 0910-0338; and the format and content of prescription drug labeling is approved by OMB under control number 0910-0572.
Persons with access to the internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Microdose Radiopharmaceutical Diagnostic Drugs: Nonclinical Study Recommendations.” This guidance is intended to assist sponsors of microdose radiopharmaceutical diagnostic drugs on the nonclinical studies recommended to support human clinical trials and marketing applications. This guidance finalizes the draft guidance of the same name issued on September 13, 2017.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances 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
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Adebayo Laniyonu, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 5400, Silver Spring, MD 20993-0002, 301-796-1392.
FDA is announcing the availability of a guidance for industry entitled “Microdose Radiopharmaceutical Diagnostic Drugs: Nonclinical Study Recommendations.” This guidance is intended to assist sponsors of microdose radiopharmaceutical diagnostic drugs on the nonclinical studies recommended to support human clinical trials and marketing applications. This guidance incorporates comments received and finalizes the draft guidance of the same name issued on September 13, 2017 (82 FR 43025). The guidance includes a few editorial changes and a new sentence clarifying the definition of the term diagnostic radiopharmaceutical.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on nonclinical study recommendations for microdose radiopharmaceutical diagnostic drugs. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR parts 312 and 314 have been approved under OMB control numbers 0910-0014 and 0910-0001, respectively. The collection of information for radioactive drug research committees in 21 CFR 361.1 has been approved under OMB control number 0910-0053. The collection of information for the regulations on in vivo radiopharmaceuticals used for diagnosis and monitoring in 21 CFR 315.4, 315.5, and 315.6 has been approved under OMB control number 0910-0409.
Persons with access to the internet may obtain the guidance at either
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with of the Paperwork Reduction Act of 1995, HRSA has submitted a Supplemental Information Request (SIR) to the Office of Management and Budget (OMB) for review and approval. A 60-day Federal Register Notice was published in the
Comments on this SIR should be received no later than September 20, 2018.
Submit your comments, including the Information Collection Request (ICR) Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email Lisa Wright-Solomon, the HRSA Information Collection Clearance Officer at
The statewide needs assessment is a critical and foundational resource that assists awardees in identifying and understanding how to meet the needs of eligible families living in at-risk communities in their states.
After taking into consideration public comments in response to the 60-day Notice published in the
• Inserting references to the statutory requirements for each section of the guidance—specifically the sections of statute that require an assessment of state capacity to provide substance abuse treatment and counseling services.
• Increasing the burden estimate for respondents from 95.57 to 120 in response to comments that the original estimate was too low.
In response to the forthcoming SIR, states will be required to submit an updated statewide needs assessment that identifies all of the following information, as required by the MIECHV authorizing statute:
(1) Communities with concentrations of (a) premature birth, low-birth weight infants, and infant mortality, including infant death due to neglect, or other indicators of at-risk prenatal, maternal, newborn, or child health; (b) poverty; (c) crime; (d) domestic violence; (e) high rates of high-school drop-outs; (f) substance abuse; (g) unemployment; or (h) child maltreatment.
(2) The quality and capacity of existing programs or initiatives for early childhood home visitation in the state including: The number and types of individuals and families who are receiving services under such programs or initiatives; the gaps in early childhood home visitation in the state; and the extent to which such programs or initiatives are meeting the needs of eligible families.
(3) The state's capacity for providing substance abuse treatment and counseling services to individuals and families in need of such treatment or services.
The forthcoming SIR will provide further guidance to states in updating their statewide needs assessments and submitting the required information to HRSA. States that have elected not to apply or be awarded MIECHV funds are encouraged to work with nonprofit organizations that have received awards to provide MIECHV services within the state and indicate whether they will submit their needs assessments directly or through the nonprofit organization awardee. Nonprofit awardees will need to provide documentation to demonstrate that they have been authorized or requested by the state in which they provide services to submit a needs assessment on behalf of the state. Documentation, such as a letter, may come from a state's Title V agency; an other health, education or human services state agency; or the governor's office.
HRSA, states, and nonprofits providing MIECHV services within states will use the information collected through the needs assessment update to reaffirm the provision of MIECHV home visiting services in at-risk communities. The information will also be used to support program planning, improvement, and decision-making. The purpose of updating the statewide needs assessments is for awardees to gather more recent information on community needs and ensure that MIECHV programs are being operated in areas of high need. However, the requirement for such an update should not be construed as requiring moving MIECHV-funded home visiting programs, defunding of programs for the sole purpose of moving services to other communities, or otherwise disrupting existing home visiting programs, their relationships in the community, and their services to eligible families. The statutory requiremenets of a needs assessment update also apply to territory awardees, but this ICR does not include guidance, nor a burden estimate, for these awardees. Recognizing potential challenges related to the availability of population health data for the territories, a separate SIR will provide guidance on the needs assessment update to territories eligible to apply for MIECHV funds.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
SAMHSA is requesting approval to add 13 new questions to its existing CSAT Client-level GPRA instrument. Grantees will only be required to answer no more than four additional questions, per CSAT grant awarded, in addition to the other questions on the instrument. Currently, the information collected from this instrument is entered and stored in SAMHSA's Performance
SAMHSA and its Centers will use the data for annual reporting required by GPRA and comparing baseline with discharge and follow-up data. GPRA requires that SAMHSA's fiscal year report include actual results of performance monitoring for the three preceding fiscal years. The additional information collected through this process will allow SAMHSA to: (1) Report results of these performance outcomes; (2) maintain consistency with SAMHSA-specific performance domains, and (3) assess the accountability and performance of its discretionary and formula grant programs.
Written comments and recommendations concerning the proposed information collection should be sent by September 20, 2018 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; revision and extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number (202) 325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Kevin Stevens, Director, Home Mortgage Insurance Division, HMID, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Cheryl Walker, Director, Home Valuation Policy Division, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Cheryl Walker at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Bureau of Safety and Environmental Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Safety and Environmental Enforcement (BSEE) proposes to renew an information collection with revisions.
Interested persons are invited to submit comments on or before September 20, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Nicole Mason by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. 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.
We use the information to ensure that lessees and pipeline ROW holders design the pipelines that they install, maintain, and operate in a safe manner. BSEE needs information concerning the proposed pipeline and safety equipment, inspections and tests, and natural and manmade hazards near the proposed pipeline route. BSEE uses the information to review pipeline designs prior to approving an application for a ROW or lease term pipeline to ensure that the pipeline, as constructed, will provide for safe transportation of minerals through the submerged lands of the OCS. BSEE reviews proposed pipeline routes to ensure that the pipelines would not conflict with any State requirements or unduly interfere with other OCS activities. BSEE reviews proposals for taking pipeline safety equipment out of service to ensure alternate measures are used that will properly provide for the safety of the pipeline and associated facilities (platform, etc.). BSEE reviews notifications of relinquishment of ROW grants and requests to decommission pipelines for regulatory compliance and to ensure that all legal obligations are
We use the information in Form BSEE-0149, Assignment of Federal OCS Pipeline Right-of-Way Grant, to track pipeline ROW holders; as well as use this information to update the corporate database that is used to determine what leases are available for a Lease Sale and the ownership of all OCS leases.
We are adding a new Form BSEE-0135, Designation of Right-of-Way Operator, to identify who has the authority to act on the ROW grant holder's behalf to fulfill obligations under the OCS Lands Act; as well as, BSEE may provide to the designated ROW operator written or oral instructions in securing compliance with the ROW grant in accordance with applicable laws and regulations.
The non-hour cost burdens required in 30 CFR 250, subpart J (and respective cost-recovery fee amount per transaction) are required under:
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE) are proposing to renew an information collection for bond and insurance requirements for surface coal mining and reclamation operations under regulatory programs.
Interested persons are invited to submit comments on or before September 20, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact John Trelease by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provides the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of OSMRE; (2) is the estimate of burden accurate; (3) how might OSMRE enhance the quality, utility, and clarity of the information to be collected; and (4) how might OSMRE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. 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
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authorities for this action are the Surface Mining Control and Reclamation Act of 1977, as amended (30 U.S.C. 1201
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE) are proposing to renew an information collection which provides that any interested person may request the Director of OSMRE to evaluate a State program by setting forth in the request a concise statement of facts that the person believes establishes the need for the evaluation.
Interested persons are invited to submit comments on or before September 20, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact John Trelease by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provides the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of OSMRE; (2) is the estimate of burden accurate; (3) how might OSMRE enhance the quality, utility, and clarity of the information to be collected; and (4) how might OSMRE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. 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.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authorities for this action are the Surface Mining Control and Reclamation Act of 1977, as amended (30 U.S.C. 1201
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE) are proposing to renew an information collection for surface and underground mining permit applications—minimum requirements for information on environmental resources.
Interested persons are invited to submit comments on or before September 20, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact John Trelease by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provides the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of OSMRE; (2) is the estimate of burden accurate; (3) how might OSMRE enhance the quality, utility, and clarity of the information to be collected; and (4) how might OSMRE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. 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.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq).
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 20, 2018, under section 337 of the Tariff Act of 1930, as amended, on behalf of Carl Zeiss SMT GmbH of Germany. Supplements to the complaint were filed on July 26 and August 7 and 9, 2018. The complaint 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
The complainant requests that the Commission institute an investigation and, after the investigation, issue 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
Katherine Hiner, The Office of the Secretary, Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of products identified in paragraph (2) by reason of infringement of one or more of claims 1, 3, 5-13, 16-19, 22-27, and 30-31 of the '115 patent; claims 1, 3, 5-13, 16-19, 22-27, and 30-31 of the '613 patent; and claims 1-20 and 22-30 of the '609 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 “lithography machines that use projection objectives to project circuit patterns drawn on a `mask' or `reticle' onto a photoresist on a silicon wafer, components of the lithography machines, and systems related to the operation of the lithography machines”;
(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 complainants are: Carl Zeiss SMT GmbH, Carl-Zeiss-Straße 22, Oberkochen, Germany 73447.
(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:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
The Chief Administrative Law Judge is authorized to consolidate Inv. No. 337-TA-1128 with Inv. No. 337-TA-1129 if he deems it appropriate.
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 20, 2018, under section 337 of the Tariff Act of 1930, as amended, on behalf of Carl Zeiss SMT GmbH of Germany. Supplements to the complaint were filed on July 20 and 26, 2018. An amended complaint was filed on August 9, 2018. The amended complaint 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 lithography machines and systems and components thereof by reason of infringement of certain claims of U.S. Patent No. 8,902,407 (“the ’407 patent”) and U.S. Patent No. 9,280,058 (“the ’058 patent”). The amended 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 limited exclusion order and cease and desist orders.
The amended complaint, except for any confidential information
Katherine Hiner, The Office of the Secretary, Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of products identified in paragraph (2) by reason of infringement of one or more of claims 1-10, 12, 16, 17, 19-28, and 30-42 of the '407 patent and claims 1-9, 11, 13, 14, 17-22 and 24-29 of the '058 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 “lithography machines that use projection objectives to project circuit patterns drawn on a `mask' or `reticle' onto a photoresist on a silicon wafer, components of the lithography machines, and systems related to the operation of the lithography machines”;
(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 complainants are: Carl Zeiss SMT GmbH, Carl-Zeiss-Straβe 22, Oberkochen, Germany 73447.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the amended complaint is to be served:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
The Chief Administrative Law Judge is authorized to consolidate Inv. No. 337-TA-1128 with Inv. No. 337-TA-1129 if he deems it appropriate.
Responses to the amended 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 amended complaint and the notice of investigation. Extensions of time for submitting responses to the amended 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 amended complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the amended 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 amended 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.
Office of National Drug Control Policy (ONDCP), Executive Office of the President.
Notice of Appointments.
The following persons have been appointed to the ONDCP Senior Executive Service Performance Review Board: Martha Gagne (as Chair), Michael Gottlieb, James Olson, and Kemp Chester.
Michael Passante, Deputy General Counsel, (202) 395-6709, Office of National Drug Control Policy, Executive Office of the President, 750 17th Street NW, Washington, DC 20503.
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the Committee on Oversight of the National Science Board, to be held Monday, August 27, 2018 from 4:00 p.m. to 4:30 p.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Closed.
Chair's opening remarks; discussion of FY 2020 OIG budget request.
Point of contact for this meeting is: Ann Bushmiller, 2415 Eisenhower Avenue, Alexandria, VA 22314. Telephone: (703) 292-7000. You may find meeting information and updates (time, place, subject matter or status of meeting) at
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the Committee on Strategy of the National Science Board, to be held Tuesday, August 28, 2018 from 4:00 p.m. to 4:45 p.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Closed.
Chair's opening remarks; discussion of FY 2020 NSF, NSB, and OIG budget requests.
Point of contact for this meeting is: Kathy Jacquart, 2415 Eisenhower Avenue, Alexandria, VA 22314. Telephone: (703) 292-7000. You may find meeting information and updates (time, place, subject matter or status of meeting) at
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the National Science Board, to be held Tuesday, August 28, 2018 from 4:45 p.m. to 5:00 p.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Closed.
Chair's opening remarks; discussion of FY 2020 NSF, NSB, and OIG budget requests.
Point of contact for this meeting is: Brad Gutierrez, 2415 Eisenhower Avenue, Alexandria, VA 22314. Telephone: (703) 292-7000. You may find meeting information and updates (time, place, subject matter or status of meeting) at
Nuclear Regulatory Commission.
Draft interim staff guidance; extension of comment period.
On August 1, 2018, the U.S. Nuclear Regulatory Commission (NRC) solicited comments on its draft Interim Staff Guidance (ISG) on Decommissioning Funding Plans (DFP) for materials licensees in the
The due date for comments requested in the document published on August 1, 2018 (83 FR 37529), is extended. Comments should be filed no later than October 5, 2018. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kenneth Kline, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-7075, email:
Please refer to Docket ID NRC-2018-0159 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2018-0159 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On August 1, 2018, the NRC solicited comments on its draft ISG on DFPs for materials licensees. The purpose of this ISG is to provide NRC staff and industry with guidance based on developments and lessons learned regarding financial assurance since the last update to NUREG-1757, Volume 3. The ISG covers decommissioning cost estimates describing current facility conditions, evaluating events since the last DFP approval, and updates for certain financial instruments. The public comment period was originally scheduled to close on September 17, 2018. The NRC has decided to extend the public comment period on this document until October 5, 2018, to allow more time for industry and members of the public to submit their comments.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued an exemption in response to a May 24, 2018, request from Entergy Nuclear Operations, Inc., for an exemption of up to 3 months from certain security training schedule requirements for the Vermont Yankee Nuclear Power Station.
The exemption was issued on July 31, 2018.
Please refer to Docket ID NRC-2018-0179 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Jack D. Parrott, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6634, email:
The text of the exemption is attached.
For the Nuclear Regulatory Commission.
Entergy Nuclear Operations, Inc. (ENO or the licensee) is the holder of Facility Operating License No. DPR-28 for the Vermont Yankee Nuclear Power Station (VY) in Windham County, Vermont. The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the Nuclear Regulatory Commission (NRC or the Commission) now or hereafter in effect. The facility now consists of a permanently shut down and decommissioning boiling water reactor and associated Independent Spent Fuel Storage Installation (ISFSI).
The licensee is in the process of transferring the remaining spent fuel from the spent fuel pool into dry storage canisters that are then placed in concrete overpacks and stored on the ISFSI pad. Concurrently, the licensee received, by letter dated July 25, 2018 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML18165A423), NRC approval of a license amendment for implementation of a revised Physical Security Plan (PSP) to meet the security requirements of an ISFSI-only configuration for spent fuel storage at the site. The effective date of the ISFSI-only PSP approval is the date on which the licensee notifies the NRC in writing that all of the spent nuclear fuel assemblies have been transferred out of the spent fuel pool and have been placed in dry storage within the ISFSI. Implementation of the ISFSI-only PSP shall be within 90 days of the effective date of the approval of the amendment.
By letter dated May 24, 2018, and pursuant to 10 CFR 73.5, “Specific Exemptions,” ENO requested an exemption from certain schedule
The scheduled dates for the completion of specified 2018 annual training for certain weapons training and security exercises at VY were May 9, 2018, and June 6, 2018. Consequently, the deadlines for completing these activities (taking into account the 3-month allowance provided in 10 CFR part 73, Appendix B, Section VI.A.7) are August 7, 2018, and September 4, 2018.
This exemption was requested to allow the completion date for specified annual training for certain weapons training and security exercises to be no later than November 7, 2018, which would be a 3-month extension from the current due date based on the regulation referenced above. The express purpose of the request is to move the completion due date for the specified annual training past the expected implementation date of the NRC-approved revision of the current PSP to an ISFSI-only PSP. Implementation of the ISFSI-only PSP will be performed after the remaining spent fuel is loaded and placed on the ISFSI pad. Because specific security annual training is not required for sites with an ISFSI-only configuration for spent nuclear fuel, this exemption would allow the licensee to delay completion of the training until such time as it is no longer required.
The required implementation date for the ISFSI-only PSP is within 90 days from the date that the licensee notifies the NRC in writing that all spent nuclear fuel assemblies have been transferred out of the spent fuel pool and have been placed in dry storage within the ISFSI. The expected completion date for the transfer to dry fuel storage is August 2018. As described in spent fuel cask registration letters dated May 31, 2018 (ADAMS Accession No. ML18156A132) and June 12, 2018 (ADAMS Accession No. ML18172A127), the licensee has loaded four MPC-68M multi-purpose canisters between May 5, 2018, and June 5, 2018, and those canisters in turn have been loaded into HI-STORM 100S Version B overpacks and placed on the ISFSI pad. Therefore, the current loading campaign is capable of loading and placing on the ISFSI pad approximately one canister per week. As of June 12, 2018, there were 9 canisters left to be loaded and placed on the ISFSI pad. Therefore, the completion of loading spent fuel into canisters and placing them on the ISFSI pad is considered achievable by the end of August 2018. With this exemption, the licensee will not be in violation of the training schedule requirements of 10 CFR part 73, Appendix B, Section VI.A.7, provided that, prior to November 7, 2018, the licensee either implements the ISFSI-only PSP, or completes the noted specific security training.
The NRC approval of this exemption would allow an extension until November 7, 2018, for certain annual training required by 10 CFR part 73, Appendix B, Section VI.A.7 (i.e., weapons training and security exercises that are specifically referenced in Attachment 2 to the licensee's exemption request (security-related information)). Pursuant to 10 CFR 73.5, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 73 when the exemptions are authorized by law, and will not endanger life or property or the common defense and security, and are otherwise in the public interest.
As explained in this SER, the proposed exemption will not endanger life or property, nor the common defense and security, and is otherwise in the public interest. Issuance of this exemption is consistent with the Atomic Energy Act of 1954, as amended, and not otherwise inconsistent with the NRC's regulations or other applicable laws. Therefore, issuance of the exemption is authorized by law.
Granting of the proposed exemption will allow the completion dates of the specified annual training and qualification activities to be extended beyond the scheduled completion dates specified in 10 CFR part 73, Appendix B Section VI.A.7. The exemption does not affect the requirements for other periodic, specifically quarterly and trimester, security training activities that will continue and will provide training opportunities which ensure the proficiency of the training staff during the limited time affected by the schedule change. The proposed exemption would not significantly reduce the measures currently in place to protect against radiological sabotage, theft or diversion, or significantly reduce the overall effectiveness of the PSP, Training and Qualification Plan, or Safeguards Contingency Plan. Therefore, granting the exemption will not endanger life or property or the common defense and security.
Completing the annual training by the dates required by 10 CFR part 73, Appendix B, Section VI.A.7 would divert site personnel from the role of providing support and oversight of the ongoing dry fuel storage loading campaign with little benefit considering the short amount of time that the remaining spent fuel would be in the spent fuel pool after the current due date for the training. Allowing the ongoing cask loading campaign to continue without interruptions imposed by the annual training would support safety and efficiency for those activities and more expeditious completion of the transfer of irradiated fuel out of the spent fuel pool. Granting an exemption from the annual training would also avoid diverting site resources from providing support for ongoing efforts to complete construction, testing, training, and implementation of the features associated with the ISFSI-only PSP.
The proposed exemption would allow annual training to be rescheduled beyond the current schedule date for completing the transfer of irradiated fuel from the spent fuel pool to dry storage. The exemption would not reduce overall protection of the facility and stored irradiated fuel, but would maintain the current level of safety and security, and would avoid diverting site personnel attention from completing the transfer of spent fuel to dry storage. Therefore, the proposed exemption is in the public interest.
Under 10 CFR 51.22(c)(25), granting of an exemption from the requirements of any regulation of Chapter I falls within a categorical exclusion to the environmental review requirements of
The Director, Division of Decommissioning, Uranium Recovery, and Waste Programs, has determined that approval of the exemption request involves no significant hazards consideration because allowing the licensee to have an exemption of up to 3 months from certain schedule requirements of 10 CFR part 73, Appendix B, “General Criteria for Security Personnel,” for VY does not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The exemption from certain schedule requirements of 10 CFR part 73, Appendix B, Section VI.A.7 is unrelated to any operational restriction. Accordingly, there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; and no significant increase in individual or cumulative public or occupational radiation exposure. The exempted regulation is not associated with construction, so there is no significant construction impact. The exempted regulation does not concern the source term (i.e., potential amount of radiation in an accident), nor mitigation. Thus, there is no significant increase in the potential for or consequences from radiological accidents. The requirements from which the exemption is sought fall within categories identified in 10 CFR 51.22(c)(25)(vi), specifically scheduling requirements, as well as education, weapons training, training exercises, qualification, requalification or other employment suitability requirements.
Therefore, pursuant to 10 CFR 51.22(b) and 51.22(c)(25), no environmental impact statement or environmental assessment need be prepared in connection with the approval of this exemption request.
The NRC staff has reviewed the licensee's submittals and concludes that the licensee has justified its request for an extension of certain 10 CFR part 73, Appendix B, Section VI.A.7 security training schedules to November 7, 2018.
Accordingly, the NRC has determined that pursuant to 10 CFR 73.5, “Specific exemptions,” an exemption from certain 10 CFR part 73, Appendix B, Section VI.A.7 security training schedule requirements is authorized by law and will not endanger life or property or the common defense and security, and is otherwise in the public interest. The NRC hereby grants the requested exemption.
The NRC staff has determined that efficiencies will be gained if the NRC-approved ISFSI-only PSP is implemented within 90 days of the completion of removal of spent fuel from the VY spent fuel pool. The NRC has concluded that approving the licensee's exemption request is in the best interest of protecting the public health and safety through the efficiencies gained by not having to perform the currently scheduled annual security training shortly before the removal of spent fuel from the spent fuel pool and placement in the ISFSI, which would make the scheduled training moot.
This exemption expires on November 7, 2018. By that time, the licensee is required to have implemented its ISFSI-only PSP, or be in full compliance with the security training schedule requirements of 10 CFR part 73, Appendix B, Section VI.A.7.
Pursuant to 10 CFR 51.22(c)(25), NRC has determined that granting of an exemption from the requirements of 10 CFR part 73, Appendix B, Section VI.A.7 falls within a categorical exclusion to the environmental review requirements of Part 51.
This exemption is effective upon issuance.
Dated at Rockville, Maryland, this 31st day of July 2018.
For The Nuclear Regulatory Commission
Office of Personnel Management.
Notice of Federal Prevailing Rate Advisory Committee Meeting Dates in 2018.
According to the provisions of section 10 of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given that meetings of the Federal Prevailing Rate Advisory Committee will be held on—
The meetings will start at 10 a.m. and will be held in Room 5A06A, Office of Personnel Management Building, 1900 E Street, NW, Washington, DC.
The Federal Prevailing Rate Advisory Committee is composed of a Chair, five representatives from labor unions holding exclusive bargaining rights for Federal prevailing rate employees, and five representatives from Federal agencies. Entitlement to membership on the Committee is provided for in 5 U.S.C. 5347.
The Committee's primary responsibility is to review the Prevailing Rate System and other matters pertinent to establishing prevailing rates under subchapter IV, chapter 53, 5 U.S.C., as amended, and from time to time advise the Office of Personnel Management.
These scheduled meetings are open to the public with both labor and management representatives attending. During the meetings either the labor members or the management members may caucus separately to devise strategy and formulate positions. Premature disclosure of the matters discussed in these caucuses would unacceptably impair the ability of the Committee to reach a consensus on the matters being considered and would disrupt substantially the disposition of its business. Therefore, these caucuses will be closed to the public because of a determination made by the Director of the Office of Personnel Management under the provisions of section 10(d) of the Federal Advisory Committee Act (Pub. L. 92-463) and 5 U.S.C. 552b(c)(9)(B). These caucuses may, depending on the issues involved, constitute a substantial portion of a meeting.
Annually, the Chair compiles a report of pay issues discussed and concluded recommendations. These reports are
The public is invited to submit material in writing to the Chair on Federal Wage System pay matters felt to be deserving of the Committee's attention. Additional information on these meetings may be obtained by contacting the Committee at the Office of Personnel Management, Federal Prevailing Rate Advisory Committee, Room 5H27, 1900 E Street NW, Washington, DC 20415, (202) 606-2858.
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.
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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 Global Expedited Package Services 10 to the Competitive Products List.
Kyle R. Coppin, (202) 268-2368.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642, on August 15, 2018, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to
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 August 16, 2018, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth 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 August 16, 2018, it filed with the Postal Regulatory Commission a
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order approving the substitution of certain securities pursuant to section 26(c) of the Investment Company Act of 1940, as amended (the “Act”) and an order of exemption pursuant to section 17(b) of the Act from section 17(a) of the Act.
AXA Equitable Life Insurance Company (“AXA Equitable”), MONY Life Insurance Company of America (“MONY America”), Separate Account 70 of AXA Equitable (“Separate Account 70”), Separate Account A of AXA Equitable (“Separate Account A”), Separate Account FP of AXA Equitable (“Separate Account FP”), MONY America Variable Account K ((“MONY America Separate Account K”) and together with Separate Account 70, Separate Account A and Separate Account FP, the “Separate Accounts”) (collectively, the “Section 26 Applicants”); and Separate Account 65 of AXA Equitable (“Separate Account 65”) and EQ Advisors Trust (the “EQ Trust” and collectively with Separate Account 65 and the Section 26 Applicants, the “Section 17 Applicants”).
The Section 26 Applicants seek an order pursuant to section 26(c) of the Act, approving the substitution of shares issued by certain investment portfolios of registered investment companies (the “Removed Portfolios”) for shares of certain investment portfolios of the EQ Trust (the “Replacement Portfolios”), held by the Separate Accounts (except for Separate Account 65) to support certain variable annuity contracts and/or variable life insurance contracts (the “Contracts”). The Section 17 Applicants seek an order pursuant to section 17(b) of the Act exempting them from section 17(a) of the Act to the extent necessary to permit them to engage in certain in-kind transactions.
The application was filed on October 4, 2017 and was amended on February 8, 2018 and August 10, 2018.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving the Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 10, 2018 and should be accompanied by proof of service on the Applicants in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants: Steven M. Joenk, Managing Director and Chief Investment Officer, AXA Equitable Life Insurance Company, 1290 Avenue of the Americas, New York, New York 10104; Patricia Louie, Esq., Managing Director and Associate General Counsel, AXA Equitable Life Insurance Company, 1290 Avenue of the Americas, New York, New York 10104; and Mark C. Amorosi, Esq., K&L Gates LLP, 1601 K Street NW, Washington, DC 20006.
Jennifer O. Palmer, Senior Counsel, at (202) 551-5786, or David J. Marcinkus, Branch Chief at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an Applicant using the Company name box, at
1. AXA Equitable is a New York stock life insurance company licensed to conduct insurance business in all fifty states of the United States, the District of Columbia, Puerto Rico and the Virgin Islands. AXA Equitable is wholly-owned by AXA Financial, Inc. (“AXA Financial”), a holding company.
2. MONY America is an Arizona stock life insurance company licensed to
3. Each Separate Account meets the definition of “separate account,” as defined in section 2(a)(37) of the Act and rule 0-1(e) thereunder. With the exception of Separate Account 65, the Separate Accounts are registered under the Act as unit investment trusts. Separate Account 65 is excluded from registration under the Act pursuant to section 3(c)(11) of the Act and is not a Section 26 Applicant. The assets of the Separate Accounts support the Contracts and interests in the Separate Accounts offered through such Contracts. AXA Equitable and MONY America are the legal owners of the assets in their respective Separate Accounts. The Separate Accounts are segmented into subaccounts, and each subaccount invests in an underlying registered open-end management investment company or series thereof.
4. The Contracts are each registered under the Securities Act of 1933, as amended (the “1933 Act”) on Form N-4 or Form N-6, as applicable. Each Contract has particular fees, charges, and investment options, as described in the Contracts' respective prospectuses.
5. The Contracts include individual and group variable annuity contracts or flexible premium, scheduled premium and single premium individual, second to die and corporate variable life policies. As set forth in the prospectuses for the Contracts, each Contract provides that AXA Equitable or MONY America, as applicable, reserves the right to substitute shares of the underlying investment options in which the Separate Accounts invest for shares of any underlying investment options already held or to be held in the future by the Separate Accounts.
6. AXA Equitable and MONY America, on behalf of themselves and their respective Separate Accounts, propose to exercise their contractual rights to substitute shares of the Removed Portfolios for shares of the Replacement Portfolios (“Substitutions”), as shown in the table below:
7. The Replacement Portfolios are series of the EQ Trust, a Delaware statutory trust registered as an open-end management investment company under the Act (File No. 811-07953) and whose shares are registered under the 1933 Act (File No. 333-17217). The Replacement Portfolios are currently available only as investment allocation options under variable insurance contracts issued by AXA Equitable and MONY America.
8. AXA Equitable Funds Management Group, LLC (“FMG”), a wholly-owned subsidiary of AXA Equitable and an affiliate of MONY America, serves as the investment adviser of each Replacement Portfolio. FMG is a Delaware limited liability company that is registered as an investment adviser under the Investment Advisers Act of 1940. Each Replacement Portfolio is sub-advised by a registered investment adviser that is unaffiliated with the Section 26 Applicants, the Section 17 Applicants or FMG.
9. Applicants state that the proposed Substitutions are part of an ongoing effort by AXA Equitable and MONY America to make their Contracts more attractive to existing and prospective Contract owners. Applicants note that the proposed Substitutions are intended to improve portfolio manager selection
10. The Section 26 Applicants agree that, for a period of two years following the implementation of the proposed Substitution (the “Substitution Date”), and for those Contracts with assets allocated to the Removed Portfolio on the Substitution Date, AXA Equitable, MONY America or an affiliate thereof (other than the EQ Trust) will reimburse, on the last business day of each fiscal quarter, the Contract owners whose subaccounts invest in the applicable Replacement Portfolio to the extent that the Replacement Portfolio's net annual operating expenses (taking into account fee waivers and expense reimbursements) for such period exceeds, on an annualized basis, the net annual operating expenses of the Removed Portfolio for the most recent fiscal year preceding the date of the most recently filed application. Neither AXA Equitable nor MONY America will increase the Contract fees and charges that would otherwise be assessed under the terms of the Contracts for a period of at least two years following the Substitution Date. Importantly, for each Substitution, the combined current management fee and rule 12b-1 fee of the Replacement Portfolio at all asset levels will be no higher than that of the corresponding Removed Portfolio at corresponding asset levels.
11. Applicants represent that as of the Substitution Date, the Separate Accounts will redeem shares of the Removed Portfolios for cash or in-kind. Redemption requests and purchase orders will be placed simultaneously so that Contract values will remain fully invested at all times.
12. Each Substitution will be effected at the relative net asset values of the respective shares of the Replacement Portfolios in conformity with section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Contracts held by affected Contract owners.
13. Contract owners will not incur any fees or charges as a result of the proposed Substitutions. The obligations of the Section 26 Applicants and the rights of the affected Contract owners, under the Contracts of affected Contract owners will not be altered in any way. AXA Equitable, MONY America and/or their affiliates (other than the EQ Trust) will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses. No fees or charges will be assessed to the affected Contract owners to effect the Substitutions. The proposed Substitutions will not cause the Contract fees and charges currently being paid by Contract owners to be greater after the proposed Substitution than before the proposed Substitution. In addition, the Substitutions will in no way alter the tax treatment of affected Contract owners in connection with their Contracts, and no tax liability will arise for Contract owners as a result of the Substitutions.
14. From the date of the Pre-Substitution Notice (defined below) through 30 days following the Substitution Date, Contract owners may make at least one transfer of Contract value from the subaccount investing in a Removed Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to any other available subaccount under the Contract without charge and without imposing any transfer limitations. Further, on the Substitution Date, Contract values attributable to investments in each Removed Portfolio will be transferred to the corresponding Replacement Portfolio without charge and without being subject to any transfer limitations. Moreover, except as described in the disruptive transfer or market timing provisions of the relevant prospectus, AXA Equitable and MONY America will not exercise any rights reserved under the Contracts to impose restrictions on transfers between the subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
15. At least 30 days prior to the Substitution Date, Contract owners will be notified via prospectus supplements that the Section 26 Applicants received or expect to receive Commission approval of the applicable proposed Substitutions and of the anticipated Substitution Date (the “Pre-Substitution Notice”). Pre-Substitution Notices sent to Contract owners will be filed with the Commission pursuant to rule 497 under the 1933 Act. The Pre-Substitution Notice will advise Contract owners that from the date of the Pre-Substitution Notice through the date 30 days after the Substitutions, Contract owners may make at least one transfer of Contract value from the subaccounts investing in the Removed Portfolios (before the Substitutions) or the Replacement Portfolios (after the Substitutions) to any other available subaccount without charge and without imposing any transfer limitations. Among other information, the Pre-Substitution Notice will inform affected Contract owners that, except as described in the disruptive transfers or market timing provisions of the relevant prospectus, AXA Equitable and MONY America will not exercise any rights reserved under the Contracts to impose additional restrictions on transfers out of a Replacement Portfolio subaccount from the date of the Pre-Substitution Notice, including limitations on the future number of transfers, until at least 30 days after the Substitution Date. Additionally, all affected Contract owners will be sent prospectuses of the applicable Replacement Portfolios at least 30 days before the Substitution Date.
16. In addition to the Supplements distributed to the Contract owners, within five business days after the Substitution Date, Contract owners whose assets are allocated to a Replacement Portfolio as part of the proposed Substitutions will be sent a written notice (each, a “Confirmation”) informing them that the Substitutions were carried out as previously notified. The Confirmation also will restate the information set forth in the Pre-Substitution Notice. The Confirmation will also reflect the values of the Contract owner's positions in the Removed Portfolio before the Substitution and the Replacement Portfolio after the Substitution.
1. The Section 26 Applicants request that the Commission issue an order pursuant to section 26(c) of the Act approving the proposed Substitutions. Section 26(c) prohibits any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(c) provides that such approval shall
2. The Section 26 Applicants submit that the Substitutions meet the standards set forth in section 26(c) and that, if implemented, the Substitutions would not raise any of the concerns that Congress intended to address when the Act was amended to include this provision. Applicants state that each Substitution protects the Contract owners who have Contract value allocated to a Removed Portfolio by providing Replacement Portfolios with identical investment objectives and identical or substantially similar strategies and risks, and providing Contract owners with investment options that have net annual operating expense ratios that are lower than, or equal to, their corresponding investment options before the Substitutions.
3. AXA Equitable and MONY America have reserved the right under the Contracts to substitute shares of another underlying portfolio for one of the current portfolios offered as an investment option under the Contracts. The Contracts and the Contracts' prospectuses disclose this right.
4. The Section 26 Applicants submit that the ultimate effect of the proposed Substitutions will be to simplify the investment line-ups that are available to Contract owners while reducing expenses and continuing to provide Contract owners with a wide array of investment options. The Section 26 Applicants state that the proposed Substitutions will not reduce in any manner the nature or quality of the available investment options and the proposed Substitutions also will permit AXA Equitable and MONY America to present information to their Contract owners in a simpler and more concise manner. The Section 26 Applicants also state it is anticipated that after the proposed Substitutions, Contract owners will be provided with disclosure documents that contain a simpler presentation of the available investment options under the Contracts. The Section 26 Applicants also assert that the proposed Substitutions are not of the type that section 26 was designed to prevent because they will not result in costly forced redemption, nor will they affect other aspects of the Contracts. In addition, the proposed Substitutions will not adversely affect any features or riders under the Contracts because none of the features or riders will change as a result of the Substitutions. Accordingly, no Contract owner will involuntarily lose his or her features or riders as a result of any proposed Substitution. Moreover, the Section 26 Applicants will offer Contract owners the opportunity to transfer amounts out of the affected subaccounts without any cost or other penalty (other than those necessary to implement policies and procedures designed to detect and deter disruptive transfers and other “market timing” activities) that may otherwise have been imposed for a period beginning on the date of the Pre-Substitution Notice (which supplement will be delivered to the Contract owners at least 30 days before the Substitution Date) and ending no earlier than 30 days after the Substitution Date. The proposed Substitutions are also unlike the type of substitution that section 26(c) was designed to prevent in that the Substitutions have no impact on other aspects of the Contracts.
5. The Section 17 Applicants request an order under section 17(b) exempting them from the provisions of section 17(a) to the extent necessary to permit the Section 17 Applicants to carry out some or all of the proposed Substitutions. The Section 17 Applicants state that because the proposed Substitutions may be effected, in whole or in part, by means of in-kind redemptions and purchases, the proposed Substitutions may be deemed to involve one or more purchases or sales of securities or property between affiliated persons.
6. Section 17(a)(1) of the Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the Act generally prohibits the persons described above, acting as principals, from knowingly purchasing any security or other property from the registered investment company.
7. The Section 17 Applicants state that the proposed transactions may involve a transfer of portfolio securities by the Removed Portfolios to the Separate Accounts. Immediately thereafter, the Separate Accounts would purchase shares of the Replacement Portfolios with the portfolio securities received from the Removed Portfolios. Accordingly, the Section 17 Applicants provide that to the extent AXA Equitable, MONY America and the Removed Portfolios, and AXA Equitable, MONY America and the Replacement Portfolios, are deemed to be affiliated persons of one another under section 2(a)(3) or section 2(a)(9) of the Act, it is conceivable that this aspect of the proposed Substitutions could be viewed as being prohibited by section 17(a). Accordingly, the Section 17 Applicants have determined to seek relief from section 17(a).
8. The Section 17 Applicants submit that the terms of the proposed in-kind purchases of shares of the Replacement Portfolios by the Separate Accounts, including the consideration to be paid and received, as described in the application, are reasonable and fair and do not involve overreaching on the part of any person concerned. The Section 17 Applicants submit that the terms of the proposed in-kind transactions, including those considered to be paid to each Removed Portfolio and received by each Replacement Portfolio involved, are reasonable, fair and do not involve overreaching principally because the transactions will conform with all but one of the conditions enumerated in rule 17a-7 under the Act. The proposed transactions will take place at relative net asset value in conformity with the requirements of section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Contract held by the affected Contract owners. The Substitutions will in no way alter the tax treatment of affected Contract owners in connection with their Contracts, and no tax liability will arise for Contract owners as a result of the Substitutions. The fees and charges under the Contracts will not increase because of the Substitutions. Even though the Separate Accounts, AXA Equitable, MONY America and the EQ Trust may not rely on rule 17a-7, the Section 17 Applicants believe that the rule's conditions outline the type of safeguards that result in transactions that are fair and reasonable to registered investment company participants and preclude overreaching in connection with an investment company by its affiliated persons.
9. The Section 17 Applicants also submit that the proposed in-kind purchases by the Separate Accounts are consistent with the policies of the EQ Trust and the Replacement Portfolios, as provided in the EQ Trust's registration statement and reports filed under the Act. Finally, the Section 17 Applicants submit that the proposed Substitutions are consistent with the general purposes of the Act.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The Substitutions will not be effected unless AXA Equitable or MONY America determines that: (i) The
2. After the Substitution Date, FMG will not change a sub-adviser, add a new sub-adviser, or otherwise rely on the Multi-Manager Order, or any replacement order from the Commission, with respect to any Replacement Portfolio without first obtaining shareholder approval of the change in sub-adviser, the new sub-adviser, or the Replacement Portfolio's ability to rely on the Multi-Manager Order, or any replacement order from the Commission, at a shareholder meeting, the record date for which shall be after the proposed Substitution has been affected.
3. AXA Equitable, MONY America or an affiliate thereof (other than the EQ Trust) will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses. No fees or charges will be assessed to the affected Contract owners to effect the Substitutions. The proposed Substitutions will not cause the Contract fees and charges currently being paid by Contract owners to be greater after the proposed Substitution than before the proposed Substitution.
4. The Substitutions will be effected at the relative net asset values of the respective shares of the Replacement Portfolios in conformity with section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Contracts held by affected Contract owners.
5. The Substitutions will in no way alter the tax treatment of affected Contract owners in connection with their Contracts, and no tax liability will arise for Contract owners as a result of the Substitutions.
6. The obligations of the Section 26 Applicants, and the rights of the affected Contract owners, under the Contracts of affected Contract owners will not be altered in any way.
7. Affected Contract owners will be permitted to make at least one transfer of Contract value from the subaccount investing in the Removed Portfolio (before the Substitution Date) or the Replacement Portfolio (after the Substitution Date) to any other available investment option under the Contract without charge for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date. Except as described in any market timing/short-term trading provisions of the relevant prospectus, the Section 26 Applicants will not exercise any rights reserved under the Contracts to impose restrictions on transfers between the subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
8. All affected Contract owners will be notified, at least 30 days before the Substitution Date about: (i) The intended Substitution of Removed Portfolios with the Replacement Portfolios; (ii) the intended Substitution Date; and (iii) information with respect to transfers as set forth in Condition 7 above. In addition, the Section 26 Applicants will also deliver to affected Contract owners, at least 30 days before the Substitution Date, a prospectus for each applicable Replacement Portfolio.
9. The Section 26 Applicants will deliver to each affected Contract owner within five business days of the Substitution Date a written confirmation which will include: (i) A confirmation that the Substitutions were carried out as previously notified; (ii) a restatement of the information set forth in the Pre-Substitution Notice; and (iii) values of the Contract owner's positions in the Removed Portfolio before the Substitution and the Replacement Portfolio after the Substitution.
10. For a period of two years following the Substitution Date, for Contract owners who were Contract owners as of the Substitution Date, AXA Equitable, MONY America or an affiliate thereof (other than the EQ Trust) will reimburse, on the last business day of each fiscal quarter, the Contract owners whose subaccounts invest in the applicable Replacement Portfolio to the extent that the Replacement Portfolio's net annual operating expenses (taking into account fee waivers and expense reimbursements) for such period exceed, on an annualized basis, the net annual operating expenses of the Removed Portfolio for the most recent fiscal year preceding the date of this application. In addition, the Section 26 Applicants will not increase the Contract fees and charges that would otherwise be assessed under the terms of the Contracts for affected Contract owners for a period of at least two years following the Substitution Date.
For the Commission, by the Division of Investment Management, under delegated authority.
2:00 p.m. on Thursday, August 23, 2018.
Closed Commission Hearing Room 10800.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
Commissioner Peirce, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matters of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the Exchange's fee schedule applicable to its equities trading platform to: (1) Eliminate rebates provided to orders in securities priced above $1.00 that remove liquidity from the Exchange's order book under fee codes DR, DT, HR, MT, and PT, and (2) increase the routing fee charged to orders routed to Investors Exchange LLC using the DIRC routing strategy under fee code IX.
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 purpose of the proposed rule change is to amend the Exchange's fee schedule applicable to its equities trading platform (“EDGA Equities”) to: (1) Eliminate rebates provided to orders in securities priced above $1.00 that remove liquidity from the Exchange's order book under fee codes DR,
The Exchange charges fees based on an inverted fee structure where orders are provided rebates for removing liquidity and charged a fee for adding liquidity. Currently, both displayed and non-displayed orders in securities priced at or above $1.00 are provided a rebate of $0.00040 for removing liquidity. The Exchange proposes to eliminate the rebate for orders that remove liquidity from the Exchange's order book under fee codes DR, DT, HR, MT, and PT, which all relate to liquidity removing orders that contain either an explicit non-displayed instruction or a non-displayed discretionary component.
Currently, the fee schedule provides that orders in securities priced at or above $1.00 routed to IEX using the Destination Specific (
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The Exchange believes that the proposed fees for non-displayed orders are reasonable. While the Exchange currently provides a rebate for both displayed and non-displayed orders that remove liquidity, the Exchange has determined to instead charge no fee for non-displayed orders. This change is designed to incentivize Members to enter displayed liquidity on the Exchange since displayed orders would be eligible for rebates when removing liquidity while non-displayed orders would not. Furthermore, the Exchange's inverted fee structure would continue to incentivize liquidity takers since orders that remove liquidity would remain eligible for better pricing—including rebates for displayed orders and free executions for non-displayed orders—than orders that add liquidity and are charged a fee. In addition, the Exchange believes that this change is equitable and not unfairly discriminatory because the proposed taker fees would apply equally to all Members that choose to enter non-displayed orders. Members that would prefer to receive a rebate for orders that remove liquidity can utilize a range of displayed order types offered by the Exchange, thereby promoting a more transparent market.
As other exchanges amend the fees charged for accessing liquidity, the Exchange believes that it is appropriate
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed changes to the non-displayed remove fees are designed to incentivize displayed liquidity, which the Exchange believes will benefit all market participants by encouraging a transparent and competitive market. Furthermore, the proposed change to the IEX routing fee is meant to recoup costs associated with executing orders on that market, and is therefore not designed to have any significant impact on competition. The Exchange operates in a highly competitive market in which market participants can readily direct their order flow to competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and rebates to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed fee changes reflect this competitive environment.
No written comments were either solicited or received.
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 filed a proposal to permit the listing and trading of options that overlie the Mini-SPX Index (“XSP options”), the Russell 2000 Index (“RUT options”), and the Dow Jones Industrial Average (“DJX options”).
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 proposed rule change amends the Exchange's index rules to permit the listing and trading of XSP options, RUT options, and DJX options. XSP options are options on the Mini SPX Index, the current value of which is 1/10th the value of the Standard & Poor's 500 “Stock Index reported by the reporting authority.
(1) The index is broad-based index, as defined in Rule 29.2(j) (an index designed to be representative of a stock market as a whole or of a range of companies in unrelated industries);
(2) the options are designated as A.M.-settled;
(3) the index is capitalization-weighted, modified capitalization-weighted, price-weighted or equal dollar-weighted;
(4) the index consists of 50 or more component securities;
(5) component securities that account for at least 95% of the weight of the index have a market capitalization of at least $75 million, except that component securities that account for at least 65% of the weight of the index have a market capitalization of at least $100 million;
(6) component securities that account for at least 80% of the weight of the index satisfy the requirements of Rule 19.3 applicable to individual underlying securities;
(7) each component security that accounts for at least 1% of the weight of the index has an average daily trading volume of at least 90,000 shares during the last six-month period;
(8) no single component security accounts for more than 10% of the weight of the index, and the five highest-weighted component securities in the index do not, in the aggregate, account for more than 33% of the weight of the index;
(9) each component security must be an “NMS stock” as defined in Rule 600 of Regulation NMS under the Securities Exchange Act of 1934 (the “Exchange Act”);
(10) non-U.S. component securities (stocks or ADRs) that are not subject to comprehensive surveillance agreements do not, in the aggregate, represent more than 20% of the weight of the index;
(11) the current underlying index value is widely disseminated at least once every 15 seconds by OPRA, CTA/CQ, NIDS, or one or more major market data vendors during the time the index options are traded on the Exchange;
(12) the Exchange reasonably believes it has adequate system capacity to support the trading of options on the index, based on a calculation of the Exchange's current ISCA allocation and the number of new messages per second expected to be generated by options on such index;
(13) an equal dollar-weighted index is rebalanced at least once every calendar quarter;
(14) if an index is maintained by a broker-dealer, the index is calculated by a third party who is not a broker-dealer, and the broker-dealer has erected an information barrier around its personnel who have access to information concerning changes in, and adjustments to, the index; and
(15) the Exchange has written surveillance procedures in place with respect to surveillance of trading of options on the index.
XSP, RUT, and DJX options will be subject to the maintenance listing standards set forth in Rule 29.3(c):
(1) The conditions stated in (1) through (3) and (9) through (15) above must continue to be satisfied, provided that the requirements in (5) through (8) must be satisfied only as of the first day of January and July in each year; and
(2) the total number of component securities in the index may not increase or decrease by more than 10% from the number of component securities in the index at the time of its initial listing.
S&P Dow Jones Indices is the reporting authority for the Mini-SPX Index and the Dow Jones Industrial Average, and Frank Russell Company is the reporting authority for the Russell 2000 Index. The proposed rule change adds these indexes and reporting authorities to Rule 29.2, Interpretation and Policy .01. The proposed rule change also lists the reporting authorities in Rule 29.13(b), which is the disclaimer for reporting authorities. Rule 29.13(b) would apply to these reporting authorities even if not specifically listed; however, the proposed rule change adds the names of the reporting authority to the rule for transparency and clarification.
Rule 29.11(a) states bids and offers are expressed in terms of dollars and cents per unit of the index. The minimum increment applicable to index options is set forth in Rule 21.5. The proposed rule change adds Interpretation and Policy .02 to Rule 21.5, which states for so long as SPDR options (SPY) and Diamonds options (DIA) participate in the Penny Pilot Program pursuant to Interpretation and Policy .01, the minimum increments for XSP options and DJX options, respectively, will be the same as SPY and DIA, respectively for all option series (including long-term option series). Such minimum increment would be $0.01 for all SPY series, regardless of price, and $0.01 for DJX series trading at less than $3.00 and $0.05 for DJX series trading at $3.00 or higher, respectively, as set forth in Rule 21.5(a).
SPY options are options on the SPDR S&P 500 exchange-traded fund (ETF), which is an ETF that tracks the performance of 1/10th the value of the S&P 500 Index. DIA options are options on the SPDR Dow Jones Industrial
The minimum increment for RUT will be as set forth in current Rule 21.5: Five cents if the series is trading below $3.00, and ten cents if the series is trading at or above $3.00.
RUT, XSP, and DJX options will be A.M., cash-settled contracts with European-style exercise. A.M.-settlement is consistent with the generic listing criteria for broad-based indexes,
Rule 29.11(b)(1) currently states the Exchange may list long-term index options series that expire from 12 to 60 months from the date of issuance. The proposed rule change permits listing of long-term index options series that expire from 12 to 180 months from the date of issuance. The Exchange understands that market participants may enter into over-the-counter (“OTC”) positions with longer-dated expirations than currently available on the Exchange. The proposed rule change will permit the Exchange to list long-term index options contracts with longer-dated expirations. The Exchange believes expanding the eligible term for long-term index options contracts to 180 months is important and necessary to the Exchange's efforts to offer products in an exchange-traded environment that compete with OTC products. The Exchange believes long-term index options contracts provide market participants and investors with a competitive comparable alternative to the OTC market in long-term index options, which can take on contract characteristics similar to long-term index options contracts but are not subject to the same maximum term restriction. By expanding the eligible term for long-term index options contracts, market participants will now have greater flexibility in determining whether to execute their long-term index options in an exchange environment or in the OTC market. The Exchange believes market participants can benefit from being able to trade these long-term index options in an exchange environment in several ways, including, but not limited to the following: (1) Enhanced efficiency in initiating and closing out positions; (2) increased market transparency; and (3) heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of long-term index options contracts.
The Exchange has confirmed with the OCC that OCC can configure its systems to support long-term equity options contracts that have a maximum term of 180 months (15 years). The proposed rule change is also consistent with the rules of other options exchanges.
Rule 29.11(b)(2) provides that reduced-value long-term option series may be approved for trading on specified indices.
Rule 29.11(b)(1)(A) also states strike price intervals, bid/ask differential, and continuity rules do not apply to long-term index options series until the time to expiration is less than twelve months. Rule 29.11(c) describes the strike price intervals applicable to long-term index options. Additionally, Rule 22.6(d) describes continuous quoting requirements for Market Makers.
The proposed rule change amends Rule 29.11(c)(1) to provide that the interval between strike prices will be no less than $2.50 for RUT options (if the strike price is less than $200) and reduced-value long-term option series. This is the same strike interval that applies to RUT options and reduced-value long-term option series pursuant to rules of other options exchanges.
Additionally, the proposed rule change adds Rule 29.11(c)(5), which provides that the strike prices for new and additional series of XSP options are subject to the following:
(1) If the current value of the Mini-SPX Index is less than or equal to 20, the Exchange will not list XSP option series with a strike price of more than 100% above or below the current value of the Mini-SPX Index;
(2) if the current value of the Mini-SPX Index is greater than 20, the Exchange will not list XSP option series with a strike price of more than 50% above or below the current value of the Mini-SPX Index; and
(3) the lowest strike price interval that may be listed for standard XSP option series is $1, including the long-term option series, and the lowest strike price interval that may be listed for XSP option series under the Short Term Option Series Program in paragraph (h) of Rule 29.11.
The proposed strike prices for XSP options will permit strike prices closely
Current Rule 29.11(c)(1) provides that strike prices are permitted only in intervals of at least $5. SPX options may be listed in intervals of at least $5.
Additionally, current Rule 29.11(c)(3) requires the exercise price of each series of index options to be reasonably related to the current index value of the underlying index to which the series relates at or about the time the series of options is first opened for trading on the Exchange. Pursuant to Rule 29.11(c)(4), the term “reasonably related to the current index value of the underlying index” means the exercise price must be within 30% of the current index value. The Exchange may also open for trading additional series of index options that are more than 30% away from the current index value, provided that demonstrated customer interest exists for the series. The Options Listing Procedures Plan sets forth exercise price range limitations for equity and ETF options (which are the same as those being proposed for XSP options). Those limitations differ from the limitations set forth in the current Rule. For example, if the underlying price of an equity or ETF option is $200, the Exchange would be permitted to list strikes ranging from $100 through $300 (50% above and below the current value). However, if the value of the Mini-SPX Index was $200, the Exchange would only be permitted to list strikes ranging from $140 to $260. To put XSP options on equal standing with equity and ETF options with respect to exercise price range limitations, the Exchange proposes to impose exercise price range limitations on XSP options that are equal to those applicable to equity and ETF exercise price range limitations.
The Exchange believes these permitted strike prices will permit the Exchange to list XSP options with strikes that more closely reflect the current values of the S&P 500 Index, as they provide more flexibility and allow the Exchange to better respond to customer demand for XSP option strike prices that relate to current S&P 500 Index values. In addition, the Exchange believes that because the number of strikes that may be listed would be contained by the percentages above and below the current XSP Index value, there is no need to restrict the use of $1 strike price intervals based on the amount of the strike price.
The Exchange recognizes the proposed approach does not achieve full harmonization between strikes in XSP options and SPX options. For example, if there is a 2715 strike in SPX options, the Exchange is not seeking the ability to list a 271.5 strike in XSP options. The Exchange believes being able to list the 271 and 272 strikes in XSP options would provide the marketplace with a sufficient number of strike prices over a range of XSP values.
The S&P 500 Index is widely used to gauge large cap U.S. equities, and as a result, investors often use S&P 500 Index-related products to diversify their portfolios and benefit from market trends. Full-size SPX options offer these benefits to investors, but may be expensive given its large notional value. Those options are primarily used by institutional market participants. By contrast, XSP options offer individual investors a lower cost options to obtain the potential benefits of options on the S&P 500 Index.
Proposed Rule 29.11(c)(6) provides the interval between strike prices may be no less than $0.50 for options based on 1/100th of the value of the Dow Jones Industrial Average, including for series listed under the Short Term Options Program.
The proposed rule change adds paragraph (c) to Rule 21.7 to describe the opening process for index options. Current Rule 21.7(b) states the System will open index options for trading at 9:30 a.m. Eastern time. Pursuant to the current opening process, following 9:30 a.m., the System will determine a price at which a particular series will be opened (the “Opening Price”) within 30
• The midpoint of the NBBO (the “NBBO Midpoint”);
• Where there is no NBBO Midpoint at a Valid Price, the last regular way print disseminated pursuant to the OPRA Plan after 9:30 a.m. Eastern Time (the “Print”);
• Where there is both no NBBO Midpoint and no Print at a Valid Price, the last regular way transaction from the previous trading day as disseminated pursuant to the OPRA Plan (the “Previous Close”); or
• Where there is no NBBO Midpoint, no Print, and no Previous Close at a Valid Price, the Order Entry Period may be extended by 30 seconds or less or the series may be opened for trading at the discretion of the Exchange.
A NBBO Midpoint, a Print, and a Previous Close will be at a Valid Price:
• Where there is no NBB and no NBO;
• Where there is either a NBB and no NBO or a NBO and no NBB and the price is equal to or greater than the NBB or equal to or less than the NBO; or
• Where there is both a NBB and NBO, the price is equal to or within the NBBO, and the price is less than a specified minimum amount away from the NBB or NBO for the series.
Under this Opening Process, if a series has not opened yet on another exchange on a trading (and thus there is no NBBO and no Last Print), if there is a Previous Close Price, it will be a valid price and will be the Opening Price. Additionally, if there are no crossed contracts in a series, the series opens immediately following the time period referenced above.
The Exchange proposes to modify this process with respect to index options. Pursuant to the proposed rule change, for index options, the System will determine the Opening Price within 30 seconds of an away options exchange(s) disseminating a quote in a series. Following an away options exchange's dissemination of a quote in a series, if there are no contracts in a series that would execute at any price, the System opens the series for trading without determining an Opening Price. The Opening Price, if valid, of a series will be the NBBO Midpoint. Pursuant to proposed subparagraph (c)(2), for index options, the NBBO Midpoint is a valid price if it is less than a specified minimum amount away from the NBB or NBO for the series.
Currently, RUT options trade on Cboe Options and C2 Exchange, Inc. (“C2”), and XSP options trade on Cboe Options, which are affiliated exchanges of the Exchange. Under current Rule 21.7, if a RUT series was open on Cboe Options, and if there are crossed orders on the Exchange, the RUT series on the Exchange would open with an Opening Price equal to the NBBO Midpoint (if valid). If a RUT series was not yet open on another Exchange after 9:30 a.m. (eastern), and there was a Previous Close for the series, the series would open on the Exchange with the Previous Close as the Opening Price. If there are no crossing orders on the Exchange, a RUT series would open without an opening price, possibly before the RUT series was open on Cboe Options.
RUT options on Cboe Options generally open within 30 seconds after 9:30 a.m., and thus the Exchange expects RUT options to open for trading within 30 seconds (as set forth in the rule) at an Opening Price equal to the NBBO Midpoint if there are orders that can be crossed. However, it will be possible for a RUT series to open prior to the opening of that series on Cboe Options. This is significant because, on certain dates, Cboe Options uses prices of RUT options trading on Cboe Options to determine settlement values for volatility index derivatives.
The proposed rule change is the same as the opening process for index options on C2.
Once the System determines an opening price for an index option, it will open a series with an opening trade in the same manner as it does for equity options. The proposed rule change moves the description of this process from current Rule 21.7(a)(3) to proposed Rule 21.7(d). The proposed rule change also adds to proposed paragraph (d) that the System cancels any OPG (also called at the open orders) (or unexecuted portions) that do not execute during the opening process. This is consistent with the behavior of orders with the OPG time-in-force instruction.
Current Rule 29.10(b) describes when the Exchange may halt trading in an index option. It permits the Exchange to halt trading in an index option when, in its
• Whether all trading has been halted or suspended in the market that is the primary market for a plurality of the underlying stocks;
• Whether the current calculation of the index derived from the current market prices of the stocks is not available;
• The extent to which the opening has been completed or other factors regarding the status of the opening; and
• Other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present, including, but not limited to, the activation of price limits on futures exchanges.
The proposed rule change amends the first factor to state the Exchange may consider the extent to which trading is not occurring in the stocks or options underlying the index. This provides the Exchange with additional flexibility to consider trading on all markets on which the underlying components trade when determining whether to halt trading in an index option. The Exchange believes flexibility is appropriate when determining whether to halt trading in an index option so it can make such a determination based on then-current circumstances to determine what will contribute to a fair and orderly market. For example, less than a “plurality” of underlying components may trade on one market, but if trading on that market is halted, the Exchange may determine halting trading in the index option is in the interests of a fair and orderly market because of the specific components that are not trading. This proposed change is consistent with the rules of another options exchange.
Rule 29.10 also states trading on the Exchange will be halted or suspended whenever trading in underlying securities whose weighted value represents more than 20%, in the case of a broad-based index, and 10% for all other indices, of the index value is halted or suspended. The proposed rule change deletes this provision. The first factor, as amended by this proposed rule change, permits the Exchange to determine to halt trading in an index option in this specific circumstance. This provision provides the Exchange with no flexibility to determine what is in the interests of a fair and orderly market. The rules of other exchanges do not have this provision.
Proposed Rule 29.11(j) permits the Exchange to list additional expiration months on option classes opened for trading on the Exchange if such expiration months are opened for trading on at least one other registered national securities exchange. As noted above, Rule 29.11(a)(3) permits the Exchange to list up to six expiration months at any one time for an index option class. Other options exchange have rules that permit them to list additional expiration months if they are opened for trading on at least one other options exchange.
The Exchange notes that the proposed rule change affords additional flexibility in that it will permit the exchange to list those additional expiration months that have an actual demand from market participants thereby potentially reducing the proliferation of classes and series. The Exchange believes the proposed rule change is proper, and indeed necessary, in light of the need to have rules that permit the listing of identical expiration months across exchanges for products that multiply-listed and fungible with one another. The Exchange believes that the proposed rule change should encourage competition and be beneficial to traders and market participants by providing them with a means to trade on the Exchange securities that are listed and traded on other exchanges.
The proposed rule change adds to Rule 20.6(g) and (h) language to clarify that, for purposes of determining whether a trade resulted from an erroneous print or quote in the underlying, the underlying may include index values (as well as Fund Shares and HOLDRs, which may also underlie options trading on the Exchange pursuant to Rule 19.3(g) and (i),
The proposed rule change adds Rule 29.15, which states contracts provided for in Chapter 29 of the Rules will not be subject to the restriction in Rule 18.12(b). Rule 18.12(b) states whenever the issue of a security underlying a call option traded on the Exchange is engaged or proposes to engage in a public underwritten distribution (“public distribution”) of such underlying security or securities exchangeable for or convertible into such underlying security, the underwriters may request that the exchange impose restrictions upon all opening writing transactions in such options at a discount where the resulting short position will be uncovered. The rule includes additional conditions that are necessary to impose these restrictions.
Rule 18.12(b) applies to equity options, and to restrictions the issuer of the security underlying the equity option may request. As there is no issuer of an “index,” and thus there is no possibility of a public distribution of an index, the Rule does not apply to index options. Rule 29.15 merely states this explicitly in the Rules. This will also ensure it is clear in the Rules that an issuer of a security that is a component of an index may not request restrictions on the index options, as the Exchange does not believe it would be appropriate for an issuer of a single underlying component to have the ability to restrict trading in the index option. The proposed rule change is consistent with the rules of at least one other options exchange.
The Exchange represents it has an adequate surveillance program in place for index options. The Exchange is a member of the Intermarket Surveillance Group (“ISG”), which is comprised of an international group of exchanges, market centers, and market regulators. The purpose of ISG is to provide a framework for the sharing of information and the coordination of regulatory efforts among exchanges trading securities and related products to address potential intermarket manipulations and trading abuses. ISG plays a crucial role in information sharing among markets that trade securities, options on securities, security futures products, and futures and options on broad-based security indexes. A list of identifying current ISG members is available at
The Exchange has analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of XSP, RUT, and DJX options up to the proposed number of possible expirations and strike prices. The Exchange believes any additional traffic that would be generated from the introduction of XSP, RUT, and DJX options will be manageable. The Exchange believes its Members will not have a capacity issue as a result of this proposed rule change. The Exchange also represents that it does not believe this expansion will cause fragmentation of liquidity. The Exchange will monitor the trading volume associated with the additional options series listed as a result of this proposed rule change and the effect (if any) of these additional series on market fragmentation and on the capacity of the Exchange's automated systems.
XSP, RUT, and DJX options will be subject to the margin requirements set forth in Chapter 28 and the position limits set forth in Rule 29.5. Chapter 28 imposes the margin requirements of either Cboe Options or the New York Stock Exchange on Exchange Options Members. Similarly, Rule 29.5 imposes position (and exercise) limits for broad-based index options of Cboe Options on Exchange Options Members. XSP, RUT, and DJX options are currently listed and traded on Cboe Options,
The Exchange Rules and Cboe Options rules regarding position and exercise limits and margin requirements are substantially the same as each other, as the Exchange rules currently refer to the corresponding Cboe Options rules. Therefore, Options Members must comply with these Cboe Options rules pursuant to the Exchange Rules. Pursuant to the proposed rule change, the Exchange will be trading index options also authorized for trading on Cboe Options, so the position and exercise limits and margin requirements currently applicable to these index options that trade on Cboe Options will apply to these index options that may be listed for trading on the Exchange. The proposed rule regarding the listing and trading of XSP, RUT, and DJX are substantially the same as Cboe Options rules regarding the listing and trading of XSP, RUT, and DJX, which rules were previously approved by the Commission and thus they are consistent with the Act. Additionally, the rules regarding position and exercise limits and margin requirements that will apply to XSP, RUT, and DJX options listed for trading on the Exchange were previously approved by the Commission, and thus they are consistent with the Act. The proposed rule change will also result in similar regulatory treatment for similar option products.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The index underlying each of XSP, RUT, and DJX options satisfies the initial listing criteria of a broad-based index in the Exchange's Rules. The proposed rule change adds these indexes to the table regarding reporting authorities for indexes, to the list of European-style exercise index options,
The proposed rule change related to the minimum increment for XSP and DJX options will permit consistency between pricing of SPY options and XSP options, which are both based, in some manner, on the value of the S&P 500 Index, and between DIA options and DJX options, which are both based, in some manner, on the value of the Dow Jones Industrial Average. As a result, the Exchange believes it is important that these products have the same minimum increments for competitive reasons. The proposed rule change is also the same as another options exchange.
The proposed rule change to permit listing of long-term index options contracts with terms up to 180 months is designed to promote just and equitable principles of trade in that the availability of long-term index options contracts with longer dated expirations will give market participants an alternative to trading similar products in the OTC market. By trading a product in an exchange-traded environment (that is currently being used in the OTC market), the Exchange will be able to compete more effectively with the OTC market. The Exchange believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that it will hopefully lead to the migration of options currently trading in the OTC market to trading to the Exchange. Also, any migration to the Exchange from the OTC market will result in increased market transparency. Additionally, the Exchange believes the proposed rule change is designed to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest in that it should create greater trading and hedging opportunities and flexibility. The proposed rule change should also result in enhanced efficiency in initiating and closing out positions and heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of long-term index option series. Further, the proposed rule change will result in increased competition by permitting the Exchange to offer products that are currently used in the OTC market and on other exchanges. Additionally, the proposed rule change is consistent with the series listing rules of other exchanges.
The proposed rule change to eliminate the rule provision regarding the applicability of strike price intervals, bid/ask differentials and quote continuity requirements to long-term index option contracts will protect investors by eliminating potential confusion that may result from inclusion of duplicative rules. As discussed above, other rules address requirements related to strike price intervals and quote continuity requirements and supersede the language regarding these topics, and the Exchange has no rules imposing bid/ask differential requirements (and thus no such requirements apply to long-term equity option contracts), thus rendering this language unnecessary. The Exchange will continue to impose these requirements in the manner it does today, consistent with the provisions in other existing rules, and thus this proposed rule change has no impact on how the Exchange imposes these requirements. The rules of other options exchanges do not include this provision.
The proposed minimum strike interval for RUT options (if the strike price is less than $200) and reduced-value long-term option series is the same as that on another options exchanges.
With respect to the proposed strike prices for XSP options, the proposed rule change would more closely align XSP option strike prices with those of SPX option strike prices, and would more closely align strike price range limitations on XSP options with those of equity and ETF options. This would provide more flexibility and allow the Exchange to better respond to customer demand for XSP option strike prices that relate to current S&P 500 Index values. The Exchange believes this proposed rule change would allow retail investors to better use XSP options to gain exposure to the SPX options market and hedge S&P 500 cash positions in the event that the S&P 500 Index value continues to increase. The Exchange does not believe the proposed rule change will create additional capacity issues. In addition, the Exchange believes that because the number of strikes that may be listed would be contained by the percentages above and below the current XSP Index value, the number of XSP strikes that may be listed will not be unbounded. The proposed XSP strike prices and restrictions are the same as those on another options exchange.
With respect to the proposed strike prices for DJX options, the proposed rule change would more closely align DJX option strike prices with 1/100th the value of the Dow Jones Industrial Average. This would provide more flexibility and allow the Exchange to better respond to customer demand for DJX option strike prices that relate to current Dow Jones Industrial Average values. The Exchange believes this proposed rule change would allow retail investors to better use DJX options to gain exposure to the market and hedge Dow Jones Industrial Average cash positions in the event that the Dow Jones Industrial Average value continues to increase. The Exchange does not believe the proposed rule change will create additional capacity issues. The proposed DJX strike prices are the same as those on another options exchange.
The proposed rule change that permits the Exchange to list additional expiration months if they are listed on another options exchange will permit the Exchange to accommodate requests made by its Trading Permit Holders and other market participants to list the additional expiration months and thus encourage competition without harming investors or the public interest.
The proposed rule change with respect to the opening process for index options eliminates the possibility of RUT options on the Exchange automatically opening for trading prior to those options being open on Cboe Options and thus interfering with the calculation of volatility index derivative settlement values, which promotes just and equitable principles of trade and perfects the mechanism of a free and open market and national market system. As discussed above, under certain circumstances, the proposed rule change is expected to have a de minimis impact on the opening of index option series on the Exchange because, to the extent the Exchange receives a quote from another Exchange within the time period following 9:30 a.m., and there are contracts that may trade, the Opening Process will essentially be the same, and a series will open with the NBBO Midpoint as an Opening Price (if valid). Additionally, the Exchange will continue to have the ability to use a contingent opening to open a series for
The proposed rule change to permit the Exchange to list additional expiration months on option classes opened for trading on the Exchange if such expiration months are opened for trading on at least one other registered national securities exchange is the same as rules of other options exchanges.
The proposed rule change regarding when the Exchange may halt trading in index options promotes just and equitable principles of trade and protects the public interest by providing the Exchange with additional flexibility when determine whether to halt trading in an index option, so it can make such a determination based on then-current circumstances to determine what it will contribute to a fair and orderly market. The proposed change is consistent with the rules of another options exchange.
The proposed rule change to clarify that, for purposes of determining whether a trade resulted from an erroneous print or quote in the underlying, the underlying may include index values (as well as Fund Shares and HOLDRs, which may also underlie options trading on the Exchange pursuant to Rule 19.3(g) and (i), respectively) further harmonizes the Exchange's rule related to the adjustment and nullification of erroneous options transactions with those of other options exchanges. The proposed rule change is based on the rules of another options exchange.
Proposed Rule 29.15 is merely stating explicitly in the Rules that Rule 18.12(b) does not apply to index options, which is consistent with the current rule. The proposed rule change is based on the rules of another options exchange.
The Exchange Rules and Cboe Options rules regarding position and exercise limits and margin requirements are substantially the same as each other, as the Exchange rules currently refer to the corresponding Cboe Options rules. Therefore, Options Members must comply with these Cboe Options rules pursuant to the Exchange Rules. Pursuant to the proposed rule change the Exchange will be trading index options also authorized for trading on Cboe Options, the Cboe Options position and exercise limits and margin requirements applicable to these index options will apply to these index options that may be listed for trading on the Exchange. Additionally, the previously approved Cboe Options rules regarding listing of XSP, RUT, and DJX index options on the Exchange pursuant to this proposed rule change are subject to these also previously approved Cboe Options rules regarding position and exercise limits and margin requirements, and thus they are consistent with the Act. The proposed rule change will also result in similar regulatory treatment for similar option products.
The Exchange represents it has an adequate surveillance program in place for index options. The Exchange is a member of the Intermarket Surveillance Group (“ISG”), which is comprised of an international group of exchanges, market centers, and market regulators. The purpose of ISG is to provide a framework for the sharing of information and the coordination of regulatory efforts among exchanges trading securities and related products to address potential intermarket manipulations and trading abuses. ISG plays a crucial role in information sharing among markets that trade securities, options on securities, security futures products, and futures and options on broad-based security indexes. A list of identifying current ISG members is available at
The Exchange has analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of XSP, RUT, and DJX options up to the proposed number of possible expirations and strike prices. The Exchange believes any additional traffic that would be generated from the introduction of XSP, RUT, and DJX options will be manageable. The Exchange believes its Members will not have a capacity issue as a result of this proposed rule change. The Exchange also represents that it does not believe this expansion will cause fragmentation of liquidity. The Exchange will monitor the trading volume associated with the additional options series listed as a result of this proposed rule change and the effect (if any) of these additional series on market fragmentation and on the capacity of the Exchange's automated systems.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The index underlying each of XSP, RUT, and DJX options satisfies the initial listing criteria of a broad-based index in the Exchange's Rules. The proposed rule change adds these indexes to the table regarding reporting authorities for indexes, to the list of European-style exercise index options, and to the list of A.M.-settled index options. These changes are consistent with the Exchange's existing Rules,
The proposed rule change related to the minimum increment for XSP and DJX options will permit consistency between pricing of SPY options and XSP options, which are both based, in some manner, on the value of the S&P 500 Index, and between pricing of DIA options and DJX options, which are both based, in some manner, on the value of the Dow Jones Industrial Average. As a result, the Exchange believes it is important that these products have the same minimum increments for competitive reasons. The proposed rule change is also the same as another options exchange.
The proposed rule change to permit listing of long-term index options contracts with terms up to 180 months will give market participants an alternative to trading similar products in the OTC market. By trading a product in an exchange-traded environment (that is currently being used in the OTC market), the Exchange will be able to compete more effectively with the OTC market. Additionally, the Exchange believes that the proposed rule change
The proposed rule change to eliminate the rule provision regarding the applicability of strike price intervals, bid/ask differentials and quote continuity requirements to long-term index option contracts will have no impact on Members, as this merely eliminates potential confusion that may result from inclusion of duplicative rules that have been superseded by other rules. The Exchange will continue to impose these requirements in the manner it does today, consistent with the provisions in other existing rules, and thus this proposed rule change has no impact on how the Exchange imposes these requirements. The rules of other options exchanges do not include this provision.
The proposed minimum strike interval for RUT options (if the strike price is less than $200) and reduced-value long-term option series is the same as that on another options exchanges.
The proposed strike prices for XSP options will be available to all market participants that choose to trade XSP options on the Exchange. Additionally, the proposed XSP strike prices and restrictions are the same as those on another options exchange.
With respect to the proposed rule change related to the opening process, the amended opening process will apply in the same manner to all market participants that participate in the Exchange's Opening Process for index options. The Exchange believes it is appropriate to limit the proposed change to index options, because some, such as RUT, are used to determine the settlement value for volatility index derivatives. A similar process does not occur for equity options, and thus, the risk of opening trading in an equity option interfering with a settlement process on another exchange is not present. As discussed above, the proposed rule change is the same as the opening process for index options on C2,
The proposed rule change regarding when the Exchange may halt trading in index options will apply to all market participants in the same manner to the extent the Exchange halts trading pursuant to the proposed rule. The rule provides the Exchange with additional flexibility when determine whether to halt trading in an index option, so it can make such a determination based on then-current circumstances to determine what it will contribute to a fair and orderly market. The proposed change is consistent with the rules of another options exchange.
The proposed rule change to permit the Exchange to list additional expiration months on option classes opened for trading on the Exchange if such expiration months are opened for trading on at least one other registered national securities exchange is the same as rules of other options exchanges.
The proposed rule change to clarify that, for purposes of determining whether a trade resulted from an erroneous print or quote in the underlying, the underlying may include index values (as well as Fund Shares and HOLDRs, which may also underlie options trading on the Exchange pursuant to Rule 19.3(g) and (i), respectively) further harmonizes the Exchange's rule related to the adjustment and nullification of erroneous options transactions with those of other options exchanges. The proposed rule change is based on the rules of another options exchange.
Proposed Rule 29.15 is merely stating explicitly in the Rules that Rule 18.12(b) does not apply to index options, which is consistent with the current rule. The proposed rule change is based on the rules of another options exchange.
The Exchange Rules and Cboe Options rules regarding position and exercise limits and margin requirements are substantially the same as each other, as the Exchange rules currently refer to the corresponding Cboe Options rules. Therefore, Options Members must comply with these Cboe Options rules pursuant to the Exchange Rules. Pursuant to the proposed rule change, the Exchange will be trading index options also authorized for trading on Cboe Options, so the position and exercise limits and margin requirements currently applicable to these index options that trade on Cboe Options will apply to these index options that may be listed for trading on the Exchange. The proposed rule regarding the listing and trading of XSP, RUT, and DJX are substantially the same as Cboe Options rules regarding the listing and trading of XSP, RUT, and DJX, which rules were previously approved by the Commission and thus they are consistent with the Act. Additionally, the rules regarding position and exercise limits and margin requirements that will apply to XSP, RUT, and DJX options listed for trading on the Exchange were previously approved by the Commission, and thus they are consistent with the Act. The proposed rule change will also result in similar regulatory treatment for similar option products.
The Exchange believes that the proposed rule change will relieve any burden on, or otherwise promote, competition, as the rules are substantially the same as those of other options exchanges, as noted above.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
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.
This matter comes before the Securities and Exchange Commission (“Commission”) on petition to review the approval, pursuant to delegated authority, of the Financial Industry Regulatory Authority, Inc. (“FINRA”) proposed rule change to adopt FINRA Rule 1113 (Restriction Pertaining to New Member Applications) and to amend the FINRA Rule 9520 Series (Eligibility Proceedings).
On November 15, 2010, the Commission issued a notice of filing of the proposed rule change filed with the Commission pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On March 4, 2011, pursuant to Commission Rule of Practice 430,
For the reasons stated above, it is hereby:
It is further
It is further
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change consists of modifications to FICC's Government Securities Division (“GSD”) Rulebook (“GSD Rules”)
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend GSD Rule 3A (Sponsoring Members and Sponsored Members) in order to apply GSD Rule 22B (Corporation Default) to Sponsored Members. In addition, the proposed rule change would make certain other changes, as described in greater detail below.
Under GSD Rule 3A (Sponsoring Members and Sponsored Members), Bank Netting Members that are well-capitalized (as defined by the Federal Deposit Insurance Corporation's applicable regulations) and have at least $5 billion in equity capital (Sponsoring Members) are permitted to sponsor qualified institutional buyers as defined by Rule 144A
In connection with the onboarding of new Sponsoring Members and their respective Sponsored Members into GSD membership, FICC has received certain questions regarding the applicability of GSD Rule 22B (Corporation Default) to Sponsoring Members and their respective Sponsored Members. GSD Rule 22B provides that close out netting will be applied to obligations between GSD and its Members in the event that a Corporation Default occurs.
FICC is proposing to add an introductory paragraph to Section 17 of GSD Rule 3A (Sponsoring Members and Sponsored Members) which makes it clear that for purposes of the Rules, Schedules, Interpretations and Statements of Policy referenced in Section 17 of GSD Rule 3A, Sponsoring Members and/or Sponsored Members, in their respective capacities as such, would be “Members.” Adding this clarifying paragraph would be helpful to Sponsoring Members and Sponsored Members because it would enable them to know which Rules, Schedules, Interpretations and Statements of Policy would govern their rights, liabilities and obligations in their respective capacities as Sponsoring Members and/or Sponsored Members.
In order to ensure that all GSD Members are subject to a common, transparent legal framework in a Corporation Default situation, FICC is proposing to modify GSD Rule 3A so that GSD Rule 22B (Corporation Default) would apply to Sponsored Members in the same manner as it applies to all other GSD Members. Specifically, FICC proposes to add a new subsection (a) to Section 17 of GSD Rule 3A which would provide that GSD Rule 22B would apply to Sponsored Members. This proposed change would necessitate a technical change to renumber all subsequent subsections in Section 17 of GSD Rule 3A.
GSD Rule 22B defines the term “Corporation Default” and sets forth the close out netting process in the event of a Corporation Default. Section (b)(ii) of GSD Rule 22B provides that the following events shall constitute a Corporation Default: (A) the dissolution of FICC (other than pursuant to a consolidation, amalgamation, or merger),
In addition, subject to the limitations set forth therein, Section (b)(i) of GSD Rule 22B provides that a Corporation Default is deemed to have occurred on the eighth (8th) day after FICC receives notice from a GSD Member of FICC's failure to make, when due, an undisputed payment or delivery to such Member that is required to be made by FICC under the GSD Rules; provided that, such failure remains unremedied
FICC's provision of clearance and settlement services, including the timely settlement of Transactions in the ordinary course of business, are a part of FICC's fundamental directive as a registered clearing agency under the Act. The seven (7) day period provided by Section (b)(i) of GSD Rule 22B is intended to address the circumstance where FICC experiences an operational issue that prevents it from completing such clearance and settlement services. In this circumstance, if FICC is not able to rectify the failure and satisfy its obligations in seven (7) days, GSD Rule 22B requires that all Transactions which have been subject to Novation pursuant to the GSD Rules but have not yet settled and any rights and obligations of the parties thereto to be immediately terminated.
In connection with the proposed rule change to apply GSD Rule 22B to Sponsored Members, FICC is also proposing to add language to clarify that the commencement of the seven (7) day period preceding a potential Corporation Default, as provided by Section (b)(i) of GSD Rule 22B, would not modify FICC's obligations to satisfy any undisputed payment or delivery obligation to a Sponsored Member under the GSD Rules, including any undisputed interest payment obligation owing to the Sponsored Member on an open Sponsored Member Trade, and that such obligation would continue to accrue in favor of the Sponsored Member for the duration of the seven (7) day period. Specifically, FICC is proposing to include in the proposed new subsection (a) to Section 17 of GSD Rule 3A language that makes it clear that FICC would be responsible for satisfying any undisputed payment or delivery obligation required to be made by FICC to a Sponsored Member under the GSD Rules, including, but not limited to, any undisputed interest payment obligation that accrues in favor of a Sponsored Member on a Sponsored Member Trade that has been subject to Novation pursuant to the GSD Rules but has not yet settled and for which FICC has received notice from such Sponsored Member of FICC's failure to make, when due, such undisputed interest payment to such Sponsored Member within the meaning of Section (b)(i) of GSD Rule 22B.
FICC is proposing to amend the wording of the third sentence of Section (a) of GSD Rule 22B to provide greater clarity regarding the close out netting process upon a Corporation Default. Specifically, FICC is proposing to delete a reference to Section 2(a) of GSD Rule 22A in that sentence and modify the reference to Section 2(b) of GSD Rule 22A to specifically refer to Section 2(b)(i) of GSD Rule 22A.
FICC is proposing to delete the reference to Section 2(a) of GSD Rule 22A in the third sentence of Section (a) of GSD Rule 22B because this reference is unnecessary and potentially confusing to GSD Members. The reference to Section 2(a) of GSD Rule 22A is meant to set forth Transactions that would not be subject to the close out netting process in the event of a Corporation Default by referring (by way of analogy) to Transactions that FICC would not close out in the event FICC ceases to act for a GSD Member. However, Section (a) of GSD Rule 22B already contains a statement that makes it clear which Transactions are subject to the close out netting process in the event of a Corporation Default: “all Transactions which have been subject to Novation pursuant to these [GSD] Rules . . . .”
In addition, FICC is proposing to modify the reference to Section 2(b) of GSD Rule 22A in the third sentence of Section (a) of GSD Rule 22B to specifically refer to Section 2(b)(i) of GSD Rule 22A. Section (a) of GSD Rule 22B provides, in relevant part, that “the Board shall determine a single net amount owed by or to each Member . . . by applying the close out . . . procedures of Section 2(a) and (b) of [GSD] Rule 22A . . . .”
FICC is also proposing to delete the “, to the extent applicable,” and “and application” language from the third sentence of Section (a) of GSD Rule 22B. FICC is proposing to delete the “, to the extent applicable,” language because Section 2(b)(i) of GSD Rule 22A would always be applicable for purposes of the Board determining a single net amount owed by or to each Member under GSD Rule 22B after a Corporation Default has occurred. Likewise, FICC is proposing to streamline the wording of the third sentence of Section (a) of GSD Rule 22B by deleting the “and application” language because it is extraneous wording that is unnecessary and not relevant in the context of Section 2(b)(i) of GSD Rule 22A.
Lastly, FICC is proposing a change to the third sentence of Section (a) of GSD Rule 22B to make it clear that, although GSD Rule 22B would apply to Sponsored Members pursuant to this proposal, the loss allocation provisions of GSD Rule 4 (Clearing Fund and Loss Allocation) referenced in GSD Rule 22B would not apply to Sponsored Members. Specifically, FICC is proposing a clarifying change in that sentence to add “, to the extent such provisions are otherwise applicable to such Member” following the reference in that sentence to the loss allocation provisions in GSD Rule 4. This proposed change is consistent with Section 12(a) of GSD Rule 3A, which provides that Sponsored Members are not obligated for allocations, pursuant to GSD Rule 4, of loss or liability incurred by FICC.
FICC believes this proposal is consistent with the requirements of the Act, and the rules and regulations thereunder applicable to a registered clearing agency. Specifically, FICC believes this proposal is consistent with Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) of the Act requires, in part, that the GSD Rules be designed to “promote the prompt and accurate clearance and settlement of securities transactions.”
Rule 17Ad-22(e)(23)(i) under the Act requires FICC to establish, implement, maintain and enforce written policies and procedures reasonably designed to publicly disclose all relevant rules and material procedures.
FICC believes that the proposed rule change to apply GSD Rule 22B to Sponsored Members could have an impact on competition. This is because the proposed change to apply GSD Rule 22B to Sponsored Members would (i) provide for the immediate termination upon a Corporation Default of all Transactions to which a Sponsored Member is a party and which have been subject to Novation pursuant to GSD Rules but have not yet settled and (ii) require a Sponsored Member to provide FICC with a 7-day period under the circumstances described in Section (b)(i) of GSD Rule 22B before such termination can occur. FICC believes this proposed rule change could both promote competition and burden competition. The proposed rule change to apply GSD Rule 22B to Sponsored Members could promote competition by ensuring that GSD Members are subject to a common, transparent legal framework in a Corporation Default. Applying the close out netting process and the 7-day period requirement to Sponsored Members in the same manner as they apply to all other GSD Members would help ensure that, in the unlikely event that FICC becomes insolvent or defaults in its obligations to GSD Members, all GSD Members follow the same procedures in closing out their positions and netting them against FICC's obligations to the GSD Members. Requiring that all GSD Members follow the same procedures in closing out their positions in a Corporation Default would help promote competition because all GSD Members would be treated alike during a stressed market condition. Conversely, the propose rule change to apply GSD Rule 22B to Sponsored Members could burden competition by subjecting the Sponsored Members to the close out netting process and the 7-day period requirement. However, FICC believes any burden on competition that is created by this proposed rule change would be necessary and appropriate in furtherance of the purposes of the Act, as permitted by Section 17A(b)(3)(I) of the Act.
FICC believes any burden on competition that is created by the proposed rule change to apply GSD Rule 22B to Sponsored Members would be necessary in furtherance of the purposes of the Act
FICC also believes any burden on competition that is created by the proposed rule change to apply GSD Rule 22B to Sponsored Members would be appropriate in furtherance of the purposes of the Act.
FICC does not believe that the proposed rule changes to (i) amend the third sentence of Section (a) of GSD Rule 22B by (A) deleting the unnecessary and potentially confusing reference to Section 2(a) of GSD Rule 22A and (B) modifying the reference to Section 2(b) of GSD Rule 22A to specifically refer to Section 2(b)(i) of GSD Rule 22A, and (ii) make clarifying and/or technical changes in GSD Rule 3A and GSD Rule 22B, would have an impact on competition.
FICC reviewed the proposed rule change with its Sponsoring Members in order to benefit from their expertise on the Sponsored Members. Written comments relating to this proposed rule change have not been received from the Sponsoring Members or any other person. FICC will notify the Commission of any written comments received by FICC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to permit the listing and trading of options that overlie the Mini-SPX Index (“XSP options”), the Russell 2000 Index (“RUT options”), and the Dow Jones Industrial Average (“DJX options”).
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 proposed rule change amends the Exchange's index rules to permit the listing and trading of XSP options, RUT options, and DJX options. XSP options are options on the Mini SPX Index, the current value of which is 1/10th the value of the Standard & Poor's 500 Stock Index reported by the reporting authority.
(1) The index is broad-based index, as defined in Rule 29.2(j) (an index designed to be representative of a stock market as a whole or of a range of companies in unrelated industries);
(2) The options are designated as A.M.-settled;
(3) The index is capitalization-weighted, modified capitalization-weighted, price-weighted or equal dollar-weighted;
(4) The index consists of 50 or more component securities;
(5) Component securities that account for at least 95% of the weight of the index have a market capitalization of at least $75 million, except that component securities that account for at least 65% of the weight of the index have a market capitalization of at least $100 million;
(6) Component securities that account for at least 80% of the weight of the index satisfy the requirements of Rule 19.3 applicable to individual underlying securities;
(7) Each component security that accounts for at least 1% of the weight of the index has an average daily trading volume of at least 90,000 shares during the last six-month period;
(8) No single component security accounts for more than 10% of the weight of the index, and the five highest-weighted component securities in the index do not, in the aggregate, account for more than 33% of the weight of the index;
(9) Each component security must be an “NMS stock” as defined in Rule 600 of Regulation NMS under the Securities Exchange Act of 1934 (the “Exchange Act”);
(10) Non-U.S. component securities (stocks or ADRs) that are not subject to comprehensive surveillance agreements do not, in the aggregate, represent more than 20% of the weight of the index;
(11) The current underlying index value is widely disseminated at least once every 15 seconds by OPRA, CTA/CQ, NIDS, or one or more major market data vendors during the time the index options are traded on the Exchange;
(12) The Exchange reasonably believes it has adequate system capacity to support the trading of options on the index, based on a calculation of the Exchange's current ISCA allocation and the number of new messages per second expected to be generated by options on such index;
(13) An equal dollar-weighted index is rebalanced at least once every calendar quarter;
(14) If an index is maintained by a broker-dealer, the index is calculated by a third party who is not a broker-dealer, and the broker-dealer has erected an information barrier around its personnel who have access to information concerning changes in, and adjustments to, the index; and
(15) The Exchange has written surveillance procedures in place with respect to surveillance of trading of options on the index.
XSP, RUT, and DJX options will be subject to the maintenance listing standards set forth in Rule 29.3(c):
(1) The conditions stated in (1) through (3) and (9) through (15) above must continue to be satisfied, provided that the requirements in (5) through (8) must be satisfied only as of the first day of January and July in each year; and
(2) The total number of component securities in the index may not increase or decrease by more than 10% from the number of component securities in the index at the time of its initial listing.
S&P Dow Jones Indices is the reporting authority for the Mini-SPX Index and the Dow Jones Industrial Average, and Frank Russell Company is the reporting authority for the Russell 2000 Index. The proposed rule change adds these indexes and reporting authorities to Rule 29.2, Interpretation and Policy .01. The proposed rule change also lists the reporting authorities in Rule 29.13(b), which is the disclaimer for reporting authorities. Rule 29.13(b) would apply to these reporting authorities even if not specifically listed; however, the proposed rule change adds the names of the reporting authority to the rule for transparency and clarification.
Rule 29.11(a) states bids and offers are expressed in terms of dollars and cents per unit of the index. The minimum increment applicable to index options is set forth in Rule 21.5. The proposed rule change adds Interpretation and Policy .02 to Rule 21.5, which states for so long as SPDR options (SPY) and Diamonds options (DIA) participate in the Penny Pilot Program pursuant to Interpretation and Policy .01, the minimum increments for XSP options and DJX options, respectively, will be the same as SPY and DIA, respectively for all option series (including long-term option series). Such minimum increment would be $0.01 for all SPY series, regardless of price, and $0.01 for DJX series trading at less than $3.00 and $0.05 for DJX series trading at $3.00 or higher, respectively, as set forth in Rule 21.5(a).
SPY options are options on the SPDR S&P 500 exchange-traded fund (ETF), which is an ETF that tracks the performance of 1/10th the value of the S&P 500 Index. DIA options are options on the SPDR Dow Jones Industrial Average ETF, which is an ETF that tracks the performance of the Dow Jones Industrial Average. SPY and DIA options currently participate in the Penny Pilot Program. XSP options are also based on the S&P 500 Index, and DJX options are also based on the Dow Jones Industrial Average, as discussed above. The Exchange believes it is important that these products have the same minimum increments for consistency and competitive reasons. The proposed rule change is also the same as another options exchange.
The minimum increment for RUT will be as set forth in current Rule 21.5: Five cents if the series is trading below $3.00, and ten cents if the series is trading at or above $3.00.
RUT, XSP, and DJX options will be A.M., cash-settled contracts with European-style exercise. A.M.-settlement is consistent with the generic listing criteria for broad-based indexes,
Rule 29.11(b)(1) currently states the Exchange may list long-term index options series that expire from 12 to 60 months from the date of issuance. The proposed rule change permits listing of long-term index options series that expire from 12 to 180 months from the date of issuance. The Exchange understands that market participants may enter into over-the-counter (“OTC”) positions with longer-dated expirations than currently available on the Exchange. The proposed rule change will permit the Exchange to list long-term index options contracts with longer-dated expirations. The Exchange believes expanding the eligible term for long-term index options contracts to 180 months is important and necessary to the Exchange's efforts to offer products in an exchange-traded environment that compete with OTC products. The Exchange believes long-term index options contracts provide market
The Exchange has confirmed with the OCC that OCC can configure its systems to support long-term equity options contracts that have a maximum term of 180 months (15 years). The proposed rule change is also consistent with the rules of other options exchanges.
Rule 29.11(b)(2) provides that reduced-value long-term option series may be approved for trading on specified indices.
Rule 29.11(b)(1)(A) also states strike price intervals, bid/ask differential, and continuity rules do not apply to long-term index options series until the time to expiration is less than twelve months. Rule 29.11(c) describes the strike price intervals applicable to long-term index options. Additionally, Rule 22.6(d) describes continuous quoting requirements for Market Makers.
The proposed rule change amends Rule 29.11(c)(1) to provide that the interval between strike prices will be no less than $2.50 for RUT options (if the strike price is less than $200) and reduced-value long-term option series. This is the same strike interval that applies to RUT options and reduced-value long-term option series pursuant to rules of other options exchanges.
Additionally, the proposed rule change adds Rule 29.11(c)(5), which provides that the strike prices for new and additional series of XSP options are subject to the following:
(1) If the current value of the Mini-SPX Index is less than or equal to 20, the Exchange will not list XSP option series with a strike price of more than 100% above or below the current value of the Mini-SPX Index;
(2) if the current value of the Mini-SPX Index is greater than 20, the Exchange will not list XSP option series with a strike price of more than 50% above or below the current value of the Mini-SPX Index; and
(3) the lowest strike price interval that may be listed for standard XSP option series is $1, including the long-term option series, and the lowest strike price interval that may be listed for XSP option series under the Short Term Option Series Program in paragraph (h) of Rule 29.11.
The proposed strike prices for XSP options will permit strike prices closely aligned with SPX options.
Current Rule 29.11(c)(1) provides that strike prices are permitted only in intervals of at least $5. SPX options may be listed in intervals of at least $5.
Additionally, current Rule 29.11(c)(3) requires the exercise price of each series of index options to be reasonably related to the current index value of the underlying index to which the series relates at or about the time the series of options is first opened for trading on the Exchange. Pursuant to Rule 29.11(c)(4), the term “reasonably related to the current index value of the underlying index” means the exercise price must be within 30% of the current index value. The Exchange may also open for trading additional series of index options that are more than 30% away from the current index value, provided that demonstrated customer interest exists for the series. The Options Listing Procedures Plan sets forth exercise price range limitations for equity and ETF options (which are the same as those
The Exchange believes these permitted strike prices will permit the Exchange to list XSP options with strikes that more closely reflect the current values of the S&P 500 Index, as they provide more flexibility and allow the Exchange to better respond to customer demand for XSP option strike prices that relate to current S&P 500 Index values. In addition, the Exchange believes that because the number of strikes that may be listed would be contained by the percentages above and below the current XSP Index value, there is no need to restrict the use of $1 strike price intervals based on the amount of the strike price.
The Exchange recognizes the proposed approach does not achieve full harmonization between strikes in XSP options and SPX options. For example, if there is a 2715 strike in SPX options, the Exchange is not seeking the ability to list a 271.5 strike in XSP options. The Exchange believes being able to list the 271 and 272 strikes in XSP options would provide the marketplace with a sufficient number of strike prices over a range of XSP values.
The S&P 500 Index is widely used to gauge large cap U.S. equities, and as a result, investors often use S&P 500 Index-related products to diversify their portfolios and benefit from market trends. Full-size SPX options offer these benefits to investors, but may be expensive given its large notional value. Those options are primarily used by institutional market participants. By contrast, XSP options offer individual investors a lower cost options to obtain the potential benefits of options on the S&P 500 Index.
Proposed Rule 29.11(c)(6) provides the interval between strike prices may be no less than $0.50 for options based on 1/100th of the value of the Dow Jones Industrial Average, including for series listed under the Short Term Options Program.
The proposed rule change adds paragraph (c) to Rule 21.7 to describe the opening process for index options. Current Rule 21.7(b) states the System will open index options for trading at 9:30 a.m. Eastern time. Pursuant to the current opening process, following 9:30 a.m., the System will determine a price at which a particular series will be opened (the “Opening Price”) within 30 seconds of that time. Where there are no contracts in a particular series that would execute at any price, the System will open such options for trading without determining an Opening Price. The Opening Price of a series must be a Valid Price, as determined by current subparagraph (a)(2), and will be:
• The midpoint of the NBBO (the “NBBO Midpoint”);
• Where there is no NBBO Midpoint at a Valid Price, the last regular way print disseminated pursuant to the OPRA Plan after 9:30 a.m. Eastern Time (the “Print”);
• Where there is both no NBBO Midpoint and no Print at a Valid Price, the last regular way transaction from the previous trading day as disseminated pursuant to the OPRA Plan (the “Previous Close”); or
• Where there is no NBBO Midpoint, no Print, and no Previous Close at a Valid Price, the Order Entry Period may be extended by 30 seconds or less or the series may be opened for trading at the discretion of the Exchange.
A NBBO Midpoint, a Print, and a Previous Close will be at a Valid Price:
• Where there is no NBB and no NBO;
• Where there is either a NBB and no NBO or a NBO and no NBB and the price is equal to or greater than the NBB or equal to or less than the NBO; or
• Where there is both a NBB and NBO, the price is equal to or within the NBBO, and the price is less than a specified minimum amount away from the NBB or NBO for the series.
Under this Opening Process, if a series has not opened yet on another exchange on a trading (and thus there is no NBBO and no Last Print), if there is a Previous Close Price, it will be a valid price and will be the Opening Price. Additionally, if there are no crossed contracts in a series, the series opens immediately following the time period referenced above.
The Exchange proposes to modify this process with respect to index options. Pursuant to the proposed rule change, for index options, the System will determine the Opening Price within 30 seconds of an away options exchange(s) disseminating a quote in a series. Following an away options exchange's dissemination of a quote in a series, if there are no contracts in a series that would execute at any price, the System opens the series for trading without determining an Opening Price. The Opening Price, if valid, of a series will be the NBBO Midpoint. Pursuant to
Currently, RUT options trade on Cboe Options and C2 Exchange, Inc. (“C2”), and XSP options trade on Cboe Options, which are affiliated exchanges of the Exchange. Under current Rule 21.7, if a RUT series was open on Cboe Options, and if there are crossed orders on the Exchange, the RUT series on the Exchange would open with an Opening Price equal to the NBBO Midpoint (if valid). If a RUT series was not yet open on another Exchange after 9:30 a.m. (eastern), and there was a Previous Close for the series, the series would open on the Exchange with the Previous Close as the Opening Price. If there are no crossing orders on the Exchange, a RUT series would open without an opening price, possibly before the RUT series was open on Cboe Options.
RUT options on Cboe Options generally open within 30 seconds after 9:30 a.m., and thus the Exchange expects RUT options to open for trading within 30 seconds (as set forth in the rule) at an Opening Price equal to the NBBO Midpoint if there are orders that can be crossed. However, it will be possible for a RUT series to open prior to the opening of that series on Cboe Options. This is significant because, on certain dates, Cboe Options uses prices of RUT options trading on Cboe Options to determine settlement values for volatility index derivatives.
The proposed rule change is the same as the opening process for index options on C2.
Once the System determines an opening price for an index option, it will open a series with an opening trade in the same manner as it does for equity options. The proposed rule change moves the description of this process from current Rule 21.7(a)(3) to proposed Rule 21.7(d). The proposed rule change also adds to proposed paragraph (d) that the System cancels any OPG (also called at the open orders) (or unexecuted portions) that do not execute during the opening process. This is consistent with the behavior of orders with the OPG time-in-force instruction.
Current Rule 29.10(b) describes when the Exchange may halt trading in an index option. It permits the Exchange to halt trading in an index option when, in its
• Whether all trading has been halted or suspended in the market that is the primary market for a plurality of the underlying stocks;
• Whether the current calculation of the index derived from the current market prices of the stocks is not available;
• The extent to which the opening has been completed or other factors regarding the status of the opening; and
• Other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present, including, but not limited to, the activation of price limits on futures exchanges.
The proposed rule change amends the first factor to state the Exchange may consider the extent to which trading is not occurring in the stocks or options underlying the index. This provides the Exchange with additional flexibility to consider trading on all markets on which the underlying components trade when determining whether to halt trading in an index option. The Exchange believes flexibility is appropriate when determining whether to halt trading in an index option so it can make such a determination based on then-current circumstances to determine what will contribute to a fair and orderly market. For example, less than a “plurality” of underlying components may trade on one market, but if trading on that market is halted, the Exchange may determine halting trading in the index option is in the interests of a fair and orderly market because of the specific components that are not trading. This proposed change is consistent with the rules of another options exchange.
Rule 29.10 also states trading on the Exchange will be halted or suspended whenever trading in underlying securities whose weighted value represents more than 20%, in the case of a broad-based index, and 10% for all other indices, of the index value is halted or suspended. The proposed rule change deletes this provision. The first factor, as amended by this proposed rule change, permits the Exchange to determine to halt trading in an index option in this specific circumstance. This provision provides the Exchange with no flexibility to determine what is in the interests of a fair and orderly market. The rules of other exchanges do not have this provision.
Proposed Rule 29.11(j) permits the Exchange to list additional expiration months on option classes opened for trading on the Exchange if such expiration months are opened for trading on at least one other registered national securities exchange. As noted above, Rule 29.11(a)(3) permits the Exchange to list up to six expiration months at any one time for an index option class. Other options exchange have rules that permit them to list additional expiration months if they are opened for trading on at least one other options exchange.
The Exchange notes that the proposed rule change affords additional flexibility in that it will permit the exchange to list those additional expiration months that have an actual demand from market participants thereby potentially reducing the proliferation of classes and series. The Exchange believes the proposed rule change is proper, and indeed necessary, in light of the need to have rules that permit the listing of identical expiration months across exchanges for products that multiply-listed and fungible with one another. The Exchange believes that the proposed rule change should encourage competition and be beneficial to traders and market participants by providing them with a means to trade on the Exchange securities that are listed and traded on other exchanges.
The proposed rule change adds to Rule 20.6(g) and (h) language to clarify that, for purposes of determining whether a trade resulted from an erroneous print or quote in the underlying, the underlying may include index values (as well as Fund Shares and HOLDRs, which may also underlie options trading on the Exchange pursuant to Rule 19.3(g) and (i), respectively).
The proposed rule change adds Rule 29.15, which states contracts provided for in Chapter 29 of the Rules will not be subject to the restriction in Rule 18.12(b). Rule 18.12(b) states whenever the issue of a security underlying a call option traded on the Exchange is engaged or proposes to engage in a public underwritten distribution (“public distribution”) of such underlying security or securities exchangeable for or convertible into such underlying security, the underwriters may request that the exchange impose restrictions upon all opening writing transactions in such options at a discount where the resulting short position will be uncovered. The rule includes additional conditions that are necessary to impose these restrictions.
Rule 18.12(b) applies to equity options, and to restrictions the issuer of the security underlying the equity option may request. As there is no issuer of an “index,” and thus there is no possibility of a public distribution of an index, the Rule does not apply to index options. Rule 29.15 merely states this explicitly in the Rules. This will also ensure it is clear in the Rules that an issuer of a security that is a component of an index may not request restrictions on the index options, as the Exchange does not believe it would be appropriate for an issuer of a single underlying component to have the ability to restrict trading in the index option. The proposed rule change is consistent with the rules of at least one other options exchange.
The Exchange represents it has an adequate surveillance program in place for index options. The Exchange is a member of the Intermarket Surveillance Group (“ISG”), which is comprised of an international group of exchanges, market centers, and market regulators. The purpose of ISG is to provide a framework for the sharing of information and the coordination of regulatory efforts among exchanges trading securities and related products to address potential intermarket
The Exchange has analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of XSP, RUT, and DJX options up to the proposed number of possible expirations and strike prices. The Exchange believes any additional traffic that would be generated from the introduction of XSP, RUT, and DJX options will be manageable. The Exchange believes its Members will not have a capacity issue as a result of this proposed rule change. The Exchange also represents that it does not believe this expansion will cause fragmentation of liquidity. The Exchange will monitor the trading volume associated with the additional options series listed as a result of this proposed rule change and the effect (if any) of these additional series on market fragmentation and on the capacity of the Exchange's automated systems.
XSP, RUT, and DJX options will be subject to the margin requirements set forth in Chapter 28 and the position limits set forth in Rule 29.5. Chapter 28 imposes the margin requirements of either Cboe Options or the New York Stock Exchange on Exchange Options Members. Similarly, Rule 29.5 imposes position (and exercise) limits for broad-based index options of Cboe Options on Exchange Options Members. XSP, RUT, and DJX options are currently listed and traded on Cboe Options,
The Exchange Rules and Cboe Options rules regarding position and exercise limits and margin requirements are substantially the same as each other, as the Exchange rules currently refer to the corresponding Cboe Options rules. Therefore, Options Members must comply with these Cboe Options rules pursuant to the Exchange Rules. Pursuant to the proposed rule change, the Exchange will be trading index options also authorized for trading on Cboe Options, so the position and exercise limits and margin requirements currently applicable to these index options that trade on Cboe Options will apply to these index options that may be listed for trading on the Exchange. The proposed rule regarding the listing and trading of XSP, RUT, and DJX are substantially the same as Cboe Options rules regarding the listing and trading of XSP, RUT, and DJX, which rules were previously approved by the Commission and thus they are consistent with the Act. Additionally, the rules regarding position and exercise limits and margin requirements that will apply to XSP, RUT, and DJX options listed for trading on the Exchange were previously approved by the Commission, and thus they are consistent with the Act. The proposed rule change will also result in similar regulatory treatment for similar option products.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The index underlying each of XSP, RUT, and DJX options satisfies the initial listing criteria of a broad-based index in the Exchange's Rules. The proposed rule change adds these indexes to the table regarding reporting authorities for indexes, to the list of European-style exercise index options, and to the list of A.M.-settled index options. These changes are consistent with the Exchange's existing Rules.
The proposed rule change related to the minimum increment for XSP and DJX options will permit consistency between pricing of SPY options and XSP options, which are both based, in some manner, on the value of the S&P 500 Index, and between DIA options and DJX options, which are both based, in some manner, on the value of the Dow Jones Industrial Average. As a result, the Exchange believes it is important that these products have the same minimum increments for competitive reasons. The proposed rule change is also the same as another options exchange.
The proposed rule change to permit listing of long-term index options contracts with terms up to 180 months is designed to promote just and equitable principles of trade in that the availability of long-term index options contracts with longer dated expirations will give market participants an alternative to trading similar products in the OTC market. By trading a product in an exchange-traded environment (that is currently being used in the OTC market), the Exchange will be able to compete more effectively with the OTC market. The Exchange believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that it will hopefully lead to the migration of options currently trading in the OTC market to trading to the Exchange. Also, any migration to the Exchange from the OTC market will result in increased market transparency. Additionally, the Exchange believes the proposed rule change is designed to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest in that it should create greater trading and hedging opportunities and flexibility. The proposed rule change should also result in enhanced efficiency in initiating and closing out positions and heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of long-term index option series. Further, the proposed rule change will result in increased competition by permitting the Exchange to offer products that are currently used in the OTC market and on other exchanges. Additionally, the proposed rule change is consistent with
The proposed rule change to eliminate the rule provision regarding the applicability of strike price intervals, bid/ask differentials and quote continuity requirements to long-term index option contracts will protect investors by eliminating potential confusion that may result from inclusion of duplicative rules. As discussed above, other rules address requirements related to strike price intervals and quote continuity requirements and supersede the language regarding these topics, and the Exchange has no rules imposing bid/ask differential requirements (and thus no such requirements apply to long-term equity option contracts), thus rendering this language unnecessary. The Exchange will continue to impose these requirements in the manner it does today, consistent with the provisions in other existing rules, and thus this proposed rule change has no impact on how the Exchange imposes these requirements. The rules of other options exchanges do not include this provision.
The proposed minimum strike interval for RUT options (if the strike price is less than $200) and reduced-value long-term option series is the same as that on another options exchanges.
With respect to the proposed strike prices for XSP options, the proposed rule change would more closely align XSP option strike prices with those of SPX option strike prices, and would more closely align strike price range limitations on XSP options with those of equity and ETF options. This would provide more flexibility and allow the Exchange to better respond to customer demand for XSP option strike prices that relate to current S&P 500 Index values. The Exchange believes this proposed rule change would allow retail investors to better use XSP options to gain exposure to the SPX options market and hedge S&P 500 cash positions in the event that the S&P 500 Index value continues to increase. The Exchange does not believe the proposed rule change will create additional capacity issues. In addition, the Exchange believes that because the number of strikes that may be listed would be contained by the percentages above and below the current XSP Index value, the number of XSP strikes that may be listed will not be unbounded. The proposed XSP strike prices and restrictions are the same as those on another options exchange.
With respect to the proposed strike prices for DJX options, the proposed rule change would more closely align DJX option strike prices with 1/100th the value of the Dow Jones Industrial Average. This would provide more flexibility and allow the Exchange to better respond to customer demand for DJX option strike prices that relate to current Dow Jones Industrial Average values. The Exchange believes this proposed rule change would allow retail investors to better use DJX options to gain exposure to the market and hedge Dow Jones Industrial Average cash positions in the event that the Dow Jones Industrial Average value continues to increase. The Exchange does not believe the proposed rule change will create additional capacity issues. The proposed DJX strike prices are the same as those on another options exchange.
The proposed rule change that permits the Exchange to list additional expiration months if they are listed on another options exchange will permit the Exchange to accommodate requests made by its Trading Permit Holders and other market participants to list the additional expiration months and thus encourage competition without harming investors or the public interest.
The proposed rule change with respect to the opening process for index options eliminates the possibility of RUT options on the Exchange automatically opening for trading prior to those options being open on Cboe Options and thus interfering with the calculation of volatility index derivative settlement values, which promotes just and equitable principles of trade and perfects the mechanism of a free and open market and national market system. As discussed above, under certain circumstances, the proposed rule change is expected to have a de minimis impact on the opening of index option series on the Exchange because, to the extent the Exchange receives a quote from another Exchange within the time period following 9:30 a.m., and there are contracts that may trade, the Opening Process will essentially be the same, and a series will open with the NBBO Midpoint as an Opening Price (if valid). Additionally, the Exchange will continue to have the ability to use a contingent opening to open a series for trading if there is no valid Opening Price. Therefore, if an index option series is not yet open on another exchange, the Exchange will still have the ability to open the series for trading. As discussed above, the proposed rule change is the same as the opening process for index options on C2,
The proposed rule change to permit the Exchange to list additional expiration months on option classes opened for trading on the Exchange if such expiration months are opened for trading on at least one other registered national securities exchange is the same as rules of other options exchanges.
The proposed rule change regarding when the Exchange may halt trading in index options promotes just and equitable principles of trade and protects the public interest by providing the Exchange with additional flexibility when determine whether to halt trading in an index option, so it can make such a determination based on then-current circumstances to determine what it will contribute to a fair and orderly market. The proposed change is consistent with the rules of another options exchange.
The proposed rule change to clarify that, for purposes of determining whether a trade resulted from an erroneous print or quote in the underlying, the underlying may include index values (as well as Fund Shares and HOLDRs, which may also underlie options trading on the Exchange pursuant to Rule 19.3(g) and (i), respectively) further harmonizes the Exchange's rule related to the adjustment and nullification of erroneous options transactions with those of other options exchanges. The proposed rule change is based on the rules of another options exchange.
Proposed Rule 29.15 is merely stating explicitly in the Rules that Rule 18.12(b)
The Exchange Rules and Cboe Options rules regarding position and exercise limits and margin requirements are substantially the same as each other, as the Exchange rules currently refer to the corresponding Cboe Options rules. Therefore, Options Members must comply with these Cboe Options rules pursuant to the Exchange Rules. Pursuant to the proposed rule change the Exchange will be trading index options also authorized for trading on Cboe Options, the Cboe Options position and exercise limits and margin requirements applicable to these index options will apply to these index options that may be listed for trading on the Exchange. Additionally, the previously approved Cboe Options rules regarding listing of XSP, RUT, and DJX index options on the Exchange pursuant to this proposed rule change are subject to these also previously approved Cboe Options rules regarding position and exercise limits and margin requirements, and thus they are consistent with the Act. The proposed rule change will also result in similar regulatory treatment for similar option products.
The Exchange represents it has an adequate surveillance program in place for index options. The Exchange is a member of the Intermarket Surveillance Group (“ISG”), which is comprised of an international group of exchanges, market centers, and market regulators. The purpose of ISG is to provide a framework for the sharing of information and the coordination of regulatory efforts among exchanges trading securities and related products to address potential intermarket manipulations and trading abuses. ISG plays a crucial role in information sharing among markets that trade securities, options on securities, security futures products, and futures and options on broad-based security indexes. A list of identifying current ISG members is available at
The Exchange has analyzed its capacity and represents that it believes the Exchange and OPRA have the necessary systems capacity to handle the additional traffic associated with the listing of XSP, RUT, and DJX options up to the proposed number of possible expirations and strike prices. The Exchange believes any additional traffic that would be generated from the introduction of XSP, RUT, and DJX options will be manageable. The Exchange believes its Members will not have a capacity issue as a result of this proposed rule change. The Exchange also represents that it does not believe this expansion will cause fragmentation of liquidity. The Exchange will monitor the trading volume associated with the additional options series listed as a result of this proposed rule change and the effect (if any) of these additional series on market fragmentation and on the capacity of the Exchange's automated systems.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The index underlying each of XSP, RUT, and DJX options satisfies the initial listing criteria of a broad-based index in the Exchange's Rules. The proposed rule change adds these indexes to the table regarding reporting authorities for indexes, to the list of European-style exercise index options, and to the list of A.M.-settled index options. These changes are consistent with the Exchange's existing Rules,
The proposed rule change related to the minimum increment for XSP and DJX options will permit consistency between pricing of SPY options and XSP options, which are both based, in some manner, on the value of the S&P 500 Index, and between pricing of DIA options and DJX options, which are both based, in some manner, on the value of the Dow Jones Industrial Average. As a result, the Exchange believes it is important that these products have the same minimum increments for competitive reasons. The proposed rule change is also the same as another options exchange.
The proposed rule change to permit listing of long-term index options contracts with terms up to 180 months will give market participants an alternative to trading similar products in the OTC market. By trading a product in an exchange-traded environment (that is currently being used in the OTC market), the Exchange will be able to compete more effectively with the OTC market. Additionally, the Exchange believes that the proposed rule change will create greater trading and hedging opportunities and flexibility. The proposed rule change should also result in enhanced efficiency in initiating and closing out positions and heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of long-term index options contracts. Further, the proposal will result in increased competition by permitting the Exchange to offer products that are currently used in the OTC market. Additionally, the proposed rule change is consistent with the series listing rules of other exchanges.
The proposed rule change to eliminate the rule provision regarding the applicability of strike price intervals, bid/ask differentials and quote continuity requirements to long-term index option contracts will have no impact on Members, as this merely eliminates potential confusion that may result from inclusion of duplicative rules that have been superseded by other rules. The Exchange will continue to impose these requirements in the manner it does today, consistent with the provisions in other existing rules, and thus this proposed rule change has no impact on how the Exchange imposes these requirements. The rules of other options exchanges do not include this provision.
The proposed minimum strike interval for RUT options (if the strike price is less than $200) and reduced-value long-term option series is the same as that on another options exchanges.
The proposed strike prices for XSP options will be available to all market participants that choose to trade XSP options on the Exchange. Additionally, the proposed XSP strike prices and restrictions are the same as those on another options exchange.
With respect to the proposed rule change related to the opening process, the amended opening process will apply in the same manner to all market participants that participate in the Exchange's Opening Process for index
The proposed rule change regarding when the Exchange may halt trading in index options will apply to all market participants in the same manner to the extent the Exchange halts trading pursuant to the proposed rule. The rule provides the Exchange with additional flexibility when determine whether to halt trading in an index option, so it can make such a determination based on then-current circumstances to determine what it will contribute to a fair and orderly market. The proposed change is consistent with the rules of another options exchange.
The proposed rule change to permit the Exchange to list additional expiration months on option classes opened for trading on the Exchange if such expiration months are opened for trading on at least one other registered national securities exchange is the same as rules of other options exchanges.
The proposed rule change to clarify that, for purposes of determining whether a trade resulted from an erroneous print or quote in the underlying, the underlying may include index values (as well as Fund Shares and HOLDRs, which may also underlie options trading on the Exchange pursuant to Rule 19.3(g) and (i), respectively) further harmonizes the Exchange's rule related to the adjustment and nullification of erroneous options transactions with those of other options exchanges. The proposed rule change is based on the rules of another options exchange.
Proposed Rule 29.15 is merely stating explicitly in the Rules that Rule 18.12(b) does not apply to index options, which is consistent with the current rule. The proposed rule change is based on the rules of another options exchange.
The Exchange Rules and Cboe Options rules regarding position and exercise limits and margin requirements are substantially the same as each other, as the Exchange rules currently refer to the corresponding Cboe Options rules. Therefore, Options Members must comply with these Cboe Options rules pursuant to the Exchange Rules. Pursuant to the proposed rule change, the Exchange will be trading index options also authorized for trading on Cboe Options, so the position and exercise limits and margin requirements currently applicable to these index options that trade on Cboe Options will apply to these index options that may be listed for trading on the Exchange. The proposed rule regarding the listing and trading of XSP, RUT, and DJX are substantially the same as Cboe Options rules regarding the listing and trading of XSP, RUT, and DJX, which rules were previously approved by the Commission and thus they are consistent with the Act. Additionally, the rules regarding position and exercise limits and margin requirements that will apply to XSP, RUT, and DJX options listed for trading on the Exchange were previously approved by the Commission, and thus they are consistent with the Act. The proposed rule change will also result in similar regulatory treatment for similar option products.
The Exchange believes that the proposed rule change will relieve any burden on, or otherwise promote, competition, as the rules are substantially the same as those of other options exchanges, as noted above.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
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.
In notice document 2018-16782, appearing on page 38450, in the issue of Monday, August 6, 2018, make the following correction:
On page 38450, in the second column, in the first paragraph, on the fourth line, the text-entry for the “State Department Basic Authorities Act” is corrected to read “State Department Basic Authorities Act (22 U.S.C. 2651a) and 10 U.S.C. 401”.
Susquehanna River Basin Commission.
Notice; correction.
The Susquehanna River Basin Commission published a document in the
Gwyn Rowland, Manager, Governmental & Public Affairs, 717-238-0423, ext. 1316.
In the
The business meeting will include actions or presentations on the following items: (1) Informational presentation of interest to the upper Susquehanna River region; (2) release of proposed rulemaking and policies for public comment; (3) revisions to financial instruments and policies; (4) ratification/approval of contracts/grants; (5) a report on delegated settlements; (6) a proposed consumptive use mitigation project located in Conoy Township, Lancaster County, PA; (7) Regulatory Program projects; and (8) Lycoming County Water and Sewer Authority request for a waiver of 18 CFR 806.31(b).
Regulatory Program projects and the consumptive use mitigation project listed for Commission action are those that were the subject of a public hearing conducted by the Commission on August 2, 2018, and identified in the notice for such hearing, which was published in 83 FR 31439, July 5, 2018.
The public is invited to attend the Commission's business meeting. Comments on the Regulatory Program projects and the consumptive use mitigation project were subject to a deadline of August 13, 2018. Written comments pertaining to other items on the agenda at the business meeting may be mailed to the Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, Pennsylvania 17110-1788, or submitted electronically through
Public Law 91-575, 84 Stat. 1509
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; request for comments.
On June 27, 2017, the National Academy of Sciences (NAS) published its report titled, “Improving Motor Carrier Safety Measurement.” This report was commissioned by FMCSA consistent with the requirements of Section 5221 of the Fixing America's Surface Transportation (FAST) Act. The FAST Act also requires that the Agency develop a corrective action plan to address any identified deficiencies and submit it to Congress and the U.S. Department of Transportation's (DOT) Office of Inspector General (OIG); this was completed on June 25, 2018. The purpose of this notice is to announce a public meeting to discuss NAS recommendations 2, 3 and 4 and to solicit input to be considered by the Agency.
The public meeting will take place on Wednesday, August 29, 2018, from 9:00 a.m. to 12:00 p.m., Eastern Time. A copy of the agenda for the meeting will be available in advance of the meeting at
The meeting will be held at the FMCSA National Training Center, 1310 N Courthouse Road, Suite 600, Arlington, VA 22201-2508. Those interested in attending this public meeting must register at:
For information about the public meeting or for information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Ms. Barbara Baker, Compliance Division, at (202) 366-3397 or by email at
If you have questions regarding viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.
Section 5221 of the FAST Act, titled “Correlation Study,” required FMCSA to commission the National Research Council of the National Academies to conduct a study of FMCSA's Compliance, Safety, Accountability (CSA) program and Safety Measurement System (SMS). SMS is FMCSA's algorithm for identifying patterns of non-compliance and prioritizing motor carriers for interventions. FMCSA is prohibited from publishing SMS percentiles and alerts on the SMS website for motor carriers transporting property until the NAS Correlation
On June 27, 2017, NAS published the report titled, “Improving Motor Carrier Safety Measurement.” The report is available at
Pursuant to the FAST Act, FMCSA submitted the results of this study to both Congress and the DOT OIG on August 7, 2017. The FAST Act also requires FMCSA to submit an action plan to the Senate Committee on Commerce, Science, and Transportation; and the House of Representatives Transportation and Infrastructure Committee.
To solicit input during the development of the corrective action plan, FMCSA hosted a public meeting on September 8, 2017. Information from the public meeting was incorporated into the action plan. The corrective action plan was transmitted on June 25, 2018. The OIG is required to review the action plan and submit a report to Congress on the responsiveness of the FMCSA's plan to the NAS report's recommendations.
FMCSA's corrective action plan includes solicitation of input from the public for recommendations 2, 3 and 4. As a result, FMCSA is soliciting responses to the following questions at the public meeting and through the docket referenced above.
FMCSA should continue to collaborate with States and other agencies to improve the quality of the Motor Carrier Management Information System (MCMIS) data in SMS. Two specific data elements require immediate attention: Carrier exposure and crash data. The current exposure data (
1. What should FMCSA do to improve the collection of PU, VMT, and driver count data? For example, should FMCSA use edit checks to verify the accuracy of the data?
2. VMT, PU, and number of inspections are the current measures of exposure used in SMS. Are there other ways FMCSA should consider measuring carrier exposure with data that is already available to FMCSA?
3. What are the current challenges that motor carriers face in reporting VMT data?
4. What information is available from the States to improve exposure data?
5. What additional data should FMCSA consider collecting from carriers? Why?
6. What external sources of exposure and crash data should FMCSA explore?
7. In addition to the data currently collected by FMCSA, what other exposure data would motor carriers be willing to share?
i. More frequent updates to mileage and PU data
ii. Number/type of trips
iii. Mileage breakdown by State
iv. Other options?
8. What incentives would encourage motor carriers to share additional information?
FMCSA should investigate ways of collecting data that will likely benefit the recommended methodology for safety assessment. This includes data on carrier characteristics—such as information on driver turnover rate, type of cargo, method and level of compensation, and better information on exposure.
1. What additional data should FMCSA consider collecting to support the recommended methodology for safety assessment (
a. Would this data be useful for safety assessments?
b. What are the challenges to collecting or using the data recommended by NAS?
2. What pay-related and/or driver-turnover-related data would carriers be willing to share?
FMCSA should structure a user-friendly version of the MCMIS data file used as input to SMS without any personally identifiable information to facilitate its use by external parties, such as researchers, and carriers.
FMCSA is planning to develop a web page to make simplified MCMIS data snapshots available to researchers, motor carriers, safety consultants, and the public
1. What features should this web page include?
2. If the information collected in recommendation 3 above is used within the IRT model, should it be made available publicly to allow a full replication of the results?
3. What features should a user-friendly MCMIS data file include?
4. Would industry stakeholders find a user-friendly MCMIS data file useful? Why?
5. How often should this user-friendly MCMIS data file be updated (
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 concerning notice concerning fiduciary relationship and notice concerning fiduciary relationship of financial institution.
Written comments should be received on or before October 22, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
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.
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 proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning the burden associated with Treasury Decision 9308, Reporting Requirements for Widely Held Fixed Investment Trusts. Previously Treasury Decision 9279.
Written comments should be received on or before October 22, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information or copies of the collection tools should be directed to Alissa Berry, at (901) 707-4988, at Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
Currently, the IRS is seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
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.
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 proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Notice 2007-70, Charitable Contributions of Certain Motor Vehicles, Boats and Airplanes. Reporting requirements under Sec. 170(f)(12)(D).
Written comments should be received on or before October 22, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information or copies of the collection tools should be directed to Alissa Berry, at (901) 707-4988, at Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
Currently, the IRS is seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
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.
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 concerning notice of plan merger or consolidation, spinoff, or transfer of plan assets or liabilities; notice of qualified separate lines of business.
Written comments should be received on or before October 22, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
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
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before September 20, 2018 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Jennifer Leonard by emailing
44 U.S.C. 3501
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before September 20, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Department Clearance Officer—OI&T (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
By direction of the Secretary.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for
This rule is effective on September 20, 2018.
This final rule, the final economic analysis, and some supporting documentation used in preparing this final rule are available on the internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Mary Abrams, Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.
Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the plants
We listed
We accepted public comments on our October 17, 2012, proposed rule to designate critical habitat for
The table below (Table 1) provides the scientific name, common name, listing status, and critical habitat status for the plant species that are the subjects of this final rule.
We designated critical habitat for
Under section 4(a)(3)(A) of the Act (16 U.S.C. 1531
On February 11, 2016, we published a final rule in the
In this final rule, we designate critical habitat for three species in five multiple-species critical habitat units. Although critical habitat is identified for
Each of the areas designated represents critical habitat for more than one species, based upon shared habitat requirements (
Please refer to the proposed rule (77 FR 63928; October 17, 2012) or our supporting document “Supplemental Information for the Designation and Non-designation of Critical Habitat for
In order to avoid confusion regarding the number of locations of each species (a location does not necessarily represent a viable population), we use the word “occurrence” instead of “population.” Each occurrence is composed only of wild (
Due to the small population sizes, few numbers of individuals, and reduced geographic range of
The conservation of
We are designating a total of 11,640 ac (4,711 ha) of critical habitat for
Our final designation of critical habitat reflects the following changes from the proposed rule:
(1) We updated the ownership of two parcels in Hawaii—Lowland Dry—Unit 35, TMK (3) 7-4-020:005 (21.7 ac (8.8 ha)) and TMK (3) 7-4-030:006 (24.8 ac (9.6 ha)) totaling 46.5 ac (18.4 ha), which we had indicated were under State of Hawaii ownership in the proposed rule to ownership by the Department of Hawaiian Home Lands (DHHL) in this final rule.
(2) In response to comments, we provided additional detail from the Service's existing recovery plans for
(3) In response to comments, we clarified that utility facilities and infrastructure, and their designated, maintained rights-of-way, are existing manmade features and structures that are not included in the critical habitat designation.
(4) Based on public comments and information received regarding
(5) For the areas that meet the definition of critical habitat, we carefully considered the benefits of inclusion and the benefits of exclusion in proposed critical habitat under section 4(b)(2) of the Act, particularly in areas where conservation agreements and management plans specific to
Due to these changes in our final critical habitat designation, we updated unit descriptions and critical habitat maps, all of which can be found later in this document. This final designation of critical habitat represents a reduction of 7,126 ac (2,886 ha) from our proposed critical habitat for
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the primary biological or physical constituent elements (PCEs such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions related to listed plants. Federally funded or permitted projects affecting listed species outside
On February 11, 2016, we published a final rule in the
The lack of detailed scientific data on the life histories of
For two of the three plant species, the recovery needs, outlined in the approved recovery plans, include: (1) Stabilization of existing wild populations; (2) protection and management of habitat; (3) enhancement of existing small populations and reestablishment of new populations within historical range; and (4) research on species biology and ecology (Recovery Plan for
The overall recovery goal stated in the recovery plans for
• For interim stabilization, 3 populations reproducing and increasing in numbers, with at least 50 mature individuals;
• For downlisting (that is, reclassifying from an endangered species to a threatened species), 5 to 7 populations documented where they now occur or occurred historically, that are naturally reproducing, stable, or increasing in number, with a minimum of 300 mature individuals per population; and
• For delisting (that is, removing from the List of Endangered and Threatened Plants), 8 to 10 populations, that are each naturally reproducing, stable, or increasing in number, and secure from threats, with a minimum of 300 mature individuals per population and persisting at this level for a minimum of 5 consecutive years. There is no previously designated critical habitat for this subspecies.
• For interim stabilization, 3 populations reproducing and increasing in numbers, with at least 50 mature individuals;
• For downlisting, 5 to 7 populations documented on islands where they now occur or occurred historically, that are naturally reproducing, stable, or increasing in number, with a minimum of 300 mature individuals per population; and
• For delisting, 8 to 10 populations, that are each naturally reproducing,
• For downlisting, a minimum of 100 mature individuals in each of three populations in the North Kona region on Hawaii Island, and 100 mature individuals in each of three populations on each of Kauai, Oahu, Lanai, and Maui; and
• For delisting, a total of 8 to 10 populations, that are each naturally reproducing, stable, or increasing in number, and secure from threats, with a minimum of 100 mature individuals per population and persisting at this level for a minimum of 5 consecutive years (USFWS 1996, p. 118).
The recovery objectives listed above are intended to reduce the adverse effects of genetic inbreeding and random environmental events and catastrophes, such as landslides, floods, and hurricanes, which could destroy a large percentage of a species at any one time (Kramer
In conclusion, the conservation of
As required by section 4(b) of the Act, we used the best scientific data available in determining those areas that contain the physical or biological features essential to the conservation of
• The known locations of the three species, including site-specific species information from the Hawaii Biodiversity Mapping Program (HBMP) database (HBMP 2010a; HBMP 2010b; HBMP 2010c), the The Nature Conservancy database (TNC 2007-
• Species information from the plant database housed at National Tropical Botanical Garden (NTBG);
• Maps of habitat essential to the recovery of Hawaiian plants, as determined by the Hawaii and Pacific Plant Recovery Coordinating Committee (HPPRCC 1998, 32 pp. + appendices);
• Maps of important habitat for the recovery of plants protected under the Act (USFWS 1999, pp. F12);
• The Nature Conservancy's Ecoregional Assessment of the Hawaiian High Islands (2006) and ecosystem maps (TNC 2007-
• Color mosaic 1:19,000 scale digital aerial photographs for the Hawaiian Islands (March 2006 to January 2009);
• Island-wide Geographic Information System (GIS) coverage (
• 1:24,000 scale digital raster graphics of U.S. Geological Survey (USGS) topographic quadrangles;
• Geospatial data sets associated with parcel data from Hawaii County (2008);
• Species Distribution Models (USFWS 2013, unpublished);
• Recent biological surveys and reports; and
• Discussions with qualified individuals familiar with these species and ecosystems.
Based upon all of this data, we determined the areas that were occupied by these species at the time of listing, and whether they contain the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. In light of the recovery needs of the species, we also examined areas that were not occupied at the time of listing by one or more of the three species, to identify areas essential for the conservation of the species (TNC 2006b, pp. 1-2).
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
For plant species, ecosystems that provide appropriate dryland habitats, host species, pollinators, soil types, and associated plant communities are taken into consideration when determining the physical or biological features essential for a species.
We derived the specific physical or biological features essential for
Based on the recovery needs of these species discussed above, it is essential to conserve suitable habitat in both occupied and unoccupied areas, which will in turn allow for the establishment of additional populations through natural recruitment or managed reintroductions. Establishment of these additional populations will increase the likelihood that the species will survive and recover in the face of normal and stochastic events (
In this final rule, the physical or biological features are described based on the features of the ecosystem on which
When designating critical habitat in occupied areas, we focus on the physical or biological features that may be essential to the conservation of the species and which may require special management considerations or protections. In unoccupied habitat, we focus on whether the area is essential for the conservation of the species. The physical or biological features for occupied areas, in conjunction with the unoccupied areas needed to expand and reestablish wild populations within their historical range, provide a more accurate picture of the geographic areas needed for the recovery of each species. We believe this information will be helpful to Federal agencies and our other partners, as we collectively work to recover these imperiled species.
Under the Act and implementing regulations applicable to this rule, we are required to identify the physical or biological features essential to the conservation of the three plant species in areas occupied at the time of listing, focusing on the features' PCEs. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
The PCEs identified in this final rule take into consideration the ecosystem on which these species depend for survival and reflect a distribution that we believe is essential to achieving the species' recovery needs within the lowland dry ecosystem on Hawaii Island. As described above, we considered the current population status of each species, to the extent it is known, and assessed its status relative to the recovery objectives for that species, in terms of population goals (numbers of populations and individuals in each population, which contributes to population resiliency) and distribution (whether the species occurs in habitats representative of its historic geographical and ecological distribution, and are sufficiently redundant to withstand the loss of some populations over time). This analysis informed us as to whether the species requires space for population growth and expansion in areas occupied at the time of listing, or whether additional areas unoccupied at the time of listing may be required for the reestablishment of populations to achieve conservation.
In this final rule, the PCEs for
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The following discussion of special management needs is applicable to each of the three Hawaii Island species for which we are designating critical habitat.
For
All designated critical habitat may require special management actions to address the ongoing degradation and loss of habitat caused by residential and urban development. Urbanization also increases the likelihood of wildfires ignited by human sources. Without protection and special management, habitat containing the features that are essential for the conservation of these species will continue to be degraded and destroyed.
All designated critical habitat may require active management to address the ongoing degradation and loss of native habitat caused by nonnative ungulates (goats and cattle). Nonnative ungulates also impact the habitat through predation and trampling. Without this special management, habitat containing the features that are essential for the conservation of these species will continue to be degraded and destroyed.
All designated critical habitat may require active management to address the ongoing degradation and loss of native habitat caused by nonnative plants. Special management is also required to prevent the introduction and spread of nonnative plant species into native habitats. Particular attention is required in nonnative plant control efforts to avoid creating additional disturbances that may facilitate the further introduction and establishment of invasive plant seeds. Precautions are also required to avoid the inadvertent trampling of listed plant species in the course of management activities.
The active control of nonnative plant species will help to address the threat posed by fire in all five of the designated critical habitat units. This threat is largely a result of the presence of nonnative plant species such as the grasses
In summary, we find that each of the areas we are designating as critical habitat contains features essential for the conservation of
As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of
We considered several factors in the selection of specific boundaries for critical habitat for
The critical habitat is a combination of areas occupied by these three species at the time of listing, as well as areas that may be currently unoccupied. The best available scientific information suggests that these species either presently occur within, or have occupied, these habitats. The occupied areas provide the physical or biological features essential to the conservation of these species, which all depend on the lowland dry ecosystem. However, due to the small population sizes, few numbers of individuals, and reduced geographic range of each of the three species for which critical habitat is here designated, we have determined that a designation limited to the areas known to be occupied at the time of listing would be inadequate to achieve the conservation of those species. The areas believed to be unoccupied, and that may have been unoccupied at the time of listing, have been determined to be essential for the conservation and recovery of the species because they provide the habitat necessary for the expansion of existing wild populations and reestablishment of wild populations within the historical range of the species.
We are designating critical habitat on lands that contain the physical or biological features essential to conserving multiple species, based on their shared dependence on the functioning ecosystem they have in common. Because the lowland dry ecosystem that supports the three plant species addressed here does not form a contiguous area, it is divided into five geographic units. Some of the designated critical habitat for the three plant species overlies critical habitat already designated for other plants on the island of Hawaii. Because of the small numbers of individuals or low population sizes of each of these three plant species, each requires suitable habitat and space for the expansion of existing populations to achieve a level that could approach recovery. For example, recent surveys of
The critical habitat areas described below constitute our best assessment of the areas occupied by
When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas (such as lands covered by buildings, pavement, railroads, airports, runways, utility facilities and infrastructure and their designated and maintained rights-of-way, other paved areas, lawns, and other urban landscaped areas) because such lands lack the physical or biological features essential for the conservation of the three plant species. The scale of the maps we prepared under the parameters for publication within the CFR may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, Federal actions involving these areas would not trigger section 7 consultation with respect to critical habitat or the requirement to avoid adverse modification of critical habitat unless
We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the species, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of
Units are designated based on sufficient elements of physical or biological features being present to support the life processes of
The critical habitat designation is defined by the maps, and refined by accompanying regulatory text, presented at the end of this document in the regulatory portion of this final rule. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. The coordinates or plot points or both on which each map is based are available to the public on
We are designating 11,640 ac (4,711 ha) as critical habitat in five units within the lowland dry ecosystem for
Because some of the final critical habitat for the three plants overlays critical habitat already designated for other plant species on the island of Hawaii, we have incorporated the maps of the areas newly designated as critical habitat in this final rule into the existing critical habitat unit numbering system established for the plants on the island of Hawaii in the Code of Federal Regulations (CFR) at 50 CFR 17.99(k). The maps and area descriptions presented here represent the critical habitat designation that we have identified for the three plant species, subdivided into a total of five units (see Table 3, above). The critical habitat unit numbers and the corresponding map numbers that will appear at 50 CFR 17.99 are provided for ease of reference in the CFR.
Hawaii—Lowland Dry—Unit 10 consists of 2,913 ac (1,179 ha) of State land from Puu Waawaa to Kaupulehu on the northwestern slope of Hualalai between the elevations of 1,400 and 2,600 ft (427 and 793 m). This unit overlaps portions of previously designated plant critical habitat in unit Hawaii 10 (see 50 CFR 17.99(k)), and includes critical habitat for the following listed plant species:
This unit is occupied by
Hawaii—Lowland Dry—Unit 31 consists of 7,067 ac (2,860 ha) of State land from Puu Waawaa to Kaupulehu on the northwestern slope of Hualalai between the elevations of 720 and 1,960 ft (427 and 597 m). This unit is not in previously designated plant critical habitat and comprises only newly designated plant critical habitat. This unit is depicted on Map 104 in the Regulation Promulgation section of this rule.
This unit is occupied by
Hawaii—Lowland Dry—Unit 33 consists of 989 ac (400 ha) of State land, from Puukala to Kalaoa on the western slope of Hualalai between the elevations of 360 and 1,080 ft (110 and 329 m). This unit is not in previously designated critical habitat and comprises only newly designated critical habitat. This unit is depicted on Map 105 in the Regulation Promulgation section of this rule.
This unit is unoccupied by
Hawaii—Lowland Dry—Unit 34 consists of 242 ac (98 ha) of State land, and 27 ac (11 ha) of privately owned land for a total of 269 ac (109 ha), from Kalaoa to Puukala on the western slope of Hualalai between the elevations of 280 and 600 ft (85 and 183 m). This unit is not in previously designated critical habitat and comprises only newly designated critical habitat. This unit is depicted on Map 105 in the Regulation Promulgation section of this rule.
This unit is unoccupied by
Hawaii—Lowland Dry—Unit 36 consists of 5 ac (2 ha) of State land and 397 ac (161 ha) of Federal land for a total of 402 ac (163 ha), near the coastline at Kaloko and Honokohau on the western slope of Hualalai between the elevations of 20 and 90 ft (6 and 27 m). This unit is not in previously designated critical habitat and comprises only newly designated critical habitat. This unit is depicted on Map 105 in the Regulation Promulgation section of this rule.
This unit is occupied by the plant
Section 7(a)(2) of the Act, as amended, requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final rule defining “destruction or adverse modification” on February 11, 2016 (81 FR 7214). “Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to section 7 consultation process are actions on Federal lands or that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
At the conclusion of section 7 consultation, we may issue:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate formal consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the three species, or would retain its current ability for the essential features to be functionally established. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for
(1) Actions that may appreciably degrade or destroy the physical or biological features for the species, including, but not limited to, overgrazing, maintaining or increasing feral ungulate levels, clearing or cutting native live trees and shrubs (
(2) Actions that may alter watershed characteristics in ways that would appreciably reduce groundwater recharge or alter natural, wetland, aquatic, or vegetative communities. Such activities include new water diversion or impoundment, excess groundwater pumping, and manipulation of vegetation through activities such as the ones mentioned in (1), above.
(3) Recreational activities that may appreciably degrade vegetation.
(4) Mining sand or other minerals.
(5) Introducing or facilitating the spread of nonnative plant species.
(6) Importing nonnative species for research, agriculture, and aquaculture, and releasing biological control agents.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense (DOD) lands with a completed INRMP within the critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to Federal, State, or local laws that may apply to critical habitat. We also look at whether these benefits might be reduced by the existence of a conservation plan. In such cases, we consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to encourage new conservation partnerships and future conservation efforts. The Secretary places great weight on demonstrated partnerships, as in many cases they can lead to the implementation of conservation actions that provide benefits to the species and their habitat beyond those that are achievable through the designation of critical habitat and section 7 consultations, particularly on private lands. As most endangered or threatened species in Hawaii occur on private and other non-Federal lands, such conservation partnerships are of heightened importance on the islands of Hawaii.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Based on the information provided by landowners, as well as public comments received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We are excluding the following areas from critical habitat designation for
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a DEA of the proposed critical habitat designation and related factors (IEc 2013, entire). The draft analysis, dated April 4, 2013, was made available for public review from April 30, 2013, through May 30, 2013 (78 FR 25243; April 30, 2013); from July 2, 2013, through September 3, 2013 (78 FR 39698); and from May 20, 2016, through June 6, 2016 (81 FR 31900). The DEA addressed potential economic impacts of critical habitat designation for
The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of
The FEA looks retrospectively at costs that have been incurred since the listing of the three species (51 FR 24672, July 8, 1986; 59 FR 10305, March 4, 1994; 78 FR 64638, October 29, 2013), and considers those costs that may occur in the 10 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 10-year timeframe. The FEA analyzes economic impacts of the conservation efforts for these species associated with the following categories of activity: Residential and commercial development projects, and transportation projects. The FEA concluded that critical habitat designation is unlikely to change the outcome of future section 7 consultations on projects or activities within occupied areas, and that incremental impacts due to section 7 consultations in occupied areas will most likely be limited to the additional administrative effort of considering adverse modification (IEc 2016, p. 2-9). The FEA estimates approximately $35,000 over the next 10 years (an annualized impact of $4,700, 7 percent discount rate) associated with future section 7 consultations. Impacts on projects occurring in areas being considered for exclusion are expected to be $15,000 (an annualized impact of $2,000, 7 percent discount rate) (IEc 2016, p. E-7).
The FEA concluded that additional impacts, beyond administrative costs associated with section 7 consultations, are likely within unoccupied areas but limited information is available regarding the nature and extent of these impacts and precludes quantification of these costs. Two specific projects in unoccupied habitat were identified that may be subject to economic impacts due to a critical habitat designation. Prior to finalizing this rule, we also evaluated the potential economic effects related to a third project in Unit 34, which, based on a potential 4(b)(2) exclusion, would become an unoccupied unit. The first is a DHHL residential development project that is expected to involve the use of Federal funds, and would thus require section 7 consultation, but this area is being excluded from the critical habitat designation; therefore, any anticipated effects due to the designation will not occur. The second is a QLT mixed-use development project that is not likely to be subject to a Federal nexus and would, therefore, have very little chance of any economic impacts due to critical habitat designation. The QLT land is also being excluded from the critical habitat designation. The third project is a highway extension planned on Kaloko Entities property and State lands in proposed Unit 34. With the exclusion of the Kaloko Entities lands, this unit would be considered unoccupied, and, therefore, the only critical habitat the project would be impacting would be unoccupied critical habitat. However, the project would also still be impacting occupied areas on the Kaloko Entities lands, and, therefore, a section 7 jeopardy analysis on the presence of the species within the project area would already be required. Because one of the primary threats to these species is habitat loss and degradation, the consultation process under section 7 of the Act for projects with a Federal nexus will, in evaluating the effects to these species, evaluate the effects of the action on the conservation or function of the habitat for the species regardless of whether critical habitat is designated for these lands, and will likely result in similar recommended conservation measures. Therefore, the cost of critical habitat designation on this project would be limited to the additional administrative cost of adding the adverse modification analysis to the section 7 jeopardy analysis.
The FEA additionally considered the potential indirect effects of the designation, including, for example, perceptional effects on land values, or the potential for third-party lawsuits. Given the uncertainties surrounding the probability of any such effects occurring (and if so, the magnitude of any such effects), quantification of the potential indirect effects of the designation was not possible. The FEA acknowledges, however, that these uncertainties result in an underestimate of the quantified impacts of the designation (IEc 2016, p. 2-23).
The Service considered the economic impacts of the critical habitat designation and the Secretary is not exercising his discretion to exclude any areas from this designation of critical habitat for
A copy of the FEA may be obtained by contacting the Pacific Islands Fish and Wildlife Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that no lands within the designation of critical habitat for these three species are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exercising his discretion to exclude any areas from this final designation based on impacts on national security or homeland security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements, or non-permitted conservation agreements which reduce the benefits of critical habitat or partnerships that would be encouraged by exclusion from critical habitat. In preparing this final rule, we have determined that the final designation of critical habitat for
We sometimes exclude areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements that can minimize the benefits of critical habitat. We may also exclude areas covered by conservation agreements if we believe a benefit of exclusion would be to encourage future conservation partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include
We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. Some of the factors that we will consider for non-permitted plans or agreements are listed below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.
1. The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species;
2. Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented;
3. The demonstrated implementation and success of the chosen conservation measures;
4. The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership;
5. The extent of public participation in the development of the conservation plan;
6. The degree to which there has been agency review and required determinations (
7. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
8. Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.
The Secretary places great weight on demonstrated partnerships, as in many cases they can lead to the implementation of conservation actions that provide benefits to the species and their habitat beyond those that are achievable through the designation of critical habitat and section 7 consultations, particularly on private lands, reducing the benefits of critical habitat. In addition, we consider the potential benefits of exclusion where voluntary conservation agreements may encourage future conservation actions and partnerships. The establishment and encouragement of strong conservation partnerships with non-Federal landowners is especially important in the State of Hawaii, where there are relatively few lands under Federal ownership; we cannot achieve the conservation and recovery of listed species in Hawaii without the help and cooperation of non-Federal landowners.
More than 60 percent of the United States is privately owned (Lubowski
Many non-Federal landowners derive satisfaction from contributing to endangered species recovery. Conservation agreements with non-Federal landowners, safe harbor agreements, other conservation agreements, easements, and State and local regulations enhance species conservation by extending species protections beyond those available through section 7 consultations. We encourage non-Federal landowners to enter into conservation agreements based on a view that we can achieve greater species conservation on non-Federal lands through such partnerships than we can through regulatory methods alone (USFWS and NOAA 1996e (61 FR 63854, December 2, 1996)).
Many non-Federal landowners, however, are wary of the possible consequences of attracting endangered species to their property. Some evidence suggests that some regulatory actions by the government, while well intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on non-Federal lands (Wilcove
Because so many important habitat areas for
Many landowners perceive critical habitat as an unnecessary and duplicative regulatory burden, particularly if those landowners are already developing and implementing conservation and management plans that benefit listed species on their lands. In certain cases, we believe the exclusion of non-Federal lands that are under positive conservation management is likely to strengthen the partnership between the Service and the landowner, which may encourage other
We are excluding a total of approximately 7,027 ac (2,844 ha) of non-Federal lands on the island of Hawaii that meet the definition of critical habitat from the final critical habitat rule under section 4(b)(2) of the Act. We are excluding these lands because the continuation and strengthening of important conservation partnerships with the landowners will increase the likelihood of meaningful conservation for
In this final designation, the Secretary has exercised his discretionary authority to exclude from critical habitat lands that are owned by the Kamehameha Schools, totaling 2,834 ac (1,147 ha), under section 4(b)(2) of the Act. These lands fall within a portion of the 9,936 ac (4,021 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 31 (77 FR 63928, October 17, 2012), have documented presence of
Kamehameha Schools is the largest private landowner in the State of Hawaii, owning approximately 375,000 ac (151,757 ha), with approximately 297,000 ac (120,192 ha) on Hawaii Island alone. Approximately 98 percent of these lands are dedicated to agriculture and conservation, and the remaining 2 percent of lands are in commercial real estate and properties. Kamehameha Schools is a private charitable educational trust established in 1887, through the will of Princess Bernice Pauahi Paki Bishop. The trust is used primarily to operate a comprehensive educational program for students of Hawaiian ancestry. In addition, part of the Kamehameha Schools' mission is to protect Hawaii's environment through recognition of the significant cultural value of the land and its unique flora and fauna. Kamehameha Schools has established a policy to guide the sustainable stewardship of its lands including natural resources, water resources, and ancestral places (Kamehameha Schools 2013, entire). The maintenance of healthy, functioning native ecosystems is a critical component of the Kamehameha Schools' integrated management strategy, and is sustained through a suite of voluntary actions including invasive weed control, native species restoration, ungulate management, rodent control, and wildfire mitigation on lands owned by Kamehameha Schools.
In 1993, the North Kona Dry Forest Working Group was organized to address recovery of dry forest ecosystems in the region. The group consisted of Kamehameha Schools in partnership with Federal and State agencies, other private landowners, conservation organizations, scientific researchers, and the Service. The group selected a 5.8-ac (2.3-ha) parcel at Kaupulehu Mauka managed by Kamehameha Schools as a pilot project to demonstrate the feasibility of economically restoring and regenerating the lowland dry forest ecosystem (Hawaii Forest Industry Association (HFIA) 1998, p. 3). By 1998, the group had successfully demonstrated exclusion of ungulates, removal of fountain grass (
In 1999, the North Kona Dry Forest Working Group received funding from the Service's Private Landowner Incentive Program to outplant nine endangered plant species and as part of an effort to expand dry forest restoration efforts to larger areas within the region (Cordell
In 2004, additional funding was received from the Service's Private Stewardship Grants Program for restoration of the lowland dry ecosystem within the 70-ac (28-ha) parcel. With the stated goal of discovering and demonstrating methods of cost effective control of fountain grass and other nonnative species, this project and its collaboration with scientific researchers has provided landowners with the tools and scientific documentation to restore the lowland dry ecosystems in the North Kona region (Cabin
Kamehameha Schools helped establish the Three Mountain Alliance (TMA) in 2007. That year, Kamehameha Schools signed a memorandum of understanding (MOU) with the other members of the TMA, including the Service, to incorporate approximately 253,466 ac (102,785 ha) of its lands into the partnership (TMA Management Plan 2007, entire). Of the 2,834 ac (1,147 ha) of Kamehameha Schools land excluded from this critical habitat designation, 650 ac (263 ha) at Kaupulehu, North Kona, are within the management area of the TMA, but currently only the 6 ac (2.3 ha) at Mauka are actively managed. The TMA management program is ongoing and includes: (1) Habitat protection and restoration; (2) watershed protection; (3) compatible recreation and ecotourism; (4) education, awareness, and public outreach; (5) cultural and historical resource protection; and (6) research, monitoring, and management program indicators (TMA Management Plan 2007, pp. 26-38). The TMA management plan priorities that benefit
The conservation priorities articulated in the TMA management plan have been implemented on the Kamehameha Schools property at Kaupulehu in some form or another since the 1993 organization of the North Kona Dry Forest Working Group. Beginning with the experimental set-aside at Kaupulehu Mauka and continuing with the outplantings at Makai, Kamehameha Schools has conducted voluntary, ongoing conservation, and we expect they will continue conservation activities in the future. For more than 10 years, Kamehameha Schools has carried out active ecosystem management at Kaupulehu on the 76 ac (31 ha) of lowland dry forest (70 ac (28 ha) at Makai, and approximately 6 ac (2.3 ha) at Mauka), with intensive management occurring in a 36-ac (15-ha) area. The entire 76-ac (31-ha) area is fenced, is enclosed by strategic firebreaks, and has been maintained as ungulate-free for the past 15 years. Within the 36-ac (15-ha) intensively managed area, additional management actions include the aggressive suppression of fountain grass and other priority weeds, suppression of rodent populations, and outplanting of common and rare native species (Hannahs 2013, in litt.). Such voluntary threat management and restoration actions provide multiple benefits to listed plant species, including
In addition to implementing conservation actions on their lands on Hawaii Island, Kamehameha Schools has shown a commitment to conservation on their lands across the State of Hawaii. In 2011, they approved a 10-year Statewide Natural Resource Management Plan (NRMP), which sets the vision and direction for native ecosystem management on all the Kamehameha Schools lands in Hawaii. The NRMP includes broad ecologically and culturally based goals and strategies to: (1) Assess natural resources integrity; (2) manage priority threats to regeneration of native species; (3) restore ecosystem integrity; and (4) integrate and enable sustainable use. The NRMP further describes specific actions, targets, and metrics for monitoring implementation at annual or 5-year intervals. For example, the NRMP identifies the goal of limiting habitat loss by suppressing or eliminating priority threats to the regeneration of native species, increasing very high-quality habitat, and increasing land-based learning experiences to the 3,000 people served annually. The NRMP includes the following management actions designed to address threats to the lowland dry ecosystem: (1) Weed control; (2) fencing/hunting to remove ungulates; (3) increasing native land cover and biodiversity; (4) maintaining access and fire response infrastructure; and (5) developing a restoration strategy. The NRMP also identifies the desired goal of increasing the area of habitat in restoration within the area being excluded from this designation.
The Kamehameha Schools is currently implementing the NRMP across the State in coordination with previously established site-specific plans that often already include the conservation actions in the NRMP, such as the program at Kaupulehu, North Kona. As a partner in the West Maui Mountain Watershed Partnership, Kamehameha Schools participates in the conservation efforts in Paunau, Maui, to control erosion, manage ungulate populations, and eradicate invasive species for the purpose of maintaining the watershed that provides a continual supply of fresh water to the families of Maui. On Oahu, Kamehameha Schools is a partner in efforts to restore the wetlands of Uko`a in order to provide a healthy native habitat for Hawaii's water birds and other native biodiversity. Ongoing work includes a project to fence a 100-ac (40.5-ha) area to keep out ungulate populations and allow the native ecosystem to regenerate and thrive. On Kauai, Kamehameha Schools has conducted surveys on the invasive Australian tree fern and is now working on mitigation efforts to control spread of the fern.
As discussed above, Kamehameha Schools NRMP, the TMA Management Plan, and the management program on Kamehameha Schools lands at Kaupulehu together have provided for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these Kamehameha Schools lands. According to our records, between 2007 and 2016, there were no section 7 consultations conducted for projects on these Kamehameha Schools lands, indicating little likelihood of a future Federal nexus on these lands that would potentially trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation.
In this final designation, the Secretary has exercised his discretion to exclude 1,758 ac (712 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by the WVA. These lands include almost the entirety of the 1,779 ac (720 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 32; this area is occupied by one of the three plant species,
Waikoloa Village is a rapidly growing suburban community situated on the leeward slope of Mauna Kea volcano at approximately 1,100 ft (335 m) elevation in the district of South Kohala on Hawaii Island. The WVA, which represents the community through an elected Board of Directors, owns and manages the village golf course and approximately 10,000 ac (4,047 ha) of land that surround the village. In 2009, the non-profit Waikoloa Village Outdoor Circle secured funding for the Waikoloa Dry Forest Recovery Project from the State of Hawaii Forest Stewardship Program and Natural Resource Conservation Service's (NRCS) Wildlife Habitat Improvement Program. The 10-year project (from 2009 to 2019) has proven successful at protecting existing
In total, the Waikoloa Dry Forest Recovery Project's budget is over $1 million, which includes funding from the State of Hawaii Forest Stewardship Program, NRCS, and in-kind contributions (Waikoloa Dry Forest Recovery Project 2009). Since 2009, the project has successfully completed construction of the fence around the 275-ac (111-ha) dry forest area, conducted ungulate removal from within the fenced exclosure, controlled nonnative plant species, and propagated and outplanted common and federally listed native plant species, including the federally listed
In addition to cooperating with WDFI, in April 2014, the WVA signed an MOU with the Service wherein they agreed to implement additional important conservation actions beneficial to
As discussed above, the Waikoloa Dry Forest Recovery Project conducted with the cooperation of WVA has provided for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these WVA lands. According to our records, between 2007 and 2016, there were two informal consultations conducted regarding projects receiving Federal funding on WVA lands. The 2008 consultation with NRCS involved the implementation of conservation actions for the Waikoloa Dry Forest Recovery Project. The project was determined not likely adversely affect listed species or critical habitat in the action area. The second consultation with FEMA in 2013 involved the construction of a dip tank to improve fire suppression capabilities in West Hawaii. The project was also determined not likely to adversely affect any listed species or critical habitat in the action area. This history indicates the potential for a future Federal nexus on these lands that could trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation; however, these consultations were for actions aimed, directly or indirectly, at facilitating conservation efforts. Also, the presence of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands that are owned by Palamanui, totaling 502 ac (203 ha). These lands fall within a portion of the 1,583 ac (640 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 33 (77 FR 63928, October 17, 2012), have documented presence of
Palamanui is developing a mixed-use residential and commercial project on 725 ac (293 ha) in the land division of Kau, North Kona district, Hawaii Island (Group 70 International 2004, p. 1-5; Case 2013, in litt.). A portion of this development will provide supporting infrastructure for the proposed University of Hawaii West campus located on adjacent State land. In 2005, the area's previous owner, Hiluhilu Development LLC, developed an integrated natural and cultural resources management plan (INCRMP) as part of a petition to reclassify the 725 ac (293 ha) of land to the Urban District for the development project at North Kona (Land Use Commission Docket A03-744 2005). The INCRMP addressed preservation, mitigation, management, and stewardship measures for the natural and cultural resources at the Palamanui development, and included a phased management program for biological resources with the following goals: (1) Creation of a lowland dry forest preserve and smaller reserves to protect rare and endangered plants; (2) establishment of the Palamanui Dry Forest Working Group; (3) hiring of a reserve coordinator; (4) reduction of fire threat; (5) construction of fences around preserve areas and exclosures around endangered tree species; (6) control of invasive weeds; (7) control of nonnative predators; (8) protection of rare and endangered species outside dry forest preserve; (9) creation of a native plant restoration program; (10) provision of an updated biological inventory of preserve areas and information on native invertebrates and the endangered Hawaiian hoary bat (
Subsequent to the publication of the October 17, 2012, proposed critical habitat rule (77 FR 63928), Palamanui participated in a series of collaborative meetings with the Service, County of Hawaii, DHHL, Hawaii Department of Land and Natural Resources (DLNR), and other landowners in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, to address species protection and recovery, and development on a regional scale. These discussions resulted in a cooperative approach to setting aside acreage adjacent to other landowners in order to protect larger areas of contiguous habitat from development. In 2015, Palamanui signed a MOU with the Service wherein they agreed to implement important conservation actions beneficial to the three species, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between Palamanui Global Holdings LLC and U.S. Department of Interior Fish and Wildlife Service 2015, entire). Palamanui agreed to increase the area of fenced and managed lowland dry forest protected within the 55-ac (22-ha) preserve by 19 ac (7.7 ha), for a total of approximately 75 ac (30 ha). Palamanui also agreed to ensure funding for conservation actions within the preserve for the next 20 years at a minimum of $50,000 per year. Palamanui will contribute conservation actions valued at an additional $200,000 to benefit the recovery of the three plant species and the lowland dry ecosystem, and agreed to work cooperatively with the Service or other conservation partners to conduct activities expected to benefit
As discussed above, Palamanui's protection of the lowland dry forest species and habitat through the INCRMP has provided for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these Palamanui lands. According to our records, between 2007 and 2016, there were no section 7 consultations conducted for projects on these Palamanui lands, indicating little likelihood of a future Federal nexus on these lands that would potentially trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation.
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands that are owned by DHHL, totaling 492 ac (199 ha). These lands fall within portions of two proposed critical habitat units. The DHHL owns 91 ac (30 ha) of the 1,583 ac (640 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 33 (77 FR 63928; October 17, 2012); this DHHL land has no documented presence of
At Kealakehe, the DHHL is developing a portion of the Villages of Laiopua (Laiopua), a master-planned community with single- and multi-family residential units, recreational facilities, community facilities, parks, and archaeological and endangered plant preserve sites (DHHL 2009, pp. 12-13). From 1996 to 2006, DHHL acquired 685 ac (277 ha) of the roughly 1,000-ac (405-ha) development from the previous owner Hawaii Housing Finance and Development Corporation (HHFDC) (formerly Housing and Community Development Corporation of Hawaii (HCDCH)). The HHFDC had developed a mitigation plan with the Service and Hawaii Department of Fish and Wildlife (DOFAW) (Belt Collins 1999) for the listed and other rare plant species affected by the proposed development as part of a section 7 consultation with the Environmental Protection Agency (EPA) on wastewater treatment for Laiopua (USFWS 1990). The plan was finalized in 1999, and included the following conservation actions: (1) Construction requirements for fire prevention and control, and to avoid construction impacts to endangered plants; (2) development of eight mini-preserves (each approximately 0.03 ac, for a total of 0.24 ac (0.1 ha)) and two principal preserves totaling approximately 37 ac (15 ha); (3) a secured and managed off-site mitigation area (tied to the development of villages 9 and 10) of approximately 100 to 150 ac (40 to 61 ha); and (4) propagation and on-site planting of endangered and common native plant species, and management, monitoring, and reporting (Belt Collins 1999).
The transfer agreements between the HHFDC and DHHL included acknowledgement of the need to conform with the portions of the 1999 Plan related to the lands that DHHL acquired (including management of the preserves), and the need to consult with the Service and the DLNR on endangered and threatened species issues (HHFDC and DHHL 1997; BLNR
Since 2010, the DHHL has committed approximately $1,198,052 for the development and management of the two larger preserves and four mini preserves at Kealakehe (Masagatani 2012, in litt.). Conservation actions in the preserve areas include: (1) Fencing to exclude ungulates and prevent human trespass; (2) control and removal of nonnative plants; (3) control and prevention of the threat of fire; (4) propagation, outplanting, and care of common native and endangered plant species; and (5) promotion of community volunteer and education programs that support native plant conservation.
Subsequent to the publication of the October 17, 2012, proposed rule, the DHHL participated in a series of collaborative meetings with the Service, County of Hawaii, DLNR, and other stakeholders in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, to address species protection and recovery, and development on a regional scale. These discussions resulted in a cooperative approach to setting aside acreage adjacent to other landowners in order to protect larger areas of contiguous habitat from development. In 2015, the DHHL signed a MOU with the Service wherein they agreed to implement important conservation actions beneficial to the recovery of the three species, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between the Department of Hawaiian Home Lands and U.S. Department of Interior Fish and Wildlife Service 2015, entire). DHHL agreed to protect the 73 ac (29 ha) of existing preserves and to set aside and not develop two additional parcels totaling 24 ac (10 ha) (one 2 ac (0.8 ha) area and another 21.7 ac (8.8 ha) area); in total the protected area is approximately 97 ac (39 ha) to benefit the recovery of
Conservation actions on the 68 managed acres include actions from the 1999 plan (control and the prevention of the threat of fire; control and removal of nonnative plant species; and propagation, outplanting, and care of
As discussed above, the development and management of the preserves at Kealakehe has provided for the conservation of
The DHHL has worked in other areas on the Island of Hawaii to protect and restore endangered and threatened species and their habitats. In December 2010, the Hawaiian Homes Commission adopted the “Aina Mauna Legacy Program,” a 100-year plan to reforest approximately 87 percent of a 56,200-ac (22,743-ha) contiguous parcel managed by DHHL on the eastern slope of Mauna Kea, Hawaii Island. The Aina Mauna Legacy Program is removing all feral ungulates from the Aina Mauna landscape, and several projects have included fenced units where pigs and cattle have been removed (DHHL 2009, pp. 19-21). Projects that have been implemented to date have received funding from the Service's Partners for Fish and Wildlife Program and included 10-year landowner agreements between the Service and the landowners (including DHHL) to maintain the conservation actions; other partners involved include the State of Hawaii, the Hakalau Forest National Wildlife Refuge, and the Mauna Kea Watershed Alliance. Conservation actions that have been implemented for these projects include: (1) Management of 650 ac (263 ha) of native koa (
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these DHHL lands. According to our records, between 2007 and 2016, there were three informal consultations conducted regarding projects receiving Federal funding on DHHL lands in proposed Hawaii—Lowland Dry—Unit 35 (in 2007, 2010, and 2014). The 2007 project funded by HUD (discussed above), entailed the development of four residential subdivisions and the establishment of endangered species preserve areas at the Villages of Laiopua, Kealakehe, North Kona. Based on the conservation measures for the endangered plants
In this final designation, the Secretary has exercised his discretion to exclude 631 ac (255 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned or managed by Kaloko Entities. These lands fall within a portion of the 961 ac (389 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 34 (77 FR 63928, October 17, 2012), have documented presence of
The Kaloko Entities, established in 2016, manages approximately 1,203 ac (487 ha) in the district of North Kona, on Hawaii Island, including 631 ac (255 ha) originally proposed for designation of critical habitat but excluded by this final rule. The Kaloko Entities consists of: (1) Kaloko Residential Park LLC, a Hawaii limited liability company (new owner of lands formerly owned by SCD-TSA Kaloko Makai LLC and Kaloko Properties Corporation); and (2) TSA LLC, a Hawaii limited liability company (formerly known as TSA Corporation).
Conservation activities on these excluded lands date back to a 2010 section 7 consultation by the FHWA associated with the construction of Phase 1A Package B of the Ane Keohokalole Highway (USFWS 2010b, in litt.). As a result of that consultation, SCD-TSA Kaloko Makai LLC agreed to set aside 150 ac (61 ha) of this area as a dryland forest reserve and participate in implementing conservation measures as a condition for issuance of a county grading permit. SCD-TSA Kaloko Makai LLC worked cooperatively with FHWA and the County of Hawaii by providing access to its lands for implementation of FHWA-funded conservation actions in the 150-ac (61-ha) set-aside. The FHWA conservation measures that addressed impacts of construction of the portion of Ane Keohokalole Highway from Kealakehe Parkway to Hina Lani Street ended in 2015.
In 2011, SCD-TSA Kaloko Makai, LLC prepared a draft habitat conservation plan (HCP) under State law to address the impacts of their planned Kaloko Makai Development, a mixed use development on 1,139 ac (461 ha) in the Kaloko-Kohanaiki area, Kona, Hawaii; approximately 605 ac (245 ha) of this area was included in proposed Hawaii—Lowland Dry—Unit 34 (77 FR 63928; October 17, 2012). The draft HCP was available for public comment as a supporting document with the publication of the October 17, 2012, proposed designation. The conservation measures in the draft HCP were designed to address impacts to four endangered species (
In October 2016, the Kaloko Entities entered into a MOU with the Service wherein they agreed to implement important conservation actions beneficial to
As discussed above, Kaloko Entities' protection of the lowland dry forest species and habitat through the 2010 section 7 consultation by the FHWA has provided for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these Kaloko Entities lands. According to our records, between 2007 and 2016, there were two informal consultations regarding projects receiving Federal funding on Kaloko Entities lands. In 2008, the Service concluded that the construction of the Kaloko Transitional Housing Project funded by HUD on lands previously owned TSA Corporation was not likely to adversely affect listed species or critical habitat. In 2010, the second consultation (discussed earlier in this summary) involved construction of Phase 1A Package B of Ane Keohokalole Highway funded by the FHWA, and incorporated measures to minimize impacts to the endangered plants,
In this final designation, the Secretary has exercised his discretion to exclude 47 ac (19 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by Lanihau Properties. These lands fall within a portion of the 961 ac (389 ha) proposed as critical habitat in Hawaii— Lowland Dry—Unit 34 (77 FR 63928, October 17, 2012), have documented presence of
Lanihau Properties, LLC, and its affiliates the Palani Ranch Company and the Kaumalumalu, LCC (collectively with Lanihau Properties called the “Lanihau Group”) manage certain lands in the district of North Kona, on Hawaii Island. Subsequent to the publication of the October 17, 2012, proposed critical habitat rule (77 FR 63928), Lanihau Properties participated in a series of collaborative meetings along with the Service, County of Hawaii, DHHL, DLNR, and other stakeholders in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, to address species protection and recovery, and development on a regional scale. These discussions resulted in a cooperative approach to setting aside acreage adjacent to other landowners in order to protect larger areas of contiguous habitat from development.
In 2014, Lanihau Properties entered into a MOU with the Service wherein they agreed to implement important conservation actions beneficial to
As discussed above, Lanihau Properties' protection of the lowland dry forest species and habitat through their 2014 MOU with the Service will provide for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these Lanihau Properties lands. According to our records, between 2007 and 2016, there was one informal consultation finalized in 2010 regarding projects receiving Federal funding on Lanihau Properties lands. The consultation involved construction of Phase 1A Package B of Ane Keohokalole Highway funded by the FHWA and incorporated measures to minimize impacts to the endangered plants,
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned by the State of Hawaii that are under management of the County of Hawaii (or County), totaling 165 ac (67 ha). These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35 (77 FR 63928; October 17, 2012), have documented presence of
The County of Hawaii owns or manages over 10,000 ac (4,047 ha) on Hawaii Island and is pursuing the development of a regional park on 193 ac (78 ha) in Kealakehe, North Kona, Hawaii Island. In 2011, the Governor of the State of Hawaii set aside these 193 ac (78 ha) from the DLNR to be under the control and management of the County for the purposes of wastewater reclamation, a golf course, and/or a public park (Governor's Executive Order No. 4355).
The County has been voluntarily cooperating with the Service in the conservation of rare and endangered species and their habitats for several years. In 2010, in association with their management of the construction of Phase 1A Package B of the Ane Keohokalole Highway by the FWHA, the County helped negotiate protection from development of over 150 ac (61 ha) of lowland dry ecosystem habitat in the Kaloko dry forest known to contain numerous listed plant species (USFWS 2010, in litt.). This project did not involve County lands, but the land has since come under County management through an easement. Subsequent to the publication of the October 17, 2012, proposed rule, the County participated in a series of collaborative meetings with the Service, DHHL, DLNR, and other stakeholders in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, to address species protection and recovery, and development on a regional scale. These discussions resulted in a cooperative approach to setting aside acreage adjacent to other landowners in order to protect larger areas of contiguous habitat from development.
In 2015, the County entered into an MOU with the Service wherein they agreed to implement important conservation actions beneficial to
As discussed above, the County's protection of the lowland dry forest species and habitat through their 2015 MOU with the Service will provide for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these County lands. According to our records, between 2007 and 2016, there was one informal consultation conducted regarding a project receiving Federal funding on lands under management of the County. In 2013, the FHWA consulted with the Service regarding the widening of Queen Kaahumanu Highway, adjacent to Kaloko-Honokohau NHP in Kailua-Kona, Hawaii. The Service concurred the proposed project was not likely to adversely affect listed species or designated critical habitat, including proposed critical habitat delineated by Hawaii—Lowland Dry—Unit 35. While this history indicates there is a small potential for a future Federal nexus on these lands that could trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation, the presence of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned by the State of Hawaii that are under management of the HHFDC totaling 30 ac (12 ha). These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35 (77 FR 63928; October 17, 2012), have documented presence of
The HHFDC was established in 2006, and is tasked with developing and financing low- and moderate-income housing projects and administering homeownership programs. The HHFDC has the development rights to a 36.6-ac (14.8-ha) parcel, Tax Map Key (3) 7-4-020: 004, of Village 9 at the former Villages of Laiopua project in Kealakehe, North Kona, Hawaii; approximately 30 ac (12 ha) of this parcel was proposed as critical habitat (77 FR 63928; October 17, 2012). In 2012, the Hawaii State Judiciary selected a 10-ac (4-ha) portion of the parcel as the future site of the Kona Judiciary Complex; however, during the extended due diligence process, surveys detected the presence of the endangered
Subsequent to the publication of the October 17, 2012, proposed rule (77 FR 63928), the HHFDC, in partnership with the Service, County of Hawaii, DHHL, DLNR, and other stakeholders in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, participated in a series of meetings to address species protection and recovery, and development on a regional scale. These discussions resulted in a cooperative approach to setting aside acreage adjacent to other landowners in order to protect larger areas of contiguous habitat from development.
In 2016, the HHFDC entered into an MOU with the Service wherein they agreed to implement important conservation actions beneficial to the three species, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between Hawaii Housing Finance and Development Corporation and U.S. Department of Interior Fish and Wildlife Service 2016, entire). The HHFDC agreed to set aside and not develop approximately 4.2 ac (1.7 ha) of lands under its management (at the site of the proposed Village 9 at Laiopua) to provide protection and management for one of the seven remaining mature individuals of
As discussed above, HHFDC's protection of the lowland dry forest species and habitat through their 2016 MOU with the Service will provide for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these lands managed by HHFDC lands. According to our records, between 2007 and 2016, there were no section 7 consultations conducted for projects on these HHFDC lands, indicating little likelihood of a future Federal nexus on these lands that would potentially trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation.
In this final designation, the Secretary has exercised his discretion to exclude 265 ac (107 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by Forest City Kona. These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35 (77 FR 63928, October 17, 2012), have documented presence of
Forest City Kona is a wholly owned subsidiary of the national real estate company, Forest City Enterprises, Inc. Forest City Kona was selected by the HHFDC to be the developer of the Kamakana Villages housing project on approximately 272 ac (110 ha) in Keahuolu, North Kona district, Hawaii Island (James 2012, in litt.). The Kamakana Villages project is planned to consist of residential (50 percent affordable housing), commercial, mixed-use, parks, open space, archaeological preserves, and schools. Subsequent to the publication of the October 17, 2012, proposed critical habitat rule (77 FR 63928), Forest City Kona participated in a series of collaborative meetings with the Service, DHHL, DLNR, and other stakeholders in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, to address species protection and recovery, and development on a regional scale. These discussions resulted in a cooperative approach to setting aside acreage adjacent to other landowners in order to protect larger areas of contiguous habitat from development.
In 2016, Forest City Kona entered into a MOU with the Service and HHFDC wherein they agreed to implement important conservation actions beneficial to
As discussed above, Forest City Kona's protection of the lowland dry forest species and habitat through their 2016 MOU with the Service will provide for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these Forest City Kona lands. According to our records, between 2007 and 2016, there were no section 7 consultations conducted for projects on these Forest City Kona lands, indicating little likelihood of a future Federal nexus on these lands that would potentially trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation.
In this final designation, the Secretary has exercised his discretion to exclude 302 ac (122 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by QLT. These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii— Lowland Dry—Unit 35 (77 FR 63928, October 17, 2012), have no documented presence of
The mission of the Queen Liliuokalani Trust, founded in 1909, is to provide services to benefit orphaned and destitute Hawaiian children and their families. On Hawaii Island, QLT properties total approximately 6,200 ac (2,509 ha), including the nearly intact, 3,400-ac (1,376-ha) ahupua`a of Keahuolūu in Kona, and the 2,800 ac (1,133 ha) of agricultural and conservation lands of Honohina on the windward side. In 2004, the QLT entered into an agreement with the Service's Partners for Fish and Wildlife Program to conduct research on the propagation of two endangered plants,
In February 2014, the QLT entered into a MOU with the Service wherein they agreed to implement important conservation actions beneficial to
In addition to the agreements detailed above, the QLT developed a culturally and place-based service learning program that has involved over 1,300 beneficiaries, school groups, and other community members in removing invasive species. The QLT continues to spend over $12,000 per year to control invasive species, such as fountain grass (
As discussed above, QLT's protection of the lowland dry forest species and habitat through their 2014 MOU with the Service will provide for the conservation of
Because critical habitat designation provides regulatory protection against Federal actions that are found likely to destroy or adversely modify critical habitat, we looked at the section 7 consultation history on these QLT lands. According to our records, between 2007 and 2016, there were no consultations conducted regarding projects receiving Federal funding on these QLT lands, indicating little likelihood of a future Federal nexus on these lands that would potentially trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation. Our DEA and FEA identified one anticipated future project slated for development on QLT lands; however, the Trust's project is unlikely to involve the use of Federal funding or require Federal permitting, and, therefore, section 7 consultation is unlikely (IEc 2016, p. 2-12). The Benefits of Inclusion and Exclusion
In areas of critical habitat unoccupied by but essential to a species, such as QLT-owned lands and the portion of DHHL-owned lands in Hawaii—Lowland Dry—Unit 33, critical habitat designation can provide a conservation benefit because Federal agencies are required to consult with the Service to ensure that their actions are not likely to destroy or adversely modify critical habitat, and conservation measures are subsequently recommended for offsetting adverse project impacts to habitat. However, in these two particular cases, the likelihood that conservation benefits would be gained from a critical habitat adverse modification analysis is very limited. There is no history of section 7 consultations on the excluded QLT lands over the last 9 years, and the only future development project expected on these lands is unlikely to involve the use of Federal funding or require Federal permitting and, therefore, would not have a Federal nexus that would trigger a consultation (IEc 2016, p. 2-13).
With respect to the unoccupied portions of DHHL lands in Hawaii—Lowland Dry—Unit 33, although there is no history of section 7 consultations, there is a future development project proposed for these 91 ac (37 ha) that would likely have a Federal nexus. However, the DHHL has a strong history of implementation in the development and management of the preserves at Kealakehe that have provided for the conservation of
If a future Federal nexus were to occur for an action taking place within an area occupied by one or more listed species, section 7 consultation would already be triggered by the presence of the species, and the Federal agency would consider the effects of its actions on the species through a jeopardy analysis. Because one of the primary threats to these species is habitat loss and degradation, the consultation process will, in evaluating the effects to these species, evaluate the effects of the action on the conservation or function of the habitat for the species regardless of whether critical habitat is designated for these lands. As noted in our FEA (IEc 2016, p. 1-7), the Service's recommendations for offsetting adverse project impacts to habitat that is occupied by a listed bird, invertebrate, or plant species under the jeopardy standard are often the same as recommendations we would make to offset adverse impacts to critical habitat, with the exception of the conservation project's location. As a consequence of shared threats and habitat requirements, any potential project modifications to provide for the conservation of one of these species would likely be the same as modifications requested for the others; thus, there would be little if any benefit from additional section 7 consultation for those species for which an area is designated as unoccupied but essential critical habitat for a species when it is also designated as occupied habitat for one of the other species.
Although the standards for jeopardy and adverse modification are not the same, any additional conservation that could be attained through the section 7 prohibition on adverse modification analysis would not likely be significant in this case because of the consultation history. Most of the excluded areas in this rule are occupied by
The existing conservation programs being implemented by these landowners also may reduce the regulatory benefits of critical habitat. The designation of critical habitat carries no requirement that non-Federal landowners undertake any proactive conservation measures, for example with regard to the maintenance, restoration, or enhancement of habitat for listed species. Any voluntary action by a non-Federal landowner that contributes to the maintenance, restoration, or enhancement of habitat is, therefore, a valuable benefit to the listed species. The benefits of overlaying a designation of critical habitat may be further reduced by the fact that the development and implementation of management plans covering portions of these excluded lands increase the accessibility necessary for surveys or monitoring designed to promote the conservation of these federally listed plant species and their habitat. We have evaluated each of the conservation plans below to determine the appropriate weight that should be given to the plans in reducing the benefits of critical habitat.
Another potential benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, State and local government agencies, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about
During 2012, the Service held multiple informational meetings with the DHHL, DLNR, HHFDC, QLT, Forest City Kona, other nongovernmental organizations (NGOs) and private landowners, about the proposed critical habitat for
Furthermore, the landowners excluded from this designation have already taken proactive steps to manage for the conservation of these species, as demonstrated by their ongoing conservation efforts and participation in conservation agreements. Several landowners have a history of conservation efforts that date back many years. Also, three of the landowners (Kamehameha Schools, WVA, and QLT) conduct public outreach and education programs that engage the public in conservation awareness. Therefore, for the lands excluded from this designation, the benefit of critical habitat in terms of education is reduced.
There is a long history of critical habitat designation in Hawaii, and neither the State nor county jurisdictions have ever initiated their own additional requirements in areas because they were identified as critical habitat. Therefore, based on this history, we believe this potential benefit of critical habitat is limited.
The designation of critical habitat, on the other hand, could have an unintended negative effect on our relationship with some non-Federal landowners due to the perceived imposition of government regulation. According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main
Furthermore, the potential educational and informational benefits of critical habitat designation on lands containing the physical or biological features essential to the conservation of
In contrast, the benefits derived from excluding these owners and enhancing our partnership with these landowners and land managers is significant. Because voluntary conservation efforts for the benefit of listed species on non-Federal lands are so valuable, the Service considers the maintenance and encouragement of conservation partnerships to be a significant benefit of exclusion. The development and maintenance of effective working partnerships with non-Federal landowners for the conservation of listed species is particularly important in areas such as Hawaii, a State with relatively little Federal landownership but many species of conservation concern. Excluding these areas from critical habitat will help foster the partnerships the landowners and land managers in question have developed with Federal and State agencies and local conservation organizations, and will encourage the continued implementation of voluntary conservation actions for the benefit of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned by Kamehameha Schools, totaling 2,834 ac (1,147 ha) on the island of Hawaii. Kamehameha Schools has been a proven conservation partner over the last two decades, as demonstrated, in part, by their ongoing management programs, including the Kamehameha Schools NRMP, the TMA Management Plan, and the management program on Kamehameha Schools land at Kaupulehu.
The section 7 consultation history of these Kamehameha Schools lands (no consultations over the last 9 years) indicates there is little potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. If a future Federal nexus were to occur for an action taking place on these lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands owned by Kamehameha Schools as critical habitat. First, the significant management actions already underway by Kamehameha Schools to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like Kamehameha Schools to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships, especially on non-Federal lands, and excluding Kamehameha Schools lands even where active management is not occurring is likely to strengthen the partnership between the Service and the landowner, which may encourage other conservation opportunities with Kamehameha Schools in the future and increased conservation of listed species and their habitat on Kamehameha Schools lands. Because Kamehameha Schools is a large landowner in the area where habitat for
The benefits of excluding these Kamehameha Schools lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because of limited potential for a Federal nexus on these lands and because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding Kamehameha Schools' lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned by WVA, totaling 1,758 (712 ha) on the island of Hawaii. The WVA has been involved in conservation since 2009, through the State Forest Stewardship Agreement, the 2012 Waikoloa Dry Forest Initiative License Agreement, and more recently their MOU with the Service.
The section 7 consultation history of these WVA lands (two informal consultations over the last 9 years) indicates there is potential for a future Federal nexus that could create a benefit to including these lands in critical habitat. However, we believe that the benefits gained from supporting the positive conservation partnership with this landowner in the State of Hawaii by excluding these lands from critical habitat (discussed below) are greater than the benefit that would be gained from the designation of critical habitat. If a future Federal nexus were to occur for an action taking place on these WVA lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands owned by WVA as critical habitat. This landowner and the public are already educated about the conservation value of these areas for
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like WVA to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships, especially on non-Federal lands, and excluding other WVA lands where active management is not occurring is likely to strengthen the partnership between the Service and WVA, which may encourage other conservation opportunities with the landowner in the future and increased conservation of listed species and their habitat on WVA lands. Because WVA is a large landowner in the area where habitat for
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because the presence of the species would already require a section 7 consultation regardless of whether or not critical habitat is designated. In occupied habitat, the section 7 prohibition on adverse modification would be unlikely to provide significant additional conservation benefits beyond what would be attained through the section 7 consultation due to the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding WVA lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned or managed by Palamanui Global Holdings LLC (Palamanui), totaling 502 ac (203 ha) on the island of Hawaii. Palamanui has been involved since 2005 in conservation programs that provide important conservation benefits to
The section 7 consultation history of these Palamanui lands (no consultations over the last 9 years) indicates there is little potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. If a future Federal nexus were to occur for an action taking place on these Palamanui lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands owned by Palamanui as critical habitat. First, the management actions already underway by Palamanui to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like Palamanui to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships, especially on non-Federal lands, and excluding other Palamanui lands where active management is not occurring is likely to strengthen the partnership between the Service and the landowner, which may encourage additional conservation partnerships with Palamanui in the future and increased conservation of listed species and their habitat on Palamanui lands. The exclusion highlights a positive conservation partnership model with the landowner, and thereby may help encourage the formation of new partnerships with other landowners, yielding benefits to
The benefits of excluding these Palamanui lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because of limited potential on these lands for a Federal nexus and because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding Palamanui's lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude 492 ac (199 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are under management by DHHL. This landowner is a conservation partner with a willingness to engage in ongoing management programs that provide important conservation benefits to
The section 7 consultation history of these DHHL lands over the last 9 years includes three informal consultations in Hawaii—Lowland Dry—Unit 35, indicating there is potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. However, we believe that the benefits gained from supporting the positive conservation partnership with this large landowner in the State of Hawaii by excluding these lands from critical habitat (discussed below) are greater than the benefit that would be gained from the designation of critical habitat. Furthermore, if a future Federal nexus were to occur for an action taking place on the DHHL lands in Hawaii—Lowland Dry—Unit 35, a section 7 consultation would already be triggered by the presence of
With respect to the unoccupied portions of DHHL lands in Hawaii—Lowland Dry—Unit 33, although there is no history of section 7 consultations, there is a future project that would likely have a Federal nexus. As mentioned earlier, DHHL is planning to develop all of these lands under their ownership in Hawaii—Lowland Dry—Unit 33. However, DHHL has a strong history of implementation of conservation efforts at the Kealakehe preserves, and in 2015, DHHL entered into an MOU with the Service in which DHHL agreed to preserve a total 97.05 ac (39 ha) of land for the conservation and recovery of
Several additional factors serve to further reduce the benefit of designating these lands as critical habitat. The management actions already underway at the Kealakehe preserves to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas where there are existing plans and programs can encourage landowners like DHHL to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships,
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal. In the occupied proposed Unit 35, the presence of the species would already require a jeopardy analysis and section 7 prohibition on adverse modification with critical habitat would be unlikely to provide additional conservation benefits on those lands beyond what would be attained through the jeopardy analysis for these species on those lands; the conservations measures that would be recommended to avoid impacts to habitat would likely be the same as those already recommended to avoid impacts to the species. In unoccupied Unit 33, there could be a benefit to designating critical habitat; however, we do not anticipate that critical habitat designation on these DHHL lands would result in benefits for these species beyond the current and anticipated future benefits gained through the conservation partnership DHHL has with the Service. The current conservation efforts underway by DHHL demonstrate the willingness of DHHL to contribute to the conservation of listed species and their habitat, and provide significant benefits for
The Secretary has therefore concluded that, in this particular case, the benefits of excluding DHHL lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned or managed by Kaloko Entities, totaling 631 ac (255 ha) on the island of Hawaii. Kaloko Entities is a new conservation partner with a willingness to engage in management programs and partnerships that will provide important conservation benefits to
The section 7 consultation history of these Kaloko Entities lands (two informal consultations over the last 9 years) indicates there is a potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. However, we believe that the benefits gained from supporting the positive conservation partnership with this landowner by excluding these lands from critical habitat (discussed below) are greater than the benefit that would be gained from the designation of critical habitat. Furthermore, if a future Federal nexus were to occur for an action taking place on these Kaloko Entities lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands owned by Kaloko Entities as critical habitat. The management actions already underway by Kaloko Entities to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like Kaloko Entities to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships, especially on non-Federal lands, and excluding Kaloko Entities lands even where active management is not occurring is likely to strengthen the partnership between the Service and the landowner, which may encourage additional partnerships with Kaloko Entities in the future and increased conservation of listed species and their habitat on Kaloko Entities lands. The exclusion highlights a positive conservation partnership model with the landowner, and thereby may help encourage the formation of new partnerships with other landowners, yielding benefits to
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding Kaloko Entities lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned or managed by Lanihau Properties, totaling 47 ac (19 ha) on the island of Hawaii. Lanihau Properties is a new conservation partner with a willingness to engage in management programs that will provide important conservation benefits to
The section 7 consultation history of these Lanihau Properties lands (one informal consultation over the last 9 years) indicates there is a small potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. However, we believe that the benefits gained from supporting the positive conservation partnership with this landowner by excluding these lands from critical habitat (discussed below) are greater than the benefit that would be gained from the designation of critical habitat. Furthermore, if a future Federal nexus were to occur for an action taking place on these Lanihau Properties lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands owned by Lanihau Properties as critical habitat. The management actions already underway by Lanihau Properties to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like Lanihau
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding Lanihau Properties lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat State-owned lands managed by the County of Hawaii, totaling 165 ac (67 ha) on the island of Hawaii. The County is a proven conservation partner, as shown, in part, in voluntary conservation actions dating back to 2010, their new MOU with the Service, and their collaboration with other landowners in Hawaii—Lowland Dry—Units 31, 33, 34, and 35, which all demonstrate a willingness to engage in ongoing management programs that provide important conservation benefits to
The section 7 consultation history of these County lands (one informal consultation over the last 9 years) indicates there is a small potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. However, we believe that the benefits gained from supporting the positive conservation partnership with this landowner by excluding these lands from critical habitat (discussed below) are greater than the benefit that would be gained from the designation of critical habitat. Furthermore, if a future Federal nexus were to occur for an action taking place on these County lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands managed by the County as critical habitat. The management actions already underway by the County to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage land managers like the County to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future
The benefits of excluding these lands managed by the County of Hawaii from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding these County of Hawaii lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat State-owned lands managed by HHFDC, totaling 30 ac (12 ha) on the island of Hawaii. HHFDC is a new conservation partner with a willingness to engage in management programs that will provide important conservation benefits to
The section 7 consultation history of these HHFDC lands (no consultations over the last 9 years) indicates there is little potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. If a future Federal nexus were to occur for an action taking place on these HHFDC lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands managed by HHFDC as critical habitat. First, the management actions already underway by HHFDC to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage land managers like HHFDC to partner with the Service in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because of limited potential on these lands for a Federal nexus and because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding HHFDC's lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned by Forest City Kona, totaling 265 ac (107 ha) on the island of Hawaii. Forest City Kona is a new conservation partner with a willingness to engage in management programs that will provide important conservation benefits to
The section 7 consultation history of these Forest City Kona lands (no consultations over the last 9 years) indicates there is little potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. If a future Federal nexus were to occur for an action taking place on these Forest City Kona lands, a section 7 consultation would already be triggered by the presence of
Several additional factors serve to reduce the benefit of designating these lands owned by Forest City Kona as critical habitat. First, the management actions already underway by Forest City Kona to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like Forest City Kona to partner with the Services in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships, especially on non-Federal lands, and excluding Forest City Kona lands from critical habitat even where active management is not occurring is likely to strengthen the partnership between the Service and the landowner, which may encourage additional partnerships with Forest City Kona in the future and increased conservation of listed species and their habitat on Forest City Kona lands. The exclusion highlights a positive conservation partnership model with the landowner, and thereby may be influential in the formation of new partnerships with other landowners,
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because of limited potential on these lands for a Federal nexus and because the presence of
The Secretary has therefore concluded that, in this particular case, the benefits of excluding Forest City Kona's lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
In this final designation, the Secretary has exercised his authority to exclude from critical habitat lands owned by Queen Liliuokalani Trust, totaling 302 ac (122 ha) on the island of Hawaii. The QLT is a proven conservation partner, as demonstrated in several conservation efforts including a Partners for Fish and Wildlife Program Agreement and a new MOU with the Service, showing a willingness to engage in ongoing management programs that provide important conservation benefits to
The section 7 consultation history of these QLT lands (no consultations over the last 9 years) indicates there is little potential for a future Federal nexus that would create a benefit to including these lands in critical habitat. The only future development project planned for these QLT lands is not expected to have a Federal nexus, and, therefore, critical habitat would provide no benefit through the section 7 consultation process.
Several additional factors serve to reduce the benefit of designating these lands owned by QLT as critical habitat. First, the management actions already underway by QLT to restore and support the lowland dry habitat upon which
The benefits of exclusion, on the other hand, are significant. Excluding areas covered by existing plans and programs can encourage landowners like QLT to partner with the Services in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. Furthermore, we give great weight to the benefits of excluding areas where we have conservation partnerships, especially on non-Federal lands, and excluding these QLT lands even where active management is not occurring is likely to strengthen the partnership between the Service and the landowner, which may encourage additional partnerships with QLT in the future and increased conservation of listed species and their habitat on QLT lands. The exclusion highlights a positive conservation partnership model with the landowner, and thereby may be influential in the formation of new partnerships with other landowners, yielding benefits to
The benefits of excluding these lands from critical habitat are sufficient to outweigh the potential benefits that may be realized through the designation of critical habitat. The regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because of limited potential on these lands for a Federal nexus. The current conservation efforts underway by QLT demonstrate the willingness of QLT to contribute to the conservation of listed species and their habitat, and provide significant benefits for
The Secretary has therefore concluded that, in this particular case, the benefits of excluding QLT lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of
We have determined that the exclusion of 7,027 ac (2,844 ha) from the designation of critical habitat for
An important consideration as we evaluate these exclusions and their potential effect on the species in question is that critical habitat does not carry with it a regulatory requirement to restore or actively manage habitat for the benefit of listed species; the regulatory effect of critical habitat is only the avoidance of destruction or adverse modification of critical habitat should an action with a Federal nexus occur. It is, therefore, advantageous for the conservation of the species to support the proactive efforts of non-Federal landowners who are contributing to the enhancement of essential habitat features for listed species through exclusion.
As described above, at least some of the area excluded is likely to support recovery efforts for these species, although for purposes of this analysis we do not count on that. However, the remaining designated critical habitat will accommodate the expansion of existing populations and the establishment of new populations of
These three species are also subject to other protections as well; these protections remain in effect even absent the designation of critical habitat. Section 195D-4 of Hawaii Revised Statutes (endangered species and threatened species) stipulates that species determined to be endangered or threatened under the Federal Endangered Species Act shall be deemed endangered or threatened under the State law. Thus, these species are already protected under State law, and unlike the Federal Endangered Species Act, State law prohibits the take of plants. Under the State law, it is unlawful, with some exceptions, to “take” such species, or to possess, sell, carry or transport them. The statutory protections under State law provide additional assurances that exclusion of these areas from critical habitat will not result in extinction of
Currently,
We have thoroughly considered the effect of each of the exclusions made in this final rule. For all of the reasons described above, the Secretary has determined that these exclusions will not result in the extinction of the species concerned, and is exercising his discretion under section 4(b)(2) of the Act to exclude from this final critical habitat designation portions of the proposed critical habitat units that are within the areas identified in Table 4, totaling 7,027 ac (2,844 ha).
Maps of areas essential to the conservation of the species covered in this rule, identified through designated critical habitat, or through partnerships and conservation agreements with landowners and land managers but excluded from critical habitat under section 4(b)(2) of the Act, are available in the document “Supplementary Information for the Designation and Non-Designation of Critical Habitat on Hawaii for
The total area excluded from critical habitat designation in this rule is summarized by landowner in the following table.
We requested written comments from the public on the proposed designation of critical habitat on Hawaii Island for
During the first comment period, we received 20 letters addressing the proposed critical habitat designation. During the second comment period, we received 87 letters addressing the proposed critical habitat designation or the DEA. During the May 15, 2013, public hearing, 39 individuals or organizations made comments on the designation of critical habitat for the three species. During the fourth comment period, we received 9 letters addressing the proposed critical habitat designation. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below. Comments we received are grouped into 11 general issues relating to the proposed critical habitat designation for the three species.
In accordance with our peer review policy published in the
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Regarding downzoning, according to the State's DLNR Office of Conservation and Coastal Lands and the State Office of Planning, critical habitat designation does not automatically generate a district reclassification or downzoning (
The FEA acknowledges that there is uncertainty with regard to whether or not the County of Hawaii will require landowners to implement conservation measures or conduct environmental assessments as a result of the designation of critical habitat. Uncertainty exists regarding whether or not critical habitat designation will cause the County to request additional assessments or reporting, or require additional conservation efforts when a landowner applies for a change in zoning. As described in section 2.6 of the FEA, the County Planning Department indicated that while critical habitat designation is taken into consideration, the presence of a listed
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Even though the KCDP already recognizes the sensitive nature of these lands, the Service is not relieved of its statutory obligation to designate critical habitat based on the contention that it will not provide additional conservation benefit (see,
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According to Executive Order 13211, a “Significant energy action” means any action by an agency that is a significant regulatory action under Executive Order 12866 or any successor order, and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or that is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action (66 FR 28355; May 22, 2001). As discussed in the Required Determinations section below, the OIRA determined this rule was not significant. The economic analysis for this critical habitat designation could not identify any energy projects planned or proposed within the proposed critical habitat designation, and, therefore, section A.4 of Appendix A of the FEA, “Potential Impacts to the Energy Industry,” states that the designation of critical habitat is not anticipated to result in any impacts to the energy industry.
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In this case, the physical and biological features that we identified for these species represent the PCEs for these species, and reflect a distribution that we concluded is essential to the species' recovery needs within the lowland dry ecosystem. The ecosystems' features include the appropriate microclimatic conditions for germination and growth of the plants (
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The Hawaii Department of Business, Economic Development & Tourism's (DBEDT) Office of Planning also conducts a periodic review of district boundaries taking into account current land uses, environmental concerns, and other factors, and may propose changes to the LUC. The State LUC determines whether changes proposed by DLNR, DBEDT, other State agencies, counties, or landowners should be enacted. In doing so, State law requires LUC to take into account specific criteria, set forth at HRS section 205-17. While the LUC is specifically directed to consider the impact of the proposed reclassification on “the preservation or maintenance of important natural systems or habitats,” it is also specifically directed to consider five other impacts in its decision: (a) Maintenance of valued cultural, historical, or natural resources; (b) maintenance of other natural resources relevant to Hawaii's economy, including, but not limited to, agricultural resources; (c) commitment of State funds and resources; (d) provision for employment opportunities and economic development; and (e) provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups (HRS section 205.17). Approval of redistricting requires six affirmative votes from the nine commissioners, with the decision based on a “clear preponderance of the evidence that the proposed boundary is reasonable” (HRS section 205-4). In addition, the LUC must hold a hearing on all petitions to redistrict areas greater than 15 ac (6 ha), and must admit as intervening parties all persons who have some property interest in the land, thus giving private property owners opposing redistricting the opportunity to present evidence (HRS section 205-4). The relevant State endangered and threatened species statute contains no reference to designated critical habitat. Also, as stated above, unlike the automatic conferral of State law protection for all federally listed species, State law does not require initiation of the amendment process for federally designated critical habitat (HRS section 195D-5.1, HRS section 195D-4(a)).
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To understand the potential impacts of a critical habitat designation, we evaluate in our economic analysis the incremental impacts of the designation as identified by evaluating the additional protections or conservation measures afforded the species through the designation beyond those that the species receives by being federally listed. Under E.O. 12866, we are required to evaluate the direct and indirect impacts of the designation. The evaluation of these potential impacts is discussed in our DEA and FEA. Additionally, under the RFA and following recent case law, we are to evaluate the potential impacts to small businesses, but this evaluation is limited to impacts to directly regulated entities. The designation of critical habitat only has regulatory impact only through section 7 of the Act, under which a Federal action agency is required to consult with us on any project that is funded, permitted, or otherwise authorized that may affect designated critical habitat. In other words, critical habitat only has a regulatory impact if a Federal nexus exists. Critical habitat has no regulatory effect or impact under the Act on actions that do not have a Federal nexus. Since Federal action agencies are the only directly regulated entities as a result of the designation of critical habitat, it is therefore reasonable for us to conclude that the designation of critical habitat does not directly regulate small business entities and, therefore, does not significantly impact them. As a result, we believe that we have accurately assessed potential impacts to small business entities in the rulemaking, and can reasonably certify that this designation will not have a significant impact on a substantial number of small business entities. For a further discussion of our rationale, please see Required Determinations, below.
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While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Regarding the assertion that critical habitat constitutes a taking, the Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use or access to the designated areas. Critical habitat designation also does not establish specific land management standards or prescriptions, although Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat.
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During the initial comment period on our proposed rule (77 FR 63928; October 17, 2012), we became aware that there were errors in the landownership information in the geospatial data sets associated with parcel data from Hawaii County (2008), which were used to identify affected landowners. We recognize that some landowners whose properties overlapped with the proposed critical habitat did not receive notification letters due to errors in landownership information we received from the State or missing landowner information in the State's geospatial data sets. We received updated information on land ownership from Kaloko Makai in their December 17, 2012, comment letter, from the Hawaii Housing and Finance Development Corporation (HHFDC) in their November 29, 2012, comment letter, and from the DHHL through meetings and correspondence following publication of the October 17, 2012, proposed rule (77 FR 63928). We incorporated all updated land ownership information into this final rule.
Shortly after publishing our April 30, 2013, document announcing the availability of and seeking public comments on the DEA of the proposed critical habitat, reopening the comment period on the October 17, 2012, proposed rule, and announcing the public information meeting and public hearing held on May 15, 2013 (78 FR 25243), we sent letters to all of the affected landowners that we were able to identify. In that letter we provided information on the proposed rule (77 FR 63928; October 17, 2012), the DEA, and the public hearing held on May 15, 2013, in Kailua-Kona, Hawaii. In addition, we contacted all appropriate Federal and State agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment. In addition, on October 20, 2012, we published a public notice of the proposed rule in the local Honolulu Star Advertiser, Hawaii Tribune Herald, and West Hawaii Today newspapers.
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The DEA acknowledges, however, that critical habitat designation may affect the other State and local land management authorities, as well as the behavior of individual landowners or buyers. Additional discussion of these potential indirect impacts is included in the FEA (see section 2.6). While information limitations prevent the quantification of such impacts, the qualitative discussion is considered in evaluating impacts of the designation. Section 2.6 of the DEA and FEA also includes a discussion of the potential for critical habitat designation to result in redistricting to the Conservation district (for more information, please see our response to
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The Service and DHHL have worked in partnership to execute a memorandum of understanding (MOU) that is intended to benefit the three plant species and the lowland dry ecosystem. For the reasons described above (see Consideration of Impacts Under Section 4(b)(2) of the Act), lands owned by DHHL and leased to L2020 are excluded from the final critical habitat designation.
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We acknowledge, however, that in some cases, third-party proponents of the action subject to permitting or funding may participate in a section 7 consultation and thus may be indirectly affected. Therefore, the focus of the DEA's threshold analysis of impacts to small entities pursuant to the RFA, as amended by the SBREFA of 1996, is to identify the third-party entities likely to be involved and potentially indirectly affected by the future section 7 consultations on development and transportation projects likely to occur within proposed critical habitat (IEc 2013, chapter 2, p. A-4). As described in section 2.5 of the DEA, the QLT project is unlikely to have a Federal nexus that would lead to section 7 consultation with the Service. In addition, for the reasons described above (see Consideration of Impacts Under Section 4(b)(2) of the Act), the lands owned by QLT, Forest City Kona, and Koloko Entities are excluded from this final critical habitat designation.
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Shortly after publishing our April 30, 2013, document, we sent letters to all of the affected landowners that we were able to identify. In that letter we provided information on the proposed rule published on October 17, 2012 (77 FR 63928), the DEA, and the public hearing held on May 15, 2013, in Kailua-Kona, Hawaii. In addition, we contacted all appropriate Federal and State agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment.
On July 2, 2013 (78 FR 39698), we again reopened the public comment period on the proposed critical habitat designation and DEA for another 60 days, ending September 3, 2013, and then on May 20, 2016 (81 FR 31900), we reopened the comment period for an additional 15 days, ending on June 6, 2016. In this final rule, we have fully considered and included responses to all substantive comments related to the DEA and the information in the FEA.
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Refer to
Finally, with regard to the commenters' concerns that designation of critical habitat may prevent the highway extension from occurring, we cannot predict the outcome of the consultation process; however, if the Service concludes that the project is likely to result in the destruction or adverse modification of critical habitat, as those terms are used in section 7, it must suggest reasonable and prudent alternatives which the Secretary believes would not violate section 7(a)(2) of the Act. If there are no reasonable and prudent alternatives and other criteria are met, the Act provides for an exemption process. See 16 U.S.C. 1536(e)-(p).
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Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule is not an Executive Order (E.O.) 13771 (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Consequently, only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment periods that may pertain to our consideration of the possible incremental impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. Our economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with conservation activities for the three species within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) The designation of critical habitat imposes no obligation on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Consequently, we do not believe that the critical habitat designation will significantly or uniquely affect small
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for each of the three species in a takings implications assessment. The Act only regulates Federal actions and does not regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits. A takings implications assessment has been completed and concludes that this designation of critical habitat for the three species does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in Hawaii. We received comments from Hawaii elected officials; Hawaii Department of Accounting and General Services; Hawaii Department of Agriculture; Hawaii Department of Business, Economic Development and Tourism, -Hawaii Housing Finance and Development Corporation; Hawaii Department of Hawaiian Home Lands; Hawaii Department of Education; Hawaii Division of Forestry and Wildlife; Office of Hawaiian Affairs; Hawaii County Office of the Prosecuting Attorney; Hawaii County Planning Department; and the University of Hawaii. We addressed these comments above, under Summary of Comments and Recommendations. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information may assist local governments in long-range planning.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the three species, this rule identifies the elements of physical and biological features essential to the conservation of the three species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the national Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rule is available on the internet at
The primary authors of this document are the staff members of the Pacific Islands Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
The additions and revisions read as follows:
(k)
(1)
(40) Hawaii 10—
(i) This unit is also critical habitat for Hawaii 10—
(ii)
(46) Hawaii 10—
(47) Hawaii 10—
(97) * * *
(ii)
(100) Hawaii 30—
(i) [Reserved]
(ii)
(101) Hawaii 30—
(i) [Reserved]
(ii)
(102) Hawaii 30—
(i) [Reserved]
(ii)
(104) Hawaii 31—
(i) This unit is also critical habitat for Hawaii 31—
(ii)
(105) Hawaii 31—
(106) Hawaii 31—
(107) Hawaii 33—
(i) This unit is also critical habitat for Hawaii 33-
(ii)
(108) Hawaii 33—
(109) Hawaii 33—
(110) Hawaii 34—
(i) This unit is also critical habitat for Hawaii 34—
(ii) See paragraph (k)(107)(ii) of this section for the map of this unit.
(111) Hawaii 34—
(112) Hawaii 34—
(113) Hawaii 36—
(i) This unit is also critical habitat for Hawaii 36—
(ii) See paragraph (k)(107)(ii) of this section for the map of this unit.
(114) Hawaii 36—
(115) Table of Protected Species Within Each Critical Habitat Unit for the Island of Hawaii.
(l) * * *
(1) * * *
Hawaii 10—
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Hawaii 10—
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Hawaii 10—
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
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