Page Range | 43501-43737 | |
FR Document |
Page and Subject | |
---|---|
83 FR 43607 - Significant New Use Rules on Certain Chemical Substances | |
83 FR 43710 - Sunshine Act Meetings | |
83 FR 43635 - Adjustment of Appendices Under the Dairy Tariff-Rate Import Quota Licensing Regulation for the 2018 Tariff-Rate Quota Year | |
83 FR 43637 - Assessment of Fees for Dairy Import Licenses for the 2019 Tariff-Rate Import Quota Year | |
83 FR 43634 - Nuseed Americas Inc.; Determination of Nonregulated Status of Canola Genetically Engineered for Altered Oil Profile | |
83 FR 43501 - Irish Potatoes Grown in Colorado; Increased Assessment Rate for Area No. 2 | |
83 FR 43637 - Stakeholder Listening Opportunity for Priorities in Research, Education and Extension | |
83 FR 43527 - Significant New Use Rules on Certain Chemical Substances | |
83 FR 43663 - Agency Information Collection Activities Under OMB Review | |
83 FR 43675 - Agency Information Collection Activities; Proposed Renewal of an Exiting Collection (EPA ICR No. 1446.12); Comment Request | |
83 FR 43606 - Significant New Use Rules on Certain Chemical Substances | |
83 FR 43571 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Regional Haze Five-Year Progress Report | |
83 FR 43689 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
83 FR 43664 - Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces; Notice of Federal Advisory Committee Meeting; Cancellation | |
83 FR 43676 - Announcement of the Per- and Polyfluoroalkyl Substances (PFAS) Heartland Community Engagement | |
83 FR 43704 - Notice of Realty Action: Non-Competitive (Direct) Sale of Public Land in Esmeralda County, NV | |
83 FR 43607 - Medicare and State Health Care Programs: Fraud and Abuse; Request for Information Regarding the Anti-Kickback Statute and Beneficiary Inducements CMP | |
83 FR 43737 - Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities; Notice of Meeting | |
83 FR 43702 - 30-Day Notice of Proposed Information Collection: Community Development Block Grant-Disaster Recovery (CDBG-DR); 2 Year Expenditure Deadline Extension Request | |
83 FR 43700 - 60-Day Notice of Proposed Information Collection: Neighborhood Stabilization Program 2 Reporting NSP2 | |
83 FR 43687 - Final National Occupational Research Agenda for Traumatic Injury Prevention | |
83 FR 43656 - Submission for OMB Review; Comment Request | |
83 FR 43724 - Notice of Opportunity for Public Comment To Dispose of 4.68 Acres of Airport Land at Houlton International Airport, Houlton, ME | |
83 FR 43508 - Modification and Establishment of Restricted Areas; Townsend, GA | |
83 FR 43733 - Denial of Motor Vehicle Defect Petition | |
83 FR 43725 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification of Airmen for the Operation of Light-Sport Aircraft | |
83 FR 43724 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Procedures for Non-Federal Navigation Facilities | |
83 FR 43723 - Determinations Regarding Use of Chemical Weapons by Russia Under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 | |
83 FR 43664 - Reserve Forces Policy Board; Notice of Federal Advisory Committee Meeting | |
83 FR 43557 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2018 Commercial Accountability Measures and Closure for Atlantic Migratory Group Cobia | |
83 FR 43730 - Petition for Waiver of Compliance | |
83 FR 43611 - Natural Resource Damages for Hazardous Substances | |
83 FR 43586 - Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan: Proposal of Best Available Retrofit Technology (BART) and Interstate Transport Provisions | |
83 FR 43691 - Submission for OMB Review; Comment Request | |
83 FR 43731 - Petition for Waiver of Compliance | |
83 FR 43735 - Mutual Savings Association Advisory Committee and Minority Depository Institutions Advisory Committee | |
83 FR 43736 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple CDFI Information Collection Requests | |
83 FR 43731 - Meeting Notice-U.S. Maritime Transportation System National Advisory Committee | |
83 FR 43646 - Large Diameter Welded Pipe From the Republic of Turkey: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
83 FR 43644 - Large Diameter Welded Pipe From the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value | |
83 FR 43649 - Large Diameter Welded Pipe From Canada: Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures | |
83 FR 43640 - Large Diameter Welded Pipe From Greece: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
83 FR 43651 - Large Diameter Welded Pipe From the Republic of Korea: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
83 FR 43653 - Large Diameter Welded Pipe From India: Preliminary Determination of Sales at Less Than Fair Value | |
83 FR 43692 - Meeting of the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria | |
83 FR 43525 - Competition With Civilian Bands | |
83 FR 43708 - Agency Information Collection Activities; Submission for OMB Review; Comment Request, Evaluation of the American Apprenticeship Initiative, New Collection | |
83 FR 43709 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): Meeting | |
83 FR 43726 - Surface Transportation Project Delivery Program; Florida DOT Audit #1 Report | |
83 FR 43710 - New Postal Products | |
83 FR 43659 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting | |
83 FR 43561 - Airworthiness Directives; Leonardo S.p.A. Helicopters | |
83 FR 43671 - Public Notice: Records Governing Off-the-Record Communications | |
83 FR 43671 - Combined Notice of Filings #2 | |
83 FR 43673 - Combined Notice of Filings #1 | |
83 FR 43668 - Topsham Hydro Partners Limited Partnership Pejepscot Hydroelectric Project; Notice of Dispute Resolution Panel Meeting and Technical Conference, and Revised Schedule | |
83 FR 43665 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization: MC Project Company LLC | |
83 FR 43672 - Notice of Intent To Terminate Conduit Exemption and Soliciting Comments, Protests, and Motions To Intervene: City of San Luis Obispo | |
83 FR 43667 - Notice of Schedule for Environmental Review of the Dominion Energy Transmission, Inc. Sweden Valley Project | |
83 FR 43669 - AEP Generation Resources, Inc.; 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 43665 - Order On Intent To Revoke Market-Based Rate Authority | |
83 FR 43702 - Announcement of Public Meetings: North American Wetlands Conservation Council; Neotropical Migratory Bird Conservation Advisory Group | |
83 FR 43705 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
83 FR 43662 - North Pacific Fishery Management Council; Public Meeting | |
83 FR 43662 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting | |
83 FR 43659 - New England Fishery Management Council; Public Meeting | |
83 FR 43660 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting | |
83 FR 43658 - New England Fishery Management Council; Public Meeting | |
83 FR 43661 - New England Fishery Management Council; Public Meeting | |
83 FR 43525 - Safety Zone; Upper Mississippi River, Mile Markers 751.2 to 751.8, Alma, WI | |
83 FR 43707 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
83 FR 43722 - Administrative Declaration of a Disaster for the State of NEW MEXICO | |
83 FR 43660 - New England Fishery Management Council; Public Meeting | |
83 FR 43661 - Fisheries of the Caribbean; Southeast Data, Assessment, and Review (SEDAR); Public Meeting | |
83 FR 43683 - Agency Information Collection Activities; Proposed Collection; Comment Request | |
83 FR 43685 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
83 FR 43688 - Agency Forms Undergoing Paperwork Reduction Act Review | |
83 FR 43695 - Extension of the Designation of Somalia for Temporary Protected Status | |
83 FR 43638 - Submission for OMB Review; Comment Request | |
83 FR 43710 - 30-Day Notice for the “NEA Funding Reporting Requirements-Final Descriptive Reports FY2019 and Later” | |
83 FR 43690 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
83 FR 43642 - Fresh Tomatoes From Mexico: Preliminary Results of the Five-Year Sunset Review of the 2013 Suspension Agreement on Fresh Tomatoes From Mexico | |
83 FR 43657 - National Institute of Standards and Technology Performance Review Board Membership | |
83 FR 43657 - Meeting of the Visiting Committee on Advanced Technology | |
83 FR 43656 - Announcing Request for Nominations for Lightweight Cryptographic Algorithms | |
83 FR 43510 - Chief Compliance Officer Duties and Annual Report Requirements for Futures Commission Merchants, Swap Dealers, and Major Swap Participants | |
83 FR 43680 - Proposed Agency Information Collection Activities; Comment Request | |
83 FR 43720 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Independence Policy of the Board of Directors of the Exchange | |
83 FR 43715 - Tortoise Capital Advisors, L.L.C., et al. | |
83 FR 43711 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Make a Number of Non-Substantive Changes to the Rulebook | |
83 FR 43703 - Indian Gaming; Approval of Tribal-State Class III Gaming Compact Amendments in the State of Oklahoma | |
83 FR 43704 - Indian Gaming; Approval of Tribal-State Class III Gaming Compact Amendments in the State of Oklahoma | |
83 FR 43732 - Reports, Forms and Record Keeping Requirements Agency Information Collection Activity Under OMB Review | |
83 FR 43674 - Magellan Pipeline Company L.P.; Notice of Petition for Declaratory Order | |
83 FR 43668 - Empire Pipeline, Inc.; Notice of Schedule for Environmental Review of the Empire North Project | |
83 FR 43666 - Combined Notice of Filings #1 | |
83 FR 43713 - Cushing Asset Management, LP et al. | |
83 FR 43735 - Multiemployer Pension Plan Application To Reduce Benefits | |
83 FR 43677 - Privacy Act of 1974; System of Records | |
83 FR 43674 - Meetings of the Local Government Advisory Committee and the Small Communities Advisory Subcommittee | |
83 FR 43576 - Air Plan Revisions; California; Technical Amendments | |
83 FR 43538 - Significant New Use Rules on Certain Chemical Substances | |
83 FR 43694 - National Institute of Mental Health; Notice of Closed Meetings | |
83 FR 43694 - National Cancer Institute Cancellation; Notice of Meeting | |
83 FR 43693 - National Cancer Institute; Notice of Closed Meetings | |
83 FR 43694 - National Institute of Mental Health; Notice of Meeting | |
83 FR 43563 - Contributions in Exchange for State or Local Tax Credits | |
83 FR 43559 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH Helicopters | |
83 FR 43503 - Truth in Lending (Regulation Z) Annual Threshold Adjustments (Credit Cards, HOEPA, and Qualified Mortgages) | |
83 FR 43556 - LPTV, TV Translator, and FM Broadcast Station Reimbursement; Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions | |
83 FR 43613 - LPTV, TV Translator, and FM Broadcast Station Reimbursement, Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions |
Agricultural Marketing Service
Animal and Plant Health Inspection Service
Foreign Agricultural Service
National Institute of Food and Agriculture
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Army Department
Federal Energy Regulatory Commission
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Inspector General Office, Health and Human Services Department
National Institutes of Health
Coast Guard
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
National Endowment for the Arts
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Maritime Administration
National Highway Traffic Safety Administration
Comptroller of the Currency
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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Agricultural Marketing Service, USDA.
Final rule.
This rule implements a recommendation from the Colorado Potato Administrative Committee (Committee) to increase the assessment rate established for Area No. 2 for the 2018-2019 and subsequent fiscal periods. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
Effective September 26, 2018.
Barry Broadbent, Senior Marketing Specialist, or Gary Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202)720-8938, or email:
This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement No. 97 and Order No. 948, as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado. Part 948, (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and handlers operating within the area of production.
The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order, Colorado Area No. 2 potato handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate as established herein will be applicable to all assessable potatoes in Area No. 2 for the 2018-2019 fiscal period, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
The Order provides authority for each area Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee's needs and with the costs of goods and services in their local area and are in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting and all directly affected persons have an opportunity to participate and provide input.
This rule increases the assessment rate for Area No. 2 from $0.0033 to $0.006 per hundredweight of potatoes handled for the 2018-2019 and subsequent fiscal periods. The Committee established the current rate in 2013-2014 fiscal period to reduce the Committee's monetary reserve to a level that it determined to be appropriate under the Order. Since that action, the reserve fund has been drawn down to approximately 15 percent of annual budgeted expenditures. The $0.006 per hundredweight assessment rate realigns annual assessment revenue with expected administrative expenses moving forward and will no longer require the utilization of the monetary reserve to fund a portion of the Committee's budgeted expenditures.
The Committee met on March 15, 2018 to consider the Committee's projected 2018-2019 financial requirements, the size of the Committee's operating reserve, and the Order's continuing assessment rate. The Committee unanimously recommended an assessment rate of $0.006 per hundredweight of potatoes for the 2018-2019 fiscal period. The $0.006 assessment rate is $0.0027 higher than the rate previously in effect. Without the increase, anticipated assessment revenue would not have been sufficient to fund the Committee's ongoing administrative function, and the balance in the Committee's monetary reserve would not have been enough to cover the deficit. The assessment rate increase is necessary to maintain the Committee's oversight activities at current levels and avoid a reduction in the program's effectiveness.
For the 2017-2018 fiscal period, the Committee adopted a budget of $79,623.
The assessment rate recommended by the Committee was derived by considering anticipated expenses, expected shipments, and the amount of funds available in the authorized reserve. Expected income derived from handler assessments of $84,000 (estimated 14,000,000 hundredweight times $0.006 per hundredweight) should be adequate to cover budgeted expenses of between $81,000 and $83,000 and put a small amount back into the Committee's monetary reserve fund. Funds in the reserve (currently expected to be $11,848 at the end of the 2017-2018 fiscal period) would be kept within the maximum permitted by § 948.78.
The assessment rate established by this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's budget for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 160 producers of Colorado Area No. 2 potatoes in the production area and approximately 60 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to data from USDA's Market News, the 2016-2017 season weighted average f.o.b. price for Colorado potatoes was approximately $12.06 per hundredweight. The Committee reported that shipments for the 2016-2017 fiscal period were 13.9 million hundredweight. Using the number of handlers, and assuming a normal distribution, the majority of handlers would have average annual receipts of less than $7,500,000 ($12.06 times 13.9 million equals $167,634,000 divided by 60 handlers equals $2,793,900 per handler).
In addition, based on data from USDA's National Agricultural Statistics Service, the season average producer price for Colorado potatoes for the 2016-2017 crop year was approximately $9.60 per hundredweight. Based on producer price, shipment data, and the total number of Colorado Area No. 2 potato producers, and assuming a normal distribution, the average annual producer revenue is above $750,000 ($9.60 times 13.9 million hundredweight equals $133,440,000 divided by 160 producers equals $834,000 per producer). Thus, the majority of Colorado Area No. 2 potato handlers may be classified as small entities, while many of the Colorado Area No. 2 potato producers may be classified as large entities.
This rule increases the assessment rate collected from handlers for the 2018-2019 and subsequent fiscal periods from $0.0033 to $0.006 per hundredweight of Colorado Area No. 2 potatoes. The Committee unanimously recommended the increase. The $0.006 per hundredweight assessment rate established by this rule is $0.0027 higher than the 2017-2018 rate. The quantity of assessable potatoes for the 2018-2019 fiscal period is estimated at 14 million hundredweight. Thus, the $0.006 rate is expected to provide $84,000 in assessment income. Income derived from handler assessments is expected to be adequate to cover budgeted expenses.
The Committee adopted a budget of $79,623 for the 2017-2018 fiscal period and recommended a similar amount of budgeted expenditures for the 2018-2019 fiscal period at its scheduled May 2018 meeting. The major budgeted expenditures for the 2017-2018 year included $66,110 for administrative expenses, $6,138 for office expenses, and $7,375 for facilities/utilities. Budgeted expenses for these items in 2016-2017 were $65,894, $6,587, and $6,313, respectively.
Prior to arriving at the recommended assessment rate, the Committee considered the benefits and costs related to establishing other assessment rates. However, the Committee determined that any assessment rate other than the $0.006 per hundredweight rate would either generate insufficient revenue to meet the Committee's expected expenses for the 2018-2019 fiscal period or would result in a larger than desired addition to the Committee's reserve. Based on estimated shipments, the established assessment rate of $0.006 should provide $84,000 in assessment income. The Committee determined that this level of assessment revenue would be adequate to cover budgeted expenses for the 2018-2019 fiscal period without unduly increasing reserve funds.
A review of historical information and preliminary information pertaining to the upcoming fiscal year indicates that the average producer price for the 2018-2019 season should be approximately $9.26 per hundredweight of potatoes. Therefore, the estimated assessment revenue for the 2018-2019 fiscal period as a percentage of total producer revenue would be about 0.06 percent.
This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs, such costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the Order.
In addition, the Committee's meeting was widely publicized throughout the Colorado potato industry. All interested
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Colorado potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As mentioned in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 948 is amended as follows:
7 U.S.C. 601-674.
On and after September 1, 2018, an assessment rate of $0.006 per hundredweight is established for Colorado Area No. 2 potatoes.
Bureau of Consumer Financial Protection.
Final rule; official interpretation.
The Bureau of Consumer Financial Protection (Bureau) is issuing this final rule amending the regulation text and official interpretations for Regulation Z, which implements the Truth in Lending Act (TILA). The Bureau is required to calculate annually the dollar amounts for several provisions in Regulation Z; this final rule revises, as applicable, the dollar amounts for provisions implementing TILA and amendments to TILA, including under the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act), the Home Ownership and Equity Protection Act of 1994 (HOEPA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The Bureau is adjusting these amounts, where appropriate, based on the annual percentage change reflected in the Consumer Price Index (CPI) in effect on June 1, 2018.
This final rule is effective January 1, 2019.
Monique Chenault, Paralegal, and Shelley Thompson, Counsel, Office of Regulations, at (202) 435-7700. If you require this document in an alternative electronic format, please contact
The Bureau is amending the regulation text and official interpretations for Regulation Z, which implements TILA, to update the dollar amounts of various thresholds that are adjusted annually based on the annual percentage change in the CPI as published by the Bureau of Labor Statistics (BLS). Specifically, for open-end consumer credit plans under TILA, the threshold that triggers requirements to disclose minimum interest charges will remain unchanged at $1.00 in 2019. For open-end consumer credit plans under the CARD Act amendments to TILA, the adjusted dollar amount in 2019 for the safe harbor for a first violation penalty fee will increase by $1 to $28 and the adjusted dollar amount for the safe harbor for a subsequent violation penalty fee will increase by $1 to $39. For HOEPA loans, the adjusted total loan amount threshold for high-cost mortgages in 2019 will be $21,549. The adjusted points-and-fees dollar trigger for high-cost mortgages in 2019 will be $1,077. For qualified mortgages, which receive certain protections from liability under the ability-to-repay rule, the maximum thresholds for total points and fees in 2019 will be 3 percent of the total loan amount for a loan greater than or equal to $107,747; $3,232 for a loan amount greater than or equal to $64,648 but less than $107,747; 5 percent of the total loan amount for a loan greater than or equal to $21,549 but less than $64,648; $1,077 for a loan amount greater than or equal to $13,468 but less than $21,549; and 8 percent of the total loan amount for a loan amount less than $13,468.
Sections 1026.6(b)(2)(iii) and 1026.60(b)(3) of Regulation Z implement sections 127(a)(3) and 127(c)(1)(A)(ii)(II) of TILA. Sections 1026.6(b)(2)(iii) and 1026.60(b)(3) require the disclosure of any minimum interest charge exceeding $1.00 that could be imposed during a billing cycle and provide that, for open-end consumer credit plans, the minimum interest charge thresholds
Section 1026.52(b)(1)(ii)(A) and (B) of Regulation Z implements section 149(e) of TILA, established by the CARD Act.
Section 1026.32(a)(1)(ii) of Regulation Z implements section 1431 of the Dodd-Frank Act,
Under § 1026.32(a)(1)(ii)(B) the HOEPA points-and-fees dollar trigger is $1,000. Section 1026.32(a)(1)(ii)(B) provides that this threshold amount will be recalculated annually using the CPI index in effect on June 1; the Bureau uses the CPI-U for this adjustment. The 2019 adjustment is based on the CPI-U index in effect on June 1, 2018, which was reported by BLS on May 10, 2018, and reflects the percentage change from April 2017 to April 2018. The adjustment to the $1,000 figure being adopted here reflects a 2.5 percent increase in the CPI-U index for this period and is rounded to whole dollars for ease of compliance.
The Bureau's Regulation Z implements sections 1411 and 1412 of the Dodd-Frank Act, which generally require creditors to make a reasonable, good-faith determination of a consumer's ability to repay any consumer credit transaction secured by a dwelling and establishes certain protections from liability under this requirement for qualified mortgages. Under § 1026.43(e)(3)(i), a covered transaction is not a qualified mortgage if the transaction's total points and fees exceed: 3 percent of the total loan amount for a loan amount greater than or equal to $100,000; $3,000 for a loan amount greater than or equal to $60,000 but less than $100,000; 5 percent of the total loan amount for loans greater than or equal to $20,000 but less than $60,000; $1,000 for a loan amount greater than or equal to $12,500 but less than $20,000; or 8 percent of the total loan amount for loans less than $12,500. Section 1026.43(e)(3)(ii) provides that the limits and loan amounts in § 1026.43(e)(3)(i) are recalculated annually for inflation using the CPI-U index in effect on June 1. The 2019 adjustment is based on the CPI-U index in effect on June 1, 2018, which was reported by BLS on May 10, 2018, and reflects the percentage change from April 2017 to April 2018. The adjustment to the 2018 figures being adopted here reflects a 2.5 percent increase in the CPI-U index for this period and is rounded to whole dollars for ease of compliance.
The minimum interest charge amounts for §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) will remain unchanged at $1.00 for the year 2019. Accordingly, the Bureau is not amending these sections of Regulation Z.
Effective January 1, 2019, the permissible fee threshold amounts increased by $1 and are $28 for § 1026.52(b)(1)(ii)(A) and $39 for § 1026.52(b)(1)(ii)(B). Accordingly, the Bureau is revising § 1026.52(b)(1)(ii)(A) and (B) to state that the fee imposed for violating the terms or other requirements of an account shall not exceed $28 and $39 respectively. The Bureau is also amending comment 52(b)(1)(ii)-2.i to preserve a list of the historical thresholds for this provision.
Effective January 1, 2019, for purposes of determining under § 1026.32(a)(1)(ii)
Effective January 1, 2019, a covered transaction is not a qualified mortgage if, pursuant to § 1026.43(e)(3), the transaction's total points and fees exceed 3 percent of the total loan amount for a loan amount greater than or equal to $107,747; $3,232 for a loan amount greater than or equal to $64,648 but less than $107,747; 5 percent of the total loan amount for loans greater than or equal to $21,549 but less than $64,648; $1,077 for a loan amount greater than or equal to $13,468 but less than $21,549; or 8 percent of the total loan amount for loans less than $13,468. The Bureau is amending comment 43(e)(3)(ii)-1, which lists the adjustments for each year, to reflect the new dollar threshold amounts for 2019.
Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Bureau finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Pursuant to this final rule, in Regulation Z, § 1026.52(b)(1)(ii)(A) and (B) in subpart G is amended and comments 32(a)(1)(ii)-1.v and -3.v, 43(e)(3)(ii)-1.v, and 52(b)(1)(ii)-2.i.F in Supplement I are added to update the exemption thresholds. The amendments in this final rule are technical and non-discretionary, as they merely apply the method previously established in Regulation Z for determining adjustments to the thresholds. For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. The amendments therefore are adopted in final form.
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR part 1320), the Bureau reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.
For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:
12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
(b) * * *
(1) * * *
(ii) * * *
(A) $28
(B) $39 if the card issuer previously imposed a fee pursuant to paragraph (b)(1)(ii)(A) of this section for a violation of the same type that occurred during the same billing cycle or one of the next six billing cycles; or
The revisions read as follows:
1.
i. For 2015, $1,020, reflecting a 2 percent increase in the CPI-U from June 2013 to June 2014, rounded to the nearest whole dollar.
ii. For 2016, $1,017, reflecting a .2 percent decrease in the CPI-U from June 2014 to June 2015, rounded to the nearest whole dollar.
iii. For 2017, $1,029, reflecting a 1.1 percent increase in the CPI-U from June 2015 to June 2016, rounded to the nearest whole dollar.
iv. For 2018, $1,052, reflecting a 2.2 percent increase in the CPI-U from June 2016 to June 2017, rounded to the nearest whole dollar.
v. For 2019, $1,077, reflecting a 2.5 percent increase in the CPI-U from June 2017 to June 2018, rounded to the nearest whole dollar.
2.
i. For 1996, $412, reflecting a 3.00 percent increase in the CPI-U from June 1994 to June 1995, rounded to the nearest whole dollar.
ii. For 1997, $424, reflecting a 2.9 percent increase in the CPI-U from June 1995 to June 1996, rounded to the nearest whole dollar.
iii. For 1998, $435, reflecting a 2.5 percent increase in the CPI-U from June 1996 to June 1997, rounded to the nearest whole dollar.
iv. For 1999, $441, reflecting a 1.4 percent increase in the CPI-U from June 1997 to June 1998, rounded to the nearest whole dollar.
v. For 2000, $451, reflecting a 2.3 percent increase in the CPI-U from June 1998 to June 1999, rounded to the nearest whole dollar.
vi. For 2001, $465, reflecting a 3.1 percent increase in the CPI-U from June 1999 to June 2000, rounded to the nearest whole dollar.
vii. For 2002, $480, reflecting a 3.27 percent increase in the CPI-U from June 2000 to June 2001, rounded to the nearest whole dollar.
viii. For 2003, $488, reflecting a 1.64 percent increase in the CPI-U from June 2001 to June 2002, rounded to the nearest whole dollar.
ix. For 2004, $499, reflecting a 2.22 percent increase in the CPI-U from June 2002 to June 2003, rounded to the nearest whole dollar.
x. For 2005, $510, reflecting a 2.29 percent increase in the CPI-U from June 2003 to June 2004, rounded to the nearest whole dollar.
xi. For 2006, $528, reflecting a 3.51 percent increase in the CPI-U from June 2004 to June 2005, rounded to the nearest whole dollar.
xii. For 2007, $547, reflecting a 3.55 percent increase in the CPI-U from June 2005 to June 2006, rounded to the nearest whole dollar.
xiii. For 2008, $561, reflecting a 2.56 percent increase in the CPI-U from June 2006 to June 2007, rounded to the nearest whole dollar.
xiv. For 2009, $583, reflecting a 3.94 percent increase in the CPI-U from June 2007 to June 2008, rounded to the nearest whole dollar.
xv. For 2010, $579, reflecting a 0.74 percent decrease in the CPI-U from June 2008 to June 2009, rounded to the nearest whole dollar.
xvi. For 2011, $592, reflecting a 2.2 percent increase in the CPI-U from June 2009 to June 2010, rounded to the nearest whole dollar.
xvii. For 2012, $611, reflecting a 3.2 percent increase in the CPI-U from June 2010 to June 2011, rounded to the nearest whole dollar.
xviii. For 2013, $625, reflecting a 2.3 percent increase in the CPI-U from June 2011 to June 2012, rounded to the nearest whole dollar.
xix. For 2014, $632, reflecting a 1.1 percent increase in the CPI-U from June 2012 to June 2013, rounded to the nearest whole dollar.
3.
i. For 2015, $20,391, reflecting a 2 percent increase in the CPI-U from June 2013 to June 2014, rounded to the nearest whole dollar.
ii. For 2016, $20,350, reflecting a .2 percent decrease in the CPI-U from June 2014 to June 2015, rounded to the nearest whole dollar.
iii. For 2017, $20,579, reflecting a 1.1 percent increase in the CPI-U from June 2015 to June 2016, rounded to the nearest whole dollar.
iv. For 2018, $21,032, reflecting a 2.2 percent increase in the CPI-U from June 2016 to June 2017, rounded to the nearest whole dollar.
v. For 2019, $21,549, reflecting a 2.5 percent increase in the CPI-U from June 2017 to June 2018, rounded to the nearest whole dollar.
1.
i. For 2015, reflecting a 2 percent increase in the CPI-U that was reported on the preceding June 1, a covered transaction is not a qualified mortgage unless the transactions total points and fees do not exceed;
A. For a loan amount greater than or equal to $101,953: 3 percent of the total loan amount;
B. For a loan amount greater than or equal to $61,172 but less than $101,953: $3,059;
C. For a loan amount greater than or equal to $20,391 but less than $61,172: 5 percent of the total loan amount;
D. For a loan amount greater than or equal to $12,744 but less than $20,391; $1,020;
E. For a loan amount less than $12,744: 8 percent of the total loan amount.
ii. For 2016, reflecting a .2 percent decrease in the CPI-U that was reported on the preceding June 1, a covered transaction is not a qualified mortgage unless the transactions total points and fees do not exceed;
A. For a loan amount greater than or equal to $101,749: 3 percent of the total loan amount;
B. For a loan amount greater than or equal to $61,050 but less than $101,749: $3,052;
C. For a loan amount greater than or equal to $20,350 but less than $61,050: 5 percent of the total loan amount;
D. For a loan amount greater than or equal to $12,719 but less than $20,350; $1,017;
E. For a loan amount less than $12,719: 8 percent of the total loan amount.
iii. For 2017, reflecting a 1.1 percent increase in the CPI-U that was reported on the preceding June 1, a covered transaction is not a qualified mortgage unless the transactions total points and fees do not exceed:
A. For a loan amount greater than or equal to $102,894: 3 percent of the total loan amount;
B. For a loan amount greater than or equal to $61,737 but less than $102,894: $3,087;
C. For a loan amount greater than or equal to $20,579 but less than $61,737: 5 percent of the total loan amount;
D. For a loan amount greater than or equal to $12,862 but less than $20,579: $1,029;
E. For a loan amount less than $12,862: 8 percent of the total loan amount.
iv. For 2018, reflecting a 2.2 percent increase in the CPI-U that was reported on the preceding June 1, a covered transaction is not a qualified mortgage unless the transaction's total points and fees do not exceed:
A. For a loan amount greater than or equal to $105,158: 3 percent of the total loan amount;
B. For a loan amount greater than or equal to $63,095 but less than $105,158: $3,155;
C. For a loan amount greater than or equal to $21,032 but less than $63,095: 5 percent of the total loan amount;
D. For a loan amount greater than or equal to $13,145 but less than $21,032: $1,052;
E. For a loan amount less than $13,145: 8 percent of the total loan amount.
v. For 2019, reflecting a 2.5 percent increase in the CPI-U that was reported on the preceding June 1, a covered transaction is not a qualified mortgage unless the transaction's total points and fees do not exceed:
A. For a loan amount greater than or equal to $107,747: 3 percent of the total loan amount;
B. For a loan amount greater than or equal to $64,648 but less than $107,747: $3,232;
C. For a loan amount greater than or equal to $21,549 but less than $64,648: 5 percent of the total loan amount;
D. For a loan amount greater than or equal to $13,468 but less than $21,549: $1,077;
E. For a loan amount less than $13,468: 8 percent of the total loan amount.
52(b)(1)(ii) Safe harbors
1. Multiple violations of same type. i. Same billing cycle or next six billing cycles. A card issuer cannot impose a fee for a violation pursuant to § 1026.52(b)(1)(ii)(B) unless a fee has previously been imposed for the same type of violation pursuant to § 1026.52(b)(1)(ii)(A). Once a fee has been imposed for a violation pursuant to § 1026.52(b)(1)(ii)(A), the card issuer may impose a fee pursuant to § 1026.52(b)(1)(ii)(B) for any subsequent violation of the same type until that type of violation has not occurred for a period of six consecutive complete billing cycles. A fee has been imposed for purposes of § 1026.52(b)(1)(ii) even if the card issuer waives or rebates all or part of the fee.
A. Late payments. For purposes of § 1026.52(b)(1)(ii), a late payment occurs during the billing cycle in which the payment may first be treated as late consistent with the requirements of this part and the terms or other requirements of the account.
B. Returned payments. For purposes of § 1026.52(b)(1)(ii), a returned payment occurs during the billing cycle in which the payment is returned to the card issuer.
C. Transactions that exceed the credit limit. For purposes of § 1026.52(b)(1)(ii), a transaction that exceeds the credit limit for
D. Declined access checks. For purposes of § 1026.52(b)(1)(ii), a check that accesses a credit card account is declined during the billing cycle in which the card issuer declines payment on the check.
B.
C.
2.
i.
A. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $25 under § 1026.52(b)(1)(ii)(A) and $35 under § 1026.52(b)(1)(ii)(B), through December 31, 2013.
B. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $26 under § 1026.52(b)(1)(ii)(A) and $37 under § 1026.52(b)(1)(ii)(B), through December 31, 2014.
C. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $27 under § 1026.52(b)(1)(ii)(A) and $38 under § 1026.52(b)(1)(ii)(B), through December 31, 2015.
D. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $27 under § 1026.52(b)(1)(ii)(A), through December 31, 2016. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $37 under § 1026.52(b)(1)(ii)(B), through June 26, 2016, and $38 under § 1026.52(b)(1)(ii)(B) from June 27, 2016 through December 31, 2016.
E. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $27 under § 1026.52(b)(1)(ii)(A) and $38 under § 1026.52(b)(1)(ii)(B), through December 31, 2017.
F. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $27 under § 1026.52(b)(1)(ii)(A) and $38 under § 1026.52(b)(1)(ii)(B), through December 31, 2018.
3.
i. Assume that a charge card issuer requires payment of outstanding balances in full at
ii. Same facts as above except that, on August 25, a $100 payment is received. Consistent with § 1026.52(b)(1)(ii)(C), the card issuer may impose a late payment fee of $37, which is 3% of the unpaid portion of the $1,325 balance that was due at the end of the August billing cycle ($1,225).
iii. Same facts as in paragraph A above except that, on August 25, a $200 payment is received. Consistent with § 1026.52(b)(1)(ii)(C), the card issuer may impose a late payment fee of $34, which is 3% of the unpaid portion of the $1,325 balance that was due at the end of the August billing cycle ($1,125). In the alternative, the card issuer may impose a late payment fee of $35 consistent with § 1026.52(b)(1)(ii)(B). However, § 1026.52(b)(2)(ii) prohibits the card issuer from imposing both fees.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies the restricted airspace at the Townsend Bombing Range, GA (Range), by expanding the lateral limits of R-3007A to allow construction of additional targets and impact areas. The modification is needed so that precision guided munitions (PGM) can be used on the range. The changes are completely contained within the existing outer boundaries of the R-3007 complex.
Effective date 0901 UTC, November 8, 2018.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies restricted airspace to accommodate military training requirements.
The FAA published a notice of proposed rulemaking for Docket No. FAA-2015-3338 in the
The commenter suggested that the floor of the proposed R-3007E be lowered from 100 feet above ground level (AGL); to the surface in order to allow the opportunity to add more targets in the future. To designate the surface as the floor of a restricted area, the proponent must own, or otherwise control, the underlying land. The expansion of R-3007A, which extends to the surface, encompasses land purchased by the proponent for that purpose. R-3007E is outside the land purchase area, therefore it is not possible to lower the floor below 100 feet AGL at this time.
The NPRM contained an error in the 15th coordinate listed for R-3007A. The longitude for that point was listed as “91°36′32″ W.” The correct point is “81°36′32″ W.”
The NPRM listed the “Air National Guard (ANG), Savannah Combat Readiness Training Center (CRTC),” as the using agency in the description of R-3007E. Since the publication of the NPRM, using agency responsibilities for the Range were transferred from the ANG to the U.S. Marine Corps (USMC). On June 28, 2017, the FAA published in the
The FAA is amending 14 CFR part 73 to expand restricted area R-3007A by merging the part of R-3007C that overlies a land parcel acquired by the U.S. Marine Corps into R-3007A. The floor of R-3007C is 100 feet AGL. By adding the airspace over this land parcel into R-3007A, the restricted area floor in that area will be lowered from 100 feet AGL down to ground level. The small slice of restricted airspace, with a 100-foot AGL floor, between the east boundary of the expanded R-3007A, and the west boundary of R-3007B, is redesignated as R-3007E. R-3007E extends from 100 feet AGL up to, but not including, 13,000 feet MSL.
Minor corrections are made to several boundary coordinates for R-3007B, R-3007C, and R-3007D to match the current National Hydrology Dataset that defines the Altamaha River boundary where that river forms the boundary of the restricted areas.
This rule provides the additional ground-level restricted airspace needed for the construction of targets and impact areas so that PGM can safely be employed at the Range.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally
The FAA has determined that the USMC's Environmental Impact Statement (EIS) analyzing the modification of restricted airspace at the Townsend Bombing Range, GA, by expanding the lateral limits of R-3007A to allow construction of additional targets and impact areas so that PGM can be used on the Range, qualifies for FAA adoption in accordance with FAA Order 1050.1F, paragraphs 8-2 and 9-2,
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
By removing the current boundaries and inserting the following:
Boundaries. Beginning at lat. 31°41′52″ N, long. 81°35′53″ W; to lat. 31°42′31″ N, long. 81°33′59″ W; to lat. 31°39′24″ N, long. 81°30′31″ W; to lat. 31°37′49″ N, long. 81°30′56″ W; to lat. 31°36′35″ N, long. 81°31′15″ W; to lat. 31°34′17″ N, long. 81°31′56″ W; to lat. 31°33′07″ N, long. 81°32′41″ W; thence counterclockwise along a 1-NM radius arc from a point centered at lat. 31°32′26″ N, long. 81°31′49″ W; to lat. 31°32′37″ N, long. 81°32′58″ W; to lat. 31°30′59″ N, long. 81°33′57″ W; to lat. 31°30′45″ N, long. 81°34′19″ W; to lat. 31°30′29″ N, long. 81°34′41″ W; to lat. 31°30′38″ N, long. 81°35′06″ W; to lat. 31°31′13″ N, long. 81°35′02″ W; to lat. 31°31′35″ N, long. 81°36′32″ W; to lat. 31°33′04″ N, long. 81°37′27″ W; to lat. 31°33′30″ N, long. 81°36′32″ W; to lat. 31°34′25″ N, long. 81°36′13″ W; to lat. 31°35′32″ N, long. 81°35′59″ W; to lat. 31°35′55″ N, long. 81°35′19″ W; to lat. 31°36′38″ N, long. 81°35′18″ W; to lat. 31°36′43″ N, long. 81°35′41″ W; to lat. 31°37′20″ N, long. 81°35′37″ W; to lat. 31°37′23″ N, long. 81°35′47″ W; to lat. 31°40′29″ N, long. 81°36′13″ W; to lat. 31°40′48″ N, long. 81°35′33″ W; to the point of beginning.
By removing the current boundaries and inserting the following:
Boundaries. Beginning at lat. 31°38′01″ N, long. 81°28′59″ W; to lat. 31°37′31″ N, long. 81°28′14″ W; to lat. 31°32′31″ N, long. 81°27′29″ W; to lat. 31°26′16″ N, long. 81°31′29″ W; to lat. 31°25′26″ N, long. 81°36′05″ W; to lat. 31°27′26″ N, long. 81°33′39″ W; to lat. 31°31′26″ N, long. 81°31′58″ W; thence clockwise along a 1-NM radius arc from a point centered at lat. 31°32′26″ N, long. 81°31′49″ W; to lat. 31°33′18″ N, long. 81°31′13″ W; to the point of beginning.
By removing the current boundaries and inserting the following:
Boundaries. Beginning at lat. 31°37′55″ N, long. 81°47′20″ W; to lat. 31°41′52″ N, long. 81°35′53″ W; to lat. 31°40′48″ N, long. 81°35′33″ W; to lat. 31°40′29″ N, long. 81°36′13″ W; to lat. 31°37′23″ N, long. 81°35′47″ W; to lat. 31°37′20″ N, long. 81°35′37″ W; to lat. 31°36′43″ N, long. 81°35′41″ W; to lat. 31°36′38″ N, long. 81°35′18″ W; to lat. 31°35′55″ N, long. 81°35′19″ W; to lat. 31°35′32″ N, long. 81°35′59″ W; to lat. 31°34′25″ N, long. 81°36′13″ W; to lat. 31°33′30″ N, long. 81°36′32″ W; to lat. 31°33′04″ N, long. 81°37′27″ W; to lat. 31°31′35″ N, long. 81°36′32″ W; to lat. 31°31′13″ N, long. 81°35′02″ W; to lat. 31°30′38″ N, long. 81°35′06″ W; to lat. 31°30′29″ N, long. 81°34′41″ W; to lat. 31°30′45″ N, long. 81°34′19″ W; to lat. 31°30′59″ N, long. 81°33′57″ W; to lat. 31°32′37″ N, long. 81°32′58″ W; thence counterclockwise along a 1-NM radius arc from a point centered at lat. 31°32′26″ N, long. 81°31′49″ W; to lat. 31°31′26″ N, long. 81°31′58″ W; to lat. 31°27′26″ N, long. 81°33′39″ W; to lat. 31°25′26″ N, long. 81°36′05″ W; thence west along the Altamaha River to the point of beginning.
By removing the current boundaries and inserting the following:
Boundaries. Beginning at lat. 31°37′55″ N, long. 81°47′20″ W; to lat. 31°41′52″ N, long. 81°35′53″ W; to lat. 31°42′31″ N, long. 81°33′59″ W; to lat. 31°39′24″ N, long. 81°30′31″ W; to lat. 31°38′01″ N, long. 81°28′59″ W; to lat. 31°37′31″ N, long. 81°28′14″ W; to lat. 31°32′31″ N, long. 81°27′29″ W; to lat. 31°26′16″ N, long. 81°31′29″ W; to lat. 31°25′26″ N, long. 81°36′05″ W; thence northwest along the Altamaha River to the point of beginning.
Boundaries. Beginning at lat. 31°39′24″ N, long. 81°30′31′ W; to lat. 31°38′01″ N, long. 81°28′59″ W; to lat. 31°33′18″ N, long. 81°31′13″ W; thence counterclockwise along a 1-NM radius arc from a point centered at lat. 31°32′26″ N, long. 81°31′49″ W; to lat. 31°33′07″ N, long. 81°32′41″ W; to lat. 31°34′17″ N, long. 81°31′56″ W; to lat. 31°36′35″ N, long. 81°31′15″ W; to lat. 31°37′49″ N; long. 81°30′56″ W; to the point of beginning.
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is amending its regulations regarding certain duties of chief compliance officers (“CCOs”) of swap dealers (“SDs”), major swap participants (“MSPs”), and futures commission merchants (“FCMs”) (collectively, “Registrants”); and certain requirements for preparing, certifying, and furnishing to the Commission an annual report containing an assessment of the Registrant's compliance activities.
This rule is effective September 26, 2018.
Matthew Kulkin, Director, 202-418-5213,
As amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”),
On May 8, 2017, the Commission published for public comment a Notice of Proposed Rulemaking (“Proposal”)
To provide greater clarity regarding the CCO reporting line required by section 4s(k)(2)(A) of the Act and § 3.3(a)(1), the Commission proposed to define “senior officer” in § 3.1 as “the chief executive officer or other equivalent officer of a registrant.” With regard to CCO duties, the Proposal would include additional language in § 3.3(d)(1) to clarify that the CCO's duty with respect to administering policies and procedures would be specific to the Registrant's business as an SD, MSP, or FCM, as applicable.
Regarding the CCO Annual Report requirements, the Proposal would clarify § 3.3(e) by eliminating the requirement that a Registrant address “each” applicable CFTC regulatory requirement to which it is subject when assessing its written policies and procedures (“WPPs”). Additionally, the Commission proposed to clarify that the CCO Annual Report's discussion of compliance resources be limited to a discussion of resources for the specific activities for which the Registrant is registered. Finally, the Proposal would amend § 3.3(f)(1) to add the Registrant's audit committee (or equivalent body) as a required recipient of the CCO Annual Report in addition to the board of directors and the senior officer.
Using language identical to CEA section 4s(k), the Dodd-Frank Act amended the Securities Exchange Act of 1934 by adding section 15F(k) to establish CCO requirements for SEC Registrants.
The SEC initially proposed rule 15Fk-1 to implement CCO requirements and duties for SEC Registrants in July
While the CFTC regulates derivatives markets and the SEC regulates securities markets, many of the participants in these markets are the same. Similar activities in these markets are often regulated by each agency in similar ways under similar statutory mandates.
Several of the proposed amendments would further harmonize CFTC and SEC regulations. More specifically, the following provisions in the Proposal align the CFTC CCO regulations with the corresponding SEC CCO regulations:
• Including a definition of “senior officer” in § 3.1 that is identical to the SEC's definition;
• Including additional language in § 3.3(d)(1) to clarify that the CCO's duty with respect to administering policies and procedures would be specific to the Registrant's business as an SD, MSP, or FCM, as applicable;
• Modifying the language in § 3.3(d)(2) to require reasonable steps be taken to resolve conflicts of interest;
• Requiring the CCO to identify noncompliance issues “through any means”;
• Removing the additional requirement in § 3.3(d)(4) and (5) that the CCO consult with the board of directors or senior officer in connection with establishing procedures for addressing noncompliance issues; and
• Replacing the requirement in § 3.3(e) that a Registrant address “each” applicable CFTC regulatory requirement to which it is subject when assessing its WPPs with a requirement to address the applicable regulations generally.
Furthermore, in the Proposal, the Commission solicited comments regarding potential additional rule changes that would further harmonize the CFTC and SEC regulations. After careful review of the comments received, the final rule includes the following additional harmonizing amendments:
• In § 3.3(d)(2), the CCO must take reasonable steps to resolve any “material” conflicts of interest;
• In § 3.3(d)(4), the CCO must “take reasonable steps to ensure the registrant” establishes, maintains, and reviews written policies and procedures for the remediation of noncompliance issues;
• In § 3.3(d)(5), the CCO must “take reasonable steps to ensure the registrant” establishes written procedures for the handling of noncompliance issues; and
• In § 3.3(f)(3), the CCO Annual Report certification includes language from the certifying individual that the CCO Annual Report is accurate and complete “in all material respects.”
The Commission received eleven comment letters and Commission staff participated in one ex parte teleconference concerning the Proposal.
The Commission proposed to define “senior officer” in § 3.1 as “the chief executive officer or other equivalent officer of a registrant.” The Commission received four comments addressing the proposed definition.
Upon consideration of the comments, the Commission is adopting the definition as proposed. This definition of “senior officer” clarifies the Commission's long-standing interpretation that compliance with the statutory requirement to have the CCO “
As stated in the Proposal, the “chief executive officer” is typically the highest executive level, but the Commission is including in the definition the phrase “other equivalent officer” to address Registrants who may have a different title for the highest executive officer.
In response to ISDA's comment, the Commission believes that the definition and guidance provide sufficient flexibility. Registrants should be able to ensure that regardless of a firm's chosen nomenclature, the CCO has a direct reporting line to the highest executive-level individual at the Registrant.
In response to the Commission's request for comment regarding whether other definitions should be added to § 3.1, FIA/SIFMA requested that the Commission define “material noncompliance issue” as it relates to the requirement in § 3.3(e)(5) to describe in the CCO Annual Report “any material noncompliance issues identified and the corresponding action taken.” The Commission is declining to define “material noncompliance issue” at this time. Since the adoption of the CCO Rules, Registrants have defined and implemented their own materiality standards when categorizing non-compliance issues. Given the variation in size and nature of businesses among Registrants required to submit CCO Annual Reports, it is the Commission's view that materiality is dependent upon many factors that impact Registrants to varying degrees. While some factors ought to be considered by all Registrants,
The Commission proposed to amend § 3.3(d)(1) to require that a CCO's duties include administering each of the registrant's policies and procedures relating to its business as a futures commission merchant, swap dealer, or major swap participant that are required to be established pursuant to the Act and Commission regulations.
ISDA and FIA/SIFMA generally supported the Commission's proposed changes
After considering the comments received, the Commission is adopting § 3.3(d)(1) as proposed. As the Commission has previously stated, and as discussed below, the role of the CCO, under the Dodd-Frank Act, goes beyond the customary and traditional advisory role of a CCO and requires more active engagement.
The language of § 3.3(d)(1), however, is not intended to diminish the role and direct involvement of other senior officers, supervisors and other employees with more direct knowledge, expertise, and responsibilities for various regulated activities within their business lines. Thus, while the CCO plays a central role in administering a firm's policies and procedures, other personnel may implement the procedures on a day-to-day basis when undertaking related activities in the normal course of business.
Furthermore, the Commission reiterates that the Registrant is ultimately responsible for the effective implementation of the policies and procedures.
Proposed § 3.3(d)(2) would require the CCO, in consultation with the board of directors or the senior officer, to take reasonable steps to resolve any conflicts of interest that may arise. ISDA and FIA/SIFMA supported the proposed revisions to § 3.3(d)(2) and provided additional recommendations. Both commenters recommended that the CCO's duty to resolve conflicts of interest should be limited to “material” conflicts of interest and should apply only to issues that arise in connection with the Registrant's business as an FCM, SD, or MSP. ISDA suggested that, consistent with the SEC's view, the Commission should explicitly state that the primary responsibility to resolve conflicts of interest falls on the Registrant and that the CCO's role would include identifying, advising, and escalating, as appropriate, to senior officers matters involving conflicts of interest. ISDA further suggested that the Commission replace “resolve” with “minimize” in the rule text. Similarly, FIA/SIFMA recommended that the Commission clarify that “resolution” involves either negation or mitigation of the conflict of interest.
Better Markets generally did not support the Commission's proposed changes to § 3.3(d)(2). Among other reasons, Better Markets is of the view that the proposed changes are not consistent with applicable statutory language to “resolve any conflicts” and will dilute the CCO's duty to address conflicts of interest.
Having considered these comments, the Commission is adopting § 3.3(d)(2) as proposed but with further modifications to provide that CCOs have a duty to take reasonable steps to resolve “material” conflicts of interest “relating to the registrant's business as a futures commission merchant, swap dealer, or major swap participant.” The additional language refines the Commission's view that CCOs cannot reasonably be expected to personally resolve every potential conflict of interest that may arise, and the Commission affirms that “routinely encountered conflicts could be resolved in the normal course of business . . .” consistent with the CCO's general administration of internal policies and procedures, which must include conflicts of interest policies.
The Commission declines to implement comments suggesting that CCOs have a duty to simply minimize, rather than “resolve” conflicts of interest. CEA section 4s(k)(2)(C) explicitly requires conflict resolution.
In response to ISDA's request that the Commission state that a CCO's role in resolving conflicts would involve identifying, advising on, and escalating to management conflicts of interest, the Commission is declining to incorporate that language into the regulatory text. However, the Commission believes that such an approach provides a reasonable framework for CCOs to use in fulfilling their duty to take reasonable steps to resolve material conflicts of interest. As the Commission has previously acknowledged, active engagement “may involve actions other than making the final decision.”
Should CCOs choose to incorporate the “identify, advise and escalate” framework into their conflict resolution procedures, however, a passive implementation of that framework should not be viewed as fulfilling the CCO's duties for conflict resolution. The requirement to “take reasonable steps” requires an active role in the conflict resolution process, including, for example: (1) Direct involvement of the CCO in developing and implementing active processes for conflict identification, evaluation, and resolution; (2) advising on the effectiveness of alternatives to mitigate or eliminate conflicts; and (3) escalating conflict issues if the conflicts are not otherwise resolved or mitigated as required by § 3.3(d)(2), including through the CCO's direct reporting line to the board of directors or the senior officer if necessary or appropriate.
The Commission believes that the determination of what is a “material” conflict for a particular Registrant should be assessed based on the facts and circumstances relevant to that Registrant and the conflict. Although the Commission notes that there are some conflicts that are typically treated as material,
The Proposal would make a wording change to § 3.3(d)(3) to simplify the text
ISDA and FIA/SIFMA recommended that the Commission further harmonize paragraph (d)(3) with the SEC's corresponding rule by removing the existing general duty for the CCO to take reasonable steps to ensure compliance and only require the CCO to ensure that the Registrant establishes, maintains, and reviews policies and procedures as the CCO's duty.
TD Ameritrade commented that the Commission should align paragraph (d)(3) with FINRA Rule 3130 by clarifying that the CCO is required to “have processes in place” for the Registrant to establish, maintain, and review WPPs reasonably designed to achieve compliance. TD Ameritrade contended that the proposed language in paragraph (d)(3), which requires CCOs to ensure compliance, rather than simply have processes in place, is cumbersome and perhaps places a higher burden on CCOs than intended by the Commission.
Better Markets commented that the proposed amendment to paragraph (d)(3) could be viewed as defining the full scope of the CCO's duty to ensure compliance, rather than merely clarifying the extent of the duty. Better Markets noted that the duty to ensure compliance is broad and cannot be equated with a CCO's obligation to administer policies and procedures. To eliminate uncertainty, Better Markets recommended further clarifying that the additional language is “without limitation.”
Having considered the totality of the responses received, the Commission believes that the proposed amendment to § 3.3(d)(3) adding that the duty includes “ensuring the registrant establishes, maintains, and reviews WPPs reasonably designed to achieve compliance” creates ambiguity, rather than clarity, with respect to the scope of a CCO's duty to ensure compliance. Therefore, the Commission is declining to adopt that proposed amendment to § 3.3(d)(3).
Current § 3.3(d)(3) implements CEA section 4s(k)(2)(E). CEA section 4s(k)(2)(E) requires that the CCO shall ensure compliance with the Act (including regulations) relating to swaps, including each rule prescribed by the Commission under that section. Thus, the Commission believes § 3.3(d)(3) requires more than, as suggested by some commenters, simply taking reasonable steps to ensure the Registrant establishes, maintains, and reviews written compliance policies and procedures.
As stated by the Commission previously, the CCO's duty to take reasonable steps to ensure compliance includes active engagement in the day-to-day implementation of compliance policies and procedures.
In taking reasonable steps to ensure compliance, the Commission believes that a CCO cannot reasonably be expected to have sole and complete responsibility for ensuring compliance with the Act and the relevant regulations.
The Commission proposed to amend § 3.3(d)(4) by adding language that the duty to remediate noncompliance issues identified by the CCO encompasses maintaining and reviewing, in addition to establishing, written policies and procedures. The Commission also proposed to amend § 3.3(d)(4) and (5) by removing the requirement that the CCO consult with the board of directors or senior officer in establishing: (1) Policies and procedures for the remediation of noncompliance issues identified by the CCO; and (2) procedures for the handling, management response, remediation, retesting, and closing of noncompliance issues. The Proposal would also clarify that the policies and procedures should be “reasonably designed” to remediate noncompliance issues. Lastly, the Commission proposed to amend paragraph (d)(4) to include the remediation of matters identified “through any means” by the CCO, including the specific discovery methods already listed in § 3.3(d)(4). FIA/SIFMA generally supported the Commission's proposed amendments to paragraphs (d)(4) and (5), and requested that the Commission further add to paragraphs (d)(4) and (5) that the CCO's duty is to take “reasonable steps to ensure that the registrant” establishes the required policies and procedures for the remediation of noncompliance issues, rather than to be directly responsible for establishing the policies and procedures. FIA/SIFMA noted that this change, consistent with the SEC's CCO rules, reflects the fact that it is the responsibility of the Registrant, not the CCO in his or her personal capacity, to establish the specified policies and procedures.
Better Markets disagreed with the Commission's proposed changes. Better Markets contended that the removal of the board of directors and senior officer consultation requirement could marginalize the board of directors' role and send the message that the board of directors needs to be only occasionally involved in the remediation of noncompliance issues. Better Markets further asserted that the proposed change that policies and procedures be “reasonably designed” makes it easier for Registrants to meet their legal obligations without actually realizing the underlying regulatory goal of remediating noncompliance issues.
With respect to the specific noncompliance discovery methods listed in paragraph (d)(4), ISDA recommended that the Commission provide legal certainty to Registrants by clarifying that the term “complaint that can be validated” means “a written complaint that can be supported upon a reasonable investigation.”
In light of the comments received, the Commission is adopting proposed paragraphs (d)(4) and (5) with additional modifications to clarify the Commission's position that the CCO's duty with respect to establishing the Registrant's noncompliance remediation policies and procedures is to take reasonable steps to ensure that the registrant fulfills that responsibility. Accordingly, § 3.3(d)(4) and (5), as adopted, require a CCO to take “reasonable steps to ensure the registrant” establishes, maintains and reviews the applicable policies and procedures. With respect to the other proposed amendments to paragraphs (d)(4) and (5), the Commission is adopting those amendments for the reasons discussed in the Proposal.
In response to the concern raised by Better Markets that removing the consultation clause will diminish the board of directors and senior officer role, the Commission believes that there are two reasons to maintain the proposed changes to § 3.3(d)(4) and (5). As discussed in the Proposal, the CCO should manage and remediate noncompliance issues in consultation, as appropriate, with personnel that are experts in these matters, including, if appropriate, senior management and the board of directors. Requiring further consultation with the board of directors or the senior officer on these procedures in the ordinary course would be an unnecessary burden on the Registrants. Furthermore, the Commission notes that, under § 3.3(a)(1), the CCO must report to the board of directors or the senior officer. Accordingly, to the extent the CCO is of the view that the policies and procedures being established do not meet the requirements of the Commission's regulations and is unable to effect the necessary changes through other means, it would be appropriate for the CCO, as a reasonable step for ensuring that the appropriate policies and procedures are established, to elevate the issue to the board of directors or the senior officer to whom the CCO reports. Thus, an appropriate avenue for consultation with the board of directors or the senior officer is already part of the regulatory requirements in the CCO Rules.
With respect to ISDA's recommendation that the Commission clarify the “complaint that can be validated” standard, the Commission declines to clarify the standard in the manner requested. The Commission believes that noncompliance should be a focus for CCOs, and accordingly, all noncompliance complaints, whether written or verbal, should be investigated using reasonable means. The Commission further notes that the CCO may identify noncompliance issues “through any means” and “a complaint that can be validated” is one of many ways in which a CCO may identify such issues.
Below is a subsection-by-subsection review of the comments received on the proposed changes to the CCO Annual Report requirements and a description of the changes being adopted.
The Commission believes that providing updated guidance in concert
Section 3.3(e)(1) requires a CCO to describe the Registrant's WPPs, including its code of ethics and conflicts of interest (“COI”) policies. Proposed § 3.3(e)(1) sought to clarify that only the WPPs that relate to a Registrant's business as an FCM, SD, or MSP must be described in the CCO Annual Report by adding text referring to the policies and procedures described in § 3.3(d). The Commission did not receive any comments specific to proposed § 3.3(e)(1),
Proposed § 3.3(e)(2) would eliminate the express mandate to identify and assess the effectiveness of each WPP for each regulatory requirement under the CEA and Commission regulations in the CCO Annual Report. The Commission received six comments regarding this proposed amendment. FIA/SIFMA, ISDA, NFA, and TD Ameritrade generally supported the change. Specifically, ISDA noted that the proposed revisions “would strike a proper balance between providing the Commission with meaningful analyses of firms' compliance programs and conserving the time and resources of both the Commission and firms.”
Better Markets opposed the proposed amendment and expressed its belief that the “detailed assessment of the policies and procedures, relative to each specific regulatory requirement, is a valuable exercise that brings rigor to the process.”
The Commission has considered the comments and is adopting amended § 3.3(e)(2) as proposed. As adopted, the rule requires the CCO Annual Report to contain, among other things, a description of the CCO's assessment of the effectiveness of the Registrant's WPPs relating to its business as an FCM, SD, or MSP. In response to Better Markets and ACM, the Commission affirms that the rule, as amended, does not require the CCO Annual Report to contain an assessment of the WPPs' effectiveness with respect to
In further response to Better Markets' concern that removing the requirement-by-requirement assessment from the CCO Annual Report would weaken the self-assessment process, the Commission notes that the final rule does not remove a CCO's duty to undertake the review. The Commission believes that a robust and meaningful self-assessment process is maintained through the affirmative CCO duties to ensure review of the WPPs and to describe the CCO's assessment in the CCO Annual Report. Furthermore, as described in the Proposal, the Commission believes that reducing the burden associated with preparing the CCO Annual Report will permit CCOs and Registrants to both improve their compliance assessment processes and allocate more time and resources to more critical areas within the firm.
Proposed § 3.3(e)(4) would clarify that the discussion of resources only need address those resources set aside for compliance activities that relate to the Registrant's business as an FCM, SD, or MSP. The Commission received comments from FIA/SIFMA, NFA, and ISDA generally supporting the proposed amendment. ISDA suggested that the Commission rescind related guidance in the CCO Annual Report Advisory regarding quantification of resources and allow Registrants to provide a narrative assessment of the sufficiency of compliance resources.
The Commission is adopting amended § 3.3(e)(4) as proposed. Regarding the description of compliance resources, the Commission previously addressed the issues raised by ISDA, FIA, and SIFMA in the CCO Rules Adopting Release. At the outset, the Commission has recognized that a primary purpose of the CCO Annual Report is to provide “an efficient means to focus the registrant's board and senior management on areas requiring additional compliance resources.”
The description of resources required by § 3.3(e)(4) is intended to inform the Registrant and the Commission as to the sufficiency of resources dedicated to
In view of the comments received on proposed § 3.3(f) and related matters, the Commission is making a number of changes described below. As a general matter, to provide the reader greater clarity, the Commission is adding descriptive paragraph headings to § 3.3(f)(1) through (6) for the final rule.
Proposed § 3.3(f)(1) would harmonize the requirements under the SEC and CFTC CCO Rules to require that the CCO Annual Report be furnished to all members of the board of directors, senior officer, and audit committee (or equivalent body) prior to being furnished to the Commission.
The Commission received three comments addressing the proposed amendment. Better Markets supported the proposed amendment as a means to strengthen the CCO framework. ISDA and FIA/SIFMA opposed the amendment and asserted that it is burdensome and unnecessary in light of the variability among Registrants. Specifically, ISDA and FIA/SIFMA commented that the proposed amendment would add burdens and costs given that the audit committees and boards of directors do not necessarily meet prior to the deadline to file the CCO Annual Report with the Commission.
After considering commenters' concerns, the Commission has determined to retain the current approach in § 3.3(f)(1) to require the CCO to provide the annual report to the board of directors
The Commission believes that a flexible approach to the timing of furnishing the CCO Annual Report to the audit committee (or equivalent body) addresses commenters' concerns about meeting schedules and the CCO Annual Report submission deadline and better serves the underlying purpose of furnishing the report to the appropriate representatives of senior management at a time that allows for appropriate review by them. The Commission further believes that although the rule as adopted is not identical to the SEC's approach, the two approaches both preserve the goal of ensuring that management with overall responsibility for governance and internal controls is informed of the Registrant's state of compliance in a timely manner while recognizing the inherent differences between CFTC and SEC Registrants. The SEC's CCO rules apply to security-based swap dealers and major security-based swap participants, which are likely to consist of a smaller number of large financial entities or affiliates thereof, most of which are likely required by regulation to have audit committees.
Similarly, in response to FIA/SIFMA's comment that some Registrants may not have a board of directors or audit committee, the Commission acknowledges that some types of entities that are Registrants are not required to have such bodies, particularly audit committees, and therefor may not have established such a body. The Commission affirms that the rule was not intended to require Registrants to establish either type of body. Accordingly, the final rule text provides that furnishment to the audit committee or equivalent body is required only if such a committee or body has been established. If not, compliance with § 3.3(f)(1) may be met by furnishing the CCO Annual Report to the senior officer or board members only, as applicable.
In response to the Commission's request for comment on additional changes to further harmonize with the
The Commission is adopting § 3.3(f) as proposed with one change. The Commission is adding qualifying language, “in all material respects” to the requirement to certify that the information contained in the CCO Annual Report is accurate and complete. Consistent with the SEC's approach, this modification provides a reasonable standard and additional clarity regarding the obligations and potential liability of the certifying official. When the Commission adopted the CCO Rules in 2012, it was of the view that limiting the certification language with the qualification “to the best of his or her knowledge and reasonable belief” would address concerns of overbroad liability.
As noted in the CCO Rules Adopting Release, the Commission appreciates that, for many Registrants, the breadth and complexity of the information contained in the CCO Annual Report inherently requires reliance on many individuals to gather the information for, and prepare, the report.
FIA/SIFMA commented that, because affiliated SDs often share a common SD compliance program, much of the information in the CCO Annual Reports is the same. FIA/SIFMA therefore requested that the Commission permit flexibility in how reports from affiliated registrants address common matters.
The Commission believes that, as a procedural matter within the scope of this rulemaking, it is appropriate to provide the requested flexibility. Permitting the consolidation of all relevant information concerning Registrants that control, are controlled by, or are under common control with, other Registrants (“Affiliated Registrants”) into one cohesive report could lead to greater efficiency for those Registrants and improved regulatory oversight. In addition, the request is consistent with provisions in § 3.3(f)(6) permitting individual Registrants and Registrants that are registered in more than one capacity,
More broadly, the Commission believes that the annual compliance reporting requirement should not be subject to restrictive formatting requirements that do not serve the purpose of the reports. To the extent that the same information can be presented once for multiple reporting requirements (
New subparagraph (i) incorporates without modification the current language in § 3.3(f)(6). Subparagraph (i) permits an individual Registrant to incorporate by reference sections in a CCO Annual Report that it furnished to the Commission within the current or immediately preceding reporting period.
Like § 3.3(f)(6) as originally adopted, new subparagraph (ii) permits Dual Registrants to cross-reference sections in CCO Annual Reports submitted on behalf of either of its registrations within the current or immediately preceding reporting period. To address ambiguity regarding whether incorporation by reference can be achieved through the annual preparation and submission of a single CCO Annual Report by a Dual Registrant, the Commission is adding clarifying language to § 3.3(f)(6)(ii). Under new § 3.3(f)(6)(ii), a Dual Registrant may submit a single CCO Annual Report covering the annual reporting requirements relevant to each registration category, provided that: (1) The requirements of § 3.3(e) are clearly addressed and identifiable as they apply to the Dual Registrant in each of its registration capacities; (2) to the extent a section of the CCO Annual Report addresses shared compliance programs, resources, or other elements related to compliance, there is a clear description of the commonality and delineation of any differences; and (3) the Registrant complies with the requirements of § 3.3(f)(1) and (3) to certify and furnish the CCO Annual Report for each of its registrations. Regarding this last requirement, the Commission would expect the Dual Registrant to separately certify the CCO Annual Report with respect to each registration category, even if the same CCO or CEO serves as the certifying officer for each registration.
Subparagraph 3.3(f)(6)(iii) permits Affiliated Registrants to use incorporation by reference within their individually required CCO Annual Reports to address matters shared across related registered legal entities. The Commission believes that providing greater flexibility to Affiliated Registrants may provide a more efficient process in achieving the goals of the CCO Annual Report by leveraging current structures and expertise. Regarding the extent of incorporation by reference, consistent with the Commission's view that a flexible approach as to form is warranted, the
The Commission expects that CCOs of Affiliated Registrants who share common compliance program elements be actively engaged in evaluating, assessing, and advising senior management with regard to those elements within their respective duties to a particular Registrant. Accordingly, how a CCO determines to address such common compliance program elements should not undermine the content or representations made in the CCO Annual Report so long as the references are clear and the information is fully accessible to senior management and the Commission.
The Commission received two comments regarding the compliance requirements of subpart D of part 75 of the Commission's regulations and their relation to § 3.3. Specifically, FIA/SIFMA requested that the Commission revisit the footnote in the part 75 adopting release that includes the compliance requirements under subpart D of part 75 among the regulations covered by § 3.3(d) and (e).
At this time, the Commission is declining to address the Volcker Rule compliance program requirements issue, as it was not considered in the Proposal. However, the Commission notes that the issue that commenters are raising requires serious consideration, and it may address the issue in future guidance or rulemakings.
The Commission received three comments regarding the applicability of the Proposal to its outstanding comparability determinations for non-U.S. SDs and MSPs. ISDA, the JBA, and Allen & Overy requested clarification from the Commission that the proposed amendments will not have any impact on the current substituted compliance determinations that pertain to § 3.3. The Commission confirms that any existing substituted compliance determinations with respect to § 3.3 are not affected by this rulemaking.
The Regulatory Flexibility Act (“RFA”)
The Paperwork Reduction Act of 1995 (“PRA”)
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors relative to the status quo baseline—that is existing § 3.3—and how various regulated entities comply with existing § 3.3 today.
The Commission notes that the consideration of costs and benefits below is based on the understanding that the markets function internationally, with many transactions involving U.S. firms taking place across international boundaries; with some Commission registrants being organized outside of the United States; with leading industry members typically conducting operations both within and outside the United States; and with industry members commonly following substantially similar business practices wherever located. While the Commission does not specifically refer to matters of location, the below discussion of costs and benefits refers to
The Commission is adopting amendments to the CCO Rules that: (1) Define the term “senior officer”; (2) clarify the scope of the CCO duties and the content requirements of the CCO Annual Report; (3) add the Registrant's audit committee as a party that must receive the CCO Annual Report; (4) add a materiality qualifier to the CCO Annual Report certification language; and (5) clarify and permit additional procedural methods for Dual and Affiliated Registrants in the preparation and submission of CCO Annual Reports that address common information across the same or related legal entities.
The Proposal requested public comment on the costs and benefits of the proposed regulations, and specifically invited comments on: (1) The extent to which the proposed amendments reduce burdens and costs for Registrants, if at all; (2) whether any of the proposed amendments create any additional burdens or costs for Registrants; (3) whether the nature of, and the extent to which, costs associated with the CCO duties described in § 3.3(d) could change as a result of the adoption of the Proposal, including monetary estimates; (4) what, if any, transition or ongoing costs or savings would result from the adoption of the proposed amendments; (5) whether the proposed amendments to the CCO Annual Report's submission requirements in § 3.3(f)(1) would cause undue burden; and (6) the Commission's preliminary consideration of the costs and benefits associated with the proposed amendments.
Several commenters indirectly addressed the qualitative costs and benefits of the Proposal; however, none included quantitative data or other information in support of a measurable analysis. As such, the Commission is unable to quantify reliably the costs and benefits of this rulemaking. Instead, the Commission gives a qualitative discussion.
As described in the sections above, in support of their comments, several commenters proposed alternative rule text and suggested the Commission provide additional clarification or guidance. In response to certain comments, the Commission adopted alternatives—particularly with respect to the furnishing and certification requirements of the CCO Annual Report—that the Commission believes will further reduce costs and burdens to Registrants while still providing the Commission with the information it needs to monitor the state of compliance by Registrants.
Informed by commenters, the discussion below considers the rule's costs and benefits generally and in light of the five factors specified in section 15(a) of the CEA.
As discussed above, the Commission amended § 3.3(d) to clarify certain CCO duties. Specifically, the Commission added language to § 3.3(d)(1) to clarify that the CCO's duty with respect to administering policies and procedures is specific to the Registrant's business as an FCM, SD, or MSP, as applicable. As amended, § 3.3(d)(2) incorporates an implied reasonableness standard regarding the duty to resolve conflicts of interest and limits the duty to material conflicts that relate to the Registrant's business as an FCM, SD, or MSP. The Commission amended § 3.3(d)(4) to include the remediation of matters identified “through any means” by the CCO, including the specific discovery methods listed in § 3.3(d)(4). Lastly, the Commission amended § 3.3(d)(4) and (5) to remove the requirement in each provision that the CCO consult with the board of directors or senior officer in connection with resolving noncompliance issues and to clarify that the CCO's duty is to take “reasonable steps to ensure that the registrant” establishes policies and procedures for the remediation and resolution by management of noncompliance issues.
The Commission did not receive any specific comments regarding whether any costs associated with CCO duties would change as a result of the amendments to § 3.3(d). Better Markets opposed several of the proposed amendments to § 3.3(d) that it viewed as “likely to weaken the CCO regime.”
The Commission expects the greater clarity provided in the amended rule will reduce burdens on CCOs and improve overall compliance by applying a reasonableness standard to CCO responsibilities rather than deterring effective CCO activities due to concerns of uncertain liability. This greater clarity should also encourage a greater willingness of potential CCOs to vie for and take positions with Registrants. As noted by one commenter, clarifying the CCO's role within a Registrant's overall organization fosters accountability for senior business management and supervisors, and reduces obstacles in attracting and retaining highly qualified professionals to serve as CCOs.
In adopting amendments to § 3.3(e), the Commission eliminated the requirement to address “each” applicable CFTC regulatory requirement to which a Registrant is subject in the assessment of the WPPs, since the CCO must still conduct an underlying assessment of the effectiveness of the policies and procedures to meet the requirements of the rule. The Commission further removed the requirement to identify each WPP with respect to each applicable requirement, given that the WPPs are already required to be described in § 3.3(e)(1). Lastly, the Commission clarified that the scope of the resources devoted to compliance that need to be described under § 3.3(e)(4) should be limited to a discussion of resources for the specific activities for which the Registrant is registered.
The comments received for these proposed amendments were generally supportive. For example, one commenter stated that “this Proposal will increase efficiencies by
As discussed in the Proposal, in implementing § 3.3(e), the Commission received consistent feedback from Registrants that the exercise of documenting their assessment on a requirement-by-requirement basis was creating a significant economic burden in time and resources. Eliminating the requirement-by-requirement assessment is intended to reduce the burdens on Registrants of producing the CCO Annual Report while maintaining its primary purpose. It is the Commission's view, supported by commenters, that by reducing the burden associated with this aspect of the CCO Annual Report, CCO and other compliance resources may be better focused on other compliance functions. As discussed in section II.C.2, the final rule does not remove or lessen the CCO's duties to, among other things, ensure the Registrant is reviewing and assessing the continued soundness of its WPPs. In addition, the amendments harmonize certain CFTC and SEC CCO Annual Report content requirements in an effort to reduce the costs to dual registrants of complying with two regulatory regimes. The Commission believes that the final rule also provides relief for Registrants from resource and time pressures in preparing their CCO Annual Reports.
The Commission amended § 3.3(f)(1) to require the CCO to provide the CCO Annual Report to the audit committee or a functionally equivalent body not later than the committee's next scheduled meeting, but in no event more than 90 days following the furnishing of the report to the Commission. The Commission also amended the CCO Annual Report's certification requirement by adding a materiality qualifier to the certification language in § 3.3(f)(3). Lastly, the Commission amended § 3.3(f)(6) to provide procedures for Dual and Affiliated Registrants in the preparation and submission of CCO Annual Reports that address common information across the same or related legal entities.
As discussed above, the Commission received comments from ISDA and FIA/SIFMA asserting that the proposal requiring the senior officer, board of directors, and audit committee to receive the CCO Annual Report would increase operational and regulatory burdens. FIA/SIFMA noted that requiring the boards of directors of SDs that are large, diversified commercial banks to receive the CCO Annual Report would exacerbate current problems associated with the volume of review they must already undertake, further reducing the amount of time they should be allocating to overseeing enterprise risk and strategy. Both commenters believed that the Proposal would add costs, complexities, and possibly, conflicts for Registrants because the deadline to submit the CCO Annual Report to the Commission may not align with board of directors and audit committee meetings, impeding their ability to ensure proper review.
Advocates of adding a materiality qualifier to the CCO Annual Report certification language identified several benefits, including reducing burdens by further harmonizing the Commission's rule with the SEC's parallel rule, providing a measure of clarity to CCOs and potential CCOs regarding their own personal liability, and reducing deterrence of highly qualified people from taking or staying in the CCO role.
In response to concerns regarding the proposed CCO Annual Report submission requirements, the Commission has modified § 3.3(f)(1) to accommodate the practicality of audit committee and board meeting schedules. Because the final rule maintains the requirement that either the senior officer or the board of directors receive the CCO Annual Report prior to its submission to the Commission, Registrants should not have to change existing internal document submission processes for board meetings to comply. As adopted, the final rule adds the audit committee (or equivalent body) as a recipient of the report, but allows for the report to be furnished to the audit committee not later than the next scheduled meeting, but in no event more than 90 days after submission of the report to the Commission is required. Since the rule does not set a timeline for the review of the CCO Annual Report by any of its internal recipients—leaving such matters to the discretion of each Registrant, the Commission believes that any additional costs arising out of the requirement to submit the report to the audit committee should be minimal. The Commission does not believe the final amendments to § 3.3(f)(1), (3) and (6) impose any new costs or burdens since they do not require Registrants to affirmatively undertake new duties or requirements.
As described above and in the Proposal, the Commission believes that the amendments to § 3.3(f) will ensure that the CCO's findings and recommendations will be distributed to the groups within each Registrant with responsibility for governance and internal controls. Further, the Commission believes the amendments provide greater flexibility and opportunity for Dual and Affiliated Registrants to streamline their CCO Annual Report preparation processes, which may result in a less costly CCO Annual Report.
As noted above, section 15(a) of the CEA specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations.
The final rules will continue to protect market participants and the public because they do not fundamentally alter the CCO duties or the annual compliance reporting requirements of § 3.3. While the amendment removing the requirement-by-requirement reporting may reduce the extent of reporting detail, the Commission believes that change will allow the CCO to focus more directly on identifying and describing in the CCO Annual Report material compliance
The Commission believes that the amended CCO Rules will not negatively impact market efficiency, competitiveness, or integrity because each CCO Annual Report addresses internal compliance programs of each Registrant and are not publicly available. The amendments affecting CCO duties only clarify those duties and do not affect the performance of derivatives markets.
The Commission did not identify a specific effect on price discovery as a result of the Proposal because the Proposal did not address any pricing issues. The Commission did not receive any comments on this issue. Thus, the Commission continues to believe that this rulemaking will not have an impact on price discovery.
The Commission believes that the final amendments to the CCO duties and CCO Annual Report requirements will not have a meaningful effect on Registrants' risk management practices. The final rules do not directly impact a Registrant's risk management practices because they clarify the scope of the CCO's duties and CCO Annual Report contents, and do not require changes to a Registrant's risk management program.
The Commission has not identified any other public interest considerations for this rulemaking.
Section 15(b) of the Act requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the purposes of the Act, in issuing any order or adopting any Commission rule or regulation (including any exemption under section 4(c) or 4c(b)), or in requiring or approving any bylaw, rule, or regulation of a contract market or registered futures association established pursuant to section 17 of the Act.
The Commission has reflected on the final rule to determine whether it is anticompetitive and has identified no anticompetitive effects. Because the Commission has determined that the final rulemaking has no anticompetitive effects, the Commission has not identified any less anticompetitive means of achieving the purposes of the Act.
Administrative practice and procedure, Chief compliance officer, Commodity futures, Futures commission merchants, Major swap participants, Registration, Swap dealers, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR chapter I as follows:
5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6a, 6b, 6b-1, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, and 23.
(j)
(d)
(1) Administering each of the registrant's policies and procedures relating to its business as a futures commission merchant, swap dealer, or major swap participant that are required to be established pursuant to the Act and Commission regulations;
(2) In consultation with the board of directors or the senior officer, taking reasonable steps to resolve material conflicts of interest relating to the registrant's business as a futures commission merchant, swap dealer, or major swap participant that may arise;
(3) Taking reasonable steps to ensure compliance with the Act and Commission regulations relating to the registrant's business as a futures commission merchant, swap dealer or major swap participant;
(4) Taking reasonable steps to ensure the registrant establishes, maintains, and reviews written policies and procedures reasonably designed to remediate noncompliance issues identified by the chief compliance officer through any means, including any compliance office review, look-back, internal or external audit finding, self-reporting to the Commission and other appropriate authorities, or complaint that can be validated;
(5) Taking reasonable steps to ensure the registrant establishes written procedures reasonably designed for the handling, management response, remediation, retesting, and resolution of noncompliance issues; and
(6) Preparing and signing the annual report required under paragraphs (e) and (f) of this section.
(e)
(1) The written policies and procedures of the futures commission merchant, swap dealer, or major swap participant described in paragraph (d) of this section, including the code of ethics and conflicts of interest policies;
(2) The futures commission merchant's, swap dealer's, or major swap participant's assessment of the
(3) Areas for improvement, and recommended potential or prospective changes or improvements to its compliance program and resources devoted to compliance;
(4) The financial, managerial, operational, and staffing resources set aside for compliance with respect to the Act and Commission regulations relating to its business as a futures commission merchant, swap dealer or major swap participant, including any material deficiencies in such resources;
(5) Any material noncompliance issues identified and the corresponding action taken; and
(6) Any material changes to compliance policies and procedures during the coverage period for the report.
(f)
(ii) If the futures commission merchant, swap dealer, or major swap participant has established an audit committee (or an equivalent body), then the chief compliance officer shall furnish the annual report to the audit committee (or equivalent body) not later than its next scheduled meeting after the annual report is furnished to the Commission, but in no event more than 90 days after the applicable date specified in paragraph (f)(2) of this section for furnishing the annual report to the Commission.
(iii) A written record of transmittal of the annual report to the board of directors or the senior officer, and audit committee, if applicable, shall be made and maintained in accordance with § 1.31 of this chapter.
(2)
(ii) The annual report of a swap dealer or major swap participant that is eligible to comply with a substituted compliance regime for paragraph (e) of this section pursuant to a comparability determination of the Commission may be furnished to the Commission electronically up to 15 days after the date on which the comparable annual report must be completed under the requirements of the applicable substituted compliance regime. If the substituted compliance regime does not specify a date by which the comparable annual report must be completed, then the annual report shall be furnished to the Commission by the date specified in paragraph (f)(2)(i) of this section.
(3)
(4)
(5)
(6)
(ii)
(iii)
In acknowledgment of the large number of WPPs that a Registrant implements to comply with CFTC regulations, the Commission understands that for purposes of the CCO Annual Report, specific WPP descriptions may be appropriately brief while still identifying the basic purpose of the policy or procedure and how the policy or procedure operates to achieve that purpose. The CCO Annual Report should include a summary overview that describes the general forms and types of WPPs the Registrant has, such as a compliance manual specific to the Registrant, global corporate manuals or policies, and/or business-unit-specific WPPs that support the applicable regulatory requirements. This summary overview would provide a narrative of the Registrant's system or program of WPPs, how they work as a whole, and how the Registrant generally puts the WPPs into practice as part of its compliance activities. With respect to the COI policy, it is the Commission's view that the CCO should describe the COI policy specific to the Registrant, addressing the specific requirements of § 1.71 or § 23.605 of this chapter, as applicable.
The Commission expects a CCO Annual Report to contain a comprehensive discussion of: the assessment process; and the results of the effectiveness assessment. The regulation does not dictate the form or manner for the effectiveness assessment. Rather, the Commission would expect each Registrant to follow a process and present the resulting assessment in a form and manner that is appropriate for the size and complexity of the Registrant's applicable business activities and structure. While § 3.3(e)(2) no longer has a “requirement-by-requirement” standard, the CCO Annual Report should address all of the general areas of regulation applicable to the Registrant.
1. Section 3.3(e)(3) requires two components in the CCO Annual Report: an
2. In general, identifying areas in need of improvement and recommending steps to effect those improvements should be a core function of compliance. Accordingly, a CCO Annual Report that makes no recommendations for changes or improvements to the compliance program may raise concerns about the adequacy of the compliance program review intended by the CCO Annual Report process. Moreover, there should be continuity from one reporting cycle to the next, such that where a previous CCO Annual Report discussed future changes or improvements that were being considered or planned, subsequent CCO Annual Reports should discuss the outcomes of the changes that were implemented during the most recent scope period, any monitoring or testing of those changes, whether any compliance issues arose from the changes and, if there were any issues, how those issues were handled. While this section may address improvements to the compliance program that have already been completed, the Commission believes that this section primarily should discuss recommended improvements in process and/or future plans to improve the Registrant's compliance program or resources devoted to compliance.
1. The resources description required by § 3.3(e)(4) should be appropriate for assisting the Registrant's senior management and the CFTC in assessing whether sufficient resources are dedicated to compliance. Accordingly, the description should include the following types of information: the budget allocated to the compliance department of the Registrant for compliance with the CEA and Commission regulations; full-time compliance staffing levels for such compliance activities; partially allocated staff counts (if applicable), with information on how much of such employees' time is devoted to the Registrant's compliance matters that are subject to CFTC oversight; an explanation of managerial resources (the explanation should clearly identify the division between staffing resources and management resources devoted to compliance); general infrastructure information (
2. The Commission understands that a discussion of specific compliance budget allocations may not be as straightforward as described above depending on the size and complexity of the Registrant's compliance program and the extent to which the Registrant's compliance resources may be shared for other non-CFTC regulated business activities. The purpose of the CCO Annual Report requirement is to convey to senior management and the CFTC a clear understanding of the resources the Registrant has set aside for compliance with the CEA and Commission regulations. While some of the compliance resources used in a Registrant's CFTC compliance-related program may be used for compliance activities in other parts of a larger corporate enterprise, this sharing of resources does not negate the Registrant's obligation to discuss how the Registrant's compliance program is being resourced. For those instances where compliance resources are shared, it is recognized that the description of the shared resources may reasonably be more general in nature, providing approximations and estimates based on expected needs. However, the Commission expects that the CCO Annual Report will still address shared resources in as much detail as is necessary to convey the information needed to assess the overall compliance activities of the Registrant.
3. Section 3.3(e)(4) also requires that the CCO Annual Report include a discussion of any material deficiencies in compliance resources. If there have been reductions in the compliance program of the Registrant since the prior reporting period, for example, if there has been a reduction in compliance staff, a significant compliance budget decrease, or the Registrant initiated significant new business activities without a corresponding increase in compliance resources, the CCO Annual Report should include an explanation of why the compliance resources are not deficient in light of the changes. If there are no material deficiencies in the resources devoted to compliance, the Commission recommends that the CCO Annual Report contain an express statement to that effect so that the recipients of the report can see that the requirement was assessed.
The CCO Annual Report should include an explanation of the standard the Registrant used to determine a non-compliance event's materiality. In addition, this section of the CCO Annual Report should contain a description of each material non-compliance issue identified either through self-assessment procedures conducted within the Registrant, or noted by any external entities which conducted a review of the Registrant (such as a designated self-regulatory organization). The description should also include the corresponding actions taken, described in reasonable detail, as well as specific references to the Commission regulation or regulations that are implicated by the non-compliance event. Specifically, the Commission recommends that the CCO Annual Report include a discussion of the Registrant's deliberations on a course of remediation, how the implementation of the remediation is being or was executed, any follow-up testing of the remediation, and any noteworthy results from such testing. Additionally, the Commission recommends that CCOs consider including an overview of how the CCO or compliance department handles and tracks non-compliance events in general.
When describing any material changes to the WPPs, a description of the standard of materiality used should be provided. This description will provide meaningful context for any reported changes to the WPPs.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Giancarlo and Commissioners Quintenz and Behnam voted in the affirmative. No Commissioner voted in the negative.
As part of the CFTC's Project KISS efforts, this final rule will streamline and clarify a Chief Compliance Officer's (CCO) obligations, as well as harmonize certain provisions with the Securities and Exchange Commission's (SEC) rules. Clarifying the role and responsibilities of the CCO should enable greater accountability and improve overall compliance, as well as reduce burdens on CCOs and uncertainty for registrants. The rule continues to impose a duty on CCOs to resolve matters but within the practical limits of their position at the CFTC-registered entity. The rule also continues to impose a duty for the CCO to undertake an annual review but reduces the burdens associated with the review, which will allow the CCO to devote more time and resources to compliance activities at the registrant. In addition, further harmonizing definitions and CCO duties of dual CFTC-SEC registrants should improve efficiency and further reduce the burdens on CCOs.
I would like to thank CFTC staff for their efforts. I would also like to thank Commissioners Quintenz and Behnam for their support.
Department of the Army, DoD.
Final rule.
This final rule removes the Department of the Army's regulation concerning participation of Army bands on and off post. This part has been superseded by requirements which direct appropriate participation of U.S. military bands on and off post. This part conveys internal Army policy and procedures and is unnecessary. Therefore, this part should be removed from the CFR.
This rule is effective on August 27, 2018.
Jennifer Williams at 757-462-1060.
Public comment on the removal of 32 CFR part 508 is not required because the regulation involves a matter relating to agency management and personnel, and because the regulation is a general statement of policy.
DoD internal guidance will continue to be published in Army Regulation 220-90, “Army Music,” available at
This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.
Music, Utilization of Army bands.
Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 508 is removed.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters of the Upper Mississippi River. The safety zone is necessary to protect persons, vessels, and the marine environment from potential hazards created by a demolition project taking place on the bank of the Upper Mississippi River near Alma, WI. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.
This rule is effective from September 28, 2018, through October 15, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Christian Barger, Waterways Management Division, Sector Upper Mississippi River, U.S. Coast Guard; telephone 314-269-2560, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. It is impracticable because we must establish this safety zone by September 28, 2018, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the safety zone and compromise public safety.
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with the equipment to be used in the demolition of a 700 foot tall chimney at the Dairyland Power Cooperative Station will be a safety concern for anyone on a six-tenths of a mile stretch of the Upper Mississippi River at the time the chimney is toppled. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the demolition.
This rule establishes a temporary safety zone from September 28, 2018 through October 15, 2018. The safety zone will cover all navigable waters of the Upper Mississippi River between mile markers 751.2 and 751.8, adjacent to the eastern river bank, where the demolition of a 700-foot chimney will take place. The Coast Guard was informed that the demolition itself would take approximately 30 minutes on one day and that all debris should be contained and is not expected to enter the waterway. The period of enforcement of this safety zone will be two hours before, thirty minutes during, and thirty minutes after the demolition. The COTP or a designated representative will inform the public through Broadcast Notice to Mariners (BNM), Local Notices to Mariners (LNM), and/or Marine Safety Information Bulletins (MSIBs), or through other means of public notice, as appropriate, at least 3 hours in advance of the enforcement period. The duration of the zone is intended to protect persons, vessels, and the marine
No vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to Sector Upper Mississippi River, U.S. Coast Guard. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or by telephone at 314-269-2332. All persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement times and dates for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Safety Information Marine Broadcasts (SIMBs), as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs'” (April 5, 2017).
This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts less than a one-mile stretch of the Upper Mississippi River for approximately three hours on one day. Moreover, the Coast Guard will issue a Safety Marine Information Broadcast (SMIB) via VHF-FM marine channel 16 about the zone and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zone that impacts a less than a one-mile stretch of the Upper Mississippi River for approximately three hours on one day. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM channel 16 or by telephone at 314-269-2332.
(3) If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.
(e)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 10 chemical substances which were the subject of premanufacture notices (PMNs). The chemical substances are subject to Orders issued by EPA pursuant to section 5(e) of TSCA. This action requires persons who intend to manufacture (defined by statute to include import) or process any of these 10 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the intended use within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination.
This rule is effective on October 26, 2018. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on September 10, 2018.
Written adverse comments on one or more of these SNURs must be received on or before September 26, 2018 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0560, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule on or after September 26, 2018 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
1.
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA furthermore prohibits such manufacturing or processing from commencing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before the manufacture or processing for the significant new use can commence. If
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 10 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 10 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) Order.
• Information identified by EPA that would help characterize the potential health and/or environmental effects of the chemical substance in support of a request by the PMN submitter to modify the Order, or if a manufacturer or processor is considering submitting a SNUN for a significant new use designated by the SNUR.
This information may include testing required in a TSCA section 5(e) Order to be conducted by the PMN submitter, as well as testing not required to be conducted but which would also help characterize the potential health and/or environmental effects of the PMN substance. Any recommendation for information identified by EPA was made based on EPA's consideration of available screening-level data, if any, as well as other available information on appropriate testing for the chemical substance. Further, any such testing identified by EPA that includes testing on vertebrates was made after consideration of available toxicity information, computational toxicology and bioinformatics, and high-throughput screening methods and their prediction models. EPA also recognizes that whether testing/further information is needed will depend on the specific exposure and use scenario in the SNUN. EPA encourages all SNUN submitters to contact EPA to discuss any potential future testing. See Unit VIII. for more information.
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text sections of these rules specify the activities designated as significant new uses. Certain new uses, including exceedance of production volume limits (
These rules include 10 PMN substances that are subject to Orders under TSCA section 5(e)(1)(A). Each Order is based on one or more of the findings in TSCA section 5(a)(3)(B): There is insufficient information to permit a reasoned evaluation; in the absence of sufficient information to permit a reasoned evaluation, the activities associated with the PMN substances may present unreasonable risk to human health or the environment; the substance is or will be produced in substantial quantities, and enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant (substantial) human exposure to the substance. Those Orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The SNURs identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).
Where EPA determines that the PMN substance may present an unreasonable risk of injury to human health via inhalation exposure, the underlying TSCA section 5(e) Order requires, among other things, that potentially exposed employees wear specified respirators unless actual measurements of the workplace air show that air-borne concentrations of the PMN substance are below a New Chemical Exposure Limit (NCEL) that is established by EPA to provide adequate protection to human health. In addition to the actual NCEL concentration, the comprehensive NCELs provisions in TSCA section 5(e) Orders, which are modeled after Occupational Safety and Health Administration (OSHA) Permissible Exposure Limits (PELs) provisions, include requirements addressing performance criteria for sampling and analytical methods, periodic monitoring, respiratory protection, and recordkeeping. However, no comparable NCEL provisions currently exist in 40 CFR part 721, subpart B, for SNURs. Therefore, for these cases, the individual SNURs in 40 CFR part 721, subpart E, will state that persons subject to the SNUR who wish to pursue NCELs as an alternative to the § 721.63 respirator requirements may request to do so under § 721.30. EPA expects that persons whose § 721.30 requests to use the NCELs approach for SNURs that are approved by EPA will be required to comply with NCELs provisions that are comparable to those contained in the corresponding TSCA section 5(e) Order for the same chemical substance.
1. Submission of certain toxicity testing prior to exceeding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment, including impervious gloves, to prevent dermal exposure;
3. Use of NIOSH certified respirators with Assigned Protection Factor (APF) of 10 to prevent inhalation exposures or compliance with a NCEL of 4 mg/m
4. Establishment and use of a hazard communication program, including human health precautionary statements on each label and in the Safety Data Sheet (SDS);
5. Refraining from manufacturing the PMN substance in the United States (
6. Use of the PMN substance only for the confidential use specified in the Order; and
7. No release of the PMN substances resulting in surface water concentrations that exceed 30 ppb.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Use of the PMN substances only for the confidential use specified in the Order; and
2. Manufacture (which under TSCA includes import) the PMN substances with a average molecular weight no lower than 22,000 for P-16-0316 and no lower than 14,000 for P-16-0317 and species with a molecular weight less than 500 present at a maximum of 2% by weight.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Refrain from manufacturing the PMN substance in the United States (
2. Use of the PMN substance only as a dispersant for deflocculation of pigments in industrial paints and coatings;
3. Use the PMN substance in the paint/coating formulation at a concentration not greater than 1 percent by weight or volume;
4. No modification of the processing method or use activities of the PMN substance that would allow inhalation exposure to the PMN substance by vapor, dust, mist or aerosols at concentrations greater than 1 percent by weight or volume; and
5. Establishment and use of a hazard communication program, including human health precautionary statements on each label and in the (SDS).
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Use of the PMN substances only as a coating for solid substrates;
2. No use of the PMN substances involving application methods that
3. No modification of manufacturing process of the PMN substances such that workers would be exposed through inhalation.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission of certain fate testing on the PMN substance prior to exceeding the production volume limits specified in the Order;
2. No processing or use of the PMN substance in a manner that results in inhalation exposure due to spray, mist or aerosol;
3. Refraining from manufacturing the PMN substance in the United States (
4. No release of the PMN substance into the waters of the United States.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission of certain toxicity testing on the PMN substance prior to exceeding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment, including impervious gloves, to prevent dermal exposure;
3. Use of NIOSH certified respirators with a minimum (APF) of 1000 to prevent inhalation exposure or compliance with a NCEL of 0.3 mg/m
4. Establishment and use of a hazard communication program, including human health precautionary statements on each label and in the (SDS);
5. Use of the PMN substance only as a component of infrared absorption material;
6. No use of the PMN substance involving application methods that generate dust, mist or aerosol unless such application method occurs within an enclosed process;
7. No release of the PMN substance into the waters of the United States; and
8. The PMN substance and any waste streams from manufacture, processing, and use containing the PMN substance must be disposed of only by incineration or landfill.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture (including import) the PMN substance with a number average molecular weight no lower than 1500, and no more than 24% by weight of acid monomer in the polymer; and
2. Use of the PMN substance only as an intermediate
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission of certain toxicity testing prior to exceeding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment to prevent dermal exposures;
3. Establishment and use of a hazard communication program, including human health precautionary statements on each label and in the (SDS);
4. Manufacture (including import) the PMN substance with residual phthalate not greater than 0.1% by weight;
5. Use of the PMN substance only as an aromatic polyester polyol for rigid foam;
6. No modification of manufacturing, processing or use activities of the PMN substance to result in the generation of a vapor, mist or aerosol; and
7. No release of the PMN substance into the waters of the United States.
The SNUR designates as a “significant new use” the absence of these protective measures.
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for all 10 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) Orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters.
The SNURs identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• EPA will be able to either determine that the prospective manufacture or processing is not likely to present an unreasonable risk, or to take necessary regulatory action associated with any other determination, before the described significant new use of the chemical substance occurs.
• EPA will identify as significant new uses any manufacturing, processing, distribution in commerce, use, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the
EPA is issuing these SNURs as a direct final rule. The effective date of this rule is October 26, 2018 without further notice, unless EPA receives written adverse comments before September 26, 2018.
If EPA receives written adverse comments on one or more of these SNURs before September 26, 2018, EPA will withdraw the relevant sections of this direct final rule before its effective date.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse comments must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.
When chemical substances identified in this rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. However, TSCA section 5(e) Orders have been issued for all of the chemical substances, and the PMN submitters are prohibited by the TSCA section 5(e) Orders from undertaking activities which will be designated as significant new uses. The identities of 7 of the 10 chemical substances subject to this rule have been claimed as confidential and EPA has received no post-PMN
Therefore, EPA designates August 27, 2018 as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach has been to ensure that a person could not defeat a SNUR by initiating a significant new use before the effective date of the direct final rule.
Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons will have to first comply with all applicable SNUR notification requirements and wait until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination.
EPA recognizes that TSCA section 5 does not require developing any particular new information (
In the absence of a TSCA section 4 test rule covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. lists required or recommended testing for all of the listed SNURs. Descriptions of this information are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). To access the OCSPP test guidelines referenced in this document electronically, please go to
In certain of the TSCA section 5(e) Orders for the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) Orders, each PMN submitter is required to submit each study at least 14 weeks (earlier TSCA section 5(e) Orders required submissions at least 12 weeks) before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) Orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) Orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture or processing.
Any request by EPA for the triggered and pended testing described in the Orders was made based on EPA's consideration of available screening-level data, if any, as well as other available information on appropriate testing for the PMN substances. Further, any such testing request on the part of EPA that includes testing on vertebrates was made after consideration of available toxicity information, computational toxicology and bioinformatics, and high-throughput screening methods and their prediction models.
The potentially useful information identified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at § 721.1725(b)(1).
Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2017-0560.
This action establishes SNURs for several new chemical substances that were the subject of PMNs and TSCA section 5(e) Orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
According to PRA (44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this action.
This action is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).
This action does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This action does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(A) As an alternative to the respirator requirements in paragraph (a)(2)(i) of this section, a manufacturer or processor may choose to follow the new chemical exposure limit (NCEL) provision listed in the TSCA section 5(e) Order for this substance. The NCEL is 4 mg/m
(B) [Reserved]
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) As an alternative to the respirator requirements in paragraph (a)(2)(i) of this section, a manufacturer or processor may choose to follow the new chemical exposure limit (NCEL) provision listed in the TSCA section 5(e) Order for this substance. The NCEL is 0.3 mg/m
(B) [Reserved]
(ii)
(iii)
(iv)
(v)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 19 chemical substances which were the subject of premanufacture notices (PMNs). The chemical substances are subject to Orders issued by EPA pursuant to section 5(e) of TSCA. This action requires persons who intend to manufacture (defined by statute to include import) or process any of these 19 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the intended use within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination.
This rule is effective on October 26, 2018. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on September 10, 2018.
Written adverse comments on one or more of these SNURs must be received on or before September 26, 2018 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0464, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule on or after September 26, 2018 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
1.
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA furthermore prohibits such manufacturing or processing from commencing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before the manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 19 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) Order.
• Information identified by EPA that would help characterize the potential health and/or environmental effects of the chemical substance in support of a request by the PMN submitter to modify the Order, or if a manufacturer or processor is considering submitting a SNUN for a significant new use designated by the SNUR. This information may include testing required in a TSCA section 5(e) Order to be conducted by the PMN submitter, as well as testing not required to be conducted but which would also help characterize the potential health and/or environmental effects of the PMN substance. Any recommendation for information identified by EPA was made based on EPA's consideration of available screening-level data, if any, as well as other available information on appropriate testing for the chemical substance. Further, any such testing identified by EPA that includes testing on vertebrates was made after consideration of available toxicity information, computational toxicology and bioinformatics, and high-throughput screening methods and their prediction models. EPA also recognizes that whether testing/further information is needed will depend on the specific exposure and use scenario in the SNUN. EPA encourages all SNUN submitters to contact EPA to discuss any potential
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text section of these rules specify the activities designated as significant new uses. Certain new uses, including exceedance of production volume limits (
These rules include 19 PMN substances that are subject to Orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that it has insufficient information to conduct a reasoned evaluation and the activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those Orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The SNURs identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).
Where EPA determined that the PMN substance may present an unreasonable risk of injury to human health via inhalation exposure, the underlying TSCA section 5(e) Order usually requires, among other things, that potentially exposed employees wear specified respirators unless actual measurements of the workplace air show that air-borne concentrations of the PMN substance are below a New Chemical Exposure Limit (NCEL) that is established by EPA to provide adequate protection to human health. In addition to the actual NCEL concentration, the comprehensive NCELs provisions in TSCA section 5(e) Orders, which are modeled after Occupational Safety and Health Administration (OSHA) Permissible Exposure Limits (PELs) provisions, include requirements addressing performance criteria for sampling and analytical methods, periodic monitoring, respiratory protection, and recordkeeping. However, no comparable NCEL provisions currently exist in 40 CFR part 721, subpart B, for SNURs. Therefore, for these cases, the individual SNURs in 40 CFR part 721, subpart E, will state that persons subject to the SNUR who wish to pursue NCELs as an alternative to the § 721.63 respirator requirements may request to do so under § 721.30. EPA expects that persons whose § 721.30 requests to use the NCELs approach for SNURs that are approved by EPA will be required to comply with NCELs provisions that are comparable to those contained in the corresponding TSCA section 5(e) Order for the same chemical substance.
1. Submit to EPA certain toxicity testing prior to exceeding the confidential production volume limits specified in the Order;
2. Label containers of the substance and provide Safety Data Sheets (SDS) or Material Safety Data Sheets (MSDS) and worker training in accordance with the provisions of the Hazard Communication Program section;
3. Not use the substance other than for the confidential uses allowed in the Order;
4. Dispose of the substance only by incineration or landfill; and
5. Comply with the release to water provisions.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing prior to exceeding the confidential aggregate production volume limit specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposure);
3. Use of a National Institute for Occupational Safety and Health (NIOSH)-certified respirator with an Applied Protection Factor (APF) of at least 10 (where there is a potential for inhalation exposure) or compliance with a New Chemicals Exposure Limit (NCEL) of 0.9 milligrams per cubic meter as an 8-hour time-weighted average to prevent inhalation exposure. (EPA's estimates indicate that variations of the parameters (including batch size, number of processing sites, days per year of operation) of the uses identified below would not result in inhalation exposure that would indicate a different respirator.)
4. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS.
5. Not use the substance other than for the use allowed in the Order in commercial use (as that term is defined in 40 CFR 721.3) but without any use in
6. Not exceed the confidential annual production volume limit in the Order; and
7. No manufacture of the substance where there is more than 0.2% residual isocyanate.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before exceeding a total production volume of 204 kilograms, as specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
3. No use of the substance other than allowed by the Order which is the confidential coating system described in the PMN;
4. Manufacture not to exceed an annual manufacture volume of 100 kilograms;
5. Refrain from domestic manufacture in the United States (
6. No release of the PMN substance to surface waters.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before exceeding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for inhalation exposures);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in SDS;
4. No processing or use of the substance at temperatures greater than 200 degrees Celsius; and
5. No domestic manufacture of the substance.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Use personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
2. Establishment and use of a hazard communication program, including
3. Manufacture (including import) the substance with a residual of free isocyanate monomers no greater than 0.1% by weight;
4. Refraining from manufacture, processing, or use activities if it results in inhalation exposure to vapor, dust, mist or aerosols;
5. Refraining from manufacture, processing, or use for consumer use or in commercial use (as that term is defined in 40 CFR 721.3) where there is use in a consumer setting (as that term is defined in 40 CFR 721.3); and
6. Manufacture, process, or use the substance only in an aqueous formulation.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before exceeding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
4. Use of a NIOSH-certified respirator with an APF of at least 10 (where there is a potential for inhalation exposures) or compliance with a NCEL of 8.4 milligrams per cubic meter as an 8-hour time-weighted average to prevent inhalation exposure. (EPA's estimates indicate that variations of the parameters (including batch size, number of processing sites, days per year of operation) of the uses identified below would not result in inhalation exposure that would indicate a different respirator.)
5. Refraining from modifying the manufacture, processing, or use activities if it results in inhalation exposure to vapor, dust, mist or aerosols; and
6. Refraining from manufacture, processing, or use for consumer use or in commercial use (as that term is defined in 40 CFR 721.3) where there is use in a consumer setting (as that term is defined in 40 CFR 721.3).
The SNUR designates as a “significant new use” the absence of these protective measures.
The SNUR designates as a “significant new use” the absence of this protective measure.
1. Submission to EPA of certain toxicity testing before exceeding the confidential production volume limits specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
4. No manufacture of the substance in the United States (
5. Import the substance only as a solution;
6. No use of the substance other than for the confidential uses allowed in the Order; and
7. Not release the substance in surface waters resulting in concentrations that exceed 55 ppb.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before exceeding the confidential production volume limits specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposure);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
4. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols;
5. No use other than confidential use allowed by the Order; and
6. No release of the substance to surface waters.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. No manufacture of the substance in the United States (
2. Import of the substance under the confidential conditions required by the Order;
3. No use of the substance other than as the confidential use allowed described in the Order; and
4. No release of the substance to surface waters.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before exceeding the aggregate production volume limit of 105,000 kilograms specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure including gloves (where there is a potential for dermal exposures);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
4. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols;
5. No use other than as an ultraviolet curable coating resin for three-dimensional printing applications;
6. Manufacture of the substance with no greater than 0.1% residual isocyanate; and
7. Manufacture of the substance with an average molecular weight greater than 1,000 daltons.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols; and
2. No use other than the confidential use allowed by the Order;
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
2. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
3. No manufacture of the substance in the United States (
4. No use other than the confidential use allowed by the Order;
5. No exceedance of the confidential annual production volume limit in the Order; and
6. No release of the substance to surface waters.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before excceding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
4. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols;
5. No use other than a dispersive additive for pigments in industrial paints and coatings;
6. No processing or use of the substance in a paint or coating formulation greater than 1% by weight or volume; and
7. No manufacture of the substance in the United States (
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols;
2. Not sell the substance for “consumer use” or for “commercial uses” (as the term is defined at 40 CFR 721.3) when the “saleable goods or service” could introduce the material into a “consumer” setting (as that term is defined in 40 CFR 721.3);
3. Use the substance only in a formulation for the use allowed in the Order with isocyanate residuals not greater than 0.1 percent by weight or volume; and
4. Import the substance where there is no more than 0.15% residual toluene isocyanate.
The SNUR designates as a “significant new use” the absence of these protective measures.
To protect against potential risks, the Order requires:
1. Manufacture of the substance where there is no more than 0.1% residual isocyanate.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Submission to EPA of certain toxicity testing before exceeding the confidential production volume limit specified in the Order;
2. Use of personal protective equipment to prevent dermal exposure (where there is a potential for dermal exposures);
3. Establishment and use of a hazard communication program, including precautionary statements on each label and in the SDS;
4. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols;
5. No use other than as a chemical intermediate;
6. No manufacture of the substances in the United States (
7. No release of the substances to surface waters.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Refrain from manufacture, process or use activities that result in inhalation exposure to vapor, dust, mist or aerosols; and
2. No use other than the confidential use allowed by the Order;
The SNUR designates as a “significant new use” the absence of these protective measures.
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for all 19 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical
The SNURs identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• EPA will be able to either determine that the prospective manufacture or processing is not likely to present an unreasonable risk, or to take necessary regulatory action associated with any other determination, before the described significant new use of the chemical substance occurs.
• EPA will identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at
EPA is issuing these SNURs as a direct final rule. The effective date of this rule is October 26, 2018 without further notice, unless EPA receives written adverse comments before September 26, 2018.
If EPA receives written adverse comments on one or more of these SNURs before September 26, 2018, EPA will withdraw the relevant sections of this direct final rule before its effective date.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse comments must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.
When chemical substances identified in this rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. However, TSCA section 5(e) Orders have been issued for all of the chemical substances, and the PMN submitters are prohibited by the TSCA section 5(e) Orders from undertaking activities which will be designated as significant new uses. The identities of the 19 chemical substances subject to these rules have been claimed as confidential and EPA has received no post-PMN
Therefore, EPA designates August 27, 2018 as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach has been to ensure that a person could not defeat a SNUR by initiating a significant new use before the effective date of the direct final rule. In developing this rule, EPA has recognized that, given EPA's practice of on occasion posting rules on its website a week or more in advance of
Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons will have to first comply with all applicable SNUR notification requirements and wait until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination.
EPA recognizes that TSCA section 5 does not require developing any particular new information (
In the absence of a TSCA section 4 test rule covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. lists potentially useful information for all of the listed SNURs. Descriptions of this information is provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). To access the OCSPP test guidelines referenced in this document electronically, please go to
In certain of the TSCA section 5(e) Orders for the chemical substances regulated under this rule, EPA has established production volume limits in
Any request by EPA for the triggered and pended testing described in the Orders was made based on EPA's consideration of available screening-level data, if any, as well as other available information on appropriate testing for the PMN substances. Further, any such testing request on the part of EPA that includes testing on vertebrates was made after consideration of available toxicity information, computational toxicology and bioinformatics, and high-throughput screening methods and their prediction models.
The potentially useful information identified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data or other information may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to generate useful information.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at § 721.1725(b)(1).
Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2017-0464.
This action establishes SNURs for several new chemical substances that were the subject of PMNs and TSCA section 5(e) Orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
According to PRA (44 U.S.C. 3501
The information collection requirements related to this action have
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this action.
This action is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).
This action does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This action does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) As an alternative to the respirator requirements in paragraph (a)(2)(i) of this section, a manufacturer or processor may choose to follow the new chemical exposure limit (NCEL) provision listed in the TSCA section 5(e) Order for this substance. The NCEL is 0.9 mg/m
(B) [Reserved]
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) As an alternative to the respirator requirements in paragraph (a)(2)(i) of this section, a manufacturer or processor may choose to follow the new chemical exposure limit (NCEL) provision listed in the TSCA section 5(e) Order for this substance. The NCEL is 8.4 milligrams per cubic meter as an 8-hour time weighted average. Persons who wish to pursue NCELs as an alternative to § 721.63 respirator requirements may request to do so under § 721.30. Persons whose § 721.30 requests to use the NCELs approach are approved by EPA will be required to follow NCELs provisions comparable to those contained in the corresponding TSCA section 5(e) Order.
(B) [Reserved]
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
Federal Communications Commission.
Final action.
In this document, the Commission directs the Media Bureau to engage a contractor to assist in the reimbursement process and administration of the Reimbursement Fund for LPTV, TV translator, and FM stations, and also directs the Bureau to make determinations regarding eligible costs and the reimbursement process, such as calculating the amount of allocations to eligible entities and seeking comment on a revised Catalog of Eligible Expenses. The Commission also determines that the Media Bureau will announce, pursuant to the requirements in the Reimbursement Expansion Act, when the reimbursement program for all entities eligible for reimbursement pursuant to the Spectrum Act and the Reimbursement Expansion Act will end. Finally, the Commission interprets the Reimbursement Expansion Act as providing at least $50 million for use by the Commission to fund its efforts to educate consumers about the reorganization of broadcast television spectrum under the United States Code.
This action is effective August 27, 2018.
Maria Mullarkey,
This is a summary of the Commission's
The
1.
2.
3.
4. The Commission indicated in the
5.
6. Because the actions taken in the
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9.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements an accountability measure (AM) for Atlantic migratory group (Atlantic) cobia that are sold (commercial) and harvested from the exclusive economic zone (EEZ) of the Atlantic. NMFS projects that commercial landings of Atlantic cobia have reached the commercial quota. Therefore, NMFS closes the commercial sector for Atlantic cobia in the EEZ on September 5, 2018, and it will remain closed until the next fishing year that begins on January 1, 2019. This closure is necessary to protect the Atlantic cobia resource.
This rule is effective from 12:01 a.m., local time, September 5, 2018, until 12:01 a.m., local time, on January 1, 2019.
Frank Helies, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The fishery for coastal migratory pelagic fish includes king mackerel, Spanish mackerel, and cobia, and is managed under the Fishery Management Plan for Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Separate migratory groups of cobia were established in Amendment 18 to the FMP (76 FR 82058, December 29, 2011), and then revised in Amendment 20B to the FMP (80 FR 4216, January 27, 2015). The southern boundary for Atlantic cobia occurs at a line that
Atlantic cobia are unique among federally managed species in the southeast region, because no commercial permit is required to harvest and sell them. The distinction between commercial and recreational sectors is not as clear as other federally managed species in the southeast region. For example, regulations at 50 CFR part 622 specify quotas, annual catch limits, and AMs for cobia that are sold and cobia that are not sold. However, for purposes of this temporary rule, Atlantic cobia that are sold are considered commercially caught, and those that are not sold are considered recreationally caught.
The commercial quota for Atlantic cobia is 50,000 lb (22,680 kg), round or gutted weight, for the 2018 fishing year, which runs from January 1 through December 31 (50 CFR 622.384(d)(2)).
The AM for the commercial sector of Atlantic cobia, specified at 50 CFR 622.388(f)(1)(i), requires that NMFS file a notification with the Office of the Federal Register to prohibit the sale and purchase of cobia for the remainder of the fishing year if commercial landings reach or are projected to reach the commercial quota specified in § 622.384(d)(2). The commercial AM is triggered for 2018, because NMFS projects that commercial landings of Atlantic cobia will reach the commercial quota on September 5, 2018. Accordingly, the commercial sector for Atlantic cobia is closed in the EEZ at 12:01 a.m., local time, on September 5, 2018, and remains closed until the start of the next fishing year on January 1, 2019.
During the commercial closure, the sale and purchase of Atlantic cobia is prohibited. The recreational bag and possession limits for Atlantic cobia apply while the recreational sector is open. The prohibition on sale and purchase does not apply to Atlantic cobia that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, on September 5, 2018, and were held in cold storage by a dealer or processor.
The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Atlantic cobia and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.388(f)(1)(i) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action is based on the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements 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 prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the AM for Atlantic cobia has already been subject to notice and comment, and all that remains is to notify the public of the commercial closure for the remainder of the 2018 fishing year. Prior notice and opportunity for public comment on this action is contrary to the public interest, because of the need to immediately implement the commercial closure to protect Atlantic cobia, since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and would potentially result in a harvest that exceeds the commercial quota.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
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 Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB-BK 117 D-2 helicopters. This proposed AD would require replacing the rescue hoist cable cut pushbutton flip guard (flip guard). This proposed AD is prompted by reports of unintended lifting of several flip guards. The actions of this proposed AD are intended to correct an unsafe condition on these products.
We must receive comments on this proposed AD by October 26, 2018.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
Clark Davenport, Flight Test Engineer, Flight Test Branch, Compliance and Airworthiness Division, FAA, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone 817 222 5151; 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 EASA AD No. 2017-0038, dated February 22, 2017 (AD No. 2017-0038), to correct an unsafe condition for Airbus Helicopters Models MBB-BK 117 D-2 and MBB-BK 117 D-2m helicopters. The EASA AD advises that multiple events were reported of unintended lifting of the flip guard and that the flip guard has two stable positions, open and closed. AD No. 2017-0038 states that if the unintended lifting is not detected, the requirement for dual action when activating the rescue hoist cable cut is not guaranteed. According to EASA, this condition, if not corrected, could result in inadvertent cutting of the rescue hoist cable and subsequent personal injury.
EASA further advises that Airbus Helicopters has developed an improved mono-stable (closed) flip guard, and AD No. 2017-0038 requires installing the new flip guard and re-identifying the collective lever switch unit.
These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, 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 products of the same type design.
Airbus Helicopters has issued Alert Service Bulletin No. MBB-BK117 D-2-67A-002, Revision 0, dated January 23, 2017, which contains procedures for replacing flip guard part number (P/N) 79552176 with improved flip guard P/N 79553511 and for identifying the collective lever switch unit with the Alert Service Bulletin number.
This proposed AD would require before the next hoist operation or within
The EASA AD applies to Model MBB-BK 117 D-2m helicopters; this proposed AD would not as these models are not type certificated in the U.S. Also, the EASA AD requires compliance within 440 hours TIS, this proposed AD would require compliance before the next hoist operation or within 440 hours TIS, whichever occurs first. Finally, the EASA AD requires identifying the collective lever switch unit with the service information number; this proposed AD would not.
We estimate that this proposed AD would affect 21 helicopters of U.S. Registry.
At an average labor rate of $85 per hour, we estimate that operators would incur the following costs in order to comply with this proposed AD. Replacing the flip guard would require about 14 hours, and required parts would cost $735, for a cost per helicopter of $1,925 and a cost of $40,148 to the U.S. fleet.
According to Airbus 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 Airbus 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 Airbus Helicopters Deutschland GmbH Model MBB-BK 117 D-2 helicopters, certificated in any category, with a cable cut flip guard (flip guard) part number (P/N) 79552176 installed.
This AD defines the unsafe condition as unintended lifting of a flip guard. This condition could result in inadvertent cutting of the rescue hoist cable and subsequent personal injury.
We must receive comments by October 26, 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.
Before the next hoist operation or within 440 hours time in service (TIS), whichever occurs first, remove flip guard P/N 79552176 from service and install flip guard P/N 79553511 on the collective lever switch unit.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Clark Davenport, Flight Test Engineer, Flight Test Branch, Compliance and Airworthiness Division, FAA, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone 817 222 5151; 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.
(1) Airbus Helicopters Alert Service Bulletin No. MBB-BK117 D-2-67A-002, Revision 0, dated January 23, 2017, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Airbus Helicopters, 2701 N Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0038, dated February 22, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6700 Rotorcraft Flight Control.
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 AW139 helicopters. This proposed AD would require inspecting and altering the number 1 driveshaft (driveshaft). This proposed AD is prompted by reports of scratches that were found on the driveshaft. The actions of this proposed AD are intended to prevent an unsafe condition on these products.
We must receive comments on this proposed AD by October 26, 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 EASA AD No. 2017-0011, dated January 25, 2017, to correct an unsafe condition for certain serial-numbered Leonardo S.p.A. (formerly Finmeccanica S.p.A, AgustaWestland S.p.A.) Model AW139 helicopters. EASA advises of several helicopters found with scratches on the driveshaft part-number (P/N) 3G6510A01132 and that an investigation determined only helicopters equipped with rear exhaust module assembly P/N 3G7810A00431 and tunnel assembly P/N 3G7130A13431 are affected. According to EASA, the scratches resulted from insufficient clearance between the driveshaft and the rear exhaust module and tunnel assemblies. EASA further advises that if not corrected, these scratches could lead to a crack in the driveshaft, failure of the tail rotor drive system, and subsequent reduced control of the helicopter. To prevent this potential unsafe condition, the EASA AD requires repetitive inspections of the driveshaft for a crack until the exhaust module and tunnel assembly are modified to increase the clearance.
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 products of the same type design.
We reviewed Leonardo Helicopters Bollettino Tecnico No. 139-465, Revision A, dated January 25, 2017, which contains procedures for visual and eddy-current inspections of the driveshaft. This service information also contains procedures for modifying the exhaust module and tunnel assemblies.
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 30 hours time-in-service (TIS) and thereafter at intervals not exceeding 100 hours TIS, inspecting the driveshaft tube P/N 3G6510A00832 for a scratch and indentation. If there is a scratch or indentation, the proposed AD would require, before further flight, repairing the driveshaft tube and performing a depth check of the repaired area. If the repaired area depth is more than 0.2 mm, the proposed AD would require replacing the driveshaft tube and altering the rear exhaust module and tunnel assembly before further flight. If the depth of the repaired area of the tube is 0.2 mm or less, the proposed AD would require, before further flight, performing an eddy current inspection of the tube for a crack. If there is a crack,
This proposed AD would also require, within 300 hours TIS, altering the rear exhaust module and tunnel assembly, if not previously done as a result of the inspections. Because this proposed AD would also require re-identifying the tunnel assembly part number after it is altered, this would be terminating action for the repetitive inspections.
We estimate that this proposed AD would affect 55 helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this AD, based on an average labor rate of $85 per work-hour. Inspecting, repairing, and eddy-current inspecting the driveshaft tube would require about 6 work-hours, and required parts cost would be minimal, for a cost of $510 per helicopter and $28,050 for the U.S. fleet per inspection cycle. Altering the rear exhaust module and tunnel assembly would require about 20 work-hours, and required parts would cost $1,500, for a cost of $3,200 per helicopter and $176,000 for the U.S. fleet.
If required, replacing a driveshaft tube would require 1 work-hour, and required parts would cost $6,500, for a cost per helicopter of $6,585.
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 AW139 helicopters, serial numbers 31499, 31504, 31507, 31509, 31512, 31518, 31519, 31524, 31529, 31533, 31535 through 31564, 31567, 31569, 31570, 31589, 41363, 41368 through 41370, 41372 through 41375, 41378, 41381, and 41384, with a tunnel assembly part number 3G7130A13431 installed, certificated in any category.
This AD defines the unsafe condition as a crack in a tail rotor driveshaft, which could result in failure of the tail rotor drive system and subsequent loss of control of the helicopter.
We must receive comments by October 26, 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 30 hours time-in-service (TIS) and thereafter at intervals not to exceed 100 hours TIS, inspect the number 1 driveshaft tube shaft, P/N 3G6510A00832, for a scratch and indentation in the area depicted in Figure 1 of Leonardo Helicopters Bollettino Tecnico No. 139-465, Revision A, dated January 25, 2017 (BT 139-465). If there is a scratch or indentation, before further flight:
(i) Repair the tube shaft in accordance with the Compliance Instructions, Part I, paragraphs 7.1 through 7.3, of BT 139-465.
(ii) Measure the depth of the repaired areas as depicted in Figure 2 of BT 139-465.
(A) If the depth of the reworked area is 0.2 mm (0.079 inch) or less, eddy-current inspect the driveshaft for a crack as described in the Compliance Instructions, Annex A, of BT 139-465. If there is a crack, before further flight, replace the driveshaft, alter the rear exhaust module, and alter and re-identify the tunnel assembly in accordance with the Compliance Instructions, Part II, paragraphs 7 through 12, of BT 139-465.
(B) If the depth of the reworked area is more than 0.2 mm (0.079 inch), before further flight, replace the driveshaft, alter the rear exhaust module, and alter and re-identify the tunnel assembly in accordance with the Compliance Instructions, Part II, paragraphs 7 through 12, of BT 139-465.
(2) Within 300 hours TIS, unless already accomplished as required by paragraph (e)(1)(ii) of this AD, alter the rear exhaust module and alter and re-identify the tunnel assembly in accordance with the Compliance Instructions, Part II, paragraphs 7 through 12, of BT 139-465.
Special flight permits are prohibited.
(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
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0011, dated January 25, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6510 Tail Rotor Driveshaft.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notification of public hearing.
This document contains proposed amendments to regulations under section 170 of the Internal Revenue Code (Code). The proposed amendments provide rules governing the availability of charitable contribution deductions under section 170 when a taxpayer receives or expects to receive a corresponding state or local tax credit. This document also proposes amendments to the regulations under section 642(c) to apply similar rules to payments made by a trust or decedent's estate. This document provides notification of a public hearing on these proposed regulations.
Written and electronic comments must be received by October 11, 2018. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for November 5, 2018, must be received by October 11, 2018.
Send submissions to Internal Revenue Service, CC:PA:LPD:PR (REG-112176-18), Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8:00 a.m. and 4:00 p.m. to CC:PA:LPD:PR (REG-112176-18), Courier's Desk, 1111 Constitution Avenue NW, Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulations, Merrill D. Feldstein and Mon Lam at (202) 317-4059; concerning submission of comments and requests for a public hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).
Section 170(a)(1) generally allows an itemized deduction for any “charitable contribution” paid within the taxable year. Section 170(c) defines “charitable contribution” as a “contribution or gift to or for the use of” any entity listed in that subsection. Section 170(c)(1) includes a contribution or gift to or for the use of a State, a possession of the United States, or any political subdivision of the foregoing, but only if the contribution or gift is made exclusively for public purposes. Section 170(c)(2) includes, in general, a contribution or gift to or for the use of certain corporations, trusts, or community chests, funds, or foundations, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition, or for the prevention of cruelty to children or animals.
Section 164 generally allows an itemized deduction for the payment of certain taxes, including state and local, and foreign, real property taxes; state and local personal property taxes; and state and local, and foreign, income, war profits, and excess profits taxes. Section 164(b)(6), as added by section 11042 of “An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018” (the Act), Public Law 115-97, limits an individual's deduction for the aggregate amount of state and local taxes paid during the calendar year to $10,000 ($5,000 in the case of a married individual filing a separate return). This new limitation applies to taxable years beginning after December 31, 2017, and before January 1, 2026.
In 1986, the Supreme Court interpreted the phrase “charitable contribution” in section 170.
For the benefit received in return to reduce the allowable charitable contribution deduction under section 170, the benefits received, or expected to be received, by a donor need only be greater than those benefits that inure to the general public from transfers for charitable purposes.
In recent years, it has become increasingly common for states and localities to provide state or local tax credits in return for contributions by taxpayers to or for the use of certain entities listed in section 170(c). As the use of these tax credit programs by states and localities became more common, the IRS Office of Chief Counsel (IRS Chief Counsel), in multiple Chief Counsel Advice memoranda (CCAs), considered whether the receipt of state tax credits under these programs were
In CCAs issued in 2002 and 2004, IRS Chief Counsel reviewed programs involving the issuance of state tax credits in return for the transfer of conservation easements and for payments to certain child care organizations.
In 2010, another CCA explained that published guidance on the issue was not contemplated at that time, but it offered further advice.
In addition to the CCAs, IRS Chief Counsel has taken the position in the U.S. Tax Court that the amount of a state or local tax credit that reduces a tax liability is not an accession to wealth under section 61 or an amount realized for purposes of section 1001, and the Tax Court has accepted this view.
At the time the 2010 CCA was issued, section 164 generally allowed an itemized deduction—unlimited in amount—for the payment of state and local taxes. Accordingly, the question of how to characterize transfers pursuant to state tax credit programs had little practical consequence from a federal income tax perspective because, unless the taxpayer was subject to the alternative minimum tax (AMT) under section 55, a deduction was likely to be available under either section 164 or section 170. Permitting a charitable contribution deduction for a transfer made in exchange for a state or local tax credit generally had no effect on federal income tax liability because any increased deduction under section 170 would be offset by a decreased deduction under section 164.
However, as a result of the new limit on the deductibility of state and local taxes under section 164(b)(6) (as added by the Act), treating a transfer pursuant to a state or local tax credit program as a charitable contribution for federal income tax purposes may reduce a taxpayer's federal income tax liability. When a charitable contribution is made in return for a state or local tax credit and the taxpayer has pre-credit state and local tax liabilities in excess of the $10,000 limitation in section 164(b)(6), a charitable contribution deduction under section 170 would no longer be offset by a reduction in the taxpayer's state and local tax deduction under section 164. Thus, as a consequence, state and local tax credit programs now give taxpayers a potential means to circumvent the $10,000 limitation in section 164(b)(6) by substituting an increased charitable contribution deduction for a disallowed state and local tax deduction. State legislatures are also now considering or have adopted proposals to enact new state and local tax credit programs with the aim of enabling taxpayers to characterize their transfers as fully deductible charitable contributions for federal income tax purposes, while using the same transfers to satisfy or offset their state or local tax liabilities.
In light of the tax consequences of section 164(b)(6) and the resulting increased interest in preexisting and new state tax credit programs, the Treasury Department and the IRS determined that it was appropriate to review the question of whether amounts paid or property transferred in exchange for state or local tax credits are fully deductible as charitable contributions under section 170.
Pursuant to this review, in Notice 2018-54, 2018-24 I.R.B. 750, the Treasury Department and the IRS announced on June 11, 2018, their intention to propose regulations addressing the federal income tax treatment of payments made by taxpayers for which the taxpayers receive a credit against their state and local taxes. The notice stated that federal tax law controls the proper characterization of payments for federal income tax purposes and that proposed regulations would assist taxpayers in understanding the relationship between the federal charitable contribution deduction and the new limitation on the
Although Notice 2018-54 was issued in response to state legislation proposed after the enactment of the limitation on state and local tax deductions under section 164(b)(6), the rules in these proposed regulations are based on longstanding federal tax law principles, which apply equally to taxpayers regardless of whether they are participating in a new state and local tax credit program or a preexisting one. Accordingly, the proposed regulations, and the analysis underlying the proposed regulations, are intended to apply to transfers pursuant to state and local tax credit programs established under the recent state legislation as well as to transfers pursuant to state and local tax credit programs that were in existence before the enactment of section 164(b)(6).
After reviewing the issue, and in light of the longstanding principles of the cases and tax regulations discussed above, the Treasury Department and the IRS believe that when a taxpayer receives or expects to receive a state or local tax credit in return for a payment or transfer to an entity listed in section 170(c), the receipt of this tax benefit constitutes a
Compelling policy considerations reinforce the interpretation and application of section 170 in this context. Disregarding the value of all state tax benefits received or expected to be received in return for charitable contributions would precipitate significant revenue losses that would undermine and be inconsistent with the limitation on the deduction for state and local taxes adopted by Congress in section 164(b)(6).
The proposed regulations generally provide that if a taxpayer makes a payment or transfers property to or for the use of an entity listed in section 170(c), and the taxpayer receives or expects to receive a state or local tax credit in return for such payment, the tax credit constitutes a return benefit, or
In addition to credits, the proposed regulations also address state or local tax deductions claimed in connection with a taxpayer's payment or transfer. Although deductions could be considered
To provide consistent treatment for state or local tax deductions and state or local tax credits that provide a benefit that is generally equivalent to a deduction, the proposed regulations include a
In drafting the proposed regulations, the Treasury Department and the IRS also considered whether a taxpayer may decline the receipt or anticipated receipt of a state or local tax credit by taking some affirmative action at the time of the taxpayer's payment or transfer.
Trusts and decedents' estates may claim an income tax deduction for
The amendments to these regulations are proposed to apply to contributions after August 27, 2018.
Executive Orders 12866 and 13563 direct agencies to assess 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. These proposed regulations have been designated as subject to review under Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget (OMB) regarding review of tax regulations. OMB has determined that the proposed regulations are subject to review under section 1(b) of the Memorandum of Agreement. These proposed regulations have been reviewed by OMB. These proposed regulations are anticipated to be regulatory actions under E.O. 13771. The analysis below can provide further detail on this designation.
These proposed regulations provide guidance on the deductibility of charitable contributions when a taxpayer receives or expects to receive a corresponding state or local tax credit. These proposed regulations are intended to clarify the relationship between the federal charitable contribution deduction and the recently-enacted statutory limitation on deductions for state and local taxes paid (the “SALT cap”) and to make the federal tax system more neutral with respect to taxpayers' decisions regarding donations. Compelling policy considerations reinforce the interpretation and application of section 170 in this context. Disregarding the value of all state tax benefits received or expected to be received in return for charitable contributions would precipitate revenue losses that would undermine and be inconsistent with the limitation on the deduction for state and local taxes adopted by Congress in section 164(b)(6).
Pursuant to section 6(a)(3)(B) of Executive Order 12866, the following qualitative analysis provides further details regarding the anticipated impact of the proposed regulations. After identifying a baseline in Part II, this analysis provides illustrative scenarios in Part III. Part III.A describes the tax effects of the contributions prior to enactment of the SALT cap in the Act. Part III.B provides examples comparing the enactment of the SALT cap but absent the proposed rule (the baseline) to the proposed rule. Finally, Part IV provides a qualitative assessment of the potential costs and benefits of the proposed rule compared to the baseline.
Prior to this proposed rule, there was no authoritative regulatory guidance on the treatment of state or local tax credits arising from charitable contributions to entities listed in section 170(c), and there was no guidance aside from Notice 2018-54 addressing the interaction between section 170 and the newly enacted SALT cap. As a result, there was a degree of taxpayer uncertainty as to whether state and local tax credits are a return benefit that reduces a taxpayer's charitable contribution deduction. For informational and analytical purposes, however, this analysis assumes as a baseline that state and local tax credits are generally not treated as a return benefit or consideration and therefore do not reduce the taxpayer's charitable contribution deduction under section 170(a).
For the following illustrative scenarios, assume the following facts: Charitable organizations A and B are entities listed in section 170(c) and provide similar public goods. Contributions to charity A are eligible for a dollar-for-dollar state tax credit. Contributions to charity B are ineligible for this credit but are deductible from state taxable income. A taxpayer itemizes deductions, and these itemized deductions in aggregate are at least $1,000 more than the standard deduction. The taxpayer has the choice to contribute $1,000 to charity A, and this $1,000 contribution generates a state tax credit of $1,000,
The Act and proposed regulations alter the incentives taxpayers face about whether and how much to give to organizations that receive charitable contributions as well as to which organizations. This is illustrated in the following scenarios, which are also summarized in Table 1 (below).
The tax effects of contributions prior to enactment of the Act are illustrated in the columns labeled “Prior Law” in Table 1.
Prior to enactment of the Act, if the taxpayer made a $1,000 contribution to charity A that generated a state tax credit of $1,000, the deduction for charitable contributions under section 170(a) increased by $1,000, and the deduction for state and local taxes paid under section 164 decreased by $1,000. The taxpayer's itemized deductions, taxable income, and federal tax liability were unchanged from what they would have been in the absence of the contribution.
If the taxpayer were subject to the AMT under section 55, however, there was a net benefit to the taxpayer from contributions to charity A, which provided state tax credits. State and local taxes paid are not deductible expenses in determining taxable income under the AMT, but charitable contributions are deductible expenses in determining taxable income under the AMT. If the taxpayer contributed $1,000, taxable income under the AMT was reduced by $1,000 due to the charitable contribution deduction under section 170, but there was no corresponding reduction in the deduction for state and local taxes. Under an AMT marginal tax rate of 26 percent, the federal tax benefit of this $1,000 contribution would be $260. Because of the dollar-for-dollar state tax credit, the taxpayer received a combined federal and state tax benefit of $1,260 for a $1,000 contribution, a net benefit of $260. This is shown in column A under Prior Law for Example 3 in Table 1.
In combination, state and federal tax laws generally provide a greater incentive to contribute to organizations eligible for state tax credits (charity A) than to other organizations (charity B). The effect of a contribution to charity A are described above.
Prior to enactment of the Act, for a taxpayer not subject to the AMT, a $1,000 contribution to charity B yielded a smaller combined federal and state tax benefit than to charity A. The state tax benefit was $50 ($1,000 times the 5 percent state tax rate). The taxpayer's itemized deductions at the federal level increased by $950 (the $1,000 charitable contribution deduction less than $50 reduction in state taxes paid). The federal tax benefit of this increase was $228 ($950 times the 24 percent federal tax rate), resulting in a combined federal and state tax benefit of $278. The net cost to the taxpayer of the $1,000 contribution was $722. This is shown in column B under Prior Law for Example 1 in Table 1 and replicated in the same column for Example 2.
For a taxpayer subject to the AMT, a $1,000 contribution to charity B yielded a combined federal and state benefit of $310—the $1,000 contribution multiplied by the taxpayer's marginal tax rate under the AMT of 26 percent, or $260, plus the value of the deduction from state tax, or $50 ($1,000 times the 5 percent state tax rate). The net cost to the taxpayer of the $1,000 contribution was $690. This is shown in column B under Prior Law for Example 3 in Table 1.
Contributing to either charity A or charity B reduced the taxpayer's combined federal and state tax liability, but the existence of the state tax credit for contributions to charity A made contributions to that organization more attractive. This is seen by comparing the Total Tax Benefit in column A under Prior Law to the corresponding value in column B for each of the three examples. For taxpayers not subject to the AMT, contributions to charity A yielded a combined federal and state tax benefit of $1,000, compared to a combined federal and state tax benefit of $278 for a contribution to charity B. The AMT increased the disparity for contributions to charity A versus charity B, resulting in a combined federal and state tax benefit of $1,260 for a contribution to charity A versus $310 for a contribution to charity B.
The enactment of the SALT cap in the Act has, in limited circumstances, altered the federal tax effects of charitable contributions as described in the following examples. These are illustrated in the columns labeled “Baseline” and “Proposed Rule” in Table 1.
If a taxpayer that has a state tax liability of more than $1,000 above the SALT cap and is not subject to the AMT makes a $1,000 contribution to charity A, the deduction for charitable contributions under section 170(a) increases by $1,000, but the deduction for state and local taxes paid under section 164 is unchanged. Consequently, itemized deductions increase by $1,000, and taxable income decreases by $1,000. If the taxpayer is in the 24 percent bracket, federal liability will decrease by $240, and state tax liability will decrease by the $1,000 state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,240, and the taxpayer receives a $240 net benefit while the federal government has a loss of $240. This is shown in column A under Baseline for Example 1 in Table 1.
If the same taxpayer makes the $1,000 contribution to charity A under the proposed rule, the entire $1,000 deduction is not deductible under section 170(a), and the deduction for state and local taxes paid under section 164 is unchanged due to the SALT cap. The taxpayer's itemized deductions, taxable income, and federal tax liability are unchanged from what they would be in the absence of the contribution. The taxpayer's state tax liability decreases by $1,000 because of the state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,000, or $240 less than under the baseline. This is shown by comparing the Total Tax Benefit in column A under Proposed Rule with the corresponding value in column A under Baseline for Example 1 in Table 1. However, the benefit of the contribution for this taxpayer is the same as the taxpayer faced prior to enactment of the Act. This is shown by comparing the Total Tax Benefit under column A under Proposed Rule with the corresponding value in column A under Prior Law for Example 1 in Table 1.
Under the baseline and the proposed rule, for a taxpayer with state and local taxes paid over the SALT cap, the value of a contribution to charity B, that is a contribution that results in a one-for-one state income tax deduction and not a state tax credit, is slightly higher than it was pre-Act. This increase is because the state deduction does not reduce the federal deduction for state and local taxes for a taxpayer above the SALT cap. As shown in the Total Tax Benefit row under the B columns for Example 1, under the baseline and the proposed rule, the value of a $1,000 contribution to charity B is $290—the charitable contribution deduction from federal tax ($1,000 times the 24 percent federal tax rate, or $240), plus the value of the deduction from state tax ($1,000 times the 5 percent state tax rate, or $50)—compared to $278 for contributions under prior law (described above). By comparison, as shown in the Total Tax Benefit row under the A columns for Example 1, a contribution to charity A, eligible for a state tax credit, yields a $1,240 tax benefit under the baseline and a $1,000 benefit under the proposed rule.
If a taxpayer that has state and local taxes paid below the SALT cap and is not subject to the AMT makes the $1,000 contribution to charity A, the deduction for charitable contributions under section 170(a) increases by $1,000, and the deduction for state and local taxes paid under section 164 decreases by $1,000. The taxpayer's itemized deductions, taxable income, and federal tax liability are unchanged from what they would be in the absence of the contribution. The taxpayer's state tax liability decreases by $1,000 because of the state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,000, and the cost to the taxpayer and to the federal government of making the contribution was $0. This situation is identical to prior law or what taxpayers faced prior to enactment of the Act. This is shown is column A under Baseline and Prior Law for Example 2 in Table 1.
If the same taxpayer makes the $1,000 contribution to charity A under the proposed rule, the entire $1,000 contribution is not deductible under section 170(a), but the deduction for state and local taxes paid under section 164 still decreases by $1,000 because of the $1,000 state tax credit. If the taxpayer is in the 24 percent bracket, the federal tax liability will increase by $240. The taxpayer's state tax liability decreases by the $1,000 state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $760, or $240 less than the baseline. This is shown by comparing the Total Tax Benefit in column A under Proposed Rule with the corresponding value in column A under Baseline for Example 2. In this case, the proposed rule has the effect of increasing the taxpayer's federal taxable income compared to the baseline if the taxpayer makes a contribution to charity A.
Under prior law, and both the baseline scenario and the proposed rule, the tax benefit of charitable contributions to charity B, which are not eligible for a state tax credit but are deductible from both federal and state taxable income, is unchanged from prior law for taxpayers below the SALT cap. Thus, in this example, the benefit of making a contribution to charity B remains $278, as described above for contributions under prior law. This is shown in the Total Tax Benefit row under the B columns for Example 2. By comparison, as shown in the Total Tax Benefit row under the A columns for Example 2, a $1,000 contribution to charity A, eligible for a state tax credit, yields a $1,000 tax benefit under the baseline and a $760 benefit under the proposed rule.
If a taxpayer subject to the AMT makes a $1,000 contribution to charity A, the contribution reduces the taxpayer's taxable income under the AMT by $1,000. Under an AMT marginal tax rate of 26 percent, the federal tax benefit of this $1,000 contribution is $260. Because of the dollar-for-dollar state tax credit, the taxpayer would receive a combined federal and state tax benefit of $1,260 for a $1,000 contribution, or a $260 net benefit. This result is identical to the result under prior law (prior to enactment of the Act). This is shown in the A columns under Baseline and Prior Law for Example 3 in Table 1.
If the same taxpayer makes the $1,000 contribution to charity A under the proposed rule, the entire $1,000 is not deductible under section 170(a). Therefore, the taxpayer's taxable income and federal tax liability under the AMT would be unchanged from what they would be in the absence of the contribution. The taxpayer's state tax liability decreases by $1,000 because of the state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,000, or $260 less than under the baseline and under the law prior to enactment of the Act. This is shown by comparing the A columns of Example 3 in Table 1. However, under the proposed rule, taxpayers subject to the AMT are in the same position as taxpayers with state and local taxes paid above the SALT cap who are not subject to the AMT. This is shown by comparing the Total Tax Benefit amount under column A for the Proposed Rule for Example 3 to that for Example 1.
Under the baseline and the proposed rule, the treatment of charitable contributions that are deductible from both federal and state taxable income is unchanged from prior law for taxpayers subject to the AMT. This is shown in the B columns for Example 3 in Table 1. In this example, the benefit of making a contribution to charity B remains $310, as described above for contributions under prior law. By comparison, a contribution to a charity A, eligible for a state tax credit, yields a $1,260 tax benefit under the baseline and a $1,000 benefit under the proposed rule. This is shown in column A under Baseline and Proposed Rule for Example 3 in Table 1.
These proposed regulations likely reduce economically inefficient choices motivated by the potential tax benefits described above if these proposed regulations were not promulgated. Under the prior law and baseline scenarios, state and local governments have an incentive to fund governmental activities through independent entities that are eligible to receive deductible contributions and to establish tax credits. This incentive is particularly strong under a SALT cap scenario where state and local governments may do so solely to enable some taxpayers to circumvent the SALT cap. These proposed regulations substantially diminish this incentive to engage in socially wasteful tax-avoidance behavior. As a result, it is expected that fewer such credit programs would be established in the future under the proposed regulations than under the baseline.
To the extent this result occurs, the Treasury Department and IRS estimate that the proposed regulations would reduce overall complexity and paperwork burden for states and for taxpayers who would otherwise engage in charitable contributions solely for the purpose of reducing their state and local tax liability. In addition to reducing paperwork burden, the Treasury Department and IRS anticipate that the proposed regulations will also spare some taxpayers compliance costs associated with complex tax planning designed to avoid the SALT cap.
In addition, these proposed regulations are expected to make the federal tax system more neutral to taxpayers' decisions regarding donations. Under the baseline scenarios,
Finally, these proposed regulations provide more certainty to taxpayers by clarifying the rules governing the amount that they can claim as a charitable contribution deduction when they receive a state tax credit or a dollar-for-dollar state tax deduction in exchange for the contribution.
The proposed regulations may result in some increase in compliance costs for taxpayers who make contributions that generate state tax credits. Under the baseline, for purposes of the charitable contribution deduction under section 170(a), taxpayers did not need to address state tax credits received for purposes of claiming a charitable contribution; however, they would know the amount of credits received as part of the filing process for state returns. In contrast, under the proposed regulations, taxpayers making a contribution to an organization listed in section 170(c) will need to determine the amount of any state tax credits they will receive or expect to receive in order to reduce their charitable contribution deduction under section 170(a). This additional step will generate some additional compliance costs.
The compliance burden for recipient organizations that directly issue tax credits may increase under the proposed regulations. In order to take a charitable contribution deduction of $250 or more, a taxpayer must have a contemporaneous written acknowledgment (CWA) from the donee entity, usually provided in the form of a letter. The CWA includes the amount received by the entity or a description of property received. The CWA must also disclose whether the donee provided any goods or services in consideration for the contribution and a description and good faith estimate of the value of those goods or services provided. State and local tax credits are not generally provided by the donee entity, but there may be situations in which the entity would be providing the credit and would need to include it in the CWA provided to the donor. The Treasury Department and the IRS request comments on whether additional guidance is needed on substantiation and reporting requirements for donors and donees making or receiving payments or transfers of property in return for state and local tax credits and the extent to which entities do provide tax credits under certain circumstances.
The Treasury Department and the IRS request comments on other potential compliance savings, compliance costs, costs related to increased tax planning and other avoidance behavior, or any effects on charitable contribution decisions that may occur as a result of these proposed regulations. In particular, the Treasury Department and the IRS request comments as to how the proposed regulations might alter incentives regarding contributions to state and local tax credit programs.
Based on an analysis of confidential taxpayer return data and forecasts using that data, the Treasury Department and the IRS note that these proposed regulations will leave charitable giving incentives entirely unchanged for the vast majority of taxpayers. After passage of the Act, which significantly increased the standard deduction, it is estimated that ninety percent of taxpayers will not claim itemized deductions of any kind. Those taxpayers are entirely unaffected by these proposed regulations. It is estimated that approximately five percent of taxpayers will itemize and will have state and local income tax deductions above the SALT cap; these taxpayers will receive the same federal tax benefits under the proposed regulations as they received prior to the Act. See Example 1 above. It is estimated that approximately five percent of taxpayers will itemize but will not have state and local income tax deductions above the SALT cap. The federal tax benefits available to this fraction of taxpayers could be affected by the proposed regulations only if they contribute to programs that entitle them to state tax credits of greater than 15 percent. See Example 2 above. The Treasury Department and the IRS believe that most taxpayers in this third category have never used any state tax credit programs affected by the proposed regulations, and that the proposed regulations will have at most a highly limited, marginal effect on taxpayer decisions to donate to tax credit programs that pre-date TCJA, including educational scholarship programs.
The Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply because the proposed regulations primarily affect individuals and do not impose costs, including a collection of information, on small entities. Therefore, a regulatory flexibility analysis is not required. Pursuant to section 7805(f), this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
Before the regulations proposed herein are adopted as final regulations, consideration will be given to any electronic and written comments that are submitted timely to the IRS as prescribed in this preamble under the
All comments submitted will be made available at
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the time to be devoted to each topic by October 11, 2018. Submit a signed paper or electronic copy of the outline as prescribed in this preamble under the
The principal authors of these proposed regulations are personnel from the Office of the Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(h) * * *
(3)
(ii)
(B)
(iii)
(iv)
(v)
(vi)
(vii)
A, an individual, makes a payment of $1,000 to X, an entity listed in section 170(c). In exchange for the payment, A receives or expects to receive a state tax credit of 70% of the amount of A's payment to X. Under paragraph (h)(3)(i) of this section, A's charitable contribution deduction is reduced by $700 (70% × $1,000). This reduction occurs regardless of whether A is able to claim the state tax credit in that year. Thus, A's charitable contribution deduction for the $1,000 payment to X may not exceed $300.
B, an individual, transfers a painting to Y, an entity listed in section 170(c). At the time of the transfer, the painting has a fair market value of $100,000. In exchange for the painting, B receives or expects to receive a state tax credit equal to 10% of the fair market value of the painting. Under paragraph (h)(3)(vi) of this section, B is not required to apply the general rule of paragraph (h)(3)(i) of this section because the amount of the tax credit received or expected to be received by B does not exceed 15% of the fair market value of the property transferred to Y. Accordingly, the amount of B's charitable contribution deduction for the transfer of the painting is not reduced under paragraph (h)(3)(i) of this section.
C, an individual, makes a payment of $1,000 to Z, an entity listed in section 170(c). In exchange for the payment, under state M law, C is entitled to receive a state tax deduction equal to the amount paid by C to Z. Under paragraph (h)(3)(ii)(A) of this section, C is not required to reduce its charitable contribution deduction under section 170(a) on account of the state tax deduction.
(viii)
(g)
(2)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. Maryland's SIP revision, the Regional Haze Five-Year Progress Report, addresses Clean Air Act (CAA) provisions that require the State to submit periodic reports addressing reasonable progress goals (RPGs) established for regional haze and to make a determination of the adequacy of
Written comments must be received on or before September 26, 2018.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0598 at
Erin Trouba, (215) 814-2023, or by email at
States are required to submit a progress report in the form of a SIP revision that evaluates progress towards visibility improvement in the first implementation period, including progress towards the RPGs for each mandatory Class I federal area
Maryland's regional haze progress report SIP submittal (2017 progress report) addresses the elements for progress reports required under the provisions of 40 CFR 51.308(g) and includes a determination as required by 40 CFR 51.308(h) that the State's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018. This section summarizes Maryland's 2017 progress report and EPA's analysis and proposed approval of Maryland's submittal.
As required in 40 CFR 51.308(g), Maryland's 2017 progress report evaluated the status of all measures included in the State's 2012 regional haze SIP for achieving RPGs for affected Class I areas. Through consultation, states in the Mid Atlantic/Northeast Visibility Union (MANE-VU),
In response to the MANE-VU “Ask” to achieve 90% or more reduction in SO
The 2017 progress report also addressed implementation of BART and alternatives to BART
In June 2012, EPA approved BART emission limits for power boiler 25, a BART subject source, at the Verso Luke Paper Mill. 77 FR 39938 (June 13, 2012). In July 2017, EPA removed the previously approved BART requirements for SO
Included in the MANE-VU “Ask” and as a measure in the State's 2012 regional haze SIP was a low-sulfur oil strategy. In 2014, Maryland adopted amendments to COMAR 03.03.05.04, “Specifications for No. 1 and No. 2 Fuel Oil.” The amendments, effective October 13, 2014, lowered the maximum allowable amount of sulfur in #1 and #2 fuel oil in two stages, from 3,000 to 2,000 parts per million (ppm) of sulfur in 2014, and then from 2,000 to 500 ppm of sulfur in 2016. While this strategy does not meet the exact specifications or timeline of the “Ask,” MANE-VU left an option for flexibility in reducing SO
In the 2017 progress report, Maryland also mentions EPA approved for the Maryland SIP amendments adopted into COMAR 26.11.38, “Control of NO
EPA finds that Maryland's analysis in its 2017 progress report adequately addresses the applicable provisions under 40 CFR 51.308(g), as the State demonstrated the implementation of control measures in the Maryland regional haze SIP and in the MANE-VU “Ask.”
The provisions under 40 CFR 51.308(g) also require the state to provide analysis of emissions trends of visibility-impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emissions inventory. In Section 4 of the 2017 progress report, Maryland provided an assessment of the following visibility impairing pollutants: SO
To assess emissions reductions from air pollution control measures being implemented between the baseline period and 2018, MANE-VU developed emissions projections for 2018 for the first round of regional haze SIPs. Section 4 of Maryland's 2017 progress report details emission trends from 2002 to 2014 and compares the trends to MANE-VU's projections of 2018 inventories that were included in Maryland's 2012 regional haze SIP. Maryland asserts in its 2017 progress report and EPA finds that emissions of SO
EPA finds Maryland has adequately addressed the provisions under 40 CFR 51.308(g) relating to emission reductions and emission trends. Maryland detailed the SO
The provisions under 40 CFR 51.308(g) also require states with Class I areas within their borders to provide information on current visibility conditions and the difference between current visibility conditions and baseline visibility conditions expressed in terms of five-year averages of those annual values. Maryland does not have any Class I areas; however, the 2017 progress report provided visibility condition data to support the assessment that the regional haze SIP is sufficient to enable other states to meet the RPGs for Class I areas affected by Maryland.
Seven Class I areas in the MANE-VU and Visibility Improvement State and Tribal Association of the Southeast (VISTAS) Regional Planning Organizations (RPOs)
EPA
EPA finds Maryland provided the required information regarding visibility conditions and implementation of all measures included in the State's regional haze SIP to meet the requirements under 40 CFR 51.308(g), specifically providing baseline visibility conditions (2000-2004), current conditions based on the most recently available IMPROVE monitoring data (2011-2015), and an assessment of the change in visibility impairment at its Class I areas.
As stated, Maryland does not have any Class I areas; therefore, Maryland is not required to monitor for visibility-impairing pollutants. Maryland's visibility monitoring strategy relies upon Class I areas' participation in the IMPROVE network; however, Maryland stated that it does intend to maintain the IMPROVE site at Frostburg Reservoir. EPA finds Maryland has adequately addressed the requirements for a monitoring strategy for regional haze and finds no further modifications to the monitoring strategy are necessary.
In its 2017 progress report, Maryland concludes the elements and strategies relied on in its regional haze SIP are sufficient to enable neighboring states to meet all established RPGs. As shown in Table 2 above, visibility on least—impaired and most—impaired days from 2000 through 2014 has improved at all Class I areas affected by emissions from Maryland. In addition, all Class I areas impacted by Maryland's emissions have met their RPGs. EPA therefore finds Maryland has adequately addressed the provisions for its progress report in 40 CFR 51.308(g).
In the 2017 progress report, Maryland submitted a negative declaration to EPA regarding the need for additional actions or emission reductions in Maryland beyond those already in its regional haze SIP to address the requirement for a determination of adequacy in 40 CFR 51.308(h). Maryland determined the existing regional haze SIP requires no further substantive revision at this time to achieve the RPGs for Class I areas affected by the State's sources. The basis for the State's negative declaration is that visibility has improved at all Class I areas impacted by Maryland's sources in the MANE-VU and VISTAS regions. In addition, there has been a significant downward trend in emissions of NO
EPA concludes that Maryland has adequately addressed the provisions under 40 CFR 51.308(h) because visibility and emission trends indicate that Class I areas impacted by Maryland's sources are meeting or exceeding the RPGs for 2018, and expect to continue to meet or exceed the RPGs for 2018. Thus, EPA finds Maryland's negative declaration (
EPA is proposing to approve Maryland's 2017 progress report, submitted on August 9, 2017, as meeting the applicable CAA requirements in section 110 and meeting regional haze requirements set forth in 40 CFR 51.308(g) and 51.308(h).
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule to approve Maryland's 2017 progress report does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to delete various local rules from the California State Implementation Plan (SIP) that were approved in error. These rules include general nuisance provisions, certain federal performance requirements, hearing board procedures, variance provisions, and local fee provisions. The EPA has determined that the continued presence of these rules in the SIP is potentially confusing and thus problematic for affected sources, the state, local agencies, and the EPA. The intended effect of this proposal is to delete these rules to make the SIP consistent with the Clean Air Act. The EPA is also proposing to make certain other corrections to address errors made in previous actions taken by the EPA on California SIP revisions.
Any comments must arrive by September 26, 2018.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2018-0133 at
Kevin Gong, EPA Region IX, (415) 972-3073,
Throughout this document, “we,” “us” and “our” refer to the EPA.
The Clean Air Act (CAA or “Act”) was first enacted in 1970. In the 1970s and early 1980s, thousands of state and local agency regulations were submitted to the EPA for incorporation into the SIP to fulfill the new federal requirements. In many cases, states submitted entire regulatory air pollution programs, including many elements not required by the Act. Due to time and resource constraints, the EPA's review of these submittals focused primarily on the new substantive requirements, and we approved many other elements into the SIP with minimal review. We now recognize that many of these elements were not appropriate for approval into the SIP. In general, these elements are appropriate for state and local agencies to adopt and implement, but it is not necessary or appropriate to make them federally enforceable by incorporating them into the applicable SIP. These include:
A. Rules that prohibit emissions causing general nuisance or annoyance in the community.
B. Local adoption of federal New Source Performance Standards (NSPS) or National Emission Standards for Hazardous Air Pollutants (NESHAP) requirements either by reference or by adopting text identical or modified from the requirements found in 40 Code of Federal Regulations (CFR) part 60 or 61. Because the EPA has independent authority to implement 40 CFR parts 60 and 61, it is not appropriate to make parallel local authorities federally enforceable by approving them into the applicable SIP.
C. Rules that govern local hearing board procedures and other administrative requirements such as fees, frequency of meetings, salaries paid to board members, and procedures for petitioning for a local hearing.
D. Variance provisions that provide for modification of the requirements of the applicable SIP. State- or district-issued variances provide an applicant with a mechanism to obtain relief from state enforcement of a state or local rule under certain conditions. Pursuant to federal law, specifically section 110(i) of the CAA, 42 U.S.C. 7410(i), neither the EPA nor a state may revise a SIP by issuing an “order, suspension, plan revision or other action modifying any requirement of an applicable implementation plan” without a plan promulgation or revision. The EPA and California have long recognized that a state-issued variance, though binding as a matter of state law, does not prevent the EPA from enforcing the underlying SIP provisions unless and until the EPA approves that variance as a SIP revision. The variance provisions included in this action are deficient for various reasons, including their failure to address the fact that a state- or district-issued variance has no effect on federal enforceability unless the variance is submitted to and approved by the EPA as a SIP revision. Therefore, their inclusion in the SIP is inconsistent with the Act and may be confusing to regulated industry and the general public. Moreover, because state-issued variances require independent EPA approval to modify the substantive requirements of a SIP, removal of these variance provisions from the SIP will have no effect on regulated entities.
E. Local fee provisions that are not economic incentive programs and are not designed to replace or relax a SIP emission limit. While it is appropriate for local agencies to implement fee provisions, for example, to recover costs for issuing permits, it is generally not appropriate to make local fee collection federally enforceable.
Section 110(k)(6) of the CAA, as amended in 1990, provides that, whenever the EPA determines that the EPA's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification or reclassification was in error, the EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the state. Such determination and the basis thereof must be provided to the state and the public. We interpret this provision to authorize the EPA to make corrections to a promulgated regulation when it is shown to our satisfaction (or we discover) that (1) we clearly erred by failing to consider or by inappropriately considering information made available to the EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate, and (2) other information persuasively supports a change in the regulation.
The EPA has determined that the rules listed in Table 1 below are inappropriate for inclusion in the SIP, but were previously approved into the SIP in error. Dates that these rules were submitted by the state and approved by the EPA are provided. We are proposing deletion of these rules and any earlier versions of these rules from the individual air pollution control district portions of the California SIP under CAA section 110(k)(6) as inconsistent with the requirements of CAA section 110. A brief discussion of the proposed deletions is provided in the following paragraphs.
Amador County APCD Rule 5 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 5 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Amador County APCD Rule 6 (Additional Exception) provides an exception to Amador County APCD Rule 5 and should be deleted if Rule 5 is deleted. In this action, we are proposing to delete Amador County APCD Rules 5 and 6 from the Amador County portion of the California SIP.
Formed in 1997, the Antelope Valley AQMD administers air quality management programs in the Southeast Desert portion of Los Angeles County that is referred to as “Antelope Valley.” The Antelope Valley AQMD portion of the California SIP includes rules adopted by various air pollution control agencies that had jurisdiction over stationary sources in Antelope Valley since 1972, including the Los Angeles County APCD, the Southern California APCD, the South Coast AQMD, and the Antelope Valley AQMD. Los Angeles County APCD Rule 51 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 51 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Although Rule 51 was rescinded in the South Coast AQMD portion of Los Angeles County at 64 FR 71660 (December 22, 1999), the rescission did not apply within the Antelope Valley AQMD portion of the county because, by the time of the 1999 action, the South Coast AQMD no longer had jurisdiction within the Antelope Valley portion of Los Angeles County. In this action, we propose to delete Los Angeles County APCD Rule 51 (Nuisance) from the Antelope Valley AQMD portion of the California SIP.
Bay Area AQMD Division 11 (Hydrogen Sulfide) (including sections 11100, 11101, 11102, 11102.1-11102.8) was approved as part of the original SIP for the Bay Area AQMD portion of the California SIP. Section 11101, which is untitled but establishes hydrogen sulfide limits, was superseded by approval of Section 11101 at 42 FR 23802 (May 11, 1977), as corrected and recodified at 42 FR 42219 (August 22, 1977). There has never been a NAAQS for hydrogen sulfide, and thus, Bay Area AQMD Division 11 (including sections 11100, 11101, 11102, 11102.1-11102.8) does not relate to the NAAQS and was approved in error.
Bay Area AQMD Regulation 8 (Emission Standards for Hazardous Pollutants), as approved in 1977, includes certain definitions and four substantive rules: Rule 1 (NESHAPS General Provisions), Rule 2 (Emission Standard for Asbestos), Rule 3 (Emission Standard for Beryllium), and Rule 4 (Emission Standard for Beryllium Rocket Motor Firing). Bay Area AQMD Regulation 8 adopts text identical or modified from the requirements found in 40 CFR part 60 or 61, and because the EPA has independent authority to implement 40 CFR parts 60 and 61, it was not appropriate to make parallel local authorities federally enforceable by approving Regulation 8 into the Bay Area AQMD portion of the California SIP. In this action, we are proposing to delete Division 11 (including the amended version of section 11101), and Regulation 8 from the BAAQMD portion of the California SIP.
Butte County AQMD Section 2-1 is a general-nuisance type of prohibitory rule. As such, Section 2-1 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Butte County AQMD Rule 619 (Effective Date of Decision) relates to hearing board procedures, and as such, was inappropriate for inclusion in the SIP and was thus approved by the EPA in error. In this action, we are proposing to delete Section 2-1 and Rule 619 from the Butte County AQMD portion of the California SIP.
Calaveras County APCD Rule 205 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 205 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Calaveras County APCD Rule 603 (Hearing Board Fees) relates to hearing board procedures, and as such, was inappropriate for inclusion in the SIP and was thus approved by the EPA in error. In this action, we are proposing to delete Rules 205 and 603 from the Calaveras County APCD portion of the California SIP.
Colusa County APCD Rule 4.5 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 4.5 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Colusa County APCD Rule 4.6 (Additional Exception) provides an exception to Colusa County APCD Rule 4.5 and should be deleted if Rule 4.5 is deleted. In this action, we are proposing to delete Rules 4.5 and 4.6 from the Colusa County APCD portion of the California SIP.
Kern County APCD Rule 419 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 419 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Kern County APCD Rule 420 (Exception) provides an exception to Kern County APCD Rule 419 and should be deleted if Rule 419 is deleted. In this action, we are proposing to delete Rules 419 and 420 from the Eastern Kern APCD portion of the California SIP.
El Dorado County AQMD Rule 52 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 52 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. El Dorado County AQMD Rule 53 (Exceptions to Rule 52) provides an exception to El Dorado County AQMD Rule 52 and should be deleted if Rule 52 is deleted. El Dorado County AQMD Rule 706 (Failure to Comply with Rules) establishes certain hearing board procedures, and as such, was inappropriate for inclusion in the SIP and was thus approved by the EPA in error. In this action, we are proposing to delete Rules 52, 53, and 706 from the El Dorado County AQMD portion of the California SIP.
Formed in 1991, the Feather River AQMD administers air quality management programs in Yuba County and Sutter County. The Feather River AQMD portion of the California SIP includes rules adopted by the predecessor agencies, the Yuba County APCD and the Sutter County APCD, to the extent that such rules have not been superseded or removed through EPA approval of rules or rescissions adopted by the Feather River AQMD. Yuba County APCD Rules 9.7 (Permit Actions) and 9.8 (Variance Actions) establish certain hearing board procedures, and as such, were inappropriate for inclusion in the SIP and were thus approved by the EPA in error. In this action, we are proposing to delete Rules 9.7 and 9.8 from the Feather River AQMD portion of the California SIP.
Glenn County APCD Rule 78 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 78 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Glenn County APCD Rule 79
Great Basin Unified APCD Rule 402 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 402 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Great Basin Unified APCD Rule 617 (Emergency Variance) allows an owner or operator of stationary sources to file a petition for an emergency variance under certain circumstances and provides for review and action on the petition by the APCO and hearing board. As described above, such provisions are inconsistent with section 110(i) of the CAA and were thus approved by the EPA in error. In this action, we are proposing to delete Rules 402 and 617 from the Great Basin Unified APCD portion of the California SIP.
Imperial County APCD Rule 117 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 117 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Imperial County APCD Rule 513 (Record of Proceedings) establishes certain hearing board procedures, and as such, was inappropriate for inclusion in the SIP and was thus approved by the EPA in error. In this action, we are proposing to delete Rules 117 and 513 from the Imperial County APCD portion of the California SIP.
Lake County AQMD Section 1602 (Petition Procedures) establishes certain hearing board procedures, and as such, was inappropriate for inclusion in the SIP and was thus approved by the EPA in error. Lake County AQMD Section 1701.Q requires that petitions for variances include an excess emission estimate and supporting documentation. As described above, variance provisions are inconsistent with section 110(i) of the CAA and were thus approved by the EPA in error. In this action, we are proposing to delete Sections 1602 and 1701.Q from the Lake County AQMD portion of the California SIP.
Lassen County APCD Rules 3:2, 3:3, 3:4, and 3:5 are local fee provisions that were not appropriate for inclusion in the SIP and thus were approved by the EPA in error. On January 18, 2002 (67 FR 2573), the EPA deleted without replacement earlier versions of these same rules that had been submitted as part of the original California SIP on February 21, 1972 and approved on May 31, 1972 (37 FR 10842), but we did not recognize at the time of our 2002 action that the subject rules had been superseded by rules submitted on June 30, 1972 and approved on September 22, 1972 (37 FR 19812). In this action, we propose to delete the later-submitted and approved fee rules for Lassen County. Lassen County APCD Rule 4:2 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 4:2 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. In this action, we are proposing to delete Rule 4:2 and the fee rules discussed above from the Lassen County APCD portion of the California SIP.
Mariposa County APCD Rule 205 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 205 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. In this action, we are proposing to delete Rule 205 from the Mariposa County APCD portion of the California SIP.
Mendocino County APCD Rule 4.A (General) is a general-nuisance type of prohibitory rule. As such, Rule 4.A was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Mendocino County APCD Rule 620 (Hearing Procedures) establishes certain hearing board procedures, and as such, was inappropriate for inclusion in the SIP and was thus approved by the EPA in error. In this action, we are proposing to delete Rules 4.A and 620 from the Mendocino County APCD portion of the California SIP.
Modoc County APCD Rule 3:2 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 3:2 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Modoc County APCD Rule 3:6 (Additional Exception) provides an exception to Modoc County APCD Rule 3:2 and should be deleted if Rule 3:2 is deleted. In this action, we are proposing to delete Rules 3:2 and 3:6 from the Modoc County APCD portion of the California SIP.
Regulation of stationary air pollution sources in Riverside County is split between the South Coast AQMD (which has jurisdiction over all Riverside County except the Palo Verde Valley) and the Mojave Desert AQMD (which has jurisdiction over the Palo Verde Valley portion of Riverside County). The Palo Verde Valley portion of Riverside County left the South Coast AQMD and joined the Mojave Desert AQMD on July 1, 1994. The applicable SIP for the Riverside County portion of the Mojave Desert AQMD (
Riverside County APCD Rule 51 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 51 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Riverside County APCD Rule 106 (Record of Proceedings) is proposed herein for deletion because it establishes certain hearing board procedures and was thus inappropriate for inclusion in the SIP and approved by the EPA in error. South Coast AQMD Rule 1231 (Judicial Review), also proposed herein for deletion, establishes certain district board procedures, and as such, was inappropriate for inclusion in the SIP and approved by the EPA in error.
The Monterey Bay Air Resources District (formerly named the Monterey Bay Unified APCD) was formed in 1974 when the Monterey-Santa Cruz County Unified APCD merged with the San Benito County APCD. The rules adopted by the predecessor agencies remain in the SIP to the extent they have not been superseded or rescinded through EPA approvals of rules or rescissions adopted by the unified air district. Monterey-Santa Cruz County Unified APCD Rule 402 (Nuisance) and San Benito County APCD Rule 403 (Nuisance) are general-nuisance type of prohibitory rules. As such, Rules 402 and 403 were inappropriate for inclusion in the SIP and, thus, were
Established in 1982, the North Coast Unified AQMD has jurisdiction over Del Norte, Humboldt and Trinity counties, and the North Coast Unified AQMD portion of the applicable California SIP includes rules that were adopted by these counties and approved by the EPA and not superseded or rescinded through subsequent SIP actions. The introductory paragraphs for Del Norte County APCD's Regulation VI (Prohibitions) and Trinity County APCD's Regulation IV (Prohibitions) and Humboldt County APCD Rule 51 (Prohibited Emissions) are general-nuisance type of prohibitory rules. As such, the introductory paragraphs of Regulation IV and Rule 51 were inappropriate for inclusion in the SIP and, thus, were approved by the EPA in error. Del Norte County APCD Rules 620 (Hearing Procedures), 630 (Decisions), 640 (Record of Proceedings) and 650 (Appeal of Decision) and Trinity County APCD Rules 56 (Failure to Comply with Rules), 62 (Preliminary Matters), 67 (Lack of Permit), 68 (Issuance of Subpoenas, Subpoenas Duces Tecum) and 620 (Hearing Procedures) establish certain hearing board procedures, and as such, were inappropriate for inclusion in the SIP and were approved by the EPA in error. Del Norte County APCD Rule 340 (Technical Report Charges) is a local fee provision that also was not appropriate for inclusion in the SIP and was approved in error. In this action, we are proposing to delete the various rules listed above from the North Coast Unified AQMD portion of the California SIP.
Established in 1986, the Northern Sierra AQMD has jurisdiction over Nevada, Plumas, and Sierra counties, and the Northern Sierra AQMD portion of the applicable California SIP includes rules that were adopted by these counties and approved by the EPA and not superseded or rescinded through subsequent SIP actions. Plumas County APCD Rule 51 (Prohibited Emissions) is a general-nuisance type of prohibitory rule. As such, Rule 51 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Nevada County APCD Rules 700 (Applicable Articles of the Health and Safety Code), 703 (Contents of Petitions) (paragraphs (E) and (I)) and 711 (Evidence); Plumas County APCD Rules 701 (General), 702 (Filing Petitions), 703 (Contents of Petitions), 704 (Petitions for Variances), 710 (Notice of Hearing), 711 (Evidence), 712 (Preliminary Matters), 713 (Official Notice), 714 (Continuances), 715 (Decision) and 716 (Effective Date of Decision); and Sierra County APCD Rules 703 (Contents of Petitions) and 710 (Notice of Public Hearing) establish certain hearing board procedures, and as such, were inappropriate for inclusion in the SIP and were thus approved by the EPA in error. Plumas County APCD Rule 516 (Upset and Breakdown Conditions) (paragraph C (“Emergency Variance Provisions”)) and Sierra County APCD Rule 516 (Upset and Breakdown Conditions) (paragraph C (“Emergency Variance Provisions”)) allow an owner or operator of stationary sources to file a petition for an emergency variance under certain circumstances and provides for review and action on the petition by the APCO and hearing board. As described above, such provisions are inconsistent with section 110(i) of the CAA and were thus not appropriate for inclusion in the SIP and were approved by the EPA in error. In this action, we are proposing to delete the various rules listed above from the Northern Sierra AQMD portion of the California SIP.
Northern Sonoma County APCD Rule 52 (Nuisance) is a general-nuisance type of prohibitory rule. As such, Rule 52 was inappropriate for inclusion in the SIP and, thus, was approved by the EPA in error. Northern Sonoma County APCD Rules 85 (Failure to Comply with Rules), 91 (Preliminary Matters), 96 (Lack of Permit), 600 (Authorization), 610 (Petition Procedure) and 620 (Hearing Procedures) establish certain hearing board procedures, and as such, were inappropriate for inclusion in the SIP and were thus approved by the EPA in error. In this action, we are proposing to delete Rules 52, 85, 91, 96, 600, 610 and 620 from the Northern Sonoma County APCD portion of the California SIP.
The EPA is also proposing certain error corrections not because the rules were originally approved into the SIP in error but because of other types of errors made in the course of the SIP rulemaking action. Each such proposal is described in the following paragraphs.
With respect to the Antelope Valley AQMD portion of the California SIP, we are proposing three additional corrections related to the following: Los Angeles County APCD Regulation VI (Orchard or Citrus Grove Heaters), South Coast AQMD Rule 1186 (PM
Regulation VI was rescinded in the Southeast Desert portion of Los Angeles County at 43 FR 40011 (September 8, 1978), but was reinstated throughout Los Angeles County when the EPA approved a SIP revision extending the jurisdiction of the South Coast AQMD to the Southeast Desert portion of the county and replacing the SIP rules that had been in effect for the Southeast Desert portion of Los Angeles County with those that applied in the South Coast AQMD.
Regulation V was rescinded in the Southeast Desert portion of Riverside County at 43 FR 40011 (September 8, 1978), but was reinstated throughout Riverside County when the EPA approved a SIP revision extending the jurisdiction of the South Coast AQMD to the Southeast Desert portion of the county and replacing the SIP rules that had been in effect for the Southeast Desert portion of Riverside County with those that applied in the South Coast AQMD.
The EPA has reviewed the rules listed in Table 1 above and determined that they were previously approved into the applicable California SIP in error. Deletion of these rules will not relax the applicable SIP and is consistent with the Act. Therefore, under section 110(k)(6) of the CAA, the EPA is proposing to delete the rules listed in Table 1 above and any earlier versions of these rules from the corresponding air pollution control district portions of the California SIP. These rules include general nuisance provisions, federal NSPS or NESHAP requirements, hearing board procedures, variance provisions, and local fee provisions. We are also proposing to make certain other corrections to fix errors in previous rulemakings on California SIP revisions as described in section IV above. We will accept comments from the public on this proposal until September 26, 2018.
In this action, for the most part, the EPA is proposing to delete rules that were previously incorporated by reference from the applicable California SIP. However, we are also proposing to include in a final EPA rule regulatory text that reinstates incorporation by reference of certain rules that were previously incorporated by reference but deleted in error, and regulatory text that includes incorporation by reference of rules not previously incorporated. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to reinstate incorporation by reference Lake County AQMD Table I (Agencies Designated to Issue Agricultural Burning Permits), Table II (Daily Quota of Agricultural Material that May Be Burned by Watershed), Table III (Guides for Estimating Dry Weights of Several California Fuel Types), and Table IV (Particulate Matter Emissions Standard for Process Units and Process Equipment) and Nevada County APCD Rule 404 (Upset Conditions, Breakdown or Scheduled Maintenance) (excluding paragraph (D)) and to incorporate by reference Eastern Kern APCD Rules 108 (Stack Sampling) and 417 (Agricultural and Prescribed Burning), El Dorado County AQMD Rule 1000.1 (Emission Statement Waiver) and Northern Sierra AQMD Rules 212 (Process Weight Table) and 213 (Storage of Gasoline Products), as described in section IV of this preamble. The EPA has made, and will continue to make, these materials available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely corrects errors in previous rulemakings and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or
In addition, 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. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
2 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
On October 17, 2017, the EPA published a final rule partially approving the 2009 Texas Regional Haze State Implementation Plan (SIP) submission and promulgated a Federal Implementation Plan (FIP) for Texas to address certain outstanding Clean Air Act (CAA) regional haze requirements. Because the EPA believes that certain aspects of the final rule could benefit from additional public input, we are proposing to affirm our October 2017 SIP approval and FIP promulgation and to provide the public with an opportunity to comment on relevant aspects, as well as other specified related issues.
Comments must be received on or before October 26, 2018.
We are holding an information session, for the purpose of providing additional information and informal discussion for our proposal. We are also holding a public hearing to accept oral comments into the record:
Submit your comments, identified by Docket No. EPA-R06-OAR-2016-0611, at
The Texas regional haze SIP is also available online at:
Jennifer Huser, Air Planning Section (6MM-AA), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7347; email address
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
Joe C. Thompson Conference Center parking is adjacent to the building in Lot 40, located at the intersection of East Dean Keeton Street and Red River Street. Additional parking is available at the Manor Garage, located at the intersection of Clyde Littlefield Drive and Robert Dedman Drive. If arranged in advance, the UT Parking Office will allow buses to park along Dedman Drive near the Manor Garage for a fee.
The public hearing will provide interested parties the opportunity to present information and opinions to us concerning our proposal. Interested parties may also submit written comments, as discussed in the proposal. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. We will not respond to comments during the public hearing. When we publish our final action, we will provide written responses to all significant oral and written comments received on our proposal. To provide opportunities for questions and discussion, we will hold an information session prior to the public hearing. During the information session, EPA staff will be available to informally answer questions on our proposed action. Any comments made to EPA staff during an information session must still be provided orally during the public hearing, or formally in writing within 30 days after completion of the hearings, in order to be considered in the record.
At the public hearing, the hearing officer may limit the time available for each commenter to address the proposal to three minutes or less if the hearing officer determines it to be appropriate. We will not be providing equipment for commenters to show overhead slides or make computerized slide presentations. Any person may provide written or oral
The following overview demonstrates the lengthy and difficult path the regional haze program has taken in Texas. EPA maintains that States are in the best position to provide flexibility and protect the environment while maintaining a strong economic engine. As outlined in more detail below, the Texas 2009 Regional Haze SIP relied on the defunct Clean Air Interstate Rule (CAIR) to satisfy the Best Available Retrofit Technology (BART) requirements. The D.C. Circuit remanded CAIR to the EPA in 2009, prior to the state's submission. The CAIR requirements were replaced by the Cross-State Air Pollution Rule (CSAPR) in 2011. Because of legal challenges, CSAPR in its current form does not provide SO
When EPA proposed a source-specific BART FIP in January 2017,
On December 15, 2017, EPA received a petition for reconsideration of the October 2017 rule requesting that the Administrator reconsider certain aspects of the FIP related to the intrastate trading program promulgated to address the SO
While soliciting comment on the above three proposed actions, EPA also invites comment on additional issues that could inform our decision making with regard to the SO
We note that, should we decide to act pursuant to any comments we receive on these additional policy questions, we may initiate a new rulemaking process with a new proposed rule.
Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit PM
In Section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any existing, man-made impairment of visibility in 156 national parks and wilderness areas designated as mandatory Class I Federal areas. On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often under-controlled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress toward the natural visibility goal by controlling emissions of pollutants that contribute to visibility impairment, including a requirement that certain categories of existing major stationary sources
Under section 110(c) of the CAA, whenever we disapprove a mandatory SIP submission in whole or in part, we are required to promulgate a FIP within two years unless the state corrects the deficiency and we approve the new SIP submittal.
Section 110(a) of the CAA directs states to submit SIPs that provide for the implementation, maintenance, and enforcement of each NAAQS, which is commonly referred to as an infrastructure SIP. Among other things, CAA section 110(a)(2)(D)(i)(II) requires that SIPs contain adequate provisions to prohibit interference with measures required to protect visibility in other states. This is commonly referred to as “interstate visibility transport.” States must submit infrastructure SIPs addressing interstate visibility transport, among other requirements, which are due to the EPA within three years after the promulgation of a new or revised NAAQS (or within such shorter period as we may prescribe). A state's failure to submit a complete, approvable SIP for interstate visibility transport creates an obligation for the EPA to promulgate a FIP to address this requirement.
On March 31, 2009, Texas submitted a regional haze SIP (the 2009 Regional Haze SIP) to the EPA that included reliance on Texas' participation in trading programs under the Clean Air Interstate Rule (CAIR) as an alternative to BART for SO
Following issuance of CSAPR, the EPA determined that CSAPR would achieve greater reasonable progress towards improving visibility than would source-specific BART in CSAPR states (a determination often referred to as “CSAPR better than BART”).
In the same action that EPA determined that states could rely on CSAPR to address the BART requirements for EGUs, EPA issued a limited disapproval of a number of states' regional haze SIPs, including the 2009 Regional Haze SIP submittal from Texas, due to the states' reliance on CAIR, which had been replaced by CSAPR.
In December 2014, we proposed an action to address the remaining regional haze obligations for Texas.
On October 26, 2016, the EPA finalized an update to CSAPR to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS (CSAPR Update).
On November 10, 2016, in response to the D.C. Circuit's remand of Texas's CSAPR SO
On January 4, 2017, we proposed a FIP to address the EGU BART requirements for Texas' EGUs. In that action, we proposed to replace the 2009 Regional Haze SIP's reliance on CAIR with reliance on our CSAPR FIP to address the NO
Our January 4, 2017 proposed action addressing the BART requirements for Texas EGUs acknowledged that because Texas would no longer be participating in the CSAPR program for SO
In the January 2017 proposal, we also proposed to disapprove the portion of the 2009 Regional Haze SIP that made BART determinations for PM from EGUs, on the grounds that the demonstration in the 2009 Texas Regional Haze SIP relied on underlying assumptions as to how the SO
In our October 2017 rulemaking, we finalized our January 2017 proposed determination that Texas' participation in CSAPR's trading program for ozone-season NO
As explained above, EPA received a petition for reconsideration of issues related to the SO
In this notice, we are taking comment on the following elements: (1) This proposal to affirm the October 2017 FIP establishing an intrastate trading program addressing emissions of SO
In our January 2017 proposed action, we proposed BART limits based on our source-specific BART determinations for certain EGUs in Texas. We proposed this approach to address the SO
The BART alternative has been designed to achieve SO
We propose to affirm that the combination of the source coverage for this program, the total allocations for EGUs covered by the program, and recent and foreseeable emissions trends from those EGUs both covered and not covered by the program will result in future EGU emissions in Texas that are similar to or less than the SO
This BART alternative includes all BART-eligible coal-fired units in Texas, additional coal-fired EGUs, and some additional BART-eligible gas and gas/fuel oil-fired units. Moreover, we propose to affirm that the differences in source coverage between CSAPR and this BART alternative are either not significant or, in fact, work to demonstrate the relative stringency of this BART alternative as compared to CSAPR. This relative stringency is demonstrated in the following points:
A. Covered sources under the BART alternative in this FIP represent 89%
B. The remaining 11% (100 minus 89) of 2016 and 2017 emissions from sources not covered by the BART alternative come from gas units that rarely burn fuel oil or from coal-fired units that on average are better controlled for SO
C. Furthermore, the non-inclusion of a large number of gas-fired units that rarely burn fuel oil reduces the amount of available allowances for such units that would typically and collectively be expected to use only a fraction of CSAPR emissions allowances. Many of these sources typically emit at levels much lower than their allocation level. Should sources not participating in the program choose to opt in, thereby increasing the number of available allowances, this would serve to make the program more closely resemble CSAPR.
D. The BART alternative does not allow purchasing of allowances from out-of-state sources. Emission projections under CAIR and CSAPR showed that Texas sources were anticipated to purchase allowances from out-of-state sources.
Based on these points, and applying as appropriate the principles of the rules and program design of CSAPR to a program designed to apply to and for Texas, we are proposing to affirm our earlier determinations regarding SO
In our January 2017 proposed action and in our October 2017 final action, we determined that the BART-eligible EGUs not participating in the program were not causing or contributing to visibility impairment, and were therefore not subject to BART. In today's proposed rule, we are not re-opening the determination that these units are not subject to BART.
The Regional Haze Rule at 40 CFR 51.308(e)(2)(iii) requires that the emission reductions from BART alternatives occur “during the period of the first long-term strategy for regional haze.” The SO
In proposing to affirm the regulatory terms and rules for implementing the BART alternative, we are mindful of the minimally required elements for a BART alternative emissions trading program that are specified in the provisions of 40 CFR 51.308(e)(2)(vi)(A)-(L). In a generic sense, these types of provisions are foundational to the establishment of allowance markets. CSAPR is a prominent example of such an allowance market, and we have designed this BART alternative guided by transferring and generally incorporating well-tested program rules and terms from the provisions of CSAPR; we have ensured that the BART alternative will conform to the provisions necessary and appropriate that are needed for an emissions trading program covered by a cap.
EPA requests comment on our proposal to affirm the October 2017 FIP establishing an intrastate trading program addressing emissions of SO
The 2009 Texas Regional Haze SIP included a pollutant-specific screening analysis for PM to demonstrate that Texas EGUs were not subject to BART for PM. This approach was consistent with a 2006 guidance document in which the EPA stated that pollutant-specific screening can be appropriate where a state is relying on a BART alternative to address both NO
In our January 5, 2016 final action
In our January 2017 proposal, we proposed to disapprove Texas' technical evaluation and determination in the 2009 Regional Haze SIP that PM BART emission limits are not required for any of Texas' EGUs. That SIP included a pollutant-specific screening analysis for PM to demonstrate that Texas EGUs were not subject to BART for PM. This approach was consistent with a 2006 guidance document
As we explained in the January 2017 proposal, the 2009 Regional Haze SIP did not evaluate PM impacts from all BART-eligible EGUs. We evaluated and determined that this omission did not affect Texas' conclusion that no BART-eligible EGUs should be subject-to-BART for PM emissions. In our January 2017 proposal and as finalized in our October 2017 action, we identified several facilities as BART-eligible that Texas did not identify as BART eligible in its 2009 Regional Haze SIP. Specifically, we identified the following additional BART-eligible sources: Coleto Creek Unit 1 (Dynegy), Dansby Unit 1 (City of Bryan), Greens Bayou Unit 5 (NRG), Handley Units 3,4, and 5 (Exelon), Lake Hubbard Units 1 and 2 (Luminant), Plant X Unit 4 (Xcel), Powerlane Units ST1, ST2, and ST3 (City of Greenville), R W Miller Units 1, 2, and 3 (Brazos Elec.), Spencer Units 4 and 5 (City of Garland), and Stryker Creek Unit ST2 (Luminant). Based on CALPUFF modeling and a model-plant analysis, we found that all of these facilities except Coleto Creek and Stryker Creek had impacts from NO
We also evaluated the potential visibility impact of PM emissions from
We originally proposed to approve Texas' screening approach in 2014,
The Regional Haze Rule provides each state with the flexibility to adopt an emissions trading program or other alternative measure instead of requiring source-specific BART controls, so long as the alternative measure is demonstrated to achieve greater reasonable progress than BART. In our October 2017 final rulemaking, we acknowledged the State's preference and promulgated a BART alternative for SO
In 2012, the EPA amended the Regional Haze Rule to provide that participation by a state's EGUs in a CSAPR trading program for a given pollutant qualifies as a BART alternative for those EGUs for that pollutant.
For purposes of the 2012 analytic demonstration that CSAPR as finalized and amended in 2011 and 2012 provides for greater reasonable progress than BART, the analysis included Texas EGUs as subject to CSAPR for SO
As discussed in Section I.D, in the EPA's final response in September 2017 to the D.C. Circuit's remand in
Texas is no longer in the CSAPR program for annual SO
Under 51.308(e)(2), a State may opt to implement or require participation in an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and maintain BART. Such an emissions trading program or other alternative measure must achieve greater reasonable progress than would be achieved through the installation and operation of BART. At the same time, the Texas trading program should be designed so as not to interfere with the validity of existing SIPs in other states that have relied on reductions from sources in Texas. As discussed elsewhere, the Texas trading program is designed to provide the measures that are needed to address interstate visibility transport requirements for several NAAQS and to be part of the long-term strategy needed to meet the reasonable progress requirements of the Regional Haze Rule.
In order to identify EGUs in the trading program, we began with the list of BART-eligible EGUs for which we intended to address the BART requirements through a BART alternative. As discussed elsewhere, we determined that several BART-eligible gas-fired and gas/oil-fired EGUs are not subject-to-BART for NO
For a BART alternative that includes an emissions trading program, the applicability provisions must be designed to prevent any significant potential shifting within the state of production and emissions from sources in the program to sources outside
In addition to these sources, we also evaluated other EGUs for inclusion in the trading program based on their potential to impact visibility at Class I areas. Addressing emissions from sources with the largest potential to impact visibility is required to make progress towards the goal of natural visibility conditions and to address emissions that may otherwise interfere with measures required to protect visibility in other states. EPA, states, and Regional Planning Organizations (RPOs) have historically used a Q/D analysis to identify those facilities that have the potential to impact visibility at a Class I area based on their emissions and distance to the Class I area. Where,
1. Q is the annual emissions in tons per year (tpy), and
2. D is the nearest distance to a Class I Area in kilometers (km),
We used a Q/D value of 10 as a threshold for identification of facilities that may impact visibility at Class I areas and could be included in the trading program in order to meet the goals of achieving greater reasonable progress than BART and limiting visibility transport. We selected this value of 10 based on guidance contained in the BART Guidelines, which states:
Based on our analyses, we believe that a State that has established 0.5 deciviews as a contribution threshold could reasonably exempt from the BART review process sources that emit less than 500 tpy of NO
The approach described above corresponds to a Q/D threshold of 10. This approach has also been recommended by the Federal Land Managers' Air Quality Related Values Work Group (FLAG)
Natural Resource Report NPS/NRPC/NRR—2010/232, October 2010. Available at
We considered the results of an available Q/D analysis based on 2009 emissions to identify facilities that may impact air visibility at Class I areas.
Based on the above Q/D analysis, we identified additional coal-fired EGUs for participation in the SO
EPA proposes to affirm our determination that the inclusion of all of these identified sources (Tables 2, 3, and 5) in an intrastate SO
40 CFR 51.308(e)(2) contains the required plan elements and analyses for an emissions trading program or alternative measure designed as a BART alternative.
In our October 2017 final action, we finalized our list of all BART-eligible sources in Texas, which serves to satisfy 51.308(e)(2)(i)(A). We are not reopening the identification of BART-eligible sources, and thus are not requesting comment on this element.
This proposal includes a list of all EGUs covered by the trading program, satisfying the first requirement of 51.308(e)(2)(i)(B). All BART-eligible coal-fired units, some additional coal-fired EGUs, and some BART-eligible gas-fired and oil-and-gas-fired units are covered by the alternative program.
Regarding the requirements of 40 CFR 51.308(e)(2)(i)(C), we are proposing to affirm our determination that it is not necessary to make determinations of BART for each source subject to BART and covered by the program. Under that provision, the demonstration for a BART alternative does not need to include determinations of BART for each source subject to BART and covered by the program when the “alternative measure has been designed to meet a requirement other than BART.” The Texas trading program meets this condition, as discussed elsewhere, because it has been designed to meet multiple requirements other than BART. This BART alternative extends beyond all BART-eligible coal-fired units to include a number of additional coal-fired EGUs, and some BART-eligible gas-fired and oil-and-gas-fired units, capturing the majority of emissions from EGUs in the State, and is designed to provide the measures that are needed to address interstate visibility transport requirements for several NAAQS. This is because for all sources covered by the Texas SO
Regarding the requirement of 40 CFR 51.308(e)(2)(i)(D), our analysis is that the Texas trading program will effectively limit the aggregate annual SO
Regarding the requirement of 40 CFR 51.308(e)(2)(i)(E), the BART alternative EPA is proposing to affirm here is supported by our determination that, the clear weight of the evidence is that in the context of the operation of the CSAPR ozone-season NO
The differences in Texas EGU participation in CSAPR and this BART alternative are either not significant or, in some cases, work to demonstrate the relative stringency of the BART alternative as compared to CSAPR. If Texas EGUs were still required to participate in CSAPR's SO
Table 6 identifies the participating units and their proposed unit-level allocations under the Texas SO
The total annual allocation for all sources in the Texas SO
The remaining 11% of the total 2016 or 2017 emissions due to sources not covered by the program come from coal-fired units that on average are better controlled for SO
The exclusion of a large number of gas-fired units that rarely burn fuel oil further limits allowances in the program as compared to CSAPR because CSAPR allocated these units allowances that are higher than their recent and current emissions. In 2016, these units emitted 651 tons of SO
Finally, the Texas SO
The Texas trading program, by contrast, will have 248,393 tons of allowances allocated every year, with no ability to purchase additional allowances from sources outside of the State, preventing an increase beyond that annual allocation.
We also note that state-wide EGU SO
In sum, we propose to affirm and request comment on the determination that the Texas Trading Program will result in SO
The Texas SO
The Texas SO
Pursuant to the requirements of 51.308(e)(2)(vi)(A), the applicability of the Texas SO
Additionally, the EPA has established a Supplemental Allowance Pool with a budget of 10,000 tons of SO
Section 97.921 establishes how the Administrator will record the allowances for the Texas SO
As previously discussed, the EPA modeled the Texas SO
Vistra permanently retired Big Brown,
In light of these shutdowns, we solicit comment on a different approach to calculating the total number of allowances that can be allocated in a control period from the supplemental allowance pool. The 54,711-ton value discussed above is equal to 10,000 tons annually allocated to the pool plus 18% of the total annual allocation for participating units, mirroring the variability limit from CSAPR (40 CFR 97.912(b)). In this alternative approach, the total limit would be 41,335 tons, calculated as 10,000 tons annually allocated to the pool plus 18% of the total annual allocation for participating units
In our October 2017 final action, we determined that the BART alternatives to address SO
To develop its 2009 Regional Haze SIP, TCEQ worked through its RPO, the Central Regional Air Planning Association (CENRAP), to develop strategies to address regional haze, which at that time were based on emissions reductions from CAIR. To help states in establishing reasonable progress goals for improving visibility in Class I areas, the CENRAP modeled future visibility conditions based on the mutually agreed emissions reductions from each state. The CENRAP states then relied on this modeling in setting their respective reasonable progress goals.
We are proposing to affirm our determination that the October 2017 final action is adequate to ensure that emissions from Texas do not interfere with measures to protect visibility in nearby states because the BART FIP emission reductions are consistent with the level of emission reductions relied upon by other states during consultation. The 2009 Texas Regional Haze SIP relied on CAIR to meet SO
We are proposing to affirm our approval of the portion of the Texas Regional Haze SIP that addresses the BART requirement for EGUs for PM. To address the SO
In this proposed action we are also specifically soliciting comment on whether we should retain or eliminate the additional flexibility for Coleto Creek in Section 40 CFR 97.912 that establishes how allowances are allocated from the Supplemental Allowance Pool to this source in light of this recent change in ownership after the merger of Dynegy and Vistra. In light of recent and planned shutdowns, we specifically solicit comment on how these shutdowns should impact the provision at 40 CFR 97.911(a)(2) regarding allocations to retired units for a period of five years. We also solicit comment on a different approach to calculating the total number of allowances that can be allocated in a control period from the supplemental allowance pool pursuant to 40 CFR 97.912(b). In addition, we are specifically soliciting comment on
In our October 2017 final action, we determined that the BART alternatives to address SO
This proposed 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 proposed action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
This proposed action does not impose any new information collection burden under the PRA. The information collection activities in the October 2017 final rule promulgating the Texas SO
I certify that this proposed action will not have a significant impact on a substantial number of small entities. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This proposed rule does not impose any requirements or create impacts on small entities. This proposed FIP action under Section 110 of the CAA will not create any new requirement with which small entities must comply. Accordingly, it affords no opportunity for the EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the CAA prescribes that various consequences (
This proposed action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.
This proposed 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 proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
This proposed 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 proposed action involves technical standards. The EPA has decided to use the applicable monitoring requirements of 40 CFR part 75. Part 75 already incorporates a number of voluntary consensus standards. Consistent with the Agency's Performance Based Measurement System (PBMS), part 75 sets forth performance criteria that allow the use of alternative methods to the ones set forth in part 75. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. At this time, EPA is not recommending any revisions to part 75; however, EPA periodically revises the test procedures set forth in part 75. When EPA revises the test procedures set forth in part 75 in the future, EPA will address the use of any new voluntary consensus standards that are equivalent. Currently, even if a test procedure is not set forth in part 75, EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified; however, any alternative methods must be approved through the petition process under 40 CFR 75.66 before they are used.
The EPA believes that this proposed 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). We have determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The proposed rule limits emissions of SO
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Visibility, Interstate transport of pollution, Regional haze, Best available retrofit technology.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements, Sulfur dioxides.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 10 chemical substances which were the subject of premanufacture notices (PMNs). The chemical substances are subject to Orders issued by EPA pursuant to section 5(e) of TSCA. This action would require persons who intend to manufacture (defined by statute to include import) or process any of these 10 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the intended use within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination. In addition to this notice of proposed rulemaking, EPA is issuing the action as a direct final rule elsewhere in this issue of the
Comments must be received on or before September 26, 2018.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0560, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In addition to this notice of proposed rulemaking, EPA is issuing the action as a direct final rule elsewhere in this issue of the
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 19 chemical substances which were the subject of premanufacture notices (PMNs). The chemical substances are subject to Orders issued by EPA pursuant to section 5(e) of TSCA. This action would require persons who intend to manufacture (defined by statute to include import) or process any of these 19 chemical substances for an activity that is designated as a significant new use by these rules to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the intended use within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination. In addition to this Notice of Proposed Rulemaking, EPA is issuing the action as a direct final rule elsewhere in this issue of the
Comments must be received on or before September 26, 2018.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0464, by one of the following methods:
•
•
•
In addition to this Notice of Proposed Rulemaking, EPA is issuing the action as a direct final rule elsewhere in this issue of the
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Office of Inspector General (OIG), HHS.
Request for information.
This request for information seeks input from the public on how to address any regulatory provisions that may act as barriers to coordinated care or value-based care.
Comment Date: To ensure consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on October 26, 2018.
In commenting, refer to file code OIG-0803-N. Because of staff and resource limitations, we cannot accept comments by facsimile (fax) transmission. However, you may submit comments in one of three ways (no duplicates, please):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
Because access to the interior of the Cohen Building is not readily available to persons without Federal Government identification, commenters are encouraged to schedule their delivery with one of our staff members at (202) 619-0335.
For information on viewing public comments, please see the
Susan Edwards, (202) 708-9845.
The Department of Health and Human Services (HHS) is working to transform the health care system into one that better pays for value. Care coordination is a key aspect of systems that deliver value. Removing unnecessary government obstacles to care coordination is a key priority for HHS. To help accelerate the transformation to a value-based system that includes care coordination, HHS has launched a Regulatory Sprint to Coordinated Care, led by the Deputy Secretary. This “Regulatory Sprint” is focused on identifying regulatory provisions that may act as barriers to coordinated care, assessing whether those regulatory provisions are unnecessary obstacles to coordinated care, and issuing guidance or revising regulations to address such obstacles and, as appropriate, to encourage and incentivize coordinated care while protecting against harms caused by fraud and abuse.
The Office of Inspector General (OIG) seeks to identify ways in which it might modify or add new safe harbors to the anti-kickback statute and exceptions to the beneficiary inducements civil monetary penalty (CMP) definition of “remuneration” in order to foster arrangements that would promote care coordination and advance the delivery of value-based care, while also protecting against harms caused by fraud and abuse. Through internal discussion and with the benefit of facts and information received from external stakeholders, OIG has identified the broad reach of the anti-kickback statute and beneficiary inducements CMP as a potential impediment to beneficial arrangements that would advance coordinated care. To inform our efforts, we welcome public comment on the safe harbors to the anti-kickback statute and the exceptions to the beneficiary inducements CMP definition of “remuneration” as they relate to the goals of the Regulatory Sprint outlined above. In particular, we welcome comments in response to the questions presented in this Request for Information (RFI).
Section 1128B(b) of the Social Security Act (the Act), the Federal anti-kickback statute, provides criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration to induce or reward the referral of business reimbursable under Federal health care programs, as defined in section 1128B(f) of the Act. The law endeavors to protect patients and the Federal health care programs from fraud and abuse by curtailing the corrupting influence of remuneration on health care decisions; however, because the statute is broadly written, when it was enacted there was concern that some relatively innocuous and potentially beneficial arrangements were technically covered by the statute and therefore were subject to criminal prosecution.
In response to this concern, Congress passed section 14 of the Medicare and Medicaid Patient and Program Protection Act of 1987, which required HHS to set forth “safe harbors” to the anti-kickback statute. Specifically, section 1128B(b)(3)(E) of the Act protects from the anti-kickback statute “any payment practice specified by the Secretary in regulations promulgated pursuant to section 14(a) of the Medicare and Medicaid Patient and Program Protection Act of 1987.” In giving HHS the authority to protect certain arrangements and payment practices under the anti-kickback statute, Congress intended the safe harbors to be evolving rules that would be updated periodically to reflect changing business practices and technologies in the health care industry.
Health care providers and others may voluntarily comply with safe harbors in an effort to ensure that their business practices will not be subject to criminal prosecution under the anti-kickback statute, the imposition of civil monetary penalties (CMPs) under section 1128A(a)(7) of the Act, program exclusion under section 1128(b)(7) of the Act, and liability under the False Claims Act (31 U.S.C. 3729-33). Since finalizing the first safe harbors in 1991, OIG has continued to engage the industry on the application of the Federal anti-kickback statute and development of safe harbors.
Section 1128A(a)(5) of the Act, the beneficiary inducements CMP, provides for the imposition of CMPs against any person who offers or transfers remuneration to a Medicare or State health care program beneficiary that the benefactor knows or should know is likely to influence the beneficiary's selection of a particular provider, practitioner, or supplier of any item or service for which payment may be made, in whole or in part, by Medicare or a State health care program. In the same administrative proceedings in which it may seek to impose CMPs against a person, OIG may seek to exclude such person from the Federal health care programs. For purposes of section 1128A(a)(5) of the Act, the statute defines “remuneration” to include, without limitation, waivers of co-payments and deductible amounts (or any part thereof) and transfers of items or services for free or for other than fair market value.
OIG is mindful of the impact of delivery system and payment reform on Federal health care programs and the changing relationships between providers, suppliers, and other entities in delivering higher quality, better coordinated care; enhancing value; and improving the overall health of patients. We have received several suggestions for new safe harbors and proposed modifications to existing safe harbors that may promote care coordination and reduce regulatory impediments to value-based arrangements, including in response to our annual “Solicitation of New Safe Harbors and Special Fraud Alerts.”
We continue to consider how to balance additional flexibility for industry stakeholders to provide
Where relevant, we intend to review comments submitted in response to the Medicare Program; Request for Information Regarding the Physician Self-Referral Law, RIN 0938-AT64, issued by the Centers for Medicare & Medicaid Services (CMS).
We welcome public input on any or all of the topics identified below. Respondents are not required to address every issue or respond to every question discussed in this RFI to have their responses considered.
A. Please tell us about potential arrangements that the industry is interested in pursuing, such as care coordination, value-based arrangements, alternative payment models, arrangements involving innovative technology, and other novel financial arrangements that may implicate the anti-kickback statute or beneficiary inducements CMP. For example, we are interested in better understanding the structure and terms of the arrangement (
B. Please identify what, if any, additional or modified safe harbors to the anti-kickback statute or exceptions to the definition of “remuneration” under the beneficiary inducements CMP may be necessary to protect such arrangements and any key provisions that should be included in the additional or modified safe harbor or exception. Existing safe harbors and exceptions of particular relevance to coordinated care include, for example, those related to personal services and management contracts, electronic health record arrangements, warranties, transportation, and promoting access to care. Suggested new safe harbors or exceptions might address care coordination services arrangements or arrangements promoting the use of innovative technology. In particular, please describe what conditions would be appropriate to include in a safe harbor or exception to protect against fraud and abuse in the context of such arrangements, including what, if any, disclosures should be required by such safe harbors or exceptions.
C. Please explain how “value” could be defined and used in a safe harbor or exception such that OIG could evaluate “value” within an arrangement to determine compliance with the safe harbor or exception.
D. In the context of health care delivery reform, payment reform, and the anti-kickback statute, please share thoughts on definitions for critical terminology such as:
E. Are there opportunities where OIG could clarify its position through guidance as opposed to regulation? For example, would a law enforcement policy statement offer sufficient protection in some instances? If so, please elaborate.
i. Please provide feedback regarding the types of incentives providers, suppliers, and others are interested in providing to beneficiaries, how providing such incentives would contribute to or improve quality of care, care coordination, and patient engagement, including adherence to care plans, and whether the types of providers, suppliers, or other entities that furnish the incentives matter from an effectiveness and program integrity perspective. Please be as specific as possible. Additional areas of interest include:
a. What, if any, restrictions should OIG place on the sources, types, or frequency of beneficiary incentives that could be provided to reduce the risk of fraud and abuse?
b. Examples of beneficiary incentive arrangements that are appropriate and effective.
c. Should beneficiary incentives connected to medication adherence and medication management be treated differently than other types of beneficiary incentives? If so, how and why?
d. What, if any, disclosures should OIG require the offeror to make to beneficiaries regarding an incentive (
ii. Please identify (and provide citations to) any recent studies assessing the positive or negative effects of beneficiary incentives on patient care or patient engagement.
iii. In the context of beneficiary incentives, please identify any risks or benefits from the following types of potential remuneration, as well as any safeguards to mitigate risks, and describe how these terms should be defined for purposes of any rulemaking related to coordinated care or value-based arrangements:
iv. To promote care coordination and value-based care, should OIG amend its “Office of Inspector General Policy Statement Regarding Gifts of Nominal Value To Medicare and Medicaid
i. We are interested in input about how relieving or eliminating beneficiary cost-sharing obligations might improve care delivery, enhance value-based arrangements, and promote quality of care. Please describe any patient care scenarios in which cost-sharing obligations are particularly problematic.
ii. Please describe the financial impact on providers, suppliers, and other entities, as well as the fraud and abuse risks, if cost-sharing amounts could be waived (
iii. Please describe any risks to beneficiaries and Federal health care programs from the reduction or elimination of cost-sharing obligations.
iv. Please describe any suggested protections or safeguards that OIG should incorporate if we were to create a safe harbor for certain beneficiary cost-sharing waiver or subsidy arrangements.
i. Please provide feedback on the current waivers developed for the purposes of testing models by the Center for Medicare and Medicaid Innovation (Innovation Center) and carrying out the Medicare Shared Savings Program (MSSP).
a. How, if at all, have stakeholders found compliance with the waiver conditions challenging? Please be as specific as possible.
b. Are any waiver requirements particularly burdensome, such that they impede the goals of the models, initiatives, or programs? If so, please specify which waiver requirements and why they impede the goals of the model, initiative, or program.
c. What waiver structures or conditions, if any, work well? Should OIG consider any waiver structures or conditions for any future safe harbors or exceptions related to care coordination and value-based care (including beneficiary incentives to promote patient engagement)? Please be as specific as possible and provide reasons.
d. One of the key safeguards to mitigate the risk of fraud or abuse from arrangements protected by the pre-participation and participation waivers developed pursuant to the MSSP, the Next Generation ACO Model's participation waiver, and the Pioneer ACO Model's participation waiver
e. We invite specific feedback regarding the pros and cons of fraud and abuse protections (
i. We are aware of interest in donating or subsidizing cybersecurity-related items and services to providers and others with whom they share information. We are interested in information about the types of cybersecurity-related items or services that entities wish to donate or subsidize, and how existing fraud and abuse laws may pose barriers to such arrangements. For example, we are interested in (i) the types of persons that would be parties to, or benefit from, such arrangements; (ii) whether any persons should be excluded from such arrangements; (iii) the particular types of items that would be involved in such arrangements (
a. How might such items or services reduce cybersecurity risks to the following: The donor, the recipient, patients, and other nonparties to the arrangement?
b. Are there technical or legal barriers (besides the physician self-referral law and the anti-kickback statute) that could prevent or limit the arrangements?
c. Are there any potential risks or unintended consequences to such arrangements (
d. Are there any particular risks if HHS takes no action?
Section 50341(b) of the Bipartisan Budget Act of 2018, which added section 1128B(b)(3)(K) of the Act, states that “illegal remuneration” under the anti-kickback statute does not include “. . . an incentive payment made to a Medicare fee-for-service beneficiary by an ACO under an ACO Beneficiary Incentive Program established under subsection (m) of section 1899, if the payment is made in accordance with the requirements of such subsection and meets such other conditions as the Secretary may establish.”
i. For the purposes of implementing this new statutory exception through a safe harbor, what, if any, “other conditions” should this safe harbor include as protections or safeguards? Please provide supporting reasons.
Section 50302(c) of the Bipartisan Budget Act of 2018 creates a new exception to the definition of “remuneration” in the beneficiary inducements CMP. This exception applies to “telehealth technologies” provided on or after January 1, 2019, by a provider of services or a renal dialysis facility to an individual with end-stage renal disease (ESRD) who is receiving home dialysis for which payment is being made under Medicare Part B. Under the statute, “telehealth technologies” is a term to be defined by the Secretary. The exception requires that (i) the telehealth technologies not be offered as part of any advertisement
i. For the purposes of this exception, please provide input on how “telehealth technologies” should be defined. Please provide examples of telehealth technologies that may be used to furnish telehealth services related to a beneficiary's ESRD (
ii. For the purposes of this exception, should OIG include protections or safeguards as “any other requirements set forth in regulations promulgated by the Secretary?” If so, please explain what protections or safeguards and why.
Please share any feedback regarding specific circumstances in which (i) exceptions to the physician self-referral law and safe harbors to the anti-kickback statute should align for purposes of the goals of this RFI; and (ii) exceptions to the physician self-referral law in furtherance of care coordination or value-based care should not have a corresponding safe harbor to the anti-kickback statute.
Respondents are encouraged to provide complete but concise and organized responses, including any relevant data and specific examples. Respondents are not required to address every issue or respond to every question discussed in this RFI to have their responses considered. All responses will be considered, provided they contain information OIG can use to identify the commenter.
Please note: This is a request for information only. This RFI is issued solely for information and planning purposes; it does not constitute a Request for Proposal (RFP), application, proposal abstract, or quotation. This RFI does not commit the U.S. Government to contract for any supplies or services or make a grant award. Further, OIG is not seeking proposals through this RFI and will not accept unsolicited proposals. Respondents are advised that the U.S. Government will not pay for any information or administrative costs incurred in response to this RFI; all costs associated with responding to this RFI will be solely at the interested party's expense. Not responding to this RFI does not preclude participation in any future procurement, if conducted. It is the responsibility of the potential responders to monitor this RFI announcement for additional information pertaining to this request. Please note that OIG will not respond to questions about the policy issues raised in this RFI. Contractor support personnel may be used to review RFI responses.
Responses to this RFI are not offers and cannot be accepted by the U.S. Government to form a binding contract or issue a grant. Information obtained as a result of this RFI may be used by the U.S. Government for program planning on a nonattribution basis. Respondents should not include any information that might be considered proprietary or confidential. This RFI should not be construed as a commitment or authorization to incur costs for which reimbursement would be required or sought. All submissions become U.S. Government property and will not be returned. OIG may publicly post the comments received or a summary thereof.
This document does not impose information collection requirements, that is, reporting, recordkeeping, or third-party disclosure requirements. However, section III of this document does contain a general solicitation of comments in the form of a request for information. In accordance with the implementing regulations of the Paperwork Reduction Act (PRA), specifically 5 CFR 1320.3(h)(4), this general solicitation is exempt from the PRA. Facts or opinions submitted in response to general solicitations of comments from the public, published in the
Because of the large number of public comments we normally receive on
Office of Restoration and Damage Assessment, Interior.
Advance notice of proposed rulemaking; request for public comment.
The Office of Restoration and Damage Assessment (ORDA) is seeking comments and suggestions from State, Tribal, and Federal natural resource co-trustees, other affected parties, and the interested public on whether revisions to the regulations for conducting natural resource damage assessments and restoration (NRDAR) for hazardous substance releases are needed, and if so, what specific revisions should be considered.
We will accept comments through October 26, 2018.
You may submit comments to ORDA on this ANPRM by any of the following methods. Please reference the Regulation Identifier Number (RIN) DOI-2018-0006 in your comments.
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• Hand deliver or mail comments to the Office of Restoration and Damage Assessment, U.S. Department of the Interior, 1849 C Street Northwest, Mail Stop/Room 5538, Washington, DC 20240.
Steve Glomb, Director, Office of Restoration and Damage Assessment at (202) 208-4863 or email to
The regulations provide procedures that State, Tribal, and Federal natural resource co-trustees may use to evaluate the need for and means of restoring, replacing, or acquiring the equivalent of public natural resources that are injured or destroyed because of releases of hazardous substances into the environment. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—which authorizes natural resource damage claims by States, federally recognized Indian Tribes, and the Federal government—specifies that the regulations are optional, but if the State, Tribal, and Federal governments (described as natural resource “co-trustees” by CERCLA) utilize them, they are entitled to a “rebuttable presumption” on their claim in any subsequent legal proceeding.
This notice seeks comment and suggestions in response to the CERCLA biennial review requirement and Executive Order 13777 (February 24, 2017), which directed the Department of the Interior (DOI) and other Federal agencies to establish Regulatory Reform Task Forces to evaluate existing regulations and make recommendations regarding repeal, replacement, or modification, consistent with applicable law.
CERCLA authorizes the Federal government, States, and federally recognized Indian Tribes to act as “trustees” on behalf of the public, for the purpose of bringing claims for injury to natural resources injured or destroyed by hazardous substance releases. Such claims are not fines or penalties, and the measure of damages is calculated by the cost to restore or replace the injured or destroyed natural resources. Trustees may also recover compensation for services the resources would have provided to the public pending restoration, along with the reasonable cost of assessing injury and determining appropriate restoration. The statute requires trustees to spend restoration recoveries “only to restore, replace, or acquire the equivalent” of injured natural resources pursuant to a publicly reviewed restoration plan.
Section 301(c) of CERCLA requires the promulgation of regulations to guide natural resource damage assessment and restoration. The statute explicitly provides that the regulations are not mandatory, but if State, Tribal, or Federal trustees conduct an assessment in accordance with the regulations, they would receive a “rebuttable presumption” for their claim in any subsequent administrative or judicial proceeding. The Department of the Interior (DOI) was designated by the President to develop the regulations currently in effect at 43 CFR part 11.
DOI previously developed two types of NRDAR regulations (as specified by CERCLA). Standard procedures for simplified assessments requiring minimal field observations (the Type A Rule); and site-specific procedures for detailed assessment in individual cases (the Type B Rule). The CERCLA NRDAR Regulations were last revised in 2008. These revisions to the Type B Rule emphasized natural resource restoration over litigation and monetary damages, made technical corrections to procedural timing inconsistencies, and responded to two court decisions addressing previous versions of the regulations:
The 2008 revisions were based on the report of a committee convened by DOI under the Federal Advisory Committee Act (FACA) to make recommendations on improving NRDAR practice. The committee was comprised of representatives from States, Tribes, Federal agencies, industrial corporations, industry consultants and attorneys, local and national non-governmental organizations, and academics. Unlike previous iterations of the NRDAR regulations, the final regulatory revisions based on the FACA Committee report were not challenged by States, Tribes, industry or environmental groups.
We are interested in comments or suggestions that improve the efficiency and cost effectiveness of the NRDAR process. An internal biennial review of the CERCLA NRDAR regulations identified some remaining issues from the NRDAR FACA Committee Report that could be addressed, and NRDAR practice issues that have developed or progressed since the last revision of the regulations. DOI is particularly interested in comments and suggestions related to these issues, outlined below. We also welcome comments and suggestions on any other aspect of the regulations that trustees, stakeholders, and the general public would like us to consider.
With the exceptions of the provision of the Type B Regulations that were revised in 2008, the CERCLA NRDAR regulations are arguably complicated, overly prescriptive, repetitive, and dense—particularly when compared to the Oil Pollution Act (OPA) NRDAR Rule promulgated by the National Oceanic and Atmospheric Administration at 15 CFR part 990. A number of stakeholders have suggested that DOI should consider a comprehensive “plain English” revision to the CERCLA NRDAR Regulations that closely aligns with the structure of the existing OPA NRDAR Regulations.
The Type A Regulations were designed to result in efficient, cost effective, standardized assessments. It has been challenging, however, to develop workable Type A Regulations that are streamlined and utilize minimal actual field observations but are still relevant and reliable enough to be entitled to a rebuttable presumption of correctness. Accordingly, DOI is seeking comments or suggestions regarding revision to and utilization of the CERCLA NRDAR Type A Regulations.
The NRDAR FACA Committee Report recommended that DOI could encourage a restoration focus and negotiated agreements by revising the regulations to encourage early scoping of restoration opportunities at NRDAR sites. DOI is interested in any additional comments or suggestions on where specifically in the assessment process restoration scoping may be cost effective and appropriate and how that could best be addressed in the regulations.
Since the last revision of CERCLA NRDAR Regulations, a number of matters have utilized partial negotiated settlements early in the assessment process to cost effectively resolve discrete NRDAR claims and re-inforce an overall restoration focus for ultimate comprehensive resolution. However, the current regulations offer little guidance on how to align early restoration settlements with existing statutory and regulatory requirements for assessment and restoration planning.
Restoration “banking” and advance restoration—where restoration is undertaken in anticipation of marketing portions of such restoration to responsible parties to address natural resource injury caused by releases of
The NRDAR FACA Committee Report encouraged DOI to adopt Department-wide categorical exclusions from NEPA as appropriate and to ensure that compliance with NEPA requirements occurs concurrently with NRDAR restoration planning. DOI is interested in comments or suggestions whether that would best be addressed in the NRDAR regulations, NEPA regulations, or in Departmental guidance.
DOI is not obligated to consider comments that we receive after the close of the comment period for this ANPRM, or comments that are delivered to an address other than those listed in this notice. After the comment period for this ANPRM closes, DOI will review all comment submissions. Upon consideration, DOI may publish a notice of proposed rulemaking.
We are particularly interested in receiving comments and suggestions about the topics identified in the
Before including your address, phone number, email address or other personal identifying information in you comment, you should be aware that your entire comment—including your personal identifying information—might be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review we cannot guarantee that we will do so.
42 U.S.C. 9601, secs. 104,107,111(I), 122.
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes rules to implement Congress's recent directive that we reimburse certain Low Power Television (LPTV), television translator (TV translator), and FM broadcast stations for costs incurred as a result of the Commission's broadcast television spectrum incentive auction. When Congress authorized the Commission to conduct the incentive auction, it required the Commission to reimburse certain costs incurred by full power and Class A television licensees and multichannel video program distributors (MVPDs). On March 23, 2018, Congress adopted the Reimbursement Expansion Act (REA), which, among other things, expands the list of entities eligible to be reimbursed for auction-related expenses to include LPTV, TV translator, and FM broadcast stations, and to provide additional funds to the Reimbursement Fund to be used for this purpose. The REA requires the Commission to complete a rulemaking to adopt a reimbursement process for LPTV, TV translator, and FM stations within a year from the adoption date of the Act. This NPRM commences the proceeding to implement this directive and enable the Commission to meet this statutory deadline.
Comments may be filed on or before September 26, 2018; and reply comments may be filed on or before October 26, 2018.
Interested parties may submit comments and reply comments, identified by MB Docket No. 18-214 and GN Docket No. 12-268, by any of the following methods:
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Kim Matthews of the FCC's Media Bureau, Policy Division,
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 18-113, adopted August 2, 2018 and released August 3, 2018. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. This document will also be available via ECFS at
The NPRM may result in new or revised information collection requirements. If the Commission adopts any new or revised information collection requirements, the Commission will publish a notice in the
1. In the NPRM, we propose rules to implement Congress's recent directive
2. In this NPRM, we propose a mechanism for reimbursing the newly eligible entities that is substantially similar to the process we currently use to reimburse full power and Class A licensees and MVPDs as established in the Incentive Auction R&O.
• We tentatively conclude that LPTV and TV translator stations (collectively referred to herein as LPTV/translator stations) are eligible for reimbursement if (1) they filed an application during the Commission's Special Displacement Window and obtained a construction permit, and (2) were licensed and transmitting for at least 9 of the 12 months prior to April 13, 2017, as required by the REA.
• We also tentatively conclude that we will reimburse LPTV/translator stations for their reasonable costs to construct the facilities authorized by the grant of the station's Special Displacement Window application, but will require stations to reuse existing equipment and take other measures to mitigate costs where possible.
• With respect to FM broadcast stations, we tentatively conclude that both full power FM stations and FM translators that were licensed and transmitting on April 13, 2017, using the facilities impacted by the repacked television station are eligible for reimbursement under the REA. We propose that this will include FM stations that incur costs because they must permanently relocate, temporarily or permanently modify their facilities, or purchase or modify auxiliary facilities to provide service to at least 80 percent of their primary station's coverage area or population during a period of time when construction work is occurring on a collocated repacked television station's facilities.
• We propose to reimburse up to 100 percent of the costs eligible for reimbursement for FM stations that must relocate permanently, or temporarily or permanently modify facilities. We seek comment on a graduated, prioritized system to reimburse FM stations for the cost to purchase or modify auxiliary equipment to avoid going silent as a result of the repacking process.
• We propose to require LPTV/translator and FM stations seeking reimbursement to file with the Commission one or more forms certifying that they meet the eligibility criteria established in this proceeding for reimbursement, providing information regarding their current broadcasting equipment, and providing an estimate of their costs eligible for reimbursement. We invite comment on ways to streamline the submission of this information for these entities.
• We propose that after the submission of information, the Media Bureau will provide eligible entities with an allocation of funds, to be available for draw down as the entities incur expenses. We propose that the Media Bureau will make an initial allocation toward eligible expenses, followed by subsequent allocation(s) as needed, to the extent funds remain for LPTV/translator stations and FM stations in the Reimbursement Fund, and we seek comment on how to determine the amount of these allocations.
• We propose to use revised versions of the financial forms currently being used by full power, Class A, and MVPD entities for purposes of reimbursing eligible LPTV/translator and FM stations, and we propose to use the same procedures to provide reimbursement payments to these newly eligible entities.
• We discuss the measures we propose to take to protect the Reimbursement Fund against waste, fraud, and abuse.
3. The Commission adopted a companion Order together with the NPRM. That Order is the subject of a separate
4. On March 23, 2018, Congress adopted the REA, directing the Commission to “reimburse costs reasonably incurred” by a TV translator or LPTV station in order to “relocate” to another channel or “otherwise modify” its facility as a result of the reorganization of broadcast television spectrum. In addition, the REA directs the Commission to “reimburse costs reasonably incurred” by an FM station “for facilities necessary for such station to reasonably minimize disruption of service” as a result of the reorganization of broadcast television spectrum. The REA also provides funding for the Commission to make payments for the purpose of consumer education relating to the reorganization of broadcast television spectrum.
5. The REA appropriates a total of $1 billion in additional funds for the Reimbursement Fund, $600 million in fiscal year 2018 and $400 million in fiscal year 2019. Of the $600 million appropriated in fiscal year 2018, the Act authorizes the Commission to use “not more than” $350 million to make reimbursements to full power and Class A stations and MVPDs pursuant to the Spectrum Act, “not more than” $150 million to reimburse TV translator and LPTV stations, “not more than” $50 million to reimburse FM broadcast stations, and $50 million to make “payments solely for the purposes of consumer education relating to the reorganization of broadcast television spectrum” pursuant to the Spectrum Act. We seek comment below on two different interpretations of the statutory provisions that relate to the availability of the $400 million appropriated in fiscal year 2019 and, specifically, on whether these funds are available to reimburse newly eligible LPTV, TV translator, and FM broadcast stations, in addition to full power, Class A, and MVPD entities.
6. The REA establishes a number of conditions on the availability and use of the $1 billion it appropriates to the Reimbursement Fund. First, it provides that these funds are available only if the Commission makes a certification “to the Secretary of the Treasury that the funds available prior to the date of enactment” of the REA “in the TV Broadcaster Relocation Fund are likely to be insufficient to reimburse reasonably incurred costs” of full power and Class A stations and MVPDs pursuant to the Spectrum Act. Second,
7. Section 511(k)(3) of the REA states that duplicative payments to “a low power television station that has been accorded primary status as a Class A television licensee under [47 CFR 73.6001(a)]” from the Reimbursement Fund are prohibited. Specifically, such licensee may not receive reimbursement under Section 511(k)(1) of the REA, which provides for reimbursement of eligible displaced LPTV/translator stations, if such station has received reimbursement under Section 6403(b)(4)(A)(i) of the Spectrum Act (including the additional funding made available for reimbursing full power, Class A, and MVPDs in Section 511(j)(2)(A)(i) of the REA). Similarly, Section 511(k)(3)(B) specifies that if such station receives reimbursement under Section 511(k)(1) of the REA, it may not receive reimbursement under Section 6403(b)(4)(A)(i) of the Spectrum Act. Section 511(k)(3)(A) also provides that if a low power television station that has been accorded primary status as a Class A television licensee receives reimbursement “from any other source, such station may not receive reimbursement under paragraph 1” of Section 511(k), which permits reimbursement of costs reasonably incurred by eligible LPTV/translator stations that filed in the Special Displacement Window. Section 511(l)(1)(C) states that “[i]f an FM broadcast station has received a payment for interim facilities from the licensee of a television broadcast station that was reimbursed for such payment” under the Spectrum Act, “or from any other source,” such FM broadcast station may not receive reimbursement under the REA.
8. Finally, the REA requires the Commission to complete a rulemaking to implement a reimbursement process for LPTV, TV translator, and FM stations “[n]ot later than 1 year” after the adoption of the Act, or by March 23, 2019. It also directs that the rulemaking include “the development of lists of reasonable eligible costs to be reimbursed by the Commission” and “procedures for the submission and review of cost estimates and other materials related to those costs consistent with the regulations developed by the Commission” in establishing the reimbursement process for full power, Class A, and MVPD entities.
9. Congress authorized the Commission to conduct the incentive auction to help meet the Nation's growing spectrum needs. In the “reverse auction” phase of the incentive auction, television broadcasters had the opportunity to voluntarily relinquish some or all of their broadcast television spectrum usage rights in exchange for a share of the proceeds from a “forward auction” of new, flexible-use licenses suitable for mobile broadband use. In the Incentive Auction R&O, the Commission adopted its proposal to limit reverse auction participation to licensees of commercial and noncommercial educational (NCE) full power and Class A stations.
10. Stations that remained on the air after the auction were reorganized during the “repacking” process to occupy a smaller portion of the television spectrum, and some were assigned new channels to clear spectrum for use by wireless providers. The Commission specified that full power and Class A facilities that already were operating pursuant to a license (or a pending application for a license to cover a construction permit) on February 22, 2012, would be protected in the repacking process, as Congress required. The Commission also exercised its discretion to protect certain, additional full power and Class A stations. The Commission declined to protect other categories of facilities, including LPTV/translator stations, on the basis that such facilities are secondary in nature and protecting them would have unduly restrained the agency's flexibility in the repacking process and undermined its ability to meet the goals of the incentive auction.
11. On April 13, 2017, after the conclusion of auction bidding, the Incentive Auction Task Force and the Media and Wireless Telecommunications Bureaus released the Closing and Channel Reassignment PN, which announced the completion of the auction, the auction results, and the broadcast television channel reassignments. The release of the Closing and Channel Reassignment PN also commenced the 39-month post-auction transition period (transition period) during which all reassigned stations must transition to their post-auction channel assignments. Reassigned stations had three months, or until July 12, 2017, to file construction permit applications for any minor changes to their facilities needed to operate on their new channels. Following the three-month application filing deadline, stations have up to 36 months, or until July 13, 2020, to transition to their new channels.
12. To ensure an orderly, managed transition process, the Commission established a phased construction schedule for the transition period and grouped all full power and Class A television stations transitioning to new channels into one of 10 transition phases. The Closing and Channel Reassignment PN announced the specific transition phase, phase completion date, and testing period applicable to each transitioning station.
13. LPTV and TV Translators. LPTV/translator stations are secondary to full power television stations, which may be authorized and operated “without regard to existing or proposed low power TV or TV translator stations.” LPTV/translator stations were not eligible to participate in the incentive auction and were not eligible for reimbursement pursuant to the Spectrum Act. In addition, while the Spectrum Act required the Commission to make “all reasonable efforts” to preserve the coverage area and population served of eligible full power and Class A television stations in the incentive auction repacking process, as noted above, LPTV/translator stations were not protected. Accordingly, the Incentive Auction R&O noted the potential for a significant number of LPTV/translator stations to be displaced as a result of the auction or repacking process which would require them either to find a new channel from the smaller number of channels that remain in the reorganized broadcast television bands or to discontinue operations altogether.
14. The Commission has taken a number of steps to mitigate the impact of the auction and repacking process on LPTV/translator stations. The Media
15. Some LPTV/translator stations have already been displaced. Pursuant to our rules, LPTV/translator stations that were on channels 38 through 51 must terminate operations if they receive notice of likely interference to a new 600 MHz Band licensee that intends to commence operations or conduct first field application (FFA) testing on their licensed 600 MHz spectrum. The Commission has granted a number of 600 MHz licenses, which authorized the licensees to construct facilities on their new spectrum. T-Mobile USA (T-Mobile), one of the recipients of those licenses, provided notices to certain LPTV and TV translator stations that it would commence operations or conduct FFA testing on some of its licensed spectrum before the opening of the Special Displacement Window. The Commission therefore provided tools to these “early displaced” LPTV/translator stations to ensure that they would be able to continue to broadcast. One of these tools was for a displaced station to submit a displacement application prior to the opening of the Special Displacement Window with a request for waiver of the current displacement freeze, and file for Special Temporary Authority to temporarily operate the facility proposed in the displacement application. The Tools PN further explained that applications filed with a request for waiver of the displacement freeze would be treated as if filed on the last day of the Special Displacement Window and processed in accordance with the rules for that window. Approximately 340 displacement applications were filed prior to the Special Displacement Window pursuant to the Tools PN. Independent of the Tools PN, T-Mobile created a Supplemental Reimbursement Plan whereby it committed to pay the reasonable costs associated for such stations to move from a temporary channel to a permanent channel if the station's displacement application for the temporary channel was not granted and the station therefore needs to move twice. In addition, T-Mobile and PBS announced in June 2017 that T-Mobile had committed to cover the costs for PBS translator stations to relocate their frequencies following the incentive auction.
16. FM Broadcasters. FM broadcasters were not eligible to participate in the auction, were not subject to the repacking process, and were not eligible for reimbursement pursuant to the Spectrum Act. While FM spectrum was not subject to reorganization in the repacking process, FM stations may be affected by the reorganization of broadcast television spectrum if, for example, an FM station shares a tower with a repacked TV station. Changes to the facilities of the TV station could affect the FM station if, for example, the FM station antenna must be moved, either temporarily or permanently, to accommodate the TV station's change or if an FM station needs to power down, or cease operating temporarily, to permit a repacked TV broadcaster to modify its facilities. In total, we estimate this could include fewer than 500 full-service stations.
17. As we initiate the proceeding to reimburse additional entities affected by the reorganization of broadcast television spectrum, we find the current eligibility criteria, process, and procedures associated with the Reimbursement Fund instructive. We summarize pertinent details below.
18. The Spectrum Act requires the Commission to reimburse full power and Class A broadcast television licensees for costs “reasonably incurred” in relocating to their new channels assigned in the repacking process, and to reimburse MVPDs for costs “reasonably incurred” in order to continue to carry the signals of stations relocating to new channels as a result of the repacking process or a winning reverse auction bid. Congress specified that these reimbursements be made from the Reimbursement Fund, and that the Commission make all reimbursements within three years after completion of the forward auction (Reimbursement Period). In the Incentive Auction R&O, the Commission concluded that, with respect to broadcast licensees, the Spectrum Act's reimbursement mandate applies only to full power and Class A television licensees that are involuntarily reassigned to new channels in the repacking process.
19. In the Incentive Auction R&O, the Commission established the reimbursement process that is currently in place. Following the release of the Closing and Channel Reassignment PN, entities seeking reimbursement provided information regarding their existing broadcasting equipment and their plan to accomplish the channel transition, including an estimate of their eligible costs, by filing FCC Form 2100, Schedule 399 (the Reimbursement Form), in the Media Bureau's Licensing and Management System (LMS). Estimated costs could be provided by the entity or by using predetermined cost estimates based on the Catalog of Potential Expenses and Eligible Costs (Catalog of Reimbursement Expenses, or Catalog) developed by the Media Bureau. The Catalog sets forth categories of expenses that are most likely to be commonly incurred by broadcasters and MVPDs as a result of the repacking process, together with ranges of prices for the potential expenses. The Media Bureau, with assistance from a contractor with extensive experience in television broadcast engineering and Federal funds management (Fund Administrator), reviews the cost estimates.
20. The Commission's goal is to ensure that reimbursement funds are allocated fairly and consistently across all eligible entities and, at the same time, to have sufficient flexibility to make reasoned allocation decisions that maximize the funds available for reimbursement. To this end, reimbursement funds are being allocated in tranches, with the allocation amounts calculated based in part on the total amount of repacking expenses reported on the estimated cost forms as well as the amount of money available in the Reimbursement Fund. On October 16, 2017, an initial allocation of approximately $1 billion was made, which represented approximately 52 percent of the then-current verified cost estimates for commercial stations and MVPDs, and 62 percent for NCE broadcasters. A further allocation of approximately $742 million was made on April 16, 2018, providing all repacked full power and Class A stations and MVPDs access to approximately 92.5 percent of their then-current verified cost estimates. The Commission will continue to monitor closely the draw-down of the Reimbursement Fund to determine if additional allocations are warranted.
21. The allocation is available for draw down and reimbursement from the U.S. Treasury as the entities incur
22. Prior to the end of the three-year Reimbursement Period, entities must provide information regarding their actual and remaining estimated costs and will be issued a final allocation, if appropriate, to cover the remainder of their eligible costs. If any allocated funds remain in excess of the entity's actual costs determined to be eligible for reimbursement, those funds will revert back to the Reimbursement Fund. In addition, if an overpayment is discovered, even after the end of the Reimbursement Period, entities will be required to return the excess to the Commission.
23. As an initial matter, we seek comment on how to interpret the statute with respect to amounts available to reimburse eligible entities pursuant to the REA using funds appropriated for fiscal year 2019. Section 511(j)(1) of the REA appropriates funds “to the TV Broadcaster Relocation Fund established by [47 U.S.C. 1452(d)]”—specifically, $600 million for fiscal year 2018 and $400 million for fiscal year 2019. Section 511(j)(2) of the REA discusses the “availability of funds” and provides that, if the Commission makes the required certification, “amounts made available to the TV Broadcaster Relocation Fund by [Section 511(j)(1)] shall be available to the Commission to make” certain specified payments. In particular, Section 511(j)(2)(A) states that funds appropriated in Section 511(j)(1) shall be available to the Commission to make payments required by the Spectrum Act and the REA, including “not more than” $350 million to reimburse full power and Class A stations and MVPDs from fiscal year 2018 funds, “not more than” $150 million to reimburse LPTV and TV translator stations from fiscal year 2018 funds, and “not more than” $50 million to reimburse FM broadcast stations from fiscal year 2018 funds. It also states that funds appropriated in Section 511(j)(1) shall be available to the Commission to make payments “solely for the purposes of consumer education relating to the reorganization of broadcast television spectrum,” including $50 million from the funds available for fiscal year 2018. While Section 511(j)(2)(A) clearly delineates the availability of funds for fiscal year 2018, it does not do so with respect to fiscal year 2019 funding.
24. We therefore seek comment on whether the $400 million appropriated to the Reimbursement Fund for fiscal year 2019 is only available to reimburse eligible full power and Class A stations and MVPDs for costs reasonably incurred in the repacking process or whether the REA also permits this money to be used to reimburse LPTV, TV translators, and FM broadcast stations, as well as to fund the Commission's consumer education efforts.
25. If the Commission were to interpret the statute to find that it is authorized to reimburse eligible LPTV, TV translator, and FM broadcast stations and to fund consumer education efforts from the fiscal year 2019 funds, in addition to reimbursing full power, Class A, and MVPD entities, we seek comment on whether and how the Commission should prioritize this funding. While we have received estimates of the costs that full power and Class A stations anticipate as a result of their channel reassignments, we have no estimates to date of the costs that will be incurred by LPTV, TV translator, and FM stations. Moreover, as we have indicated, we anticipate that the estimates for full power and Class A stations will increase as their construction process continues. It is therefore possible that there will be significant demand on the Reimbursement Fund from all categories of eligible entities such that the total amount available may not be sufficient to cover all their eligible expenses. If so, should the Commission prioritize the payments to full power and Class A stations over those of FM stations and LPTV/translator stations? We also seek comment on whether the Commission should prioritize the payment of full power and Class A stations over any aggregate costs exceeding the limits described in Section 511(j)(2) of $50 million for FM stations and $150 million for LPTV/translator stations. In other words, should the Commission consider reimbursement of costs above those aggregate amounts for FM and LPTV/translator stations only after full power and Class A expenses are fully satisfied? We seek comment on these issues.
26. As discussed above, the REA authorized the Commission to reimburse “costs reasonably incurred by a television translator or low power television station on or after January 1, 2017, in order for such station to relocate its television service from one channel to another channel or otherwise modify its facility as a result of the reorganization of broadcast television spectrum” under Section 6403(b) of the Spectrum Act. In this section, we seek comment on issues related to eligibility and expenses under the REA provisions for reimbursement of displaced LPTV and TV translator stations.
27. The REA provides that costs reasonably incurred by certain “television translator station[s] or low power television station[s]” to relocate channels or modify facilities as a result of the reorganization of broadcast television spectrum are eligible for reimbursement. The REA specifies that these two types of stations are to be defined pursuant to the definition included in 47 CFR 74.701. We interpret this provision to mean that LPTV and TV translator stations, as defined by § 74.701 of our rules, may be eligible for reimbursement under the Reimbursement Fund if they meet the additional eligibility criteria discussed below, and we seek comment on this interpretation.
28. The REA provides that “[o]nly stations that are eligible to file and do file an application in the Commission's Special Displacement Window are eligible to seek reimbursement.” The Media Bureau has provided that, to be eligible to file in the Special Displacement Window, a station had to be an LPTV/translator station that was “operating” on April 13, 2017—the date of the release of the Closing and Channel Reassignment PN. Furthermore, for this purpose, a station is “operating” if it had licensed its authorized construction permit facilities or had an application for a license to cover on file with the Commission on that date. The station must also be “displaced . . . as a result of the
29. While the threshold eligibility criteria set forth in the REA require only that a station was “eligible to file and [did] file an application” in the Special Displacement Window, we tentatively conclude that, to be eligible for reimbursement, a station's displacement application filed during the Special Displacement Window (or prior to the window with grant of a waiver, or subsequently amended prior to the close of the Settlement Window) must be granted. Although this requirement is not mandated by the REA, we believe that this additional criterion is essential to ensure the integrity of the reimbursement program and is consistent with Section 511(k)(1), which requires reimbursement of only costs reasonably incurred to “relocate . . . television service from one channel to another channel . . . or otherwise modify [a] facility.” We believe that eligibility must be limited to stations with valid displacement construction permits obtained through the procedural mechanisms associated with the Special Displacement Window that will permit them to construct the displacement facilities for which they receive reimbursement. Otherwise, providing reimbursement to eligible stations whose applications are not granted will result in reimbursement for expenses related to facilities that will not be constructed to “relocate . . . television service from one channel to another channel . . . or otherwise modify [a] facility.” We seek comment on this tentative conclusion.
30. An LPTV/translator station that filed in the Special Displacement Window whose application is dismissed may subsequently file a displacement application when the Media Bureau lifts the freeze on the filing of such applications. We tentatively conclude that such stations will be eligible for reimbursement under the REA if their later-filed displacement application is subsequently granted. Although they would receive their construction permit through a displacement application that was not filed during the Special Displacement Window, these stations would meet the threshold eligibility criteria under the REA because such stations were “eligible to file and [did] file an application” in the Special Displacement Window. In addition, such stations are affected by the reorganization of broadcast television spectrum in the same way as other displaced LPTV/translator stations. We seek comment on whether and how such stations could be included in the reimbursement process considering that they will not be able to meet the same filing deadlines applicable to other eligible LPTV/translator stations that have applications granted in the Special Displacement Window and, depending on the demand on the Reimbursement Fund, this difference could result in a lack of reimbursement resources. Would allowing such stations to be eligible for reimbursement be appropriate given the finite resources of the Reimbursement Fund? Should such stations be eligible for reimbursement only to the extent funds remain available for LPTV/translator stations in the Reimbursement Fund?
31. The REA provides that only stations that were “licensed and transmitting for at least 9 of the 12 months prior to April 13, 2017,” are eligible to receive reimbursement under the REA. The statute also specifies that “the operation of analog and digital companion facilities may be combined” for purposes of the “licensed and transmitting” requirement. We propose that, consistent with the eligibility requirement for participation in the Special Displacement Window, stations that were licensed or that filed a license to cover application prior to April 13, 2017, be considered “licensed” for purposes of REA reimbursement eligibility.
32. Because neither Commission rules nor the REA specifies a definition of “transmitting,” we propose a definition that relies on the Commission's minimum operating schedule rule for commercial full power television broadcast stations. That rule provides that commercial full power television stations must “operate” not less than 2 hours in each day of the week and not less than a total of 28 hours per calendar week. Therefore, we propose that, in order to be considered “transmitting,” stations seeking reimbursement under the REA must have been operating not less than 2 hours in each day of the week and not less than a total of 28 hours per calendar week for 9 of the 12 months prior to April 13, 2017. We believe that, given the finite nature of the Reimbursement Fund, it is necessary to give reasonable meaning to the eligibility criteria set forth in the REA. By defining “transmitting” in the same way as we do for full power stations, we intend to prioritize reimbursement for LPTV/translator stations that provided more robust service to the public over those that were on the air for only a brief period each day. Because a translator station is required to retransmit the signal of a television station, we would expect that most, if not all, translators would meet this requirement. We believe that this requirement reflects the legislative mandate that only “transmitting” stations be eligible to receive reimbursement. We seek comment on this proposal.
33. We propose that stations be required to certify compliance with the minimum operating requirement we adopt as part of the reimbursement process. LPTV/translator stations may be required to provide evidence to support this certification, such as documentation of the programming aired by the station during the period of time in question, electric power bills, or other evidence showing that the station was transmitting during this time period. The Commission previously determined that, with respect to the incentive auction reimbursement program, “audits, data validations, and site visits are essential tools in preventing waste, fraud, and abuse, and that use of these measures will maximize the amount of money available for reimbursement.” With respect to reimbursing low-power broadcast stations, we contemplate that a third party firm on behalf of, or in conjunction with, the Media Bureau may conduct audits, data validations, site visits or other verifications to substantiate the supporting evidence and representations of entities that certify that they meet the eligibility criteria adopted in this proceeding to the extent necessary. We propose to direct such entities to make available any relevant documentation upon request from the Commission or its contractor. We emphasize that a false certification may result in disqualification and other sanctions provided for in the Communications Act and the Commission's rules. We seek comment on these proposals.
34. Early Displaced Stations. We propose that LPTV and TV translator stations that were displaced early, were eligible to file in the Special Displacement Window, and filed a displacement application prior to the
35. Replacement Translators. In the Incentive Auction R&O, the Commission concluded that digital low power TV translator stations authorized pursuant to § 74.787(a)(5) of the Commission's rules (analog-to-digital replacement translators, or DRTs) that were displaced by the incentive auction and repacking process are eligible to file displacement applications during the Special Displacement Window. Because DRTs are potentially displaced as a result of the reorganization of broadcast television spectrum, were eligible to file in the Special Displacement Window, and are considered “TV translators” and licensed under the same Part 74 rules as other TV translator stations, we propose that displaced DRTs also are eligible for reimbursement pursuant to the REA, as long as they meet the other eligibility requirements. We seek comment on this proposal.
36. In the LPTV DTV Third R&O, the Commission established a new digital-to-digital replacement translator (DTDRT) service to allow eligible full power television stations to recover lost digital service area that could result from the repacking process. The Commission concluded that full power stations may begin to file for DTDRTs beginning with the opening of the Special Displacement Window on April 10, 2018, and ending one year after completion of the incentive auction transition period. Although they were eligible to file in the Special Displacement Window, and DTDRTs are similar to DRTs in that they are considered “TV translators” and licensed under the same Part 74 rules as other TV translator stations, we tentatively conclude that new DTDRTs are not eligible for reimbursement under the REA because they would not have been “licensed and transmitting” for 9 of the past 12 months prior to April 13, 2017, as required by the statute. In addition, even if they were otherwise eligible under the statutory criteria, DTDRTs are newly established facilities and thus are not “relocat[ing] . . . from one channel to another channel” or “modify[ing]” their facilities as required by the statute. We seek comment on this tentative conclusion.
37. Class A Television Licensees. As noted above, Section 511(k)(3) of the REA prohibits duplicative payments from the Reimbursement Fund to “a low power television station that has been accorded primary status as a Class A television licensee under [47 CFR 73.6001(a)].” Specifically, Section 511(k)(3)(A) provides that such licensee may not receive reimbursement under Section 511(k)(1) of the REA if such station has received reimbursement under Section 6403(b)(4)(A)(i) of the Spectrum Act (including the additional funding made available for reimbursing full power, Class A, and MVPDs in Section 511(j)(2)(A)(i) of the REA). We interpret this language to underscore that Class A stations reimbursed from funds for Class A stations under the Spectrum Act or the REA are not eligible for reimbursement from funds dedicated to LPTV/translator reimbursement under the REA. Such Class A stations were not eligible to file an application during the Special Displacement Window and thus do not qualify for reimbursement for LPTV/translator stations under the REA. Similarly, Section 511(k)(3)(B) specifies that a low power television station that has been accorded primary status as a Class A television licensee that receives reimbursement under Section 511(k)(1) of the REA may not receive reimbursement under Section 6403(b)(4)(A)(i) of the Spectrum Act. We interpret this language to underscore that such stations that filed in the Special Displacement Window are not eligible for reimbursement under Section 6403(b)(4)(A)(i) because they are not full power or Class A stations involuntarily reassigned to a new channel in the repacking process. We seek comment on our interpretations.
38. The REA provides that the Commission shall “reimburse costs reasonably incurred by a television translator station or low power television station on or after January 1, 2017, in order for such station to relocate its television service from one channel to another channel or otherwise modify its facility as a result of the reorganization of broadcast television spectrum” under the Spectrum Act. As discussed above, on April 13, 2017, we released the Closing and Channel Reassignment PN, which announced the completion of the auction, the auction results, the broadcast television channel reassignments made through repacking, and the 600 MHz Band plan reflecting the reallocations of broadcast television spectrum for flexible use and the frequencies that will serve as part of the 600 MHz Band guard bands. We interpret the REA to provide for reimbursement of reasonably incurred relocation costs for LPTV/translator stations that were displaced “as a result of the reorganization of broadcast television spectrum” under the Spectrum Act, which includes displacement resulting from full power and Class A channel reassignments made in the Closing and Channel Reassignment PN and from the reallocation of broadcast television spectrum for flexible use by a 600 MHz Band wireless licensee or for use as 600 MHz Band guard bands.
39. While the Commission's reorganization of television spectrum under Section 1452(b) of the Spectrum Act was completed with the issuance of the Closing and Channel Reassignment PN, the Commission also afforded reassigned stations the opportunity to file applications for alternate channels or expanded facilities during two filing windows that ended on September 15 and November 2, 2017. We anticipate that some LPTV/translator stations that filed applications during the Special Displacement Window may have been displaced by grant of an application filed during one of the alternate channel/expanded facilities filing windows, rather than the channel reassignments specified in the Closing and Channel Reassignment PN. While applications filed during the two filing windows by reassigned full power and Class A stations to modify their repacked facilities were not required under Section 1452(b) of the Spectrum Act, they may have resulted in displacement of LPTV/translator stations making those stations eligible to file applications in the Special Displacement Window. Accordingly, we seek comment on whether the REA's requirement that we reimburse costs reasonably incurred “as a result of the reorganization of broadcast television spectrum” extends to include costs
40. We tentatively conclude that the equipment and other costs necessary for an eligible LPTV/translator station to construct the facilities authorized by grant of the station's Special Displacement Window application shall be considered costs “reasonably incurred,” and seek comment on this tentative conclusion. This approach is similar to the reimbursement program used for full power and Class A stations with the following distinction. In implementing the Spectrum Act's reimbursement provisions for full power and Class A stations reassigned to new channels, the Commission concluded that the Act required that it reimburse costs “that are reasonable to provide facilities comparable to those that a broadcaster . . . had prior to the auction that are reasonably replaced or modified following the auction, as a result of the repacking process, in order to allow the broadcaster to operate on a new channel . . . .” This included reimbursement “for modification or replacement of facilities on the post-auction channel consistent with the technical parameters identified in the Channel Reassignment PN.” The Spectrum Act required that the Commission make “all reasonable efforts” in the repacking process to preserve coverage area and population served of full power and Class A stations. Thus, the post-auction channel reassignments specified in the Closing and Channel Reassignment PN were made at stations' existing locations and largely replicated stations' pre-auction facilities.
41. We do not believe that a similar “comparable” facilities reimbursement standard can, as a technical matter, be applied to displaced LPTV/translator stations. Displaced LPTV/translator stations, unlike full power and Class A stations, may need to move their transmitter and antenna locations in addition to changing channels. In order to continue to provide service to viewers from the new site, stations may need to increase their effective radiated power and height, which may require the purchase of transmitters, transmission lines, and other equipment that is not “comparable” to their existing equipment. Therefore, we tentatively conclude that the equipment and other costs necessary for an eligible LPTV/translator station to construct the facilities authorized by grant of the station's Special Displacement Window application shall be considered “reasonably incurred,” consistent with other reimbursement procedures and processes we propose herein (such as requiring broadcasters to reuse equipment and take other steps to mitigate costs where possible). We propose to permit LPTV/translators to be reimbursed for both “hard” expenses, such as new equipment and tower rigging, and “soft” expenses, such as legal and engineering services, but, as discussed below, propose to direct the Media Bureau to prioritize, if necessary, the payment of certain hard costs necessary to operate the stations over soft costs to assure that such costs are recoverable to the extent possible under a limited fund. We seek comment on these tentative conclusions and on any alternative reimbursement approaches for eligible LPTV/translator stations. For example, should we permit as costs “reasonably incurred” those costs necessary to provide replacement facilities of comparable coverage? When reimbursing low-power broadcasters for equipment, to what extent could the Commission reimburse the costs for full service mask filters that could promote spectrum efficiency, even if the station technically could operate at its new location with a stringent or simple mask? Should such equipment be considered a “reasonably incurred” expense that is related to the repack because it would promote greater use of the television band or should it be considered an upgrade that is not eligible for reimbursement?
42. The REA limits reimbursement for LPTV/translators to “costs . . . incurred . . . on or after January 1, 2017.” We propose to interpret this provision to require that an LPTV/translator station have either expended funds or ordered equipment or services for a cost otherwise eligible for reimbursement on or after that date in order to be eligible for reimbursement pursuant to the REA. We invite comment on this proposal.
43. In implementing the Spectrum Act's reimbursement provisions, the Commission concluded that it would not reimburse stations for new, optional features in equipment that are not already present in the equipment being replaced, and we propose to apply this same approach to eligible LPTV/translator stations. In addition, the Commission required full power and Class A stations seeking reimbursement to reuse their own equipment to the extent possible, rather than acquiring new equipment to be paid for from the Reimbursement Fund, and to “provide a justification when submitting their estimated cost form as to why it is reasonable under the circumstances to purchase new equipment rather than modify their . . . current equipment. . . .” We propose to adopt a similar requirement that displaced LPTV/translator stations reuse their own equipment to the extent possible, and that displaced LPTV/translator stations seeking reimbursement provide a justification why it is reasonable to purchase new equipment rather than reuse existing equipment. We seek comment on these proposals.
44. We propose to exclude “interim facilities” from the type of expenses eligible for reimbursement under the REA. In the Incentive Auction R&O, the Commission concluded that stations that are assigned a new channel in the incentive auction repacking process may need to use interim facilities to avoid prolonged periods off the air during the transition, and, thus, the Commission decided to reimburse full power and Class A stations for such facilities under the Spectrum Act reimbursement provisions. Because of their lower operating power and the fact that the engineering work that is involved in changing channels is more limited than for full power television stations, we believe it is unlikely that LPTV/translator stations will construct interim facilities as part of the displacement process. Furthermore, LPTV/translators are actually displaced at a time determined either by the receipt of a notice from a wireless carrier that the wireless carrier intends to commence operations in the new 600 MHz wireless band or the phase completion date for a full power or Class A station pursuant to the transition schedule. Because LPTV/translators will have less time to construct interim facilities as a practical matter due to the timing of their actual displacement, interim facilities are unlikely to be utilized by such stations. We believe this proposal will also maximize the limited reimbursement funds available for all eligible LPTV/translator stations and seek comment on this analysis.
45. The REA, like the 2012 Spectrum Act, prohibits reimbursement of LPTV/translator stations for “lost revenues.” In the Incentive Auction R&O, the Commission defined “lost revenues” to include “revenues that a station . . . loses as a direct or ancillary result of the reverse auction or the repacking process.” We propose to adopt a similar definition of “lost revenues” for
46. The REA provides that “[t]he Commission may not make reimbursement . . . for costs incurred to resolve mutually exclusive applications, including costs incurred in any auction of available channels.” Applications filed during the Special Displacement Window that remain mutually exclusive will be resolved through competitive bidding. We interpret the prohibition against reimbursing for “costs incurred in any auction” to mean that the Commission may not reimburse LPTV/translator station auction bidders under the REA for the costs related to filing an auction application associated with a competitive bidding process, participating in such an auction, and winning bid payments. We seek comment on this interpretation. We also tentatively conclude that costs associated with the Settlement Window to resolve mutual exclusivity will not be reimbursed under the REA. Thus, we propose not to reimburse stations for costs in resolving mutual exclusivity, including engineering studies and preparing application amendments, or the payment of other stations' expenses as part of a settlement. However, we propose to reimburse for costs reasonably incurred in constructing the facilities resulting from settlement and coordination between mutually exclusive applicants. We seek comment on these proposals.
47. We seek comment on whether stations that receive or have received reimbursement of certain expenses from sources of funding other than the Reimbursement Fund should receive reimbursement for those expenses from the Reimbursement Fund. As an initial matter, we note that Section 511(k)(3)(A) specifies that Class A stations that receive reimbursement from “any other source” may not receive reimbursement under the REA. While the REA does not set forth the same requirement for LPTV stations generally, we seek comment on whether a similar prohibition should extend to LPTV stations because a cost that is reimbursed by another source of funding is not a “cost . . . incurred” by the station under Section 511(k)(1). For example, we seek comment on whether displaced LPTV/translator stations that have received reimbursement from T-Mobile for a particular expense should receive reimbursement for that expense pursuant to Section 511(k)(1). As mentioned above, T-Mobile, which holds a number of 600 MHz licenses, began deploying its spectrum in 2017, thereby displacing a number of LPTV/translator stations before the Special Displacement Window opened on April 10, 2018. With respect to these displaced stations that began operating a displacement facility pursuant to an STA, T-Mobile has established a Supplemental Reimbursement Program, to be administered by T-Mobile. According to T-Mobile, it will reimburse eligible licensees “for the costs that they reasonably incur to comply with the permanent channel assignments that they may receive under the Special Displacement Window to the extent those channel assignments differ from the channel assignment these licensees may build following displacement from the 600 MHz band due to T-Mobile's rapid broadband deployment.” Similarly, T-Mobile has reportedly awarded a grant to PBS to “provide funding to enable public television translators . . . to move to new displacement channels regardless of the reason for displacement.” We seek comment on how to address the interplay between the expanded Reimbursement Fund and such pre-REA funding for LPTV relocation.
48. We also seek comment on whether a displaced LPTV/translator station that has received a state governmental grant to construct its displacement facility should be eligible for reimbursement under the REA. Similarly, we seek comment on whether the licensee of a displaced station that has solicited and received donations to construct its displacement facility should be eligible for reimbursement from the REA.
49. Finally, we seek comment on whether displaced LPTV/translator stations should be required to indicate on their reimbursement submissions whether they have received or expect to receive reimbursement from another source as part of the reimbursement process. If so, should they provide documentation of the amount that they have received or expect to receive and the associated eligible expenses covered by that alternate reimbursement? We seek comment on whether stations that are eligible to receive reimbursement from other sources for certain expenses (
50. As mentioned above, in the REA, Congress allocated funds for the purpose of reimbursing costs “reasonably incurred by an FM broadcast station for facilities necessary for such station to reasonably minimize disruption of service as a result of the reorganization of broadcast television spectrum.” In this section, we seek comment on issues related to eligibility and expenses under the REA provisions for reimbursement of FM stations.
51. Congress defined “FM broadcast stations” in the REA by referencing §§ 73.310 and 74.1201 of the Commission's rules. Section 73.310 defines an FM broadcast station as “[a] station employing frequency modulation in the FM broadcast band and licensed primarily for the transmission of radiotelephone emissions intended to be received by the general public.” Additionally, § 74.1201 defines an FM translator as “[a] station in the broadcasting service operated for the purpose of retransmitting the signals of an AM or FM radio broadcast station or another FM broadcast translator station without significantly altering any characteristics of the incoming signal other than its frequency and amplitude, in order to provide radio broadcast service to the general public.” Given these references, we tentatively conclude that “FM broadcast station” as used in the REA includes full-service FM stations and FM translator stations. We seek comment on this tentative conclusion. Further, although low-power FM (LPFM) stations were not specifically referenced in the REA, we note that
52. We tentatively conclude that to be eligible for reimbursement under the REA, an FM station must have been licensed and transmitting on April 13, 2017, and using facilities impacted by a repacked television station. We also tentatively conclude that only those costs associated with the impact at that location will be considered eligible. The REA seeks to reimburse costs “reasonably incurred” by FM stations to “reasonably minimize disruption of service” as a result of the reorganization of broadcast television spectrum, but provides no other additional specificity as to the eligibility of FM stations for reimbursement. We believe it is both necessary and appropriate to impose some reasonable standards on the eligibility of FM stations to be reimbursed from the Reimbursement Fund. We tentatively conclude that we should place the same limitation on FM stations that is applied to LPTV/translator stations. That is, we first propose a cut-off date of April 13, 2017, by which the FM station had to be licensed and transmitting. We choose this date because it is the date on which reverse auction winners and the television stations subject to the repack were identified in the Closing and Channel Reassignment PN. Thus, we tentatively conclude that any FM station that began operating on a facility or at a location impacted by a repacked television station after that date voluntarily assumed the risk of any potential disruption of service to the FM station. We tentatively conclude that any costs incurred by FM stations that undertook such a risk are not “reasonably incurred” under the statutory standard and thus are not eligible for reimbursement pursuant to the REA. We propose that FM stations will be required to certify that they were licensed and transmitting at the facility implicated by the reorganization of broadcast television spectrum on April 13, 2017, and seek comment on this proposal. The REA requires reimbursement “to reasonably minimize disruption of service as a result of the reorganization of broadcast television spectrum under [47 U.S.C. 1452(b)].” As an initial matter, we tentatively conclude that an FM station can experience a service disruption “as a result of the reorganization of broadcast television spectrum under [47 U.S.C. 1452(b)]” either because a full power or Class A television station has been reassigned to a new channel in the Closing and Channel Reassignment PN or because a full power or Class A television station relinquished spectrum usage rights in the reverse auction. In either case, the full power or Class A television station may need to modify its facilities (
53. In addition, we believe it is both necessary and appropriate to impose eligibility requirements for FM stations that define the way an FM station could “reasonably incur” costs as the result of a “disruption of service” caused by “the reorganization of broadcast television spectrum” as required by the REA. We believe a large majority of FM stations will not incur any costs or encounter any disruption of service as a result of the reorganization of broadcast television spectrum. However, in limited circumstances, as defined herein, some FM stations may be affected because they are collocated with, or adjacent, or in close proximity to, a repacked television station such that construction work on the repacked television station's facility necessarily results in a disruption of service to the FM station and requires the FM station to incur costs. Accordingly, we tentatively conclude that only stations that are collocated with, or adjacent, or in close proximity to, a repacked television station are eligible for reimbursement and that the FM station will be required to certify to that fact and identify the television station. We seek comment on these conclusions. We believe that only stations in the following categories will encounter any disruption of service as a result of the reorganization of broadcast television spectrum such that they would be eligible for reimbursement under the REA:
• Category (1)—Stations Forced to Relocate Permanently. We propose that this eligibility category include FM stations required either to vacate their towers, and which therefore incur costs for alternative facilities at a different site, or to relocate their antennas to a different level of their current towers. Either change would modify the station's transmissions and would thus require prior Commission approval. We anticipate that there will be a very small number of FM stations if any in this eligibility category.
• Category (2)—Stations Forced to Temporarily Dismantle Equipment or Make Other Changes Not Requiring Commission Approval. We propose that this eligibility category include FM stations required temporarily to dismount or disassemble equipment, most likely antennas, in order to accommodate work on a television antenna or a tower. We propose that this category also include FM stations required to physically move their transmitter to accommodate new television transmission equipment. While such an equipment move may not be temporary, it is not the kind of facility modification that would change the station's transmissions, and thus would not require Commission approval. We propose this category also include other types of necessary equipment modifications that do not require Commission approval. We anticipate there will be a very small number of FM stations in this eligibility category.
• Category (3)—Stations Forced to Temporarily Reduce Power or Cease Transmission on Their Primary Facility to Accommodate Antenna or Tower Modifications. We propose that this eligibility category would include those FM stations that are required to reduce power or go off the air to protect workers making modifications to television facilities on a tower from RF exposure. The length of time during which a station would have to reduce power or cease transmissions could range from hours to weeks or even months. Such stations could incur costs
54. We believe that reimbursing FM stations for the types of service disruptions described in these categories is consistent with our statutory mandate to reimburse FM stations for “costs . . . for facilities necessary for such station to reasonably minimize disruption of service as a result of the reorganization of broadcast television spectrum,” and we seek comment on our interpretation. We invite comment on the scope of our categories above and ask commenters specifically to explain whether there are additional categories of service disruption that should be reimbursed. We tentatively conclude that FM stations would be required to certify which eligibility category they satisfy, and we seek comment on that conclusion.
55. Section 511(l)(1)(C) specifies that an FM broadcast station that has received payment for “interim facilities” from either a station that was reimbursed under the Spectrum Act or “from any other source” may not receive “any reimbursements” under the REA. Thus, as required by the statutory language, we propose that if an FM broadcast station has received such payment for “interim facilities,” it is ineligible for any reimbursement under the REA. We tentatively conclude that FM stations would be required to certify whether they have received payment for such interim facilities.
56. The REA states that the Commission shall provide reimbursement for “costs reasonably incurred by an FM broadcast station for facilities necessary for such station to reasonably minimize disruption of service as a result of the reorganization of broadcast television spectrum.” We note that the statute does not require reimbursement of costs to ensure there is no disruption of service at all. We tentatively conclude that some level of disruption of service to eligible FM stations is reasonable, and we do not propose to reimburse costs incurred to avoid reasonable disruptions. We also believe that the public interest requires that we seek to maximize the limited funds available for all facilities to address the most significant service disruptions to ensure that the most needed facilities are fully funded. We seek comment below on how to define what costs are “reasonably incurred” and on how to interpret the phrase “to reasonably minimize disruption of service” as contemplated by the REA, and we propose an approach for prioritization of reimbursement to stations with a greater level of service disruption to preserve limited funds.
57. As described below, we propose that eligible costs for Category (1) and Category (2) stations are similar to eligible costs for full power and Class A stations in the repack and therefore should be reimbursed in a similar manner. We propose, however, that the cost for Category (3) stations should be subject to a graduated priority system and reimbursable only when the disruption of service is significant enough to make it reasonable for a station to incur costs to minimize the disruption, and then on a scale that balances the level of the service disruption with the need to maximize the finite funds and ensure the most significantly impacted facilities are fully funded. We seek comment on these proposals as detailed below.
58. The existing reimbursement program for full power and Class A stations seeks to reimburse costs reasonably incurred for stations to move their facilities to a new channel that was assigned as a result of the incentive auction repacking process using reasonable efforts to preserve each station's coverage area and population served. We believe it is in the public interest to develop a similar standard for the reimbursement of costs associated with Category (1) stations because the nature of the displacement of the FM station and the types of costs incurred are similar. We seek comment on these conclusions. We believe the goal for Category (1) stations should be to rebuild their facility to reasonably replicate the station's coverage area and population served, similar to the standard applicable to full power and Class A stations. Further, we believe that Category (1) stations should be eligible for reimbursement for costs similar to full power and Class A stations to move and reconstruct the current facilities at a new site or tower location, including costs of equipment, professional services such as engineering, and tower and construction work. We believe that such stations are likely to experience the most significant disruption of service of all FM stations because they will be required to entirely or partially dismantle and reconstruct their facilities. As a result, if sufficient funds allocated to reimburse FM stations exist in the Reimbursement Fund, we believe that Category (1) stations should be reimbursed for up to 100 percent of eligible costs similar to the reimbursements provided to impacted full power and Class A stations. As noted above, we believe only a very small number of stations are likely to be included in this category and therefore we do not believe the reimbursement of these stations is likely to be a primary resource demand on the Reimbursement Fund. We seek comment on these conclusions.
59. Examples of reimbursable equipment costs that we believe could be reasonably incurred include transmitters, antennas, coaxial cable or wave guides, and associated equipment needed to reasonably replicate the service being lost. We propose that existing equipment should be reused as appropriate. To the extent that existing equipment cannot be reused, we propose that new equipment may be reimbursable if needed to reasonably replicate service and coverage area. We propose that the costs of engineering to determine what technical facilities are needed to replace existing service at a new site should be considered reimbursable expenses, as well as transportation costs of physically moving equipment to a new site or new location on a tower and any engineering costs associated with the move. We seek comment on these proposals.
60. We believe it is also in the public interest to develop a similar standard for eligible expenses for reimbursement of Category (2) stations because the types of costs incurred are also similar. We seek comment on these conclusions. We believe the goal for Category (2) stations should be to restore the station's existing facility. For example, Category (2) stations could reasonably incur costs that are related to their need to temporarily dismantle equipment or modify their physical facilities. Examples of reimbursable costs could include costs of equipment, professional services such as engineering, and tower and construction work, similar to the
61. In the full power and Class A reimbursement program, the costs of interim facilities are reimbursed in the same manner as other costs incurred for a station to change channels. With respect to the types of costs that would qualify for reimbursement as interim facilities, we seek to apply the same approach to FM stations. We propose that Category (3) stations be reimbursed for the cost of constructing new auxiliary facilities or upgrading existing auxiliary facilities. This would permit FM stations to continue broadcasting while their primary facilities are off the air due to the need to protect tower personnel working on modifications related to the reorganization of broadcast television spectrum. Reimbursable costs could include costs of equipment, professional services such as engineering, and tower and construction work.
62. As described in more detail below, we tentatively conclude that reimbursement of interim facility costs should be linked to the level of service disruption avoided by resorting to interim facilities, and therefore propose to reimburse on a graduated priority system reflecting a percentage of total costs for these interim facilities. We further tentatively conclude that it is not unreasonable for there to be some temporary disruption of service to permit construction work or maintenance on a collocated, adjacent, or nearby station. FM stations regularly power down or remain silent for temporary periods to accommodate tower or antenna work and transmitter maintenance, and we conclude from this fact that such actions are ordinary and reasonable occurrences. We therefore believe that it is appropriate to reimburse costs for interim facilities only if they are needed to avoid service interruptions that would otherwise exceed ordinary construction or maintenance requirements. Furthermore, operating from interim facilities does not require service that is identical to the station's primary service. We believe this different approach is justified by the different standard enunciated in the REA, requiring us to consider what expenses “reasonably minimize” disruption of service rather than the Spectrum Act's mandate to reimburse expenses resulting from a channel change. Furthermore, we anticipate that the majority of reimbursement requests from FM stations will be in Category (3), and that they will account for the majority of the demand by FM stations for resources from the Reimbursement Fund. Thus, we tentatively conclude that a graduated scale is in the public interest because it properly reflects the level of service disruption, which could vary from hours to weeks or even months, and therefore balances our need to preserve finite funds for the most significant instances of service disruption. Under this proposal, reimbursement percentages in excess of those proposed below might be available if, after making all the payments for interim facilities and other eligible expenses, there is sufficient money to pay a higher reimbursement percentage to FM stations in the Reimbursement Fund. We seek comment on these proposals herein.
63. We believe that the amount of broadcaster reimbursement for interim facilities should be linked to the amount of time the FM station is off the air due to the reorganization of broadcast television spectrum. These time periods will likely range from hours to, in extreme and hopefully rare cases, months. Additionally, we believe that the times of day during which stations are off the air should also play a part in our calculus. Some stations may be subject to limited service disruptions, for instance, if tower work or work on co-tenant antennas is limited to nighttime hours which would minimize broadcast time lost during peak listening hours. Such stations will not be as adversely affected as those required to reduce power or go off-air for extended periods of time. As to the latter group of affected stations, we find that the reimbursement for interim facilities should be greater the longer they are required to be off the air. The longer the lost airtime, the more service disruption and, thus, the greater justification for reimbursement for the construction of permanent auxiliary facilities.
64. Further, we note that transmissions from interim facilities would not exactly replicate the areas or populations covered from the licensed transmitter site. Thus, we propose that 80 percent of an FM station's coverage area or covered population should be replicated by the interim facility in order to constitute reasonably minimal disruption of service. In another context, when a rule requires provision of a certain strength signal to an entire community, the Commission has held that when a station provides that signal strength to 80 percent or more of either the area or the population of the community, such a signal may be considered to be in substantial compliance with the rule. We believe this 80 percent standard is an acceptable yardstick for measuring interim FM service, especially given that near-exact replication of a station's coverage area from an alternative site, in many if not most cases, may not be achieved without significant expense. Accordingly, we propose that FM signal coverage of either 80 percent of the area or 80 percent of the population covered by an FM station at its licensed site be considered to be substantial interim coverage and, thus, tentatively conclude it would meet the REA standard of reasonably minimizing disruption of service. We invite comment on this proposal, including comment on the costs of requiring a greater or lesser level of interim service.
65. We seek comment on the need to develop a prioritization scheme for reimbursement of FM broadcast stations under either statutory interpretation of the amounts available to reimburse such stations. We seek comment on the following graduated priority system of reimbursement for interim facilities constructed to minimize service disruptions to FM broadcast stations forced to go off-air due to the reorganization of broadcast television spectrum. We note that additional percentages for reimbursement might be available if, after making all the payments for interim facilities and other eligible expenses, there is sufficient money to pay a higher reimbursement percentage to FM stations in the Reimbursement Fund. If adopted, we propose to direct the Media Bureau to determine whether and what higher percentage of funds should be paid to Category (3) stations.
• Stations Off-Air for Less Than 24 Hours, or Off-Air Only During Hours from 10:00 p.m.-6:00 a.m. Local Time or Less Than Five Non-Peak Broadcast Hours Per Day: No reimbursement. We propose that such periods off-air be considered a de minimis disruption of service.
• Stations Off-Air for 24 Hours to 10 Days: May be reimbursed up to 50 percent of eligible costs reasonably
• Stations Off-Air for 11 Days to 30 Days: May be reimbursed up to 75 percent of eligible costs reasonably incurred to construct new auxiliary facilities, to upgrade existing auxiliary facilities to cover 80 percent of the covered area and/or population of the existing facility, or to build interim facilities for eligible secondary services.
• Stations Off-Air for More than 30 Days: May be reimbursed up to 100 percent of eligible costs reasonably incurred to construct new auxiliary facilities, to upgrade existing auxiliary facilities to cover 80 percent of the covered area and/or population of the existing facility, or to build interim facilities for eligible secondary services.
66. We seek comment on these issues and on whether reimbursing FM stations on a graduated scale is in the public interest. In particular, we seek comment on whether failing to pro-rate the amount of reimbursement for interim facilities might reduce reimbursement for all affected FM stations, given the total amount of money available to FM stations for reimbursements. We also request comment on the time off-air benchmarks set forth in paragraph 65, and whether they should be adjusted up or down. In particular, we seek comment on whether time off-air during nighttime and early morning hours should be considered de minimis and, if not, what level of reimbursement for auxiliary facilities should be allowed for such stations to provide interim nighttime service. If commenters disagree with the proposed reimbursement scheme, what alternative proposals do they recommend to ensure we allocate the limited funds fairly and equitably across all FM stations?
67. We acknowledge that the graduated scale could be subject to manipulation where the construction project is prolonged in order to reach a number of days that correlates to a higher reimbursement percentage. We believe that this concern is mitigated by the fact that the FM station will ordinarily not be in control of the repacked television station's construction project, and that a repacked television station is unlikely to prolong for the benefit of the FM station the time period that it employs vendors and service providers to perform construction. Nevertheless, in order to minimize the potential for gaming the system, we seek comment on whether to pay reimbursement for interim stations only after the period of time has expired and the number of days can be and is certified by the station. We also seek comment on whether to require certification by the FM station concerning the number of days the station could not broadcast from its primary facility due to construction work of a repacked television station. As noted herein, we intend to conduct audits, data validations, and site visits, as appropriate, to prevent waste, fraud, and abuse. As part of that process, we could require a repacked television station to provide, upon request, a statement or other information regarding the dates that work was being done that impacted the FM station. We seek comment on these issues and on additional ways we can minimize this potential problem.
68. To the extent that a Category (3) station is required to lease tower space for a new auxiliary facility, we propose to allow reimbursement only for those lease payments covering the period of time during which the primary station is off the air due to the reorganization of broadcast television spectrum. In other words, we will not reimburse for tower lease payments except during the period when the repacked television station's construction work is actively preventing the FM station from broadcasting from its primary facility and not for any period of time thereafter. We request comment on this proposal.
69. We expect that no FM broadcast station will be forced to change its frequency as a result of the reorganization of broadcast television spectrum and, thus, we tentatively conclude that expenses for retuning or replacing antennas or transmitters to accommodate channel changes will not be eligible for reimbursement. We seek comment on this expectation.
70. As noted above, full power and Class A stations can be reimbursed only for comparable facilities, while we propose that LPTV/translators may in certain cases require modified facilities due to the fact that LPTV/translators may need to change locations and not just channels. Similarly, we tentatively conclude that the full power and Class A comparable facilities reimbursement standard cannot be applied in the same manner to FM stations in Categories (1) and (2) because the goal is to reasonably replicate the service type and area from a different location (Category (1)) or restore service using alternate equipment (Category (2)). In some cases, this can be accomplished using existing equipment or its equivalent, but in other cases this will require modified or differently configured equipment. For instance, a move of an FM station's antenna to a lower spot on the same tower could, in order to replicate the station's existing signal contours, require replacement equipment with an increase in ERP, either by using a transmitter with higher power output or an antenna with higher gain. In the (we expect rare) cases in which a station is forced to move to another tower, reasonably replicating current service might involve both of those options and/or design and construction of an antenna with a directional pattern, in order to avoid prohibited interference to other FM stations.
71. To the extent that a Category (1) station would propose to construct a new tower, we propose to reimburse tower construction expenses only upon a showing that no space is available on other local towers that would enable it to reasonably replicate current service. Even if it were able to make such a showing, we seek comment on whether and how we should discount any reimbursement for tower construction costs, given that such “vertical real estate” carries with it the potential for revenue generation for the FM station, perhaps in substantial amounts. We seek comment on this proposal.
72. Similar to our tentative conclusion above concerning LPTV/translators, we also propose that we will follow the Commission's determination in the existing reimbursement program and not reimburse stations for new, optional features in equipment that are not already present in the equipment being replaced. For example, we would not reimburse an analog-only FM station to add hybrid digital capability. A station that contemplates a rule-compliant modification to a higher station class or to an expanded service area as part of a required move may do so, but we propose to limit reimbursement only to costs needed to return the station to its original service area. We seek comment on these proposals. While the REA contains a provision precluding duplicative payments relating only to “interim facilities,” we tentatively conclude that FM broadcast stations that receive or have received reimbursement of expenses from sources of funding other than the Reimbursement Fund, such as co-located television stations and/or tower owners providing reimbursement under contractual provisions, will not receive reimbursement for those expenses from
73. In addition, the Commission required full power and Class A stations seeking reimbursement to reuse their own equipment to the extent possible, rather than acquiring new equipment to be paid for from the Reimbursement Fund, and to “provide a justification when submitting their estimated cost form as to why it is reasonable under the circumstances to purchase new equipment rather than modify their . . . current equipment . . .” We propose to adopt a similar requirement that FM stations reuse their own equipment, to the extent possible. As noted above, we expect that FM stations will not be required to change frequencies, so there should be no issues regarding channel-related equipment modifications. Thus, we believe it is reasonable to require FM stations seeking reimbursement to provide a justification why it is reasonable to purchase new equipment rather than reuse existing equipment. We seek comment on this proposal.
74. The REA, like the 2012 Spectrum Act, prohibits reimbursement of FM broadcast stations for “lost revenues.” In the Incentive Auction R&O, the Commission defined “lost revenues” to include “revenues that a station . . . loses as a direct or ancillary result of the reverse auction or the repacking process.” We propose to adopt a similar definition of “lost revenues” for purposes of reimbursing FM broadcast stations: “revenues that a station loses as a direct or ancillary result of the reorganization of broadcast television spectrum, including the reverse auction and the repacking process.” Under this definition, we would not reimburse a station's loss of advertising revenues while it is off the air implementing either replacement or interim facilities, or for refunds a station is required to make for payments for airtime as a result of being off the air in order to implement such a facility change. We seek comment on our proposal and whether there are other additional categories of costs that FM stations may incur that would constitute “lost revenues” not eligible for reimbursement under the REA.
75. Our goal is to develop a reimbursement process for the newly eligible entities that is as simple and straightforward as possible to minimize both the costs associated with reimbursement as well as the burdens on affected parties and the Commission. At the same time, we are committed to a process that is fair and equitable to all eligible entities and that maximizes the funds available for reimbursement by avoiding waste, fraud, and abuse.
76. As discussed below, we propose to reimburse eligible LPTV, TV translator, and FM broadcast stations using a procedure that is substantially similar to what is currently being used by the Commission to provide reimbursements to full power and Class A stations and MVPDs. We believe that using a process and resources that have proven effective is a reasonable approach as it should result in a smooth and expeditious reimbursement process for LPTV/translator and FM stations. At the same time, we propose to make certain adjustments and simplifications to this process as we describe below. We invite comment generally on whether and how the process might be further streamlined in light of the fact that the money available to reimburse LPTV/translator and FM stations is less than that allocated to full power, Class A, and MVPD entities, individual entity expenses may also be expected to be smaller, and many of the stations seeking reimbursement may already have incurred the costs associated with the transition.
77. We propose to require LPTV/translator and FM stations that believe they meet the eligibility requirements and intend to request reimbursement for eligible expenses, to file a form (Eligibility Certification) indicating that they intend to request reimbursement funds. We seek comment on this proposal. We propose that entities be required to certify on the Eligibility Certification that they meet the eligibility criteria adopted in this proceeding and provide documentation or other evidence to support their certification. For example, LPTV/translator stations may be required to provide evidence to support their certification that they meet the minimum operating requirement adopted in this proceeding to be eligible for reimbursement under the REA. Such evidence could include evidence of the programming aired by the station during the period of time in question, as well as electric power bills, and we seek comment on other types of evidence that might be used to demonstrate that a station was transmitting during the relevant time period. Similarly, FM stations could be required to identify the repacked TV station that caused it to be eligible for reimbursement and to provide evidence to support its certification that it was off the air for a sufficient period of time to be eligible for reimbursement for interim facilities, and the period of time it was, or expects to be, silent. As stated previously, the Commission previously determined that, with respect to the incentive auction reimbursement program, “audits, data validations, and site visits are essential tools in preventing waste, fraud, and abuse, and that use of these measures will maximize the amount of money available for reimbursement.” With respect to reimbursing low-power broadcast stations, we contemplate that a third party firm on behalf of, or in conjunction with, the Media Bureau may conduct audits, data validations, site visits or other verifications to substantiate the supporting evidence and representations of entities that certify that they meet the eligibility criteria adopted in this proceeding to the extent necessary. We propose to direct such entities to make available any relevant documentation upon request from the Commission or its contractor. We emphasize that a false certification may result in disqualification and other sanctions provided for in the Communications Act and the Commission's rules. We invite comment on this approach and on possible other kinds of evidence and/or documentation the Media Bureau should require LPTV/translator and FM stations to submit to support their Eligibility Certifications.
78. We also propose to require LPTV/translator and FM stations to list on a revised Reimbursement Form their existing broadcasting equipment and the types of costs they expect to incur. In the full power and Class A program, the Media Bureau developed a list of the types of costs stations were most likely to incur together with a range of prices applicable to such expenses. This cost catalog is embedded in the Reimbursement Form used by full power and Class A stations. We intend to develop a revised cost catalog to help LPTV/translator and FM stations provide estimated costs. Alternatively, these stations, like full power and Class A stations, may choose instead to provide their own estimates or actual costs. As noted above, in the Incentive Auction R&O, the Commission required full power and Class A broadcasters and MVPDs eligible for reimbursement to file a form providing estimates of their channel relocation costs. We propose to adopt a consistent approach for entities
79. We note that some LPTV/translator and FM stations will already have incurred costs eligible for reimbursement by the time we adopt rules in this proceeding and begin accepting Eligibility Certifications and Reimbursement Forms. We propose to permit entities to indicate their actual costs instead of providing estimates on the Reimbursement Form for costs already incurred in their initial filings with the Commission. We seek comment on this proposal.
80. We tentatively conclude that the Reimbursement Form for use by newly eligible entities should be simpler and easier to use than the forms used by full power and Class A stations and MVPDs. We seek comment on how we can modify the Form to make it simpler to use. We propose to consider methods by which the revised cost catalog could more readily determine a reasonable estimate for newly eligible stations than the current form used by full power and Class A stations. Are there other ways that a reasonable estimate of expenses can be more readily derived than under the current process? We tentatively conclude that an approach that would eliminate altogether the requirement to submit estimated expenses would not provide the Commission with information concerning the potential total demand on the Reimbursement Fund and other information necessary for the Media Bureau and Fund Administrator to make reasoned allocation decisions and determine whether reimbursement claims are reasonable, as required by the REA. To the extent, however, that parties disagree with our tentative conclusion, we seek comment on how a reimbursement process without the submission of estimates would work? Without estimates, how would the Media Bureau determine allocations that assure a fair and equitable distribution of the finite Reimbursement Fund? Supporters of a reimbursement process without estimated expenses should also address how such an approach is consistent with Section 511(m)(2) of the REA. We seek comment on our tentative conclusions.
81. We propose that, once the Media Bureau completes its review of the Eligibility Certifications and Reimbursement Forms, it will issue an initial allocation from the Reimbursement Fund to each eligible LPTV/translator and FM station, which will be available to the entity to draw down as expenses are incurred. In the context of the existing reimbursement process for full power and Class A stations, the Media Bureau exercised discretion to determine the appropriate allocation amount based on the circumstances and information available from submitted Reimbursement Forms. Consistent with this approach, as noted in the Order below, we direct the Media Bureau to make allocation decisions for stations eligible for reimbursement under the REA. The amount of the initial allocation, as well as the total amount allocated to each entity, will depend in part on the number of LPTV/translator stations and the number of FM stations that file an Eligibility Certification and the amount available for reimbursement for each type of entity. For example, the Media Bureau may give entities an allocation that is a percentage of their total costs eligible for reimbursement, similar to the approach we took for full power and Class A stations and MVPDs. Alternatively, it could allocate the same fixed amount to entities that must take similar steps as a result of, or are similarly affected by, the reorganization of broadcast television spectrum (
82. Subsequent Allocations. We propose that, after the initial allocation of reimbursement funds to eligible LPTV/translator and FM stations, the Media Bureau may issue one or more subsequent allocation(s). The timing and amount of these subsequent allocation(s) will depend in part on the funds remaining in the LPTV/translator and FM portions of the Reimbursement Fund, the eligible expenses entities have incurred, and the Commission's goal in terms of the percentage or total dollar amount of eligible costs we expect to be able to cover for each entity based on the steps they must take as a result of the reorganization of broadcast television spectrum. We seek comment generally on this proposed reimbursement process.
83. Prioritization of Certain Costs. To the extent that the total amount of reimbursement funds available to LPTV/translators or FM stations may not be not sufficient to cover all eligible expenses at the end of the program, it may be necessary to establish a prioritization scheme for reimbursing eligible expenses. We propose to direct the Media Bureau to perform this prioritization, if necessary. In order to assist the Media Bureau, we seek comment on whether we should prioritize the payment of certain costs, such as certain equipment and engineering expenses, over other types of expenses, such as project management fees, for LPTV/translator and FM stations. For instance, project management fees have proven difficult for the Media Bureau and Fund Administrator to validate in the context of the ongoing reimbursement effort for full power and Class A stations and MVPDs. Given that the amount available for reimbursement for LPTV/translator and FM stations may not be sufficient to cover all eligible expenses incurred by these entities, we believe it may make sense to prioritize, at least initially, certain expenses to maximize the possibility that these costs are covered for all eligible entities. The Media Bureau could, for example, limit the initial allocation provided to LPTV/translator stations to an amount necessary to cover the costs related to any necessary transmitter, transmission line, and antenna equipment, as well as engineering expenses necessary to locate a new channel. Any funds remaining in the LPTV/translator portion of the Reimbursement Fund after these expenses are covered could be distributed in a subsequent allocation. We seek comment generally on this approach. If we were to prioritize certain equipment and engineering costs, which such costs should be prioritized for LPTV/translator stations and which should be prioritized for FM stations?
84. Once the Commission has issued an initial allocation to each eligible LPTV/translator and FM station, we
85. We propose to use revised versions of the financial forms currently being used by full power, Class A, and MVPD entities for purposes of reimbursing eligible LPTV/translator and FM stations. We also propose to use the same procedures to provide reimbursement payments to these newly eligible entities. These procedures were set forth in the Financial Procedures PN. We seek comment generally on this approach. Are there any procedures that we should alter for purposes of reimbursing these newly eligible entities?
86. Specifically, we propose to require LPTV, TV translators, and FM stations to submit their Eligibility Certification, cost estimates, and subsequent requests for reimbursement for expenses they have incurred, together with any required supporting documentation, using the Reimbursement Form (FCC Form 2100, Schedule 399), which we plan to revise for this purpose. As required for full power and Class A stations and MVPDs, we propose that LPTV/translator and FM stations submit the Reimbursement Form electronically via the Commission's LMS database. We propose to require LPTV/translator and FM stations to use a procedure and form similar to our existing FCC Form 1876 and file electronically in the CORES Incentive Auction Financial Module. Entities will be able to track reimbursement payments using the Auction Payments component of the CORES Incentive Auction Financial Module.
87. As discussed in the Order below, we direct the Media Bureau together with the Office of Managing Director to revise these reimbursement forms and procedures as necessary for use by LPTV/translator and FM stations.
88. As with full power, Class A, and MVPD entities, we intend to establish strong measures to protect against waste, fraud, and abuse with respect to disbursements from the Reimbursement Fund for newly eligible entities. The Media Bureau, with assistance from the Fund Administrator, will review the information entities provide in their Eligibility Certification and may require additional information to validate whether the entity is, in fact, eligible for reimbursement pursuant to the criteria established in this proceeding. We propose to require entities to document their actual expenses, including by providing all relevant invoices and receipts, and to retain other relevant records substantiating their certifications and reimbursement claims. Similar to the existing requirement for full power, Class A, and MVPD entities, we also propose to require LPTV/translator and FM stations seeking reimbursement to retain all relevant documents pertaining to construction or other reimbursable changes or expenses for a period ending not less than 10 years after the date on which it receives final payment from the Reimbursement Fund. We invite comment on these proposals.
89. We anticipate that the Reimbursement Form we develop for use by LPTV/translator and FM stations will contain certifications similar to those on the Reimbursement Form used by full power, Class A, and MVPD entities. Thus, an LPTV/translator or FM station seeking reimbursement will be required to certify, inter alia, that it believes in good faith that it will reasonably incur all of the estimated costs that it claims as eligible for reimbursement on the estimated cost form, it will use all money received from the Reimbursement Fund only for expenses it believes in good faith are eligible for reimbursement, and it will comply with all policies and procedures related to reimbursement. In addition, we intend to conduct audits, data validations, and site visits, as appropriate, to prevent waste, fraud, and abuse and to maximize the amount of money available for reimbursement. To ensure transparency with respect to the Reimbursement Fund, we plan to make eligibility and actual cost information available to the public as well as information regarding Reimbursement Fund disbursements. If we discover evidence of intentional fraud, we intend to refer the matter to the Commission's Office of Inspector General or to law enforcement for criminal investigation, as appropriate. We invite comment on these proposals. Are there other steps we should take to avoid potential fraud and ensure that appropriate safeguards are applied to the Reimbursement Fund?
90. The companion Order, which was adopted together with the NPRM, appears separately in the
91. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Federal Communications Commission (Commission) has prepared this present Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities by the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the
92. The NPRM proposes rules to implement Congress's recent directive that the Commission reimburse certain Low Power Television (LPTV), television translator (TV translator), and FM broadcast stations for costs incurred as a result of the Commission's broadcast television spectrum incentive auction. When Congress authorized the Commission to conduct the incentive auction as part of the 2012 Spectrum Act, it required the Commission to reimburse certain costs incurred by full power and Class A television licensees that were reassigned to new channels as a result of the auction, as well as certain costs incurred by multichannel video program distributors (MVPDs) to continue to carry such stations. On March 23, 2018, Congress adopted the Reimbursement Expansion Act (REA), which amends Section 6403 of the Spectrum Act to expand the list of entities eligible to be reimbursed for auction-related expenses to include LPTV, TV translator, and FM broadcast
93. The NPRM proposes a mechanism for reimbursing the newly eligible entities that is substantially similar to the process currently used by the Commission to reimburse full power and Class A licensees and MVPDs as established in the Incentive Auction R&O. The NPRM:
• Tentatively concludes that LPTV and TV translator stations (collectively referred to as LPTV/translator stations) are eligible for reimbursement if (1) they filed an application during the Commission's Special Displacement Window and obtained a construction permit, and (2) were licensed and transmitting for at least 9 of the 12 months prior to April 13, 2017, as required by the REA.
• Tentatively concludes that the Commission will reimburse LPTV/translator stations for their reasonable costs to construct the facilities authorized by the grant of the station's Special Displacement Window application, but will require stations to reuse existing equipment and take other measures to mitigate costs where possible.
• Tentatively concludes that both full power FM stations and FM translators that were licensed and transmitting on April 13, 2017, using the facilities impacted by the repacked television station are eligible for reimbursement under the REA. The NPRM proposes that this will include FM stations that incur costs because they must permanently relocate, temporarily or permanently modify their facilities, or purchase or modify auxiliary facilities to provide service to at least 80 percent of their primary station's coverage area or population during a period of time when construction work is occurring on a collocated repacked television station's facilities.
• Proposes to reimburse up to 100 percent of the costs eligible for reimbursement for FM stations that must relocate permanently, or temporarily or permanently modify facilities, and seeks comment on a graduated, prioritized system to reimburse FM stations for the cost to purchase or modify auxiliary equipment to avoid going silent as a result of the repacking process.
• Proposes to require LPTV/translator and FM stations seeking reimbursement to file with the Commission one or more forms certifying that they meet the eligibility criteria established in this proceeding for reimbursement, providing information regarding their current broadcasting equipment, and providing an estimate of their costs eligible for reimbursement. The NPRM invites comment on ways to streamline the submission of this information for these entities.
• Proposes that after the submission of information, the Media Bureau will provide eligible entities with an allocation of funds, to be available for draw down as the entities incur expenses. The NPRM proposes that the Media Bureau will make an initial allocation toward eligible expenses, followed by subsequent allocation(s) as needed, to the extent funds remain for LPTV/translator stations and FM stations in the Reimbursement Fund, and seeks comment on how to determine the amount of these allocations.
• Proposes to use revised versions of the financial forms currently being used by full power, Class A, and MVPD entities for purposes of reimbursing eligible LPTV/translator and FM stations, and proposes to use the same procedures to provide reimbursement payments to these newly eligible entities.
• Discusses the measures the Commission proposes to take to protect the Reimbursement Fund against waste, fraud, and abuse.
94. The proposed action is authorized pursuant to sections 1, 4, 303, and 336(f) of the Communications Act of 1934, as amended, Section 6403 of the Middle Class Tax Relief and Job Creation Act of 2012, and Section 511, Division E, Title V of the Consolidated Appropriations Act, 2018, Public Law 115-141 (2018), 47 U.S.C. 151, 154, 303, 336(f), 1452.
95. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.
96. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The Small Business Administration has established a size standard for this industry of 750 employees or less. Census data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 819 establishments operated with less than 500 employees. Based on this data, we conclude that a majority of manufacturers in this industry are small.
97. Audio and Video Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing electronic audio and video equipment for home entertainment, motor vehicles, and public address and musical instrument amplification. Examples of products made by these establishments are video cassette recorders, televisions, stereo equipment, speaker systems, household-type video cameras, jukeboxes, and amplifiers for musical instruments and public address systems. The SBA has established a size standard for this industry, in which all firms with 750 employees or less are small. According to U.S. Census data for 2012, 466 audio and video equipment manufacturers were operational in that year. Of that number, 465 operated with fewer than 500 employees. Based on this Census data and the associated size standard, we conclude that the majority of such manufacturers are small.
98. Radio Stations. This economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public.” The SBA has created the following small business size standard for this category: Those having $38.5 million or less in annual receipts. Census data for 2012 shows that 2,849 firms in this category operated in that year. Of this number, 2,806 firms had annual receipts of less than $25,000,000, and 43 firms had annual receipts of
99. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial AM radio stations to be 4,429 stations and the number of commercial FM radio stations to be 6,741, for a total number of 11,170. Of this total, 9,898 stations had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) in October 2014. In addition, the Commission has estimated the number of noncommercial educational FM radio stations to be 4,125. NCE stations are non-profit, and therefore considered to be small entities. Therefore, we estimate that the majority of radio broadcast stations are small entities.
100. Low Power FM Stations. The same SBA definition that applies to radio stations would apply to low power FM stations. As noted above, the SBA has created the following small business size standard for this category: Those having $38.5 million or less in annual receipts. The Commission has estimated the number of licensed low power FM stations to be 2,150. In addition, as of June 30, 2017, there were a total of 7,604 FM translator and FM booster stations. Given that low power FM stations and FM translators and boosters are too small and limited in their operations to have annual receipts anywhere near the SBA size standard of $38.5 million, we will presume that these licensees qualify as small entities under the SBA definition.
101. We note again, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Because we do not include or aggregate revenues from affiliated companies in determining whether an entity meets the applicable revenue threshold, our estimate of the number of small radio broadcast stations affected is likely overstated. In addition, as noted above, one element of the definition of “small business” is that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio broadcast station is dominant in its field of operation. Accordingly, our estimate of small radio stations potentially affected by the proposed rules includes those that could be dominant in their field of operation. For this reason, such estimate likely is over-inclusive.
102. Television Broadcasting. This economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for Television Broadcasting firms: Those having $38.5 million or less in annual receipts. The 2012 economic Census reports that 751 television broadcasting firms operated during that year. Of that number, 656 had annual receipts of less than $25 million per year. Based on that Census data we conclude that a majority of firms that operate television stations are small. We therefore estimate that the majority of commercial television broadcasters are small entities.
103. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.
104. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 390. These stations are non-profit, and therefore considered to be small entities.
105. There are also 2,309 LPTV stations, including Class A stations, and 3,727 TV translator stations. Given the nature of these services, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.
106. The NPRM proposes the following revised reporting or recordkeeping requirements. To implement the REA, it is proposed that eligible entities file forms to demonstrate their eligibility and estimated costs for reimbursement. Specifically, the NPRM proposes to use revised versions of the financial forms currently being used by full power, Class A, and multichannel video programming distributors (MVPD) entities from the incentive auction for purposes of reimbursing eligible LPTV/translator and FM stations. The NPRM proposes to use the procedures to provide reimbursement payments to these newly eligible entities that are similar to those it used for reimbursement in the incentive auction. For example, the NPRM proposes that LPTV, TV translators, and FM stations be required to submit their Eligibility Certification, cost estimates, and subsequent requests for reimbursement for expenses they have incurred, together with any required supporting documentation, using the Reimbursement Form (FCC Form 2100, Schedule 399), which the Commission plans to revise for this purpose. As required for full power and Class A stations and MVPDs, the NPRM proposes that LPTV/translator and FM stations submit the Reimbursement Form electronically via the Commission's Licensing and Management System (LMS) database. The NPRM proposes to require LPTV/translator and FM stations to use a procedure and form similar to the existing FCC Form 1876 and to file electronically in the CORES Incentive Auction Financial Module.
107. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements proposed in this document, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.
108. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into
109. The NPRM proposes rules to implement the REA. The proposed rules are designed allow small entity broadcasters to seek reimbursement in such a manner that is streamlined and the least burdensome. The Commission will consider all comments submitted in connection with the NPRM including any suggested alternative approaches to implementing the REA that would reduce the burden and costs on smaller entities.
110. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission will seek specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.
111. None.
112. The NPRM contains proposed new or modified information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements proposed in the NPRM, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002 (SBPRA), Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
113. Permit But Disclose. The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (
114.
•
•
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
115.
116. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th St. SW, Room CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.
117. Accordingly,
118.
Multichannel video programming distributors (MVPDs), Radio, Reporting and recordkeeping requirements, Television.
47 U.S.C. 154, 303, 309, 310, 334, 336 and 339.
(a) Definitions—
(1)
(2)
(3)
(4) Low power television station. For purposes of this section, the term low power television station means those stations authorized by 47 CFR 74.701.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(b) Only the following entities are eligible for reimbursement of relocation costs reasonably incurred:
(1)
(2)
(3)
(4)
(c) Reimbursement process.
(1)
(i) All entities that are eligible to receive reimbursement will be required to file an estimated cost form providing an estimate of their reasonably incurred costs.
(ii) Each eligible entity that submits an estimated cost form will be required to certify, inter alia, that:
(A) It is eligible for reimbursement;
(B) It believes in good faith that it will reasonably incur all of the estimated costs that it claims are eligible for reimbursement on the estimated cost form;
(C) It will use all money received from the TV Broadcaster Relocation Fund only for expenses it believes in good faith are eligible for reimbursement;
(D) It will comply with all policies and procedures relating to allocations, draw downs, payments, obligations, and expenditures of money from the TV Broadcaster Relocation Fund;
(E) It will maintain detailed records, including receipts, of all costs eligible for reimbursement actually incurred; and
(F) It will file all required documentation of its relocation expenses as instructed by the Media Bureau.
(iii) If an eligible entity seeks reimbursement for new equipment, it must provide a justification as to why it is reasonable under the circumstances to purchase new equipment rather than modify its corresponding current equipment.
(iv) Eligible entities that submit their own cost estimates, as opposed to the predetermined cost estimates provided in the estimated cost form, must submit supporting evidence and certify that the estimate is made in good faith.
(2)
(i) Upon completing construction or other reimbursable changes, or by a specific deadline prior to the end of the Reimbursement Period to be established by the Media Bureau, whichever is earlier, all eligible entities that received an initial allocation from the TV Broadcaster Relocation Fund must provide the Commission with information and documentation, including invoices and receipts, regarding their actual expenses incurred as of a date to be determined by the Media Bureau (the “Final Allocation Deadline”).
(ii) If an eligible entity has not yet completed construction or other
(3)
(4)
(i) Each eligible entity that receives payment from the TV Broadcaster Relocation Fund is required to retain all relevant documents pertaining to construction or other reimbursable changes for a period ending not less than 10 years after the date on which it receives final payment from the TV Broadcaster Relocation Fund.
(ii) Each eligible entity that receives payment from the TV Broadcaster Relocation Fund must make available all relevant documentation upon request from the Commission or its contractor.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public of our determination that canola designated as event B0050-027, which has been genetically engineered to accumulate the long chain omega-3 fatty acid known as docosahexaenoic acid in seed, is no longer considered a regulated article under our regulations governing the introduction of certain genetically engineered organisms. Our determination is based on our evaluation of data submitted by Nuseed Americas Inc. in its petition for a determination of nonregulated status, our analysis of available scientific data, and comments received from the public in response to our previous notices announcing the availability of the petition for nonregulated status and its associated environmental assessment and plant pest risk assessment. This notice also announces the availability of our written determination and finding of no significant impact.
This change in regulatory status will be recognized August 27, 2018.
You may read the documents referenced in this notice and the comments we received at
Supporting documents are also available on the APHIS website at
Dr. John Turner, Director, Environmental Risk Analysis Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1236; (301) 851-3954, email:
The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered (GE) organisms and products are considered “regulated articles.”
The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR part 340. APHIS received a petition (APHIS Petition Number 17-236-01p) from Nuseed Americas Inc. (Nuseed) of Breckenridge, MN, seeking a determination of nonregulated status of canola (
According to our process
APHIS received four comments on the petition. Issues raised during the comment period included concerns regarding product stewardship during production and marketing. These concerns were addressed by Nuseed with supplemental product stewardship data provided to APHIS in support of the petition.
APHIS decided, based on its review of the petition and its evaluation and analysis of the comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises substantive new issues. According to our public review process for such petitions (see footnote 1), APHIS is following Approach 2, where we first solicit written comments from the public on a draft environmental assessment (EA) and a draft plant pest risk assessment (PPRA) for a 30-day comment period through the publication of a
APHIS sought public comment on a draft EA and a draft PPRA from June 26, 2018, to July 26, 2018.
After reviewing and evaluating the comments received during the comment period on the draft EA and draft PPRA and other information, APHIS has prepared a final EA. The EA has been prepared to provide the public with documentation of APHIS' review and analysis of any potential environmental impacts associated with the determination of nonregulated status of canola designated as event B0050-027. The EA was prepared in accordance with: (1) NEPA, as amended (42 U.S.C. 4321
Based on APHIS' analysis of field and laboratory data submitted by Nuseed, references provided in the petition, peer-reviewed publications, information analyzed in the EA, the PPRA, comments provided by the public, and information provided in APHIS' response to those public comments, APHIS has determined that canola designated as event B0050-027 is unlikely to pose a plant pest risk and therefore is no longer subject to our regulations governing the introduction of certain GE organisms.
Copies of the signed determination document, PPRA, final EA, FONSI, and response to comments, as well as the previously published petition and supporting documents, are available as indicated in the
7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Foreign Agricultural Service, USDA.
Notice.
This notice publishes the document “Articles Subject to: Appendix 1, Historical Licenses; Appendix 2 Non-historical Licenses; and Appendix 3 and 4, Designated Importers Licenses for Quota Year 2018.” The quantities in Appendices 1 and 2 have been revised under the Dairy Tariff-Rate Import Quota Licensing Regulation for the 2018 quota year to reflect the cumulative annual transfers from Appendix 1 to Appendix 2 for certain dairy product import licenses permanently surrendered by licensees or revoked by the Licensing Authority.
August 27, 2018.
Abdelsalam El-Farra, Dairy Import Licensing Program, Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, Stop 1021, 1400 Independence Avenue SW, Washington, DC 20250-1021.
Abdelsalam El-Farra, (202) 720-9439,
The Foreign Agricultural Service, under a delegation of authority from the Under Secretary for Trade and Foreign Agricultural Affairs, administers the Dairy Tariff-Rate Import Quota Licensing Regulation codified at 7 CFR 6.20-6.36 that provides for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule (HTS) of the United States. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.
The regulation at 7 CFR 6.34(a) states: “Whenever a historical license (Appendix 1) is not issued to an applicant pursuant to the provisions of 6.23, is permanently surrendered or is revoked by the Licensing Authority, the amount of such license will be transferred to Appendix 2.” Section 6.34(b) provides that the cumulative annual transfers will be published by notice in the
Foreign Agricultural Service, USDA.
Notice.
This notice announces a fee of $300 to be charged for the 2019 tariff-rate quota (TRQ) year for each license issued to a person or firm by the Department of Agriculture authorizing the importation of certain dairy articles, which are subject to tariff-rate quotas set forth in the Harmonized Tariff Schedule (HTS) of the United States.
August 28, 2018.
Abdelsalam El-Farra, Dairy Import Licensing Program, Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, Stop 1021, 1400 Independence Avenue SW, Washington, DC 20250-1021.
Abdelsalam El-Farra, (202) 720-9439,
The Dairy Tariff-Rate Quota Import Licensing Regulation promulgated by the Department of Agriculture and codified at 7 CFR 6.20-6.36 provides for the issuance of licenses to import certain dairy articles that are subject to TRQs set forth in the HTS. Those dairy articles may only be entered into the United States at the in-quota TRQ tariff-rates by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The use of such licenses is monitored by the Dairy Import Licensing Program, Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, and U.S. Customs and Border Protection, U.S. Department of Homeland Security.
The regulation at 7 CFR 6.33(a) provides that a fee will be charged for each license issued to a person or firm by the Licensing Authority in order to defray the Department of Agriculture's costs of administering the licensing system under this regulation.
The regulation at 7 CFR 6.33(a) also provides that the Licensing Authority will announce the annual fee for each license and that such fee will be set out in a notice to be published in the
Accordingly, notice is hereby given that the fee for each license issued to a person or firm for the 2019 calendar year, in accordance with 7 CFR 6.33, will be $300 per license.
National Institute of Food and Agriculture (NIFA), USDA.
Notice of listening sessions and stakeholder feedback opportunities.
USDA National Institute of Food and Agriculture announces its stakeholder listening initiative “NIFA Listens: Investing in Science to Transform Lives.” This stakeholder listening opportunity informs the research, extension and education priorities of NIFA, which has the mission of investing in and advancing agricultural research, education and extension to solve societal challenges. For the purpose of this opportunity,
This effort to obtain input regarding the challenges, needed breakthroughs, and priorities will be carried out through online and in-person
(A)
(B)
The in-person listening sessions will take place at conference facilities in Hartford, CT (October 11, 2018), New Orleans, LA (October 18, 2018), Minneapolis, MN (October 25, 2018), and Albuquerque, NM (November 1, 2018).
All parties interested in attending an in-person listening session must RSVP no later than one week prior to the scheduled session they wish to attend.
Megan Haidet, Program Specialist, NIFA, at 202-401-6617, email
The science priority-setting process at NIFA involves soliciting stakeholder input on agricultural research, education and extension needs, obtaining input from NIFA's science staff who are informed through interactions with scientific communities, and evaluating existing programs to identify critical gaps in the current portfolio of programs in order to address challenges in U.S. agriculture.
This listening effort will focus on answers to the following questions, “When considering all of agriculture, what is the greatest challenge that should be addressed through NIFA's research, education, and extension?”, “In your field, what is the most-needed breakthrough in science/technology that would advance your agricultural enterprise?”, and “What is your top priority in food and agricultural research, extension, or education that NIFA should address?”
NIFA welcomes stakeholder input from any group or individual interested in agricultural research, extension or education priorities for NIFA. NIFA is eager to listen to stakeholder's comments on the challenges, needed breakthroughs, and priorities, solutions and opportunities that will facilitate long-term sustainable agricultural production, research, education and extension.
All parties interested in attending an in-person listening session must RSVP no later than one week prior to the scheduled session they will attend. Abstracts from in-person speakers can be submitted upon registration via
Written comments by all interested stakeholders are welcomed through 5 p.m. Eastern time, November 30, 2018. All input will become a part of the official record and available on the NIFA website,
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.
1. The Census Bureau invites eligible participants to the program. For the BAS, the Census Bureau invites legal governments.
2. If they elect to participate in the program, participants receive a copy of the boundaries or addresses that the Census Bureau has on file. BAS participants can choose to review and update their boundaries using Geographic Update Partnership Software—which is a free customized mapping software—paper maps, or their own mapping software.
3. Participants return their updates to the Census Bureau.
4. The Census Bureau processes and verifies all submissions for accuracy, and updates its geographic database with boundary or address updates submitted by the participants.
5. The Census Bureau uses the newly updated boundaries and addresses to tabulate statistics. The Census Bureau uses its geographic database to link demographic data from surveys and the decennial census to locations and areas, such as cities, congressional and legislative districts, and counties. To tabulate statistics by localities, the Census Bureau must have accurate addresses and boundaries.
The BAS annually updates incorporated place boundaries, minor civil divisions, counties, and the federally recognized American Indian areas inventory for compliance with responsibilities specified in the OMB Circular A-16, Governmental Units and Administrative and Statistical Boundaries Data Theme. BAS supports the spatial data steward responsibilities of the OMB E-Gov, Data.gov, The National Map, and updates to the Geographic Names Information Systems. The results of the BAS are needed to provide information documenting the creation of newly incorporated places, minor civil divisions, counties, federally recognized American Indian Areas (including American Indian reservations, and off-reservation trust lands). BAS also includes the dissolution of incorporated places and minor civil divisions, and changes in the boundaries of incorporated places, minor civil divisions, counties, and American Indian Areas. Alaska Native Regional Corporations will be updated in the 2020 Census Participant Statistical Areas Program rather than BAS. BAS information provides an appropriate record for reporting the results of the decennial census, economic census, the Population Estimates Program, and surveys such as the American Community Survey. In the year 2020, all legal documentation for inclusion in the 2020 Census must be effective January 1, 2020. All legal boundary changes will be placed on hold and updated during the 2021 BAS if effective January 2, 2020 or later.
The BAS universe and mailing materials vary depending both upon the needs of the Census Bureau in fulfilling its censuses and household surveys and upon budget constraints. Counties or equivalent entities, federally recognized American Indian reservations, off-reservation trust lands, and tribal subdivisions are included in every BAS.
There are projects to support the BAS among various levels of governments and obtain the most accurate boundary information. These are the:
• Boundary Quality Assessment and Reconciliation Project.
• Boundary Validation Program.
• State Certification Program.
The Boundary Quality and Reconciliation Project (BQARP) supports the BAS program, improves boundary quality in the Census Bureau's MAF/TIGER database and lessens the burden on BAS participants. BQARP works with state level cadastral or geographic information system coordinators to update state, county and incorporated place boundaries. The BAS would then continue the collection of annexations and de-annexations on a transaction basis as they occur over time. Ensuring quality and spatially accurate boundaries is a critical component of the geographic preparations for the 2020 Census and the Census Bureau's ongoing geographic partnership programs and surveys. In addition, the improvement of boundary quality is an essential element of the Census Bureau's commitment as the responsible agency for legal boundaries under the OMB Circular A-16.
The Census Bureau will conduct the 2020 Boundary Validation Program (BVP) in conjunction with the 2020 BAS. The BVP is a part of BAS conducted in preparation for the decennial census. The Census Bureau conducts the BVP every ten years to provide the highest elected or appointed officials of tribal and local governments an opportunity to review the boundary data collected during the BAS over the last decade. The 2020 BVP will cover:
• All actively functioning counties or statistically equivalent entities.
• Incorporated places (including consolidated cities).
• All actively functioning minor civil divisions.
• All federally recognized American Indian reservations and off-reservation trust land entities in the United States.
• Municipios, barrios, barrio-pueblos and subbarrios in Puerto Rico.
In addition, the Census Bureau will send a letter to the governor of each state explaining the 2020 BVP process and advising them the Census Bureau will review the state boundaries in conjunction with relevant county boundaries as part of the BVP.
The Census Bureau will conduct the 2020 BVP in two phases, initial and final. During the initial BVP phase, every highest elected official in the BAS universe will receive a BVP form, a letter with instructions, and paper maps or a CD/DVD containing a complete set of 2020 BAS maps in PDF format for their governmental unit with the option to request other formats. The Census Bureau asks the highest elected official to review their boundaries and return the BVP form within ten days of receipt. If the highest elected official determines that there are no changes to report, the highest elected official will sign and return the validated BVP form. If the highest elected official determines that their entity requires boundary changes, the Census Bureau requests the highest elected official to work with their BAS contact to submit boundary changes through the 2020 BAS process. If either the highest elected official or the BAS
In the final BVP phase, once the Census Bureau applies the participant's 2020 BAS boundary updates to the MAF/TIGER database, the Census Bureau will provide each highest elected official a complete set of updated 2020 BAS maps or shapefiles. The governments may request CD/DVD, download or plotted paper maps. This is their final opportunity to review the boundary and verify that the Census Bureau clearly reflects the correct boundary in the MAF/TIGER database, effective January 1, 2020, for the 2020 Census. In the final BVP phase, each highest elected official submits any remaining corrections within five days directly to the Census Bureau using the instructions provided in the BAS respondent guide.
The final stage of BAS is the annual State Certification Program. This program allows state level agencies to verify that the status and boundary updates received through the previous years' BAS updates were accomplished according to state law. The State Certification Program will be held in 2018 and 2019. The BVP replaces the State Certification in 2020. During each cycle of this program, Governor-designated state certifying officials review listings of incorporated place legal boundary and functional status changes reported to the BAS during the previous year. The extent of the State Certification program varies depending on the laws governing annexations, deannexations, incorporations, and disincorporations in the given state. Some states have strong laws that require local governments to report legal boundary changes to the state government. In these states, the state certifying official is able to certify, edit, add, or reverse reported annexations, and may mark a legal boundary change as a duplicate of a previously reported change. In these states, the state certifying official also has the authority to request that the Census Bureau edit or delete information received from the local government. In states that do not require local governments to report legal boundary changes to the state, the Census Bureau will not edit or delete information without confirmation from the local government. If the state certifying official adds legal boundary changes missing from the Census Bureau's annexation list, the Census Bureau will contact the local government to request information. The State Certification program helps to ensure that all levels of government represent boundaries consistently and accurately.
The data and information collected from the BAS and BVP serve tribal, federal, state and local governments, and the private sector. The BVP provides validation for the information collected through the BAS. The BAS is the primary provider for the following services and products:
(1) Classify data collected in the periodic decennial and economic censuses and annual surveys.
(2) Serve as the primary source of information regarding new incorporations, disincorporations, and other changes in the local and tribal government inventory for the Federal Information Processing Series and Geographic Names Information Systems programs, tribal, state and local officials, and private data users.
(3) Update its estimates of the population as a result of the creation of new governments, the dissolution of governments, or changes in boundaries for existing local or tribal governments.
(4) Serve as the source for governmental unit boundary information as a framework layer of the National Spatial Data Infrastructure for The National Map and the data.gov website.
Information quality is an integral part of the pre-dissemination review of the information disseminated by the Census Bureau. Information quality is also integral to the information collections conducted by the Census Bureau, and we incorporate it into the clearance process as required by the Paperwork Reduction Act of 1995.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that large diameter welded pipe (welded pipe) from Greece is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2017, through December 31, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable August 27, 2018.
Brittany Bauer, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3860.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 20, 2018.
The product covered by this investigation is welded pipe from Greece. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Constructed export price is calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination,
Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Commerce calculated an estimated weighted-average dumping margin for Corinth Pipeworks Pipe Industry S.A. (Corinth),
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for Corinth will be equal to the company-specific estimated weighted-average dumping margin as determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is Corinth, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin as established for Corinth; and (3) the cash deposit rate for all other producers and exporters will be 22.51 percent, as discussed in the “All-Others Rate” section, above. These suspension of liquidation instructions will remain in effect until further notice.
Commerce intends to disclose its calculations and analysis to interested parties in this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
Case briefs or other written comments regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of this notice 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
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On July 19, 2018, pursuant to 19 CFR 351.210(e), Corinth requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.
Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.
Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.
The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On February 1, 2018, the Department of Commerce (Commerce) initiated the fourth sunset review of the suspended antidumping duty investigation on fresh tomatoes from Mexico. Commerce preliminarily finds that termination of the suspended antidumping duty investigation on fresh tomatoes from Mexico would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Preliminary Results of Review” section of this notice.
Applicable August 27, 2018.
David Cordell or Sally C. Gannon, Bilateral Agreements Unit, Office of
On March 8, 2013, the Department of Commerce (the Department) published a notice of suspension of the antidumping duty investigation on fresh tomatoes from Mexico. The basis for the suspension of the investigation was an agreement between Commerce and producers/exporters accounting for substantially all imports of fresh tomatoes from Mexico wherein each signatory producer/exporter agreed to revise its prices to eliminate completely the injurious effects of exports of this merchandise to the United States (2013 Suspension Agreement on Fresh Tomatoes from Mexico (Suspension Agreement)).
On February 1, 2018, Commerce initiated the sunset review of the suspended antidumping duty investigation on fresh tomatoes from Mexico in accordance with section 751(c) of the Tariff Act of 1930, as amended (the Act).
On March 1, 2018, Commerce received a request from NatureSweet Ltd. and its affiliates (collectively, NatureSweet) for a one-week extension to the deadline prescribed in 19 CFR 351.218(d)(3) for submitting its substantive response. On March 5, 2018, Commerce granted NatureSweet's extension request, in accordance with 19 CFR 351.302(b), and extended the deadline for substantives responses from all interested parties to March 12, 2018. On March 12, 2018, Commerce received complete substantive responses from NatureSweet, the FTE, and Confederación de Asociaciones Agricolas del Estado de Sinaloa, A.C., Consejo Agricola de Baja California, A.C., Asociación Mexicana de Horticultura Protegida, A.C., Asociación de Productores de Hortalizas del Yaqui y Mayo, and Sistema Producto Tomate (collectively, CAADES
On April 13, 2018, Commerce determined in accordance with 19 CFR 351.218(e)(1)(ii) that NatureSweet's and the Mexican signatories' substantive responses met the requirements of 19 CFR 351.218(d)(3) and thus constituted adequate responses to the notice of initiation. Further, we found in accordance with 19 CRF 351.218(e)(1)(i) that the domestic interested parties submitted an adequate response to the notice of initiation. As a result, pursuant to section 751(c)(5)(A) of the Act and 19 CFR 351.218(e)(2)(i), Commerce began conducting a full sunset review of the suspended investigation on fresh tomatoes from Mexico and notified the ITC of its intent to conduct a full sunset review.
The merchandise subject to the suspension agreement is all fresh or chilled tomatoes (fresh tomatoes) which have Mexico as their origin, except for those tomatoes which are for processing. For purposes of this suspension agreement, processing is defined to include preserving by any commercial process, such as canning, dehydrating, drying, or the addition of chemical substances, or converting the tomato product into juices, sauces, or purees. Fresh tomatoes that are imported for cutting up, not further processing (
Commercially grown tomatoes, both for the fresh market and for processing, are classified as Lycopersicon esculentum. Important commercial varieties of fresh tomatoes include common round, cherry, grape, plum, greenhouse, and pear tomatoes, all of which are covered by this Suspension Agreement.
Tomatoes imported from Mexico covered by this suspension agreement are classified under the following subheading of the Harmonized Tariff Schedules of the United States (HTSUS), according to the season of importation: 0702. Although the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
All issues raised for the preliminary results of this sunset review are addressed in the Preliminary Decision Memorandum.
Pursuant to section 752(c) of the Act, we determine that termination of the suspended investigation on fresh tomatoes from Mexico would be likely to lead to continuation or recurrence of dumping at weighted-average margins up to 188.14 percent.
Interested parties may submit case briefs no later than 30 days after the date of publication of the preliminary results of this full sunset review, in accordance with 19 CFR 351.309(c)(1)(i). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than five days after the time limit for filing case briefs in accordance with 19 CFR 351.309(d). Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). If a request for
This five-year (sunset) review and notice are in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.218(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that large diameter welded pipe (welded pipe) from the People's Republic of China (China) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2017, through December 31, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable August 27, 2018.
Trenton Duncan or Ryan Mullen, 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) 482-3539 or (202) 482-5260, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 20, 2018.
The product covered by this investigation is welded pipe from China. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Pursuant to section 776(a) and (b) of the Act, we have preliminarily relied upon facts otherwise available, with adverse inferences (AFA), for the China-wide entity. As AFA, we have assigned the highest margin alleged in the Petition of 132.63 percent.
In the
Commerce preliminarily determines that the following estimated weighted-average dumping margin exists:
In accordance with section 733(d)(2) of the Act, Commerce will direct CBP to suspend liquidation of subject
To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion countervailing duty (CVD) proceeding when CVD provisional measures are in effect. However, in this investigation, we made no adjustments to the China-wide entity's antidumping cash deposit rate of 132.63 percent because Commerce made no findings in the companion CVD investigation that any of the subsidies in question are export subsidies.
Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). However, because Commerce preliminarily applied AFA to the China-wide entity in this investigation, in accordance with section 776 of the Act, and the applied AFA rate is based solely on the petition, there are no calculations to disclose.
Because none of the mandatory respondents in this investigation responded to our requests for information, verification will not be conducted.
Case briefs or other written comments regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of the preliminary determination, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of this notice 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 the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
Section 735(a)(1) of the Act and 19 CFR 351.210(b)(1) provide that Commerce will issue the final determination within 75 days after the date of its preliminary determination. Accordingly, Commerce will make its final determination no later than 75 days after the signature date of this preliminary determination.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.
Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing
Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.
The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that large diameter welded pipe (welded pipe) from the Republic of Turkey (Turkey) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2017, through December 31, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable August 27, 2018.
Rebecca Janz or William Miller, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2972 or (202) 482-3906, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 20, 2018.
The product covered by this investigation is welded pipe from Turkey. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination,
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this investigation, Commerce calculated estimated weighted-average dumping margins for Borusan Mannesmann Boru Sanayi ve Ticaret A.S. (Borusan) and HDM Celik Boru Sanayi ve Ticaret A.S. (HDM Celik) that are not zero,
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with
Commerce normally adjusts the estimated weighted-average dumping margin by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, where Commerce preliminarily made an affirmative determination for countervailable export subsidies,
Should provisional measures in the companion CVD investigation expire prior to the expiration of provisional measures in this LTFV investigation, Commerce will direct CBP to begin collecting estimated antidumping duty cash deposits unadjusted for countervailed export subsidies at the time that the provisional CVD measures expire. These suspension of liquidation instructions will remain in effect until further notice.
Commerce intends to disclose its calculations and analysis to interested parties in this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
Case briefs or other written comments regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of this notice 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 the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On July 25 and 29, 2018, pursuant to 19 CFR 351.210(e), Borusan and HDM Celik requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.
Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.
Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.
Excluded from the scope are any products covered by the existing antidumping duty order on welded line pipe from the Republic of Turkey.
The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that large diameter welded pipe (welded pipe) from Canada is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2017, through December 31, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable August 27, 2018.
Susan S. Pulongbarit or Annathea Cook, 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) 482-4031or (202) 482-0250, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 20, 2018.
The product covered by this investigation is welded pipe from Canada. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination,
Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Commerce calculated an individual estimated weighted-average dumping margin for Evraz Inc. NA (Evraz),
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S.
Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for Evraz Inc. NA will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is Evraz Inc. NA, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for Evraz Inc. NA; and (3) the cash deposit rate for all other producers or exporters will be 24.38 percent, as discussed in the “All-Others Rate” section, above. These suspension of liquidation instructions will remain in effect until further notice.
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
Case briefs or other written comments regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of this notice 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 the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures for a four-month period to a period not more than six months in duration.
On July 18, 2018, and August 8, 2018, pursuant to 19 CFR 351.210(e), Evraz requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.
Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.
Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.
The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that large diameter welded pipe (welded pipe) from the Republic of Korea (Korea) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2017, through December 31, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable August 27, 2018.
Sergio Balbontin, or Jesus Saenz, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6478 or (202) 482-8184, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 20, 2018.
The product covered by this investigation is welded pipe from Korea. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value is calculated in accordance with section 773 of the Act. Furthermore, pursuant to section 776(a) and (b) of the Act, Commerce has preliminarily relied
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce normally adjusts cash deposits for estimated antidumping duties by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, in cases where Commerce preliminarily makes an affirmative determination for countervailable export subsidies, Commerce offsets the estimated weighted-average dumping margin by the appropriate CVD rate. However, we made no adjustment to the weighted-average dumping margin for cash deposit purposes in this case because we found no measurable export subsidies in the companion CVD proceeding.
Commerce intends to disclose its calculations and analysis to interested parties in this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
Case briefs or other written comments regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of this notice 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 the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination. The final determination may be postponed if, in the event of an affirmative preliminary determination, exporters, who account for a significant proportion of exports of subject merchandise, request a postponement, or, in the event of a negative preliminary determination, petitioners request a postponement. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On August 1 and 3, 2015, pursuant to 19 CFR 351.210(e), Hyundai RB and SeAH, respectively, requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.
Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.
Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.
Excluded from the scope are any products covered by the existing antidumping duty order on welded line pipe from the Republic of Korea.
The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that large diameter welded pipe (welded
Applicable August 27, 2018.
Jaron Moore or Kate Johnson, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3640 or (202) 482-4929, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 20, 2018.
The product covered by this investigation is welded pipe from India. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Furthermore, pursuant to section 776(a) and (b) of the Act, we preliminarily have relied upon facts otherwise available, with adverse inferences (adverse facts available or AFA), for Bhushan Steel (Bhushan) and Welspun Trading Limited (Welspun), the respondents selected for individual examination, for their failure to cooperate in this investigation. As AFA, we have preliminarily assigned the only margin alleged in the Petition of 50.55 percent.
Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In cases where no weighted-average dumping margins other than zero,
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce normally adjusts the estimated weighted-average dumping margin by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, where Commerce preliminarily made an affirmative determination for countervailable export subsidies,
Should provisional measures in the companion CVD investigation expire prior to the expiration of provisional measures in this LTFV investigation, Commerce will direct CBP to begin collecting estimated antidumping cash deposits unadjusted for countervailed export subsidies at the time the CVD provisional measures expire. These suspension of liquidation instructions will remain in effect until further notice.
Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice of preliminary determination in the
Because none of the mandatory respondents in this investigation responded to our requests for information, verification will not be conducted.
Case briefs or other written comments regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of the preliminary determination. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice 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 the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
Section 735(a)(1) of the Act and 19 CFR 351.210(b)(1) provide that Commerce will issue the final
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.
Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.
Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.
The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
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
National Institute of Standards and Technology (NIST), Commerce.
Notice.
This notice solicits nominations from any interested party for candidate algorithms to be considered for lightweight cryptographic standards. The submission requirements and the minimum acceptability requirements of a “complete and proper” candidate algorithm submission, as well as the evaluation criteria that will be used to appraise the candidate algorithms, can be found on the NIST Computer Security Resource Center website at:
Proposals must be received on or before February 25, 2019. Further details are available at
Algorithm submission packages should be sent to Dr. Kerry
For general information, send email to
A public email list has been set up for announcements, as well as a forum to discuss the standardization effort being initiated by NIST. For directions on how to subscribe, please visit
The deployment of small computing devices, such as RFID tags, industrial controllers, sensor nodes and smart cards, is becoming increasingly common. The shift in focus from desktop computers to small devices brings a wide range of new security and privacy concerns. In many conventional cryptographic standards, the tradeoff between security, performance and resource requirements was optimized for desktop and server environments, and this makes the standards difficult or impossible to implement in resource-constrained devices. Therefore, when current NIST-approved algorithms can be engineered to fit within the limited resources of constrained environments, their performance may not be acceptable.
In recent years, there has been increased demand for cryptographic standards that are tailored for constrained devices. NIST has decided to create a portfolio of lightweight cryptographic algorithms, designed for limited use in applications and environments where cryptographic operations are performed by constrained devices that are unable to use existing NIST standards.
Previously, NIST solicited public comment on draft minimum acceptability requirements, submission requirements, and evaluation criteria for candidate algorithms (83 FR 22251, May 14, 2018). The comments received are posted at
The purpose of this notice is to announce that nominations for lightweight candidate algorithms may now be submitted, up until the final deadline of February 25, 2019. Complete instructions on how to submit a candidate package, including the minimal acceptability requirements, are posted at
15 U.S.C. 278g-3.
National Institute of Standards and Technology, Department of Commerce.
Notice.
This notice lists the membership of the National Institute of Standards and Technology Performance Review Board (NIST PRB) and supersedes the list published on September 15, 2017.
The changes to the NIST PRB membership list announced in this notice are effective August 27, 2018.
Didi Hanlein at the National Institute of Standards and Technology, (301) 975-3020 or by email at
The National Institute of Standards and Technology Performance Review Board (NIST PRB or Board) reviews performance appraisals, agreements, and recommended actions pertaining to employees in the Senior Executive Service and ST-3104 employees. The Board makes recommendations to the appropriate appointing authority concerning such matters so as to ensure the fair and equitable treatment of these individuals.
This notice lists the membership of the NIST PRB and supersedes the list published in the
NIST PRB Members:
5 U.S.C. 4301
National Institute of Standards and Technology, Department of Commerce.
Notice of public meeting.
National Institute of Standards and Technology (NIST)'s Visiting Committee on Advanced Technology (VCAT or Committee) will meet on Tuesday, October 16, 2018, from 8:30 a.m. to 5:00 p.m. Mountain Time, and Wednesday, October 17, 2018, from 8:30 a.m. to 11:30 a.m. Mountain Time. The VCAT is composed of not fewer than 9 members appointed by the NIST Director, eminent in such fields as business, research, new
The VCAT will meet on Tuesday, October 16, 2018, from 8:30 a.m. to 5:00 p.m. and Wednesday, October 17, 2018, from 8:30 a.m. to 11:30 a.m. Mountain Time.
The meeting will be held in the Katharine Blodgett Gebbie Laboratory Conference Room, Room 81-1A106, at NIST, 325 Broadway Street, Boulder, Colorado 80305. Please note admittance instructions under the
Stephanie Shaw, VCAT, NIST, 100 Bureau Drive, Mail Stop 1060, Gaithersburg, Maryland 20899-1060, telephone number 301-975-2667. Ms. Shaw's email address is
15 U.S.C. 278, as amended, and the Federal Advisory Committee Act, as amended, 5 U.S.C. App
The purpose of this meeting is for the VCAT to review and make recommendations regarding general policy for NIST, its organization, its budget, and its programs within the framework of applicable national policies as set forth by the President and the Congress. The agenda will include an update on major programs at NIST. In addition, the meeting will include presentations and discussions on NIST's role in quantum science, technology transfer, and an update on public safety. The Committee also will review NIST's facilities plans and progress on ongoing renovation efforts. The agenda may change to accommodate Committee business. The final agenda will be posted on the NIST website at
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's affairs are invited to request a place on the agenda. Approximately one-half hour on Wednesday, October 17, 2018, will be reserved for public comments and speaking times will be assigned on a first-come, first-serve basis. The amount of time per speaker will be determined by the number of requests received but, is likely to be about 3 minutes each. The exact time for public comments will be included in the final agenda that will be posted on the NIST website at
All visitors to the NIST site are required to pre-register to be admitted. Please submit your name, time of arrival, email address and phone number to Emily Luce by 5:00 p.m. Eastern Time, Tuesday, October 9, 2018. Non-U.S. citizens must submit additional information; please contact Ms. Luce. Ms. Luce's email address is
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, September 18, 2018 at 10 a.m.
The meeting will be held at the Four Points by Sheraton, 1 Audubon Road, Wakefield, MA 01880; telephone: (781) 245-9300.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will review results from the 2018 herring benchmark assessment (65th Northeast Regional Stock Assessment Workshop, SAW 65). They will review public comments on the Draft Environmental Impact Statement (DEIS) for Amendment 8 to the Herring Fishery Management Plan (FMP), and discuss final preferred alternative recommendations. They will also discuss possible measures to include for consideration in the 2019-21 fishery specifications action including discussion of a potential independent action for fishing year 2019 that NOAA Fisheries may develop. A separate action may be considered to set fishery specifications for 2019 because final measures for 2019-21 developed through the Council process are not expected to be implemented until mid-year of 2019. Also on the agenda is initial discussion of potential 2019 herring work priorities. They will discuss other business as necessary.
This meeting is physically accessible to people with disabilities. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Law Enforcement Committee, Tilefish Committee, and Highly Migratory Species Committee will jointly hold a public meeting.
The meeting will be held on Thursday, September 20, 2018, from 11 a.m. until 1 p.m.
The meeting will be held via conference call. Details on the proposed agenda, connection information, and briefing materials will be posted at the MAFMC's website:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's (MAFMC's) Law Enforcement Committee, Tilefish Committee, and Highly Migratory Species Committee will jointly to discuss two important issue: (1) The sale of golden tilefish and tuna by recreational vessels that do not possess permits allowing for the sale of those species or possess Coast Guard vessel safety requirements for commercial vessels; (2) Responsibilities of for-hire captains regarding fishing regulation (
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, September 19, 2018 at 9 a.m.
The meeting will be held at the Four Points by Sheraton, 1 Audubon Road, Wakefield, MA 01880; telephone: (781) 245-9300.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will review results from the 2018 herring benchmark assessment (65th Northeast Regional Stock Assessment Workshop, SAW 65). They will review public comments on the Draft Environmental Impact Statement (DEIS) for Amendment 8 to the Herring Fishery Management Plan (FMP), and discuss final preferred alternative recommendations. They will also discuss possible measures to include for consideration in the 2019-21 fishery specifications action including discussion of a potential independent action for fishing year 2019 that NOAA Fisheries may develop. A separate action may be considered to set fishery specifications for 2019 because final measures for 2019-21 developed through the Council process are not expected to be implemented until mid-year of 2019. Also on the agenda is initial discussion of potential 2019 herring work priorities. They will discuss other business as necessary.
This meeting is physically accessible to people with disabilities. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Ecosystem and Ocean Planning (EOP) Committee will hold a meeting.
The meeting will be held on Wednesday, September 12, 2018, from 10 a.m. to 4:30 p.m. See
The meeting will take place at the Royal Sonesta Harbor Court, 550 Light Street, Baltimore, MD 21202; telephone (410) 234-0550.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is for the EOP
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Thursday, September 13, 2018 at 9 a.m.
The meeting will be held at the Fairfield Inn & Suites, 185 MacArthur Drive, New Bedford, MA 02740; phone: (774) 634-2000.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scallop Advisory Panel will review results from SARC 65 Benchmark Assessment and preliminary 2018 scallop survey results. They will discuss initial recommendations from the Scallop Plan Development Team (PDT) for FY 2019 and FY 2020 (default) fishery specifications (Framework 30); The panel will also review and provide input on Framework 30 management measures; which include standard default measures. They also plan to review and discuss results from Committee tasking on LAGC IFQ trip limits. The panel will receive an update on progress toward 2018 work priorities and develop a list of potential 2019 scallop work priorities. Other business may be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Ecosystem and Ocean Planning (EOP) Committee will hold a meeting.
The meeting will be held on Monday, September 10, 2018, from 10 a.m. to 12 p.m. See
The meeting will take place over webinar with a telephone-only connection option. Details on how to connect to the webinar by computer and by telephone will be available at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is for the EOP Committee to review the NOAA Fisheries draft Ecosystem Based Fisheries Management (EBFM) Implementation Plan for the Northeast Region. The draft plan is currently available for public comment until September 30, 2018. Given the scope and potential role the draft plan may have with the Council's Ecosystem Approach to Fisheries Management (EAFM) guidance document, the Committee will review and develop comments specific to the draft Northeast Regional plan.
A detailed agenda and any pertinent background documents will be made available on the Council's website (
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its
This meeting will be held on Friday, September 14, 2018 at 9 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scallop Committee will review results from SARC 65 Benchmark Assessment and preliminary 2018 scallop survey results. They will discuss initial recommendations from the Scallop Plan Development Team (PDT) for FY 2019 and FY 2020 (default) fishery specifications (Framework 30); the panel will also review and provide input on Framework 30 management measures; which include standard default measures. They also plan to review and discuss results from Committee tasking on LAGC IFQ trip limits. The panel will receive an update on progress toward 2018 work priorities and develop a list of potential 2019 scallop work priorities. They will also review the Advisory Panel recommendations. Other business may be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 57 Assessment Webinar I for Caribbean spiny lobster.
The SEDAR 57 stock assessment process for Caribbean spiny lobster will consist of a Data Workshop, a series of data and assessment webinars, and a Review Workshop. See
The SEDAR 57 Assessment Webinar I will be held September 19, 2018, from 2 p.m. to 4 p.m. Eastern Time.
The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julie A. Neer at SEDAR (see
Julie A. Neer, SEDAR Coordinator; (843) 571-4366. Email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop, (2) a series of assessment webinars, and (3) A Review Workshop. The product of the Data Workshop is a report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The assessment webinars produce a report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The product of the Review Workshop is an Assessment Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
1. Using datasets and initial assessment analysis recommended from the Data Webinar, panelists will employ assessment models to evaluate stock status, estimate population benchmarks and management criteria, and project future conditions.
2. Participants will recommend the most appropriate methods and configurations for determining stock status and estimating population parameters.
Although non-emergency issues not contained in this agenda may come
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The North Pacific Fishery Management Council (Council) Crab Plan Team will meet September 10-13, 2018.
The meeting will be held on Monday, September 10, 2018 through Thursday, September 13, 2018, from 9 a.m. to 5 p.m. Pacific Time each day.
The meeting will be held in the Traynor Room, Building 4 at the Alaska Fisheries Science Center, 7600 Sand Point Way NE, Seattle, WA 98115.
Diana Stram, Council staff; telephone: (907) 271-2809.
The agenda will include: (a) Survey overview; (b) catch data overview; (c) BSAI crab PSC accounting; (d) ecosystem chapter overview; (e) ADF&G pot survey data collection; (f) final assessments for Snow crab, Tanner crab, Bristol Bay red king crab (including an update on a new model formulation proposed for 2019/20) and St. Matthew blue king crab; (g) review of Tanner crab industry survey and proposed harvest strategy changes; (h) update on model scenarios proposed for Norton Sound Red King Crab in 2019 and some preliminary harvest control rule simulations for Aleutian Islands golden king crab; (i) meeting planning for 2019 and a finalization of the 2018 SAFE report including catch numbers for previously assessed Tier 5 stocks and; (j) other business.
The Agenda is subject to change, and the latest version will be posted at
Public comment letters will be accepted and should be submitted either electronically to Diana Stram, Council staff:
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) will hold a meeting.
The meeting will be held on Tuesday, September 11, 2018, from 9 a.m. to 4 p.m. See
The meeting will take place at the Royal Sonesta Harbor Court, 550 Light Street, Baltimore, MD 21202; telephone: (410) 234-0550.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of this meeting is to make multi-year (2019-21 fishing years) Acceptable Biological Catch (ABC) recommendations for spiny dogfish based on updated stock assessment information. The SSC will also review their previous ABC recommendation for the 2019 and 2020 fishing years for
A detailed agenda and background documents will be made available on the Council's website (
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before September 26, 2018.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (OIRA) in OMB, within 30 days of this notice's publication, by either of the following methods. Please identify the comments by “OMB Control No. 3038-0092.”
•
•
A copy of all comments submitted to OIRA should be sent to the Commodity Futures Trading Commission (the “Commission”) by either of the following methods. The copies should refer to “OMB Control No. 3038-0092.”
• Through the Commission's website at
•
• By Hand Delivery/Courier to the same address.
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
A copy of the supporting statements for the collection of information discussed herein may be obtained by visiting
Christopher Hower, Special Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-6703; email:
Pursuant to these provisions, the Commission adopted § 1.71(d)(1) relating to FCMs and § 23.605(d)(1) relating to swap dealers and major swap participants. These regulations prohibit swap dealers and major swap participants from interfering or attempting to influence the decisions of affiliated FCMs with regard to the provision of clearing services and activities and prohibit FCMs from permitting them to do so. Also, § 23.607 prohibits a swap dealer and major swap participant from adopting any process or taking any action that results in any unreasonable restraint on trade or imposes any material anticompetitive burden on trading or clearing, unless necessary or appropriate to achieve the purposes of the Act. Additionally, § 39.12(b)(2) requires that derivatives clearing organization rules provide for the non-discriminatory clearing of swaps executed bilaterally or through an unaffiliated designated contract market or swap execution facility. Sections 1.71(f) and 23.605(f) provide that records be maintained pursuant to Commission Regulation 1.31.
As discussed further below, the additional information collection burden arising from the proposed regulations primarily is restricted to the costs associated with the affected registrants' obligation to maintain records related to clearing documentation between the customer and the customer's clearing member.
The information collection obligations imposed by the regulations are necessary to implement certain provisions of the CEA, including ensuring that registrants exercise effective risk management and for the efficient operation of trading venues among SDs, MSPs, FCMs, and DCOs.
There are no capital costs or operating and maintenance costs associated with this collection.
44 U.S.C. 3501
General Counsel of the Department of Defense, Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Department of Defense.
Notice of Federal Advisory Committee meeting; cancellation.
On Friday, August 10, 2018, the Department of Defense published a notice that announced a meeting of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD). The meeting was to have taken place on Thursday, August 23, 2018. Subsequent to the publication of that notice, the Department of Defense cancelled the meeting of August 23, 2018 due to a lack of quorum for the meeting.
Dwight Sullivan, 703-695-1055 (Voice),
Due to circumstances beyond the control of the Department of Defense (DoD) and the Designated Federal Officer, the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the cancellation of its meeting on August 23, 2018. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
The DAC-IPAD meeting that published in the
Under Secretary of Defense for Personnel and Readiness, Reserve Forces Policy Board, 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 Reserve Forces Policy Board (RFPB) will take place.
The RFPB will hold an open meeting to the public Wednesday, September 12, 2018 from 8:30 a.m. to 4:30 p.m.
The address for the Open Session of the meeting is the Army Navy Country Club, 1700 Army Navy Drive, Arlington, VA 22202.
Alexander Sabol, (703) 681-0577 (Voice), 703-681-0002 (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.
Alexander Sabol, (703) 681-0577 (Voice), 703-681-0002 (Facsimile),
This is a supplemental notice in the above-referenced proceeding of MC Project Company 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 10, 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
1. Section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d (2012), and 18 CFR part 35 (2017), require, among other things, that all rates, terms, and conditions for jurisdictional services be filed with the Commission. In Order No. 2001, the Commission revised its public utility filing requirements and established a requirement for public utilities, including power marketers, to file Electric Quarterly Reports.
2. The Commission requires sellers with market-based rate authorization to file Electric Quarterly Reports summarizing contractual and transaction information related to their market-based power sales as a condition for retaining that authorization.
3. In Order No. 2001, the Commission stated that,
4. The Commission further stated that,
5. Pursuant to these requirements, the Commission has revoked the market-based rate tariffs of market-based rate sellers that failed to submit their Electric Quarterly Reports.
6. Sellers must file Electric Quarterly Reports consistent with the procedures set forth in Order Nos. 2001, 768,
7. In the event that any of the above-captioned market-based rate sellers has already filed its Electric Quarterly Reports in compliance with the Commission's requirements, its inclusion herein is inadvertent. Such market-based rate seller is directed, within 15 days of the date of issuance of this order, to make a filing with the Commission identifying itself and providing details about its prior filings that establish that it complied with the Commission's Electric Quarterly Report filing requirements.
8. If any of the above-captioned market-based rate sellers does not wish to continue having market-based rate authority, it may file a notice of cancellation with the Commission pursuant to section 205 of the FPA to cancel its market-based rate tariff.
(A) Within 15 days of the date of issuance of this order, each public utility listed in the caption of this order shall file with the Commission all delinquent Electric Quarterly Reports. If a public utility subject to this order fails to make the filings required in this order, the Commission will revoke that public utility's market-based rate authorization and will terminate its electric market-based rate tariff. The Secretary is hereby directed, upon expiration of the filing deadline in this order, to promptly issue a notice, effective on the date of issuance, listing the public utilities whose tariffs have been revoked for failure to comply with the requirements of this order and the Commission's Electric Quarterly Report filing requirements.
(B) The Secretary is hereby directed to publish this order in the
By the Commission.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by 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:
On January 10, 2018, Dominion Energy Transmission, Inc. (Dominion) filed an application in Docket No. CP18-45-000 requesting a Certificate of Public Convenience and Necessity pursuant to section 7(c) of the Natural Gas Act to construct and operate certain natural gas pipeline facilities. The proposed project is known as the Sweden Valley Project (Project), and involves the construction and operation of facilities located in Licking and Tuscarawas Counties, Ohio and Armstrong, Clinton, and Greene Counties, Pennsylvania. The Project would enable Dominion to provide 120,000 dekatherms per day of firm transportation service from Pennsylvania to Ohio for delivery to Tennessee Gas Pipeline Company, LLC.
On January 24, 2018, The Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Dominion proposes to construct and operate the following facilities Ohio: construction of 1.7 miles 20-inch-diameter lateral to the new Port
In addition, Dominion proposes to construct and operate the following facilities in Pennsylvania: 3.2 miles of 24-inch-diameter pipeline looping in Greene County (TL-654 PA Loop), installation of regulation equipment at Dominion's existing South Bend Compressor Station in Armstrong County and Leidy M&R Station in Clinton County, and new mainline gate valves at the proposed TL-654 PA Loop in Greene County.
On March 13, 2018, the Commission issued a
The U.S. Army Corps of Engineers is a federal cooperating agency who is assisting us in preparing this EA because they have jurisdiction by law or special expertise with respect to environmental impacts associated with Dominion's proposal.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On August 21, 2018, Commission staff, in response to the filing of a notice of study dispute by the U.S. National Marine Fisheries Service (NMFS) on August 1, 2018, convened a single three-person Dispute Resolution Panel (Panel) pursuant to 18 CFR 5.14(d).
The Panel will hold a technical conference, via conference call, at the time identified below. The technical conference will address the study dispute identified in Enclosure A of the August 1, 2018 filing which includes predation by non-native predators on native anadromous fish, including the endangered Atlantic salmon. The panel will not address the study comments identified in Enclosure B of the August 1, 2018 filing which includes comments on studies which NMFS is not disputing.
The purpose of the technical session is for the disputing agency, applicant, and Commission to provide the Panel with additional information necessary to evaluate the disputed studies. All local, state, and federal agencies, Indian tribes, and other interested parties are invited to participate in the conference call as observers. The Panel may also request information or clarification on written submissions as necessary to understand the matters in dispute. The Panel will limit all input that it receives to the specific studies or information in dispute and will focus on the applicability of such studies or information to the study criteria stipulated in 18 CFR 5.9(b). If the number of participants wishing to speak creates time constraints, the Panel may, at its discretion, limit the speaking time for each participant.
The schedule for completing the Formal Study Dispute Process follows:
For more information, please contact Monte TerHaar, the Dispute Resolution Panel Chair, at
On February 19, 2018, Empire Pipeline, Inc. (Empire) filed an application in Docket No. CP18-89-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the Natural Gas Act to construct and operate certain natural gas pipeline facilities. The proposed project is known as the Empire North Project (Project), and would provide about 205 million cubic feet per day of
On March 5, 2018, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Empire proposes to construct and operate gas compression facilities in Tioga County, Pennsylvania and Ontario, New York. The Empire North Project would consist of the following facilities:
• A new 21,000 horsepower compressor station in Jackson Township, Tioga County, Pennsylvania;
• a new 32,000 horsepower compressor station in the Town of Farmington, Ontario County, New York;
• modifications of the existing regulator valves and station piping and installation of metering facilities at the existing New Victor Regulator Station in Ontario County, New York;
• minor modifications to the existing Jackson Meter and Regulator Station in Jackson Township, Tioga County, Pennsylvania; and
• upgrading the maximum allowable operating pressure of the Empire Connector Pipeline from 1,290 pounds per square inch gauge (psig) to 1,440 psig.
On April 10, 2018, the Commission issued a
The U.S. Department of Transportation is a cooperating agency in the preparation of the EA.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
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l. With this notice, we are designating AEP Generation Resources, Inc. 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. AEP Generation Resources, Inc. 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 30, 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, the meetings listed below 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 times and places 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:
Date and Time: Tuesday, September 26, 2018 at 6:30 p.m.
Date and Time: Wednesday, September 27, 2018 at 9:00 a.m.
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 Tuesday, September 26, 2018, starting at 2:00 p.m. All participants should meet at the Racine Hydroelectric Project's public fishing/picnic access parking lot, which is located on the Ohio River Scenic Byway, State Route 124, approximately 3 miles south of Racine, Ohio. If you plan to attend the environmental site review, please email Jonathan Magalski of AEP Generation Resources at
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 paragraph 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 the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Description: § 205(d) Rate Filing: Amendment to First Revised ISA No. 3255; Queue No. W4-073 to be effective 11/2/2016.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that the following hydroelectric proceeding has been initiated by the Commission:
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i. Deadline for filing comments, protests, or motions to intervene is 30 days from the issuance of this notice by the Commission. Please file your submittal electronically via the internet (eFiling) in lieu of paper. Please refer to the instructions on the Commission's website under
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Commission records, including correspondence with the exemptee, show that the San Luis Obispo Project has not operated since June 1993. Since 1995, the Commission has worked with the exemptee to file a plan and schedule to restore operation. Over the years, the exemptee has made many proposals to restart generation, but none have come to fruition. Most recently, on September 19, 2017, the exemptee said it planned to complete new designs by June 2018 for rebuilding portions of the project and would begin construction by December 2018. The exemptee has not filed its new designs and has stopped responding to Commission staff letters seeking updates. On May 24, 2018, Commission staff notified the exemptee
l. This notice is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE, Washington, DC 20426. The filing may also be viewed on the Commission's website at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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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.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on August 8, 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), Magellan Pipeline Company L.P. (Magellan or Petitioner) filed a Petition for Declaratory Order seeking approval of the overall tariff rate structure and terms and conditions of service, including the proposed priority service prorationing methodology for an expansion of Magellan's refined products pipeline system in Texas, to provide expansion capacity on Magellan's system between East Houston and El Paso, Texas and also allow for refined products to flow more directly and efficiently westward, 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
Environmental Protection Agency (EPA).
Notice.
The Local Government Advisory Committee (LGAC) will meet in Washington, DC, on Thursday, September 13, 2018, 9:30 a.m.-5:35 p.m. (EDT), and Friday, September 14,, 2018, 10:45 a.m.-12:30 p.m. (EDT). The focus of the Committee meeting will be on issues pertaining to cooperative federalism; water and water infrastructure issues; per- and polyfluoroalkyl substances (PFAS); superfund and brownfields; and other issues in EPA's Strategic Plan.
The Small Communities Advisory Subcommittee (SCAS) will meet in Washington, DC, on Friday, September 14, 2018, 8:30 a.m.-10:00 a.m. (EDT). The Subcommittee will discuss water infrastructure, agricultural issues, brownfields and other issues and recommendations to the Administrator regarding environmental issues affecting small communities.
These are open meetings, and all interested persons are invited to participate. The SCAS will hear comments from the public between 9:00 a.m. and 9:10 a.m. on Friday, September 14, 2018, and the LGAC will hear comments from the public between 10:50 a.m. and 11:00 a.m. on Friday, September 14, 2018. Individuals or organizations wishing to address the Subcommittee or the Committee will be allowed a maximum of five minutes to present their point of view. Also, written comments should be submitted electronically to
The Small Communities Advisory Subcommittee meetings will be held at the U.S. Environmental Protection Agency, Rachel Carson Great Room (3000 WJCS), accessible from the William Jefferson Clinton South entrance, Third Floor, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
The Local Government Advisory Committee meetings will be held at the U.S. Environmental Protection Agency, Rachel Carson Great Room (3000 WJCS), accessible from the William Jefferson Clinton South entrance, Third Floor. 1200 Pennsylvania Ave. NW, Washington, DC 20460.
Meeting summaries will be available after the meeting online at
Local Government Advisory Committee (LGAC) and Small Communities Advisory Subcommittee (SCAS), contact Frances Eargle, Designated Federal Officer, at (202) 564-3115 or email at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces that EPA is planning to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB). The ICR, entitled: “PCBs, Consolidated Reporting and Recordkeeping Requirements” and identified by EPA ICR No. 1446.12 and OMB Control No. 2070-0112, represents the renewal of an existing ICR that is scheduled to expire on November 30, 2018. Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.
Comments must be received on or before October 26, 2018.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0647, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
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 estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used, specifically the assumptions used for industry burden on Tables 6-2, 6-3, and 6-4 found in the Supporting Statement.
3. Enhance the quality, utility, and clarity of the information to be collected.
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,
To meet its statutory obligations to regulate PCBs, EPA must obtain sufficient information to conclude that specified activities do not result in an unreasonable risk of injury to health or the environment. EPA uses the information collected under the 40 CFR 761 requirements to ensure that PCBs are managed in an environmentally safe manner and that activities are being conducted in compliance with the PCB regulations. The information collected by these requirements will update the Agency's knowledge of ongoing PCB activities, ensure that individuals using or disposing of PCBs are held accountable for their activities, and demonstrate compliance with the PCB regulations. Specific uses of the information collected include determining the efficacy of a disposal technology; evaluating exemption requests and exclusion notices; targeting compliance inspections; and ensuring adequate storage capacity for PCB waste. This collection addresses the several information reporting requirements found in the PCB regulations.
Responses to the collection of information are mandatory (see 40 CFR part 761). Respondents may claim all or part of a response confidential. EPA will disclose information that is covered by a claim of confidentiality only to the
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:
There is no change in the total estimated respondent burden (745,926 hours) from that currently in the OMB inventory. The changes in the total annual respondent reporting and recordkeeping costs are due to updates to the most current wage rate data. The up-to-date wage rates and the change from the previous ICR are as follows:
• Manager—new rate, $77.86; prior rate; $77.81; (less than 1 percent) percent increase).
• Clerical—new rate, $37.76; prior rate, $30.36 (24 percent increase).
• Professional/technical—new rate, $78.33; prior rate, $64.55 (21 percent increase).
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
44 U.S.C. 3501
Environmental Protection Agency (EPA).
Notice of an event.
The Environmental Protection Agency (EPA) will host a Per- and Polyfluoroalkyl Substances (PFAS) Heartland Community Engagement in Leavenworth, Kansas. The goal of the event is to allow the EPA to hear directly from the EPA's Region VII communities to understand ways the Agency can best support the work that is being done at the state, tribal, and local level to address PFAS in the environment. For more information on the event, visit the EPA's PFAS website:
The event will be held on September 5, 2018. The meeting is scheduled from 1 p.m. to 7:15 p.m., central time. The working session will begin at 1 p.m., with the listening session to follow, starting at 3:30 p.m., central time.
The event will be held at the Riverfront Community Center, 123 S Esplanade Street, Leavenworth, Kansas 66048. If you are unable to attend the Heartland Community Engagement, you will be able to submit comments at
Amy Shields, USEPA Region 7, 11201 Renner Blvd. (Mail Code ENST/IO), Lenexa, KS 66219; telephone number: 913-551-7396; email address:
The EPA wants to assure the public that their input is valuable and meaningful. Using information from the National Leadership Summit, public
Federal Housing Finance Agency.
Notice of a Modified System of Records.
In accordance with the requirements of the Privacy Act of 1974, as amended (Privacy Act), the Federal Housing Finance Agency (FHFA) gives notice of and requests comments on the proposed revisions to an existing system of records entitled “Reasonable Accommodation Information System” (FHFA-18). The revised system contains information regarding an individual who files a request for reasonable accommodation or personal assistance service, and will be newly named “Reasonable Accommodation and Personal Assistance Services Information System.”
To be assured of consideration, comments must be received on or before September 26, 2018. The revision to the system of records will become effective on September 26, 2018 without further notice unless comments necessitate otherwise. FHFA will publish a new notice if the effective date is delayed to review comments or if changes are made based on comments received.
Submit comments to FHFA identified by “2018-N-09,” using any one of the following methods:
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See
Stacy J. Easter, Privacy Act Officer,
FHFA seeks public comments on the revisions to the system of records and will take all comments into consideration.
FHFA will make all comments timely received available for examination by the public through the electronic comment docket for this notice, which is located on the FHFA website at
This notice informs the public of FHFA's proposed revisions to an existing system of records. This notice satisfies the Privacy Act requirement that an agency publishes a system of records notice in the
As required by the Privacy Act, 5 U.S.C. 552a(r), and pursuant to section 7 of OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” dated December 23, 2016 (81 FR 94424 (Dec. 23, 2016)), prior to publication of this notice, FHFA submitted a report describing the system of records covered by this notice to the Office of Management and Budget, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate.
The “Reasonable Accommodation Information System” (FHFA-18) system of records is being revised to change the system name, address new records that will be collected, update the system's purpose, add one new routine use, and make non-substantive edits. The system's new name will be “Reasonable Accommodation and Personal Assistance Services Information System.” The current purpose of the system is to collect and maintain records from individuals who request a reasonable accommodation. FHFA is proposing to expand the purpose of the system to include records collected and maintained from individuals who request personal assistance services. The revised routine use updates the language for the disclosure of records
The revised system of records notice is set out in its entirety and described in detail below.
Reasonable Accommodation and Personal Assistance Services Information System (FHFA-18).
No Classified Information.
Federal Housing Finance Agency, 400 7th Street SW, Washington, DC 20219, and any alternate work site utilized by employees of the Federal Housing Finance Agency (FHFA) or individuals assisting such employees.
Office of Human Resources Management, Employee Relations and Benefits, Senior Human Resources Specialist, (202) 649-3807, Federal Housing Finance Agency, 400 7th Street SW, Washington, DC 20219 and any alternate work site utilized by employees of the Federal Housing Finance Agency (FHFA) or by individuals assisting such employees.
The Rehabilitation Act of 1973 (29 U.S.C. 791); 29 CFR part 1630; Executive Orders 13163, 13164 and 13548; Equal Employment Opportunity Commission (EEOC) Policy Guidance on Executive Order 13164; and EEOC Enforcement Guidance: Application of the American with Disabilities Act (ADA) to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms.
The purpose of the System is to allow FHFA to collect and maintain records on applicants for employment, employees (including former employees), and others who request a reasonable accommodation under sections 501, 504, and 701 of the Rehabilitation Act of 1973 and under the ADA Amendments of 2008, and employees who request or receive personal assistance services under Section 501, as amended, of the Rehabilitation Act. In addition, the purpose of the System is to track and report to appropriate entities the processing of requests for reasonable accommodation and personal assistance service to ensure compliance with applicable laws and regulations, and to preserve and maintain the confidentiality of medical information. Information in this System will be used to evaluate, approve, deny, and/or implement a request for reasonable accommodation or personal assistance service.
Applicants for employment, employees (current and former), and any other individuals who request or receive a reasonable accommodation under sections 501, 504, and 701 of the Rehabilitation Act of 1973 and under the ADA Amendments of 2008, and employees who request or receive personal assistance services under Section 501, as amended, of the Rehabilitation Act. This also includes authorized individuals or representatives (
Records may include requester's name, contact information (
Information is provided by applicants for employment, employees, other individuals requesting a reasonable accommodation or personal assistance service, and/or their authorized representatives, as well as individuals who are responsible for processing such requests.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside FHFA as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1) To appropriate agencies, entities, and person when (1) FHFA suspects or has confirmed that there has been a breach of the system of records; (2) FHFA has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, FHFA (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 FHFA's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(2) Where there is an indication of a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether federal, state, local, tribal, foreign or a financial regulatory organization charged with the
(3) To any individual during the course of any inquiry or investigation conducted by FHFA, or in connection with civil litigation, if FHFA has reason to believe that the individual to whom the record is disclosed may have further information about the matters related therein, and those matters appeared to be relevant at the time to the subject matter of the inquiry.
(4) To any individual with whom FHFA contracts to reproduce, by typing, photocopy or other means, any record within this system for use by FHFA and its employees in connection with their official duties or to any individual who is utilized by FHFA to perform clerical or stenographic functions relating to the official business of FHFA.
(5) To members of advisory committees that are created by FHFA or by Congress to render advice and recommendations to FHFA or to Congress, to be used solely in connection with their official, designated functions.
(6) To a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.
(7) To contractor personnel, grantees, volunteers, interns, and others performing or working on a contract, service, grant, cooperative agreement, or project for FHFA.
(8) To consultants, contractor personnel, entities, vendors or suppliers, employees of other government agencies, whether federal, state or local, as necessary to make a decision on a request for accommodation or to implement the decision.
(9) To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena from a court of competent jurisdiction.
(10) To another Federal agency or commission with responsibility for labor or employment relations or other issues, including equal employment opportunity and reasonable accommodation or personal assistance service issues, when that agency or commission has jurisdiction over reasonable accommodation or personal assistance service.
(11) To the Office of Management and Budget, Department of Justice (DOJ), Department of Labor, Office of Personnel Management, Equal Employment Opportunity Commission, or Office of Special Counsel to obtain advice regarding statutory, regulatory, policy, and other requirements related to reasonable accommodation or personal assistance service.
(12) To appropriate third parties contracted by FHFA to facilitate mediation or other dispute resolution procedures or programs.
(13) To the Department of Defense for purposes of procuring assistive technologies and services through the Computer/Electronic Accommodation Program in response to a request for reasonable accommodation.
(14) To the U.S. Department of Agriculture for purposes of procuring assistive technologies and services through the Technology & Accessible Resources Give Employment Today Center in response to a request for reasonable accommodation.
(15) To DOJ, (including United States Attorney Offices), or other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. FHFA
2. Any employee of FHFA in his/her official capacity;
3. Any employee of FHFA in his/her individual capacity where DOJ or FHFA has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and FHFA determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which FHFA collected the records.
(16) To the National Archives and Records Administration or other Federal agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
(17) To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
(18) To another Federal agency or Federal entity, when FHFA 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 format, paper form, and magnetic disk or tape. Electronic records are stored in computerized databases. Paper and magnetic disk or tape records are stored in locked file rooms, locked file cabinets, or locked safes.
Records may be retrieved by name, or some other unique identifier.
Records are retained and disposed of in accordance with the appropriate National Archives and Records Administration General Records Schedules (GRS), GRS 2.3.20 and FHFA Comprehensive Records Schedule, Item 5.3 Human Resources Records. Disposal is by shredding or other appropriate disposal system.
Records are safeguarded in a secured environment. Buildings where records are stored have security cameras and 24-hour security guard service. Computerized records are safeguarded through use of access codes and other information technology security measures. Paper records are safeguarded by locked file rooms, locked file cabinets, or locked safes. Access to the records is restricted to those who require the records in the performance of official duties related to the purposes for which the system is maintained.
Direct requests for access to a record to the Privacy Act Officer, Federal Housing Finance Agency, 400 7th Street SW, Washington, DC 20219, or
Direct requests to contest or appeal an adverse determination for a record to the Privacy Act Appeals Officer, Federal Housing Finance Agency, 400 7th Street SW, Washington, DC 20219, or [email protected] in accordance with the procedures set forth in 12 CFR part 1204.
Direct inquiries as whether this system contains a record pertaining to an individual to the Privacy Act Officer, Federal Housing Finance Agency, 400 7th Street SW, Washington, DC 20219, or
None.
The Reasonable Accommodation Information System (FHFA-18) system of records was last published in the
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to implement a new information collection, the Report of Institution-to-Aggregate Granular Data on Assets and Liabilities on an Immediate Counterparty Basis (FR 2510)(OMB No. 7100-to be assigned).
Comments must be submitted on or before October 26, 2018.
You may submit comments, identified by
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Additionally, commenters may send a copy of their comments to the 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.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Board's public website at:
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.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions; including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
In implementing this internationally-agreed template for U.S. G-SIBs, the FR 2510 is intended to build on, and complement, two existing data collections: the FFIEC 009 and the Consolidated Financial Statements for Holding Companies (FR Y 9C). Relative to the FFIEC 009 and FR Y-9C, the FR 2510 would provide significantly more detail regarding the balance sheet and derivatives exposures of U.S. G-SIBs. This information would facilitate supervisory monitoring and analysis of common or correlated exposures and funding dependencies across G-SIBs. In doing so, the FR 2510 (together with corresponding collections in other jurisdictions) would provide valuable systemic information to supervisors and policymakers and a heightened focus on improving firms' ability to aggregate and report their exposures and positions in a consistent, timely, and accurate manner.
The proposed data collection has been developed in cooperation with the Financial Stability Board (FSB). Implementation is being coordinated with respective host-country jurisdictions for non-U.S. G-SIBs under the aegis of the Multilateral Framework, a memorandum of understanding that governs the provision and reporting of confidential G-SIB data under tight security to the International Data Hub (IDH) hosted by the Bank for International Settlements (BIS). Through this mechanism, data collected via the FR 2510 would be gathered and transmitted securely to the IDH. These data would be combined by the IDH with corresponding data from other jurisdictions, and would be used by the IDH to produce analytical reports that would provide unique and authoritative aggregation and comparison of these banks' positions.
For example, from a supervisory perspective, IDH reports would provide important comparative information across G-SIBs, detailed information on G-SIB exposures to central counterparties (CCPs) and fuller information than is otherwise available on how foreign banking organizations (FBOs) fund their U.S. operations. From a financial stability perspective, IDH reports help to reveal risks associated with key common counterparties (
The global I-A template, which the FR 2510 would implement for U.S. G-SIBs, thus facilitates the compilation of consistent and comparable data from G-SIBs based in different jurisdictions. This template (and thus the FR 2510) was developed as a more detailed extension of, and complement to, existing aggregate data collections conducted by the BIS from national regulatory authorities for use in its Consolidated Banking Statistics (CBS). In the United States, these existing aggregated data are based on information collected using the FFIEC 009. The Board presently transmits data it collects through the FFIEC 009 at the consolidated bank holding company level from the U.S. G-SIBs to the IDH. The proposal would expand this existing process to encompass a larger set of more granular data items.
As noted, the FFIEC 009 and FR Y-9C regulatory reports provide limited information about the foreign exposures and foreign exchange risk of U.S. banking organizations. The FFIEC 009 requires certain banks, savings associations, bank holding companies, savings and loan holding companies, and U.S. intermediate holding companies of foreign banks to report aggregate foreign exposure information on both an immediate-counterparty basis (on the basis of the country of residence of the borrower) and ultimate-risk basis (on the basis of the country of residence of any guarantor or collateral). The information reported on the FFIEC 009 is broken out by counterparty
The proposed FR 2510 represents significant simplifications compared to the previous draft versions shared with the industry (in 2012, 2013, 2014, and 2015), including the removal of certain highly granular criteria that resulted in empty or not meaningful data. These revisions reflect lessons learned from the study itself, as well as feedback on costs and challenges received from the reporting G-SIBs, including through an industry meeting held in May 2015, and on expected benefits provided by potential users in July 2015.
Data collected in the FR 2510 would facilitate the aggregation and analysis of data from G-SIBs based in different jurisdictions. Key examples of tangible near-term products that the Federal Reserve, other U.S. supervisors, and the IDH would be able to produce with the data from the FR 2510 include:
• Aggregate and comparative reports across G-SIBs showing potential currency or maturity imbalances covering the full balance sheet (except derivatives);
• An assessment of G-SIBs' funding needs; and
• An assessment of the concentration at the country, sector, or instrument level.
Such products would provide significant value, both for supervision of U.S. G-SIBs and for broader analysis of the global financial system.
Relative to existing data sources, the FR 2510 report would support a more complete balance-sheet analysis of common or correlated exposures and funding dependencies by providing more information about reporting banking organizations' consolidated exposures to, and funding positions with, different countries according to instrument, counterparty sector, currency, and remaining maturity. The FR 2510 would be used in conjunction with other regulatory and statistical reports. Definitions and structure of the FR 2510, to the extent possible, have been aligned for U.S. implementation with these other U.S. regulatory and statistical reports to minimize reporting burden on U.S. respondents and to maximize analytical consistency with existing U.S. reports. These other reports include the FFIEC 009, the FR Y-9C, the Banking Organization Systemic Risk Report (FR Y-15), the Complex Institution Liquidity Monitoring Report (FR 2052a), and the Semiannual Report of Derivatives Activity (FR 2436).
The FR 2510 would be comprised of three schedules that would give a full view of the reporting banking organization's operations and risks. An overview of the proposed information that would be collected in these three schedules is provided below.
The I-A Immediate Counterparty schedule (I-A IC) would be the report's main schedule. This draft schedule would capture information on banking organizations' asset positions, liability positions, and contingent liabilities on a combination of the following five dimensions:
(1) Instrument,
(2) Currency,
(3) Remaining maturity,
(4) Counterparty country, and
(5) Counterparty sector.
The I-A IC positions are allocated to the country and sector where the immediate counterparty resides. Immediate-counterparty positions would be reported in Tables 1 and 2. Table 1 is a consolidated balance sheet of the granular portfolio with total positions broken out by the following seven different currencies:
(1) U.S. Dollar,
(2) Euro,
(3) Japanese Yen,
(4) British Pound,
(5) Swiss Franc,
(6) Yuan Renminbi, and
(7) Other currencies.
The currencies would be broken out into four remaining maturity categories, as follows:
(1) Non-maturity instruments,
(2) Overnight to less than three months,
(3) 3 months to less than 1 year, and
(4) 1 year and over.
Table 2 would be a consolidated balance sheet showing I-A exposures by instrument and counterparty sector to countries above the de minimis threshold of $2 billion, with banking organizations completing a table for each country above the threshold, with total positions by counterparty sector and by remaining maturity. At the time the global I-A template was developed, it was estimated that these de mimimis rules would nonetheless cover 97 percent of total claims extended to counterparties in 79 countries (based on BIS CBS). Maximum coverage would be provided for advanced economies (99 percent), while lower percentages would result for Africa and Middle East (65 percent) and Emerging Europe (85 percent).
Positions would be reported along the following counterparty sectors:
(1) Banks,
(2) Non-bank financial institutions,
(3) Non-financial corporations,
(4) Households,
(5) Government, and
(6) Unallocated by sector.
Positions would be broken out into the following three remaining maturity categories:
(1) Non-maturity instruments,
(2) Less than 1 year, and
(3) 1 year and over.
The Financial Derivatives schedule would capture details on the gross fair-value (mark-to-market) and notional amounts of financial derivatives broken out according to certain subcategories of derivative instruments. Information regarding gross fair values (mark-to-market) and notional amounts would facilitate cross-country comparisons and overcome substantially different offset requirements for derivatives between the accounting standards applied by reporting banking organizations. Derivatives would be reported along the following three categories:
(1) Exchange-traded derivatives,
(2) Centrally cleared over-the-counter (OTC) derivatives, and
(3) Bilateral/uncleared OTC derivatives. Derivatives are reported according to the following six categories of risk:
(1) Equity derivatives,
(2) Interest rate derivatives,
(3) Foreign exchange derivatives,
(4) Credit derivatives,
(5) Commodity derivatives, and
(6) Other derivatives.
The Foreign Exchange Derivatives schedule would capture gross notional currency derivative positions (separated into short and long positions) for a limited number of foreign exchange derivatives, with details on remaining maturity and currency, but no detail concerning counterparty country and sector. The scope of foreign exchange derivatives would include the following:
(1) Currency forwards,
(2) Foreign exchange swaps,
(3) Currency swaps, and
(4) Cross-currency interest rate swaps.
For each derivative type, the contract's remaining maturity would be broken out into the following maturity buckets:
(1) Non-maturity instruments (on-demand and open positions),
(2) Overnight to less than 3 months,
(3) 3 months to less than 1 year, and
(4) 1 year and over.
Federal Trade Commission (FTC or Commission).
Notice.
The information collection requirements described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act (PRA). The FTC seeks public comments on the agency's shared enforcement with the Consumer Financial Protection Bureau (“CFPB”) of the information collection requirements in subpart N of the CFPB's Regulation V (“Rule”). That clearance expires on November 30, 2018.
Comments must be received on or before October 26, 2018.
Interested parties may file a comment online or on paper by following the instructions in the Request for Comments part of the
Requests for copies of the collection of information and supporting documentation should be addressed to Ryan Mehm, Attorney, Bureau of Consumer Protection, (202) 326-2918, Federal Trade Commission, 600 Pennsylvania Ave. NW, Washington, DC 20580.
Under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3520, federal agencies must get OMB approval for each collection of information they conduct, sponsor, or require. “Collection of information” means agency requests or requirements to submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing PRA clearance for FTC's portion of the estimated burden for the information collection requirements associated with the CFPB's subpart N of Regulation V, 12 CFR 1022.130-1022.138 (OMB Control Number 3084-0128).
The FTC invites comments on: (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, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond. All comments must be received on or before October 26, 2018.
The FTC shares enforcement authority with the CFPB for subpart N of Regulation V.
Because the FTC shares enforcement authority with the CFPB for subpart N, the two agencies split between them the related estimate of PRA burden for firms under their co-enforcement jurisdiction. Estimated PRA burden, excluding the halving (to be shown at the conclusion of this analysis), are as follows:
The Consumer Data Industry Association estimated that in 2011, the nationwide consumer reporting agencies provided approximately 30 million free annual file disclosures through the centralized internet website, toll-free telephone number, and postal address required to be established by the FACT Act and subpart N.
The Commission, however, seeks more recent estimates of the number of requests consumers are making for free annual credit reports. In addition to data on the number of requests, data on how the number of requests has changed over time, and how these requests are being received—by internet, phone, or by mail—would be most helpful.
Both nationwide and nationwide specialty consumer reporting agencies will likely handle the overwhelming majority of consumer requests through internet websites. The annual file disclosure requests processed through the internet will not impose any hours burden per request on the nationwide and nationwide specialty consumer reporting agencies. However, consumer reporting agencies periodically will be required to adjust the internet capacity needed to handle the changing request volume. Consumer reporting agencies likely will make such adjustments by negotiating or renegotiating outsourcing service contracts annually or as conditions change. Trained personnel will need to spend time negotiating and renegotiating such contracts. Commission staff estimates that negotiating such contracts will require a cumulative total of 8,320 hours and $598,957 in labor costs.
Most of the telephone requests for annual file disclosures will also be handled in an automated fashion, without any additional personnel needed to process the requests. As with the internet, consumer reporting agencies will require additional time and investment to increase and administer the automated telephone capacity for the expected increase in request volume. The nationwide and nationwide specialty consumer reporting agencies will likely make such adjustments by negotiating or renegotiating outsourcing service contracts annually or as conditions change. Staff estimates that this will require a total of 6,240 hours at a cost of $449,218 in labor costs.
Based on their knowledge of the industry, staff believes that no more than 1% of consumers (1% × 38 million, or 380,000) will request an annual file disclosure through U.S. postal service mail. Staff estimates that clerical personnel will require 10 minutes per request to handle these requests, thereby totaling 63,333 hours of time. [(380,000 × 10 minutes)/60 minutes per hour = 63,333 hours]
In addition, whenever the requesting consumer cannot be identified using an automated method (a website or automated telephone service), it will be necessary to redirect that consumer to send identifying material along with the request by mail. Staff estimates that this will occur in about 5% of the new requests (or 1,881,000)
The Rule also requires that certain instructions be provided to consumers.
Labor costs are derived by applying hourly cost figures to the burden hours described above. Staff anticipates that processing of requests for annual file disclosures and instructions will be performed by clerical personnel, and estimates that the processing will require 414,516 hours at a cost of $7,444,707. [(63,333 hours for handling initial mail request + 313,500 hours for handling requests redirected to mail + 37,683 hours for handling instructions mailed to consumers) × $17.96 per hour.
As elaborated on above, staff estimates that a total of 14,560 labor hours will be needed to negotiate or renegotiate outsourced service contracts annually (or as conditions otherwise change) to increase internet (8,320 hours) and telephone (6,240 hours) capacity requirements for internet web services and the automated telephone call center. This will result in approximately $1,048,174 per year in labor costs. [14,560 hours × $71.99 per hour
Thus, estimated cumulative labor will costs are $8,492,881.
As in the previous PRA clearance analysis, FTC staff believes it is likely
After halving the updated estimates to split the PRA burden with the CFPB regarding the Rule, the FTC's burden totals are 214,538 hours, $4,246,441 in associated labor costs, and $6,959,700 in non-labor/capital costs.
You can file a comment online or on paper. For the FTC to consider your comment, we must receive it on or before October 26, 2018. Write “Paperwork Reduction Act: FTC File No. P072108” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission website, at
If you file your comment on paper, write “Paperwork Reduction Act: FTC File No. P072108” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the public FTC website—as legally required by FTC Rule 4.9(b)—we cannot redact or remove your comment from the FTC website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.
Visit the Commission website at
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).
Notice with comment period.
The Agency for Toxic Substances and Disease Registry (ATSDR), 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 “Human Health Effects of Drinking Water Exposures to Per- and Polyfluoroalkyl Substances (PFAS) at Pease International Tradeport, Portsmouth, NH (The Pease Study).” The purpose of this research is to use sound study methods to see if drinking water exposure to PFAS is related to health outcomes in this New Hampshire community.
ATSDR must receive written comments on or before October 26, 2018.
You may submit comments, identified by Docket No. ATSDR-2018-0008 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact 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.
Human Health Effects of Drinking Water Exposures to Per- and Polyfluoroalkyl Substances (PFAS) at Pease International Tradeport, Portsmouth, NH (The Pease Study)—NEW—Agency for Toxic Substances and Disease Registry (ATSDR).
Per- and polyfluoroalkyl substances (PFAS) are a family of environmentally and biologically persistent chemicals used in industrial applications such as aqueous film-forming foam (AFFF), used to extinguish flammable liquid fires. Since the 1970s, military bases in the U.S. have used AFFF with PFAS constituents for firefighting training as well as to extinguish fires. At some military bases, AFFF use has resulted in the migration of PFAS chemicals through soils to ground water and/or surface water sources of drinking water for bases and/or surrounding communities. In 2016, the U.S. Environmental Protection Agency (USEPA) issued a lifetime health advisory level of 0.07 total micrograms of perfluorooctanoate (PFOA) and perfluorooctane sulfonate (PFOS) combined per liter of drinking water (µg/L). In response to growing awareness of the extent of PFAS contamination across the U.S., Section 8006 of the Consolidated Appropriations Act, 2018, authorized the Agency for Toxic Substances and Disease Registry (ATSDR) to conduct a study on the human health effects of PFAS contamination in drinking water.
In response, ATSDR is requesting a three-year Paperwork Reduction Act (PRA) clearance for the Pease Study, which will serve as a proof-of-concept model for a national multi-site study of PFAS health effects. The existence of a large body of state and local environmental monitoring and population blood testing data makes the Pease community in Portsmouth, NH, particularly suitable as ATSDR's initial PFAS research study site. From approximately 1970 until 1991, the Air Force used AFFF for firefighting and training at Pease Air Force Base. The base closed in 1991, and was converted to a large business and aviation industrial park in 1993, the Pease International Tradeport. In 2014, PFAS drinking water concentrations were detected (0.35 µg/L PFOA and 2.4 µg/L PFOS) at levels well above what was to become the USEPA lifetime health advisory level (0.07 µg/L PFOA/PFOS). In 2015-7, the New Hampshire Department of Health and Human Services (NH DHHS) offered a PFAS blood testing program to the community. The blood testing program showed that the Pease population had concentrations of some types of PFAS that were two to three times higher than national estimates.
The Pease Study will be cross-sectional in design, drawing from a convenience sample of people with and without exposure to PFAS-contaminated drinking water from Pease. The main goals of the study are to: (1) Evaluate the study procedures and methods to identify any issues that need to be addressed before embarking on a national multi-site study; and (2) examine associations between health outcomes and measured and historically reconstructed serum levels of PFAS. ATSDR will examine the association between PFAS compounds and lipids, renal function and kidney disease, thyroid hormones and disease, liver function and disease, glycemic parameters and diabetes, as well as immune response and function in both children and adults. In addition, ATSDR will investigate if PFAS is related to differences in sex hormones and sexual maturation, vaccine response, and neurobehavioral outcomes in children. In adults, additional outcomes of interest include cardiovascular disease, osteoarthritis, osteoporosis, endometriosis, and autoimmune disease. Adults will be 18 years or older, and children will be 4-17 years of age at enrollment.
In total, ATSDR seeks to enroll 1,625 participants (1,100 adults and 525 children and their parents). Annualized estimates are 542 participants (367 adults and 175 children).
For the exposure group (n=1,350), ATSDR will enroll 1,000 adults and 350 children. Annualized estimates are 450 exposed participants (333 adults and 117 children). Eligible participants had to work at, live on, or attend childcare at the former Pease Air Force Base or the Pease International Tradeport, or live in a nearby home that was served by a PFAS-contaminated private well. Drinking water exposures must have occurred at some time between 2004 and May 2014, after which remediation of the public water supply occurred.
For the referent group (n=275), ATSDR will enroll 100 adults and 175 children. Annualized estimates are 92 referent participants (34 adults and 58 children). Eligible participants, never exposed to PFAS-contaminated drinking water from Pease, will come from other areas of Portsmouth, NH. Birth mothers of referent children likewise must never have had PFAS drinking water exposure.
ATSDR will recruit, screen for eligibility, and enroll in three waves. The exposure group will be recruited in Waves One and Two. ATSDR estimates that 90% of the exposure group will be
To restrict this study to drinking water exposures, any adult occupationally exposed to PFAS will not be eligible for the study (
At enrollment, ATSDR will obtain adult consent, parental permission, and child assent before data collection begins. Each child will enroll with a parent, who ideally will be the child's birth mother, as ATSDR will ask details about the child's exposure, pregnancy, and breastfeeding history.
For each participant, ATSDR will take body measures, collect blood and urine samples for chemical and biomarker analysis, and administer a questionnaire on exposures and medical history. For purposes of burden estimation, ATSDR assumes that 20% of parents will also enroll as adults; therefore, 420 parents will take the child questionnaire long form (n=140 per year), while 105 parents will take the short form to reduce burden (n=35 per year). Parents and children will also complete assessments of the child's attention and behaviors. After eligibility screening, the annual time burden for participation in the study is 58 hours for adults and 208 hours for children and their parents.
ATSDR will ask for permission to compare adults' and children's medical histories with their medical records. ATSDR will also ask for permission to check children's school records to compare their behavioral assessment results. The annual time burden for medical and educational record abstraction is estimated to be 125 hours for adult records and 118 hours for children's records.
The total annualized time burden requested is 1,189 hours. There is no cost to the respondents other than their time.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of availability.
NIOSH announces the availability of the final
The final document was published on August 20, 2018 on the CDC website.
The document may be obtained at the following link:
Emily Novicki, M.A., M.P.H, (
On December 7, 2017, NIOSH published a request for public review in the
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled [HIV Outpatient Study (HOPS)
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
HIV Outpatient Study (HOPS) (OMB Control Number 0920-1080, Expiration Date 08/31/2018)—REVISION—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention requests a three year approval for the HIV Outpatient Study data collection activity. The HIV Outpatient Study (HOPS) is a prospective longitudinal cohort of HIV-infected outpatients at eight well-established private HIV care practices and university-based U.S. clinics. Clinical data are abstracted on ongoing basis from the medical records of adult HIV-infected HOPS study participants, who also complete an optional seven minute telephone/web-based behavioral assessment as part of their annual clinic visit. Before enrolling in this study, all potential study participants will undergo an informed consent process (including signing of a written informed consent) which is estimated to take 15 minutes.
The core areas of HOPS research extending through the present HIV treatment era include (i) monitoring death rates and causes of death (ii) characterizing the optimal patient management strategies to reduce HIV-related morbidity and mortality (
Data will be collected through medical record abstraction by trained abstractors and by telephone or internet-based, computer-assisted interviews at eight funded study sites in six U.S. cities. Collection of data abstracted from patient medical records provides data in five general categories: Demographics and risk behaviors for HIV infection; symptoms; diagnosed conditions (definitive and presumptive); medications prescribed (including dose, duration, and reasons for stopping); all laboratory values, including CD4+ T-lymphocyte (CD4+) cell counts, plasma HIV-RNA determinations, and genotype, phenotype, and trophile results. Data on visit frequency, AIDS, and death are acquired from the clinic chart.
Data collected using a brief Telephone Audio-Computer Assisted Self-Interview (T-ACASI) survey or an identical web-based Audio-Computer Assisted Self-Interview (ACASI) include: age, sex at birth, use of alcohol and drugs, cigarette smoking, adherence to antiretroviral medications, types of sexual intercourse, condom use, and disclosure of HIV status to partners.
We estimate consenting 450 new participants per year across all HOPS study sites (50 participants at each of the eight sites). The consent process takes approximately 15 minutes to complete. Medical record abstractions will be completed on all eligible participants. All eligible participants will be offered the opportunity to participate in an optional short survey that will take approximately seven minutes. Participation of respondents is voluntary. There is no cost to the
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by October 26, 2018.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Collection of this information is mandated in Part D of the Medicare Prescription Drug, Improvement, and
2.
This information collection includes the process for organizations wishing to provide healthcare services under MA plans. These organizations must complete an application annually (if required), file a bid, and receive final approval from CMS. The MA application process has two options for applicants that include (1) request for new MA product or (2) request for expanding the service area of an existing product. CMS utilizes the application process as the means to review, assess and determine if applicants are compliant with the current requirements for participation in the MA program and to make a decision related to contract award. This collection process is the only mechanism for organizations to complete the required MA application process. CMS will collect and review information under the solicitation of Part C applications for the various health plan product types described in the Background section above. CMS will use the information to determine whether the applicants meet the requirements to become an MA organization and are qualified to provide a particular type of MA plan. The application process is open to all health plans that want to participate in the MA program. The application is distinct and separate from the bid process, and CMS issues a determination on the application prior to bid submissions, or before the first Monday in June.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Given the innovative nature of Exchanges and the statutorily-prescribed relationship between the secretary and States in their development and operation, it is critical that the Secretary work closely with States to provide necessary guidance and technical assistance to ensure that States can meet the prescribed timelines, federal requirements, and goals of the statute.
States seeking to establish a SBE or SBE-FP must build an Exchange that meets the requirements set out in Section 1311(d) of the Affordable Care Act and pursuant to CFR 155.105, FFE states that seek to operate an SBE or SBE-FP must complete and submit an Exchange Blueprint Application. The Blueprint Application documents that an Exchange will meet the legal and operational requirements associated with the Exchange model a state chooses to pursue. As part of its Blueprint submission, a state will also agree to demonstrating operational readiness to implement and execute the required Exchange activities described in the Blueprint Application.
2.
The QIS Implementation Plan and Progress Form will allow: (1) The Department of Health & Human Services (HHS) to evaluate the compliance and adequacy of QHP issuers' quality improvement efforts, as required by Section 1311(c) of the Patient Protection and Affordable Care Act, and (2) HHS will use the issuers' validated information to evaluate the issuers' quality improvement strategies for compliance with the requirements of Section 1311(g) of the Patient Protection and Affordable Care Act.
This information collection will be housed in the On-Line Data Collection (OLDC) with in
Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that a meeting is scheduled to be held for the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (Advisory Council). The meeting will be open to the public; a public comment session will be held during the meeting. Pre-registration is required for members of the public who wish to attend the meeting and who wish to participate in the public comment session. Individuals who wish to attend the meeting and/or send in their public comment via email should send an email to
The meeting is scheduled to be held on September 26, 2018, from 9:00 a.m. to 5:00 p.m. ET (times are tentative and subject to change). The confirmed times and agenda items for the meeting will be posted on the website for the Advisory Council at
This public meeting is being held at the Sheraton Columbus Hotel at Capitol Square, 75 East State Street, Columbus, OH, 43215. The meeting can also be accessed through a live webcast on the day of the meeting. For more information, visit
Jomana Musmar, Acting Designated Federal Officer, Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria, Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services, Room 715H, Hubert H. Humphrey Building, 200 Independence Avenue SW, Washington, DC 20201. Phone: (202) 690-5566; email:
Under Executive Order 13676, dated September 18, 2014, authority was given to the Secretary of HHS to establish the Advisory Council, in consultation with the Secretaries of Defense and Agriculture. Activities of the Advisory Council are governed by the provisions of Public Law 92-463, as amended (5 U.S.C. App.), which sets forth standards for the formation and use of federal advisory committees.
The Advisory Council will provide advice, information, and recommendations to the Secretary of HHS regarding programs and policies intended to support and evaluate the implementation of Executive Order 13676, including the National Strategy for Combating Antibiotic-Resistant Bacteria and the National Action Plan for Combating Antibiotic-Resistant Bacteria. The Advisory Council shall function solely for advisory purposes.
In carrying out its mission, the Advisory Council will provide advice, information, and recommendations to the Secretary regarding programs and policies intended to preserve the effectiveness of antibiotics by optimizing their use; advance research to develop improved methods for combating antibiotic resistance and conducting antibiotic stewardship; strengthen surveillance of antibiotic-resistant bacterial infections; prevent the transmission of antibiotic-resistant bacterial infections; advance the development of rapid point-of-care and agricultural diagnostics; further research on new treatments for bacterial infections; develop alternatives to antibiotics for agricultural purposes; maximize the dissemination of up-to-date information on the appropriate and proper use of antibiotics to the general public and human and animal healthcare providers; and improve international coordination of efforts to combat antibiotic resistance.
The September 26, 2018, public meeting will be dedicated to the Advisory Council's deliberation and vote of the Infection Prevention and Stewardship Working Group's draft report with recommendations, in addition to other topic areas surrounding antibiotic-resistance and One Health. The meeting agenda will be posted on the Advisory Council website at
Public attendance at the meeting is limited to the available space. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Advisory Council at the
Members of the public will have the opportunity to provide comments prior to the Advisory Council meeting by emailing
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Mental Health Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of the cancellation of the National Cancer Institute Special Emphasis Panel, November 01, 2018, 11:00 a.m. to November 01, 2018, 2:00 p.m., National Cancer Institute Shady Grove, Shady Grove, 9609 Medical Center Drive, Rockville, MD, 20850 which was published in the
This meeting has been cancelled. The applications have been assigned to another meeting for review.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Somalia for Temporary Protected Status (TPS) for 18 months, from September 18, 2018, through March 17, 2020. The extension allows currently eligible TPS beneficiaries to retain TPS through March 17, 2020, so long as they otherwise continue to meet the eligibility requirements for TPS.
This Notice also sets forth procedures necessary for nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) to re-register for TPS and to apply for Employment Authorization Documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). USCIS will issue new EADs with a March 17, 2020 expiration date to eligible Somalia TPS beneficiaries who timely re-register and apply for EADs under this extension.
• You may contact Samantha Deshommes, Branch Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529-2060; or by phone at 800-375-5283.
• For further information on TPS, including guidance on the re-registration process and additional information on eligibility, please visit the USCIS TPS web page at
• If you have additional questions about Temporary Protected Status, please visit
• Applicants seeking information about the status of their individual cases may check Case Status Online, available on the USCIS website at
• Further information will also be available at local USCIS offices upon publication of this Notice.
Through this Notice, DHS sets forth procedures necessary for eligible nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) to re-register for TPS and to apply for renewal of their EADs with USCIS. Re-registration is limited to persons who have previously registered for TPS under the designation of Somalia and whose applications have been granted.
For individuals who have already been granted TPS under Somalia's designation, the 60-day re-registration period runs from August 27, 2018 through October 26, 2018. USCIS will issue new EADs with a March 17, 2020 expiration date to eligible Somali TPS beneficiaries who timely re-register and apply for EADs. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on September 17, 2018. Accordingly, through this
Individuals who have a Somalia TPS Form I-821 and/or Form I-765 that was still pending as of August 27, 2018 do not need to file either application again. If the TPS application is approved, the individual will be granted TPS through March 17, 2020. Similarly, if a pending TPS-related application for an EAD is approved, it will be valid through the same date. There are approximately 500 current beneficiaries under Somalia's TPS designation.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the INA, or to eligible persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to obtain EADs so long as they continue to meet the requirements of TPS.
• TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to lawful permanent resident status.
• To qualify for TPS, beneficiaries must meet the eligibility standards at INA section 244(c)(1)-(2), 8 U.S.C. 1254a(c)(1)-(2).
• When the Secretary terminates a country's TPS designation, beneficiaries return to one of the following:
○ The same immigration status or category that they maintained before TPS, if any (unless that status or category has since expired or been terminated); or
○ Any other lawfully obtained immigration status or category they received while registered for TPS, as long as it is still valid beyond the date TPS terminates.
Somalia was initially designated on September 16, 1991, on the basis of extraordinary and temporary conditions in Somalia that prevented nationals of Somalia from safely returning.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government (Government), to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in the foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met.
DHS has reviewed conditions in Somalia. Based on the review, including input received from other U.S. Government agencies, the Secretary has determined that an 18-month extension is warranted because the ongoing armed conflict and extraordinary and temporary conditions supporting Somalia's TPS designation persist.
Somalia's security situation remains fragile and volatile, with ongoing armed conflict among government forces, clan militias, African Union Mission in Somalia (AMISOM) troops, and al-Shabaab. Somalia continues to experience one of the largest humanitarian crises in the world. An estimated 5.4 million Somalis (out of a total population of approximately 12.3 million) are in need of assistance. Although more than 118,000 refugees have returned to Somalia since 2014, new conflict patterns, drought, and flooding have driven over 819,000 people to flee to neighboring countries as of May 31, 2018.
Civilians continue to be threatened by violence in Somalia. From January 2016-October 2017, at least 2,078 civilians were killed by armed groups. Al-Shabaab continues to wage an armed insurgency against the Federal Government of Somalia (FGS). The group has reasserted its territorial reach across substantial territory in southern Somalia from which it continues to launch coordinated mass attacks on Somali and AMISOM military bases. Somalia's Puntland region is home to a splinter group of Al-Shabaab that has sworn allegiance to the self-described Islamic State (IS). This group has carried out a number of suicide bombings, assassinations, and small arms attacks in Puntland in the past year.
Parts of Somalia remained trapped in unresolved inter-clan conflicts. Clan and government-aligned militias continue to carry out extrajudicial killings, extortion, arbitrary arrests, and rape of civilians. Clan tensions are typically exacerbated in times of drought when massive numbers of people and livestock move across traditional clan “boundaries” in search of water and pasture. In particular, a series of clashes in north-central Somalia in the last two years has triggered the displacement of 75,000 to 100,000 civilians.
Over 2.1 million Somalis are internally displaced—nearly double from the 2012 TPS designation. Forced evictions increased in 2017, with over 200,000 reported evictions, according to the United Nations. Forced evictions continue in 2018, undermining humanitarian efforts to assist Somalia's internally displaced populations.
Decades of insecurity have devastated Somalia's physical infrastructure. Humanitarian agencies cite the need for the rehabilitation of crucial infrastructure, including airstrips, roads, and ports.
Somalia has experienced some recent economic gains, with gross domestic product (GDP) slightly improving each of the past three years. Despite modest improvements, Somalia is among the poorest countries in the world.
Based upon this review and after consultation with appropriate Government agencies, the Secretary has determined that:
• The conditions supporting Somalia's designation for TPS continue to be met.
• There continues to be an ongoing armed conflict in Somalia and, due to such conflict, requiring the return of Somali nationals (or aliens having no nationality who last habitually resided in Somalia) to Somalia would pose a serious threat to their personal safety.
• There continue to be extraordinary and temporary conditions in Somalia that prevent Somali nationals (or aliens having no nationality who last habitually resided in Somalia) from returning to Somalia in safety, and it is not contrary to the national interest of the United States to permit Somali TPS
• The designation of Somalia for TPS should be extended for an 18-month period, from September 18, 2018 through March 17, 2020.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, the conditions supporting Somalia's designation for TPS continue to be met.
To re-register for TPS based on the designation of Somalia, you
Through operation of this
Additionally, individuals who have EADs with an expiration date of March 17, 2017, and who applied for a new EAD during the last re-registration period but have not yet received their new EADs are also covered by this automatic extension through March 16, 2019. You do not need to apply for a new EAD in order to benefit from this 180-day automatic extension. If you have a Form I-821 and/or Form I-765 that was still pending as of August 27, 2018, then you do not need to file either application again. If your pending TPS application is approved, you will be granted TPS through March 17, 2020. Similarly, if you have a pending TPS-related application for an EAD that is approved, it will be valid through the same date.
You may file the application for a new EAD either prior to or after your current EAD has expired. However, you are strongly encouraged to file your application for a new EAD as early as possible to avoid gaps in the validity of your employment authorization documentation and to ensure that you receive your new EAD by March 16, 2019.
For more information on the application forms and fees for TPS, please visit the USCIS TPS web page at
Biometrics (such as fingerprints) are required for all applicants 14 years of age and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may complete a Form I-912 or submit a personal letter requesting a fee waiver, with satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS website at
You should file as soon as possible within the 60-day re-registration period so USCIS can process your application and issue any EAD promptly. Properly filing early will also allow you to have time to refile your application before the deadline, should USCIS deny your fee waiver request. If, however, you receive a denial of your fee waiver request and are unable to refile by the re-registration deadline, you may still refile your Form I-821 with the biometrics fee. This situation will be reviewed to determine whether you established good cause for late TPS re-registration. However, you are urged to refile within 45 days of the date on any USCIS fee waiver denial notice, if possible.
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate mailing address in Table 1. When re-registering and requesting an EAD based on an IJ/BIA grant of TPS, please include a copy of the IJ or BIA order granting you TPS with your application.
The filing instructions on the Form I-821 list all the documents needed to establish eligibility for TPS. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS website at
To get case status information about your TPS application, including the status of an EAD request, you can check Case Status Online at
Yes. Provided that you currently have a Somalia TPS-based EAD, this
• Are a national of Somalia (or an alien having no nationality who last habitually resided in Somalia); and either
• Have an EAD with a marked expiration date of September 17, 2018, bearing the notation A-12 or C-19 on the face of the card under Category, or
• Have an EAD with a marked expiration date of March 17, 2017, bearing the notation A-12 or C-19 on the face of the card under Category and you applied for a new EAD during the last re-registration period but have not yet received a new EAD.
Although this
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Form I-9. Employers must complete Form I-9 to verify the identity and employment authorization of all new employees. Within three days of hire, employees must present acceptable documents to their employers as evidence of identity and employment authorization to satisfy Form I-9 requirements.
You may present any document from List A (which provides evidence of both identity and employment authorization), or one document from List B (which provides evidence of your identity) together with one document from List C (which is evidence of employment authorization), or you may present an acceptable receipt for List A, List B, or List C documents as described in the Form I-9 Instructions. Employers may not reject a document based on a future expiration date. You can find additional detailed information about Form I-9 on USCIS' I-9 Central web page at
An EAD is an acceptable document under List A. If your EAD has an expiration date of September 17, 2018, or March 17, 2017 (and you applied for a new EAD during the last re-registration period but have not yet received a new EAD), and states A-12 or C-19 under Category, it has been extended automatically by virtue of this
To reduce confusion over this extension at the time of hire, you should explain to your employer that your EAD has been automatically extended through March 16, 2019. You may also provide your employer with a copy of this
Even though your EAD has been automatically extended, your employer is required by law to ask you about your continued employment authorization no later than before you start work on September 18, 2018. You will need to present your employer with evidence that you are still authorized to work. Once presented, you may correct your employment authorization expiration date in Section 1 and your employer should correct the EAD expiration date in Section 2 of Form I-9. See the subsection titled, “What corrections should my current employer and I make to Employment Eligibility Verification (Form I-9) if my employment authorization has been automatically extended?” for further information. You may show this
The last day of the automatic EAD extension is March 16, 2019. Before you start work on March 17, 2019, your employer must reverify your employment authorization. At that time, you must present any document from List A or any document from List C on Form I-9 Lists of Acceptable Documents, or an acceptable List A or List C receipt described in the Form I-9 Instructions to reverify employment authorization.
By March 17, 2019, your employer must complete Section 3 of the current version of the form, Form I-9 07/17/17 N, and attach it to the previously completed Form I-9, if your original Form I-9 was a previous version. Your employer can check the USCIS' I-9 Central web page at
Note that your employer may not specify which List A or List C document you must present and cannot reject an acceptable receipt.
No. When completing Form I-9, including reverifying employment authorization, employers must accept any documentation that appears on the Form I-9 “Lists of Acceptable Documents” that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers need not reverify List B identity documents. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Somali citizenship or proof of re-registration for TPS when completing Form I-9 for new hires or reverifying the employment authorization of current employees. If presented with EADs that have been automatically extended, employers should accept such documents as a valid List A document so long as the EAD reasonably appears to be genuine and relates to the employee. Refer to the Note to Employees section of this
When using an automatically extended EAD to complete Form I-9 for a new job before March 17, 2019, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work until” and enter March 16, 2019 as the “expiration date”; and
b. Enter your Alien Number/USCIS number or A-Number where indicated (your EAD or other document from DHS will have your USCIS number or A-Number printed on it; the USCIS number is the same as your A-Number without the A prefix).
2. For Section 2, employers should:
a. Determine if the EAD is auto-extended by ensuring it is in category A-12 or C-19 and has a September 17, 2018, expiration date (or March 17, 2017 expiration date provided your employee applied for a new EAD during the last re-registration period but has not yet received a new EAD);
b. Write in the document title;
c. Enter the issuing authority;
d. Provide the document number; and
e. Write March 16, 2019, as the expiration date.
Before the start of work on March 17, 2019, employers must reverify the employee's employment authorization in Section 3 of Form I-9.
If you presented a TPS-related EAD that was valid when you first started your job and your EAD has now been automatically extended, your employer may need to re-inspect your current EAD if they do not have a copy of the EAD on file. You may, and your employer should, correct your previously completed Form I-9 as follows:
1. For Section 1, you may:
a. Draw a line through the expiration date in Section 1;
b. Write March 16, 2019, above the previous date; and
c. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Determine if the EAD is auto-extended by ensuring:
• It is in category A-12 or C-19; and
• Has a marked expiration date of September 17, 2018, or March 17, 2017, provided your employee applied for a new EAD during the last re-registration period but has not yet received a new EAD.
b. Draw a line through the expiration date written in Section 2;
c. Write March 16, 2019, above the previous date; and
d. Initial and date the correction in the Additional Information field in Section 2.
Employers may create a case in E-Verify for these employees by providing the employee's Alien Registration number, USCIS number, and entering the receipt number as the document number on Form I-9 into the document number field in E-Verify.
E-Verify automated the verification process for TPS-related EADs that are automatically extended. If you have employees who provided a TPS-related EAD when they first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when the auto-extension period for this EAD is about to expire. The alert indicates that before this employee starts to work on March 17, 2019, you must reverify his or her employment authorization in Section 3 of Form I-9. Employers should not use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or email USCIS at
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt as described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Form I-9 completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from an employee's Form I-9 differs from Federal or state government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay, or take any adverse action against an employee because of the TNC while the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). For more information about E-Verify-related discrimination or to report an employer for discrimination in the E-Verify process based on citizenship, immigration status, or national origin, contact IER's Worker Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Form I-9 and E-Verify procedures is available on the IER website at
While Federal Government agencies must follow the guidelines laid out by the Federal Government, state and local government agencies establish their own rules and guidelines when granting certain benefits. Each state may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, state, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples of such documents are:
(1) Your current EAD;
(2) A copy of your Notice of Action (Form I-797C), the notice of receipt, for your application to renew your current EAD providing an automatic extension of your currently expired or expiring EAD;
(3) A copy of your Notice of Action (Form I-797C), the notice of receipt, for your Application for Temporary Protected Status for this re-registration; and
(4) A copy of your Notice of Action (Form I-797), the notice of approval, for a past or current Application for Temporary Protected Status, if you received one from USCIS. Check with the government agency regarding which document(s) the agency will accept.
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements (SAVE) program to confirm the current immigration status of applicants for public benefits. In most cases, SAVE provides an automated electronic response to benefit-granting agencies within seconds, but, occasionally, verification can be delayed. You can check the status of your SAVE verification by using CaseCheck at the following link:
Office of Community Planning and Development, 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
Njeri Santana, CPD Specialist, Office of Entitlement Communities Division. Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Njeri Santana at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This information describes the reporting and recordkeeping requirements of the Neighborhood Stabilization Program 2 (NSP2). The data required includes program level, project level and beneficiary level information collected and reported on by NSP2 grantees. The data identifies who benefits from the NSP2 program and how statutory requirement are satisfied. The respondents are State, local government, non-profit and consortium applicants.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
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.
Fish and Wildlife Service, Interior.
Notice of meetings.
The North American Wetlands Conservation Council will meet to select North American Wetlands Conservation Act (NAWCA) grant proposals for recommendation to the Migratory Bird Conservation Commission (Commission). The Council will consider Canada, Mexico, and U.S. Standard grant proposals. The Advisory Group for the Neotropical Migratory Bird Conservation Act (NMBCA) grants program (Advisory Group) also will meet. The Advisory Group will discuss the strategic direction and management of the NMBCA program. Both meetings are open to the public, and interested persons may present oral or written statements.
•
•
Sarah Mott, Council/Advisory Group Coordinator, by phone at 703-358-1784; by email at
In accordance with the North American Wetlands Conservation Act (Pub. L. 101-233, 103 Stat. 1968, December 13, 1989, as amended; NAWCA), the State-private-Federal North American Wetlands Conservation Council (Council) meets to consider wetland acquisition, restoration, enhancement, and management projects for recommendation to, and final funding approval by, the Migratory Bird Conservation Commission. NAWCA provides matching grants to organizations and individuals who have developed partnerships to carry out wetlands conservation projects in the United States, Canada, and Mexico. These projects must involve long-term protection, restoration, and/or enhancement of wetlands and associated uplands habitats for the benefit of all wetlands-associated migratory birds. Project proposal due dates, application instructions, and eligibility requirements are available on the NAWCA website at
In accordance with Neotropical Migratory Bird Conservation Act (Pub. L. 106-247, 114 Stat. 593, July 20, 2000; NMBCA), the Advisory Group will hold its meeting to discuss the strategic direction and management of the NMBCA program and provide advice to the Director of the Fish and Wildlife Service. NMBCA promotes long-term conservation of neotropical migratory birds and their habitats through a competitive grants program by promoting partnerships, encouraging local conservation efforts, and achieving habitat protection in 36 countries. The goals of NMBCA include perpetuating healthy bird populations, providing financial resources for bird conservation, and fostering international cooperation. Because the greatest need is south of the U.S. border, at least 75 percent of NMBCA funding supports projects outside the United States. Project proposal due dates, application instructions, and eligibility requirements are available on the NMBCA website at
Interested members of the public may submit relevant information or questions to be considered during the public meetings. If you wish to make information available to the Council or Advisory Group for their consideration prior to the meeting, you must contact the Council/Advisory Group Coordinator by the date in
Individuals or groups requesting to make an oral presentation at the meetings will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council/Advisory Group Coordinator, by the date specified above in
Summary minutes of the Council and Advisory Group meetings will be maintained by the Council/Advisory Group Coordinator at the address under
We issue this notice under the authority of NAWCA (Pub. L. 101-233, 103 Stat. 1968, December 13, 1989, as amended).
Bureau of Indian Affairs, Interior.
Notice.
The State of Oklahoma entered into compact amendments with the Quapaw Tribe of Oklahoma and the Sac and Fox Nation of Oklahoma governing certain forms of class III gaming; this notice announces the approval of the State of Oklahoma Gaming Compact Non-house-Banked Table Games Supplement between the State of Oklahoma and the Quapaw Tribe of Oklahoma and the Sac and Fox Nation.
The compact amendments take effect on August 27, 2018.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under section 11 of the Indian Gaming Regulatory Act (IGRA) Public Law 100-497, 25 U.S.C. 2701
Bureau of Indian Affairs, Interior.
Notice.
The State of Oklahoma entered into compact amendments with the Otoe-Missouria Tribe of Indians, the Peoria Tribe of Oklahoma, and the Tonkawa Tribe of Oklahoma governing certain forms of class III gaming; this notice announces the approval of the State of Oklahoma Gaming Compact Non-house-Banked Table Games Supplement between the State of Oklahoma and the Otoe Missouria Tribe of Indians, the Peoria Tribe of Oklahoma, and the Tonkawa Tribe of Oklahoma.
The compact amendments take effect on August 27, 2018.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under section 11 of the Indian Gaming Regulatory Act (IGRA) Public Law 100-497, 25 U.S.C. 2701
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) is proposing a non-competitive (direct) sale of 221.68 acres of public land in Esmeralda County, Nevada, to the Esmeralda County Board of Commissioners. The sale will resolve inadvertent unauthorized occupancy issues within the historic mining town site of Gold Point dating back to the late 1800's. The sale will be subject to the applicable provisions of the Federal Land Policy and Management Act of 1976 (FLPMA). The appraised fair market value (FMV) for the sale parcel is $82,000.
Interested parties may submit written comments regarding the sale and Environmental Assessment until October 11, 2018. The public land will not be offered for sale prior to October 26, 2018.
Mail written comments to the BLM, Tonopah Field Office, Field Manager, 1553 South Main Street, P.O. Box 911, Tonopah, NV 89049.
Wendy Seley by email:
The historic Gold Point town site was a gold and silver mining camp known as Lime Point dating back to 1868, and later around 1908, as Hornsilver. The following public lands are involved in the sale:
The area described contains 221.68 acres.
Upon publication of this Notice in the
FLPMA, Section 203(a)(3) and 43 CFR 2710.0-3(a)(2), allows disposal of public land that will serve important public objectives, including expansion of communities and economic development, which cannot be achieved prudently or feasibly on lands other than public lands, and which outweigh other public objectives and values.
In accordance with 43 CFR 2710.0-6(c)(3)(iii) and 43 CFR 2711.3-3(a), a direct sale may be appropriate to resolve inadvertent, unauthorized occupancy of the land or to protect existing equities in the land. The sale, if completed, would protect the existing improvements and resolve inadvertent unauthorized use and occupancy. The parcel is not suitable for management by other Federal agencies and is not required for any other Federal purpose.
The BLM may sell a tract of public land identified for disposal in an approved land use plan and meets the disposal criteria, as identified in FLPMA. The BLM Tonopah Resource Management Plan (RMP), Appendix 14, pages A-46 through A-49; dated October 2, 1997 designates the public land in question as suitable for disposal. The proposed action is consistent with
The BLM has prepared Environmental Assessment (EA) DOI-BLM-NV-B020-2017-0017-EA for the proposed sale. The comment period on the EA will end concurrently with the close of the comment period associated with this Notice of Realty Action. The EA, Environmental Site Assessment, Mineral Potential Report, Mineral Evaluation Report, map, and approved appraisal report are available to review at the Tonopah Field Office at the address in the
In order to determine the Fair Market Value (FMV) through appraisal, an appraiser may make certain extraordinary assumptions and hypothetical conditions concerning the attributes and limitations of the land, potential effects of local regulations, and policies on potential future land uses. Through publication of this Notice, the BLM advises that local government may not have endorsed or approved these assumptions.
Esmeralda County Board of Commissioners expressed an interest in purchasing, by direct sale, the surface estate of these lands. As proof of interest, Esmeralda County Board of Commissioners approved Resolution No. 15-R-08, “Resolution in Support of Esmeralda County to Purchase by Direct Sale of the Gold Point Disposal Area with the Bureau of Land Management.” As documented in the resolution, the county understands the sale would be “for the purpose of the county re-conveying to existing owners their holdings giving them a secure title” and that the county's intent is “that our citizens residing in Gold Point be able to live without the threat of being displaced and that its historic nature be preserved.”
The BLM proposes a direct sale because it serves an important local public objective of facilitating Esmeralda County's efforts to resolve long-standing inadvertent unauthorized occupancy issues within the historic mining townsite of Gold Point and to provide for the expansion of the existing townsite.
Common variety mineral materials, such as gravel, sand, and fill, are present on the subject lands. However, there is little or no market for these materials in the local area and the materials are widely present in the region. Therefore, the development or marketability potential for mineral materials on the subject lands is low. The patent, when issued, will contain a mineral reservation to the United States for all minerals. Mineral regulations published in the
The public land will not be offered for sale prior to October 26, 2018. The patent, if issued, will be subject to the following terms, conditions, and reservations:
1. The parcel is subject to all valid existing rights;
2. An appropriate indemnification clause protecting the United States from claims arising out of the patentee's use occupancy or occupations on the patented lands;
3. A reservation for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945);
4. All mineral deposits in the lands so patented, the right to prospect for, mine, and remove such deposits from the same under applicable law and regulations as established by the Secretary of the Interior are reserved to the United States, together with all necessary access and exit rights.
No representation, warranty, or covenant of any kind, express or implied, is given by the United States as to the title, whether or to what extent the land may be developed, its physical condition, future uses, or any other circumstance or condition. The conveyance of a parcel will not be on a contingency basis. However, to the extent required by law, the parcel is subject to the requirements of Section 120(h) of the CERCLA. The patent will convey the property in its existing condition and, therefore, if the parcel is lacking access from a public road or highway, the buyer will be responsible for establishing legal access.
The BLM will send the purchaser an offer letter with detailed information for full payment of the proposed 221.68-acre parcel. The purchaser will have 30 days from the date of receiving the sale offer to accept the offer and to submit a deposit of 20 percent of the purchase price. The purchaser must remit the remainder of the purchase price within 180 days from the date of the sale offer. Payments must be by certified check, U.S. postal money order, bank draft, or cashier's check, and made payable to the U.S. Department of the Interior—BLM or conduct an electronic funds transfer. The balance is due 2 weeks prior to the 180th day if the purchaser conducts an electronic funds transfer. Failure to meet conditions established for this sale will void the sale and forfeit any payment(s) received.
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.
The BLM Nevada State Director or other authorized official of the Department of the Interior will review comments regarding this proposed sale and may sustain, vacate, or modify this realty action in response to such comments. In the absence of any comments, this realty action will become the final determination of the Department of the Interior.
43 CFR 2711.1-2
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before August 11, 2018, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by September 11, 2018.
Comments may be sent via U.S. Postal Service and all other carriers to the National Register of Historic Places, National Park Service, 1849 C St. NW, MS 7228, Washington, DC 20240.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State Historic Preservation Officers:
The following resource has been determined eligible for listing on the National Register of Historic Places:
A request for removal has been made for the following resource:
Additional documentation has been received for the following resources:
Nomination submitted by Federal Preservation Officer:
The State Historic Preservation Officer reviewed the following nomination and responded to the Federal Preservation Officer within 45 days of receipt of the nomination and supports listing the property in the National Register of Historic Places.
Section 60.13 of 36 CFR part 60.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before August 4, 2018, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by September 11, 2018.
Comments may be sent via U.S. Postal Service and all other carriers to the National Register of Historic Places, National Park Service, 1849 C St. NW, MS 7228, Washington, DC 20240.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before August 4, 2018. Pursuant to Section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State Historic Preservation Officers:
A request for removal has been made for the following resource:
Nomination submitted by Federal Preservation Officer:
The State Historic Preservation Officer reviewed the following nomination and responded to the Federal Preservation Officer within 45 days of receipt of the nomination and supports listing the property in the National Register of Historic Places.
Section 60.13 of 36 CFR part 60.
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice of information collection; request for comment.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents is properly assessed. Currently, DOL is soliciting comments concerning the collection of data on the Evaluation of the American Apprenticeship Initiative. A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee section below on or before October 26, 2018.
You may submit comments by either one of the following methods:
Contact Janet Javar by email at
I. Background: The American Apprenticeship Initiative (AAI) awarded funds to 46 grantees to support the expansion of quality and innovative apprenticeship training programs. The Department of Labor is sponsoring an evaluation of this initiative that includes the following four components:
1. An implementation study to describe how AAI programs develop, operate and mature.
2. An outcomes study to examine in-program and post-program outcomes of participants in apprenticeships, particularly around employment, earnings, wages, and employment retention, as well as pre-intervention and post-intervention certification and credential attainment.
3. A return on investment (ROI) study to estimate the benefits and costs of apprenticeship to employers.
4. An impact study to assess the efforts of select AAI grantees to sell apprenticeships to employers and to assist employers in registration of apprenticeships.
This
• Employer survey—a key source of information for the ROI study, the employer survey will be used to generate an estimate of the returns employers can expect by investing in apprenticeship programs. This on-line survey asks about the firm's characteristics, sponsorship, apprenticeship structure, and specific questions about the costs and benefits employers experience by offering apprenticeship.
• Participant survey—a key source of information for the outcomes study, the survey gathers information about the participants' experience in an AAI apprenticeship. The survey includes questions on an apprentice's background prior to apprenticeship, apprenticeship experiences, skills and knowledge gained, and outcomes. The survey will use a bi-modal approach: on-line with telephone follow-up as needed.
A separate information collection activity notice on interview protocols for implementation study site visits, a grantee survey, and a management information system (MIS) for the impact study was published on September 13, 2017 (82 FR 43038). These collection activities will commence once the information collection request is approved.
II. Desired Focus of Comments: DOL is soliciting comments concerning the above data collection for the Evaluation of the American Apprenticeship Initiative. DOL is particularly interested in comments that do the following:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• 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—for example, permitting electronic submission of responses.
III. Current Actions: At this time, DOL is requesting clearance for the survey of employers affiliated with AAI grantees and for the survey of participants served through AAI grants.
Veterans' Employment and Training Service (VETS), Department of Labor (DOL).
Notice of open meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the ACVETEO. The ACVETEO will discuss the DOL core programs and services that assist veterans seeking employment and raise employer awareness as to the advantages of hiring veterans. There will be an opportunity for individuals or organizations to address the committee. Any individual or organization that wishes to do so should contact Mr. Gregory Green at 202-693-4734.
Individuals who will need accommodations for a disability in order to attend the meeting (
Thursday, September 20, 2018, beginning at 9:00 a.m. and ending at approximately 4:00 p.m. (EST).
The meeting will take place at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW, Washington, DC 20210, Conference Room N-4437 C&D. Members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event being attended: The meeting event is the Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO).
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk.
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro's Judiciary Square station is the easiest way to access the Frances Perkins Building.
Mr. Gregory Green, Assistant Designated Federal Official for the ACVETEO, (202) 693-4734.
The ACVETEO is a Congressionally mandated advisory committee authorized under Title 38, U.S. Code, Section 4110 and subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended. The ACVETEO is responsible for: Assessing employment and training needs of veterans; determining the extent to which the programs and activities of the U.S. Department of Labor meet these needs; assisting to conduct outreach to employers seeking to hire veterans; making recommendations to the Secretary, through the Assistant Secretary for VETS, with respect to outreach activities and employment and training needs of veterans; and carrying out such other activities necessary to make required reports and recommendations. The ACVETEO meets at least quarterly.
National Endowment for the Arts.
Notice.
The National Endowment for the Arts (NEA) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995: NEA Funding Reporting Requirements—Final Descriptive Reports FY2019 and later. Copies of this ICR, with applicable supporting documentation, may be obtained by visiting
Written comments must be submitted to the office listed in the address section below within 30 days from the date of this publication in the
Send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the National Endowment for the Arts, Office of Management and Budget, Room 10235, Washington, DC 20503.
The Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the National Endowment for the Arts, Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316.
The Office of Management and Budget (OMB) is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Final Descriptive Reports elicit relevant information from individuals, nonprofit organizations, and government arts agencies that receive funding from the National Endowment for the Arts. According to OMB 2 CFR part 200, recipients of federal funds are required to report on project activities and expenditures. Reporting requirements are necessary to ascertain that grant projects have been completed, and that all terms and conditions have been fulfilled.
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 Thursday, August 30, 2018 from 3:00 p.m. to 4:00 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 the draft report on midscale projects.
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
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
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to make a number of non-substantive changes to the rulebook. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to make a number of non-substantive changes to the rulebook. Currently, the Exchange's rulebook is singularly focused on the trading of options. The Exchange is now proposing to amend certain sections of the rulebook that do not specifically apply to the trading of options in order to provide broader rules that apply to Participants of the Exchange in general.
First, the Exchange is proposing to amend the definitions of “Options Participant” and “Participant” in Rule 100(a)(41). Specifically, the Exchange is proposing to amend the definitions in order to cover Participants of the Exchange regardless of whether they participate in the trading of options. Additionally, the Exchange is proposing that the definition clarify that Participants register with the Exchange for purposes of participating in trading on “a facility of the Exchange.”
Next, the Exchange is replacing the term “Options Participant” with “Participant” in a number of rules as outlined below. Certain Exchange rules are not options specific and therefore the Exchange believes it is appropriate to replace “Options Participant” with “Participant” to provide more general coverage. The proposed change will clarify that these Exchange rules apply to Participants of the Exchange regardless of whether they participate in the trading of options.
The Exchange proposes to amend its rules as it relates to usage of the term “Options Participant” as follows:
• The Exchange proposes to replace “Options Participant” with “Participant” in Rule 100(a)(4) which defines associated person or a person associated with a Participant.
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rule 1060 (Exchange's Cost of Defending Legal Proceedings).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 2000 (Right, Privileges, and Duties of Options Participants), 2010 (Obligations of Options Participants, BOX and the Exchange), 2020 (Participant Eligibility and Registration), 2040 (Restrictions), IM-2040-1, 2050 (Application Procedures for Options Participants or to become an Associated Person of a Participant), 2060 (Revocation of Options Participant Status or Association with a Participant), 2070 (Voluntary Termination of Rights as an Options Participant), 2080 (Dues, Assessments and Other Charges), and 2090 (Affiliation between Exchange and an Options Participant).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 3000 (Just and Equitable Principles of Trade), IM-3000-1, 3010 (Adherence to Law), 3020 (Sharing Offices and Wire Connections), 3040 (False Statements), 3050 (Manipulation), 3060 (Gratuities), 3070 (Conduct and Compliance with the Rules), 3080 (Rumors), 3090 (Prevention of the Misuse of Material Nonpublic Information), 3100 (Disciplinary Action by Other Organizations), 3110 (Other Restrictions on Participants), 3180 (Mandatory Systems Testing), and 3220 (Disruptive Quoting and Trading Activity Prohibited).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 4160 (Transfer of Accounts), 4190 (Public Customer Complaints), and 4200 (Telephone Solicitation).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 10000 (Maintenance, Retention and Furnishing of Books, Records and Other Information), 10020 (Financial Reports), 10030 (Audits), 10040 (Automated Submission of Trade Data), 10050 (Regulatory Cooperation), and 10070 (Anti-Money Laundering Compliance Program).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 10200 (Minimum Requirements), 10210 (Early Warning” Notification Requirements), and 10220 (Power of CRO to Impose Restrictions).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 11000 (Imposition of Suspension), 11010 (Investigation Following Suspension), 11020 (Reinstatement), and 11040 (Termination of Rights by Suspension).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rules 12000 (Disciplinary Jurisdiction), 12010 (Requirement to Furnish Information), 12020 (Investigation), 12030 (Letters of Consent), 12040 (Charges), 12060 (Hearing), 12110 (Judgement and Sanction), 12120 (Procedural Matters), and Rule 12160 (Expedited Suspension Provision).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rule 13000 (Scope of Series).
• The Exchange is proposing to replace “Options Participant” with “Participant” in Rule 14000 (Arbitration).
Lastly, the Exchange is proposing to amend Rule 2040(e)(3). Specifically, the Exchange proposes to remove the term “BOX” and replace it with “a facility of the Exchange.” The Exchange notes that BOX is a facility of the Exchange and therefore the Exchange is not proposing to substantively change the rule.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system by ensuring that market participants can easily navigate, understand and comply with the Exchange's rulebook. The Exchange believes that the proposed rule change enables the Exchange to continue to enforce the Exchange's rules. The Exchange believes that none of the proposed changes discussed herein alter the application of any rules. As such, the proposed amendments would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national exchange system. Further, the Exchange believes that, by ensuring the rulebook accurately reflects the intention of the Exchange's rules, the proposed rule change reduces potential investor or market participant confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the proposed changes will not alter any of the Exchange's rules. Therefore, the proposed changes will have no impact on competition as they are not designed to address any competitive issues but rather are designed to make non-substantive changes.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would permit (a) index-based series of certain open-end management investment companies (“Funds”) to issue shares redeemable in large aggregations (“Creation Units”); (b) secondary market transactions in Fund shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of shares for redemption; (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the Fund in connection with the purchase and redemption of Creation Units; (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the Funds (“Funds of Funds”) to acquire shares of the Funds; and (f) certain Funds to issue Shares in less than Creation Unit size to investors participating in a distribution reinvestment program.
Cushing ETF Trust (the “Trust”), a Delaware statutory trust which will register under the Act as an open-end management investment company with multiple series, Cushing Asset Management, LP (the “Adviser”), a Texas limited partnership registered as an investment adviser under the Investment Advisers Act of 1940, and Quasar Distributors, LLC (the “Distributor”), a Delaware limited liability company and broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”).
The application was filed on June 8, 2018 and amended on July 25, 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 Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 17, 2018, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090; Applicants: The Trust and the Adviser, 8117 Preston Road, Suite 440, Dallas, Texas 75225, and the Distributor, 777 East Wisconsin Avenue, 6th Floor, Milwaukee, Wisconsin 53202.
Benjamin Kalish, Attorney-Adviser, at
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. Applicants request an order that would allow Funds to operate as index exchange traded funds (“ETFs”).
2. Each Fund will hold investment positions selected to correspond closely to the performance of an Underlying Index. In the case of Self-Indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of the Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will compile, create, sponsor or maintain the Underlying Index.
3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis, or issued in less than Creation Unit size to investors participating in a distribution reinvestment program. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.
4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units.
5. Applicants also request an exemption from section 22(d) of the Act and rule 22c-1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.
6. With respect to Funds that effect creations and redemptions of Creation Units in kind and that are based on certain Underlying Indexes that include foreign securities, applicants request relief from the requirement imposed by section 22(e) in order to allow such Funds to pay redemption proceeds within fifteen calendar days following the tender of Creation Units for redemption. Applicants assert that the requested relief would not be inconsistent with the spirit and intent of section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds.
7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A) and (B) of the Act.
8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act to permit persons that are Affiliated Persons, or Second Tier Affiliates, of the Funds, solely by virtue of certain ownership interests, to effectuate purchases and redemptions in-kind. The deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions of Creation Units will be the same for all purchases and redemptions, and Deposit Instruments and Redemption Instruments will be valued in the same manner as those investment positions currently held by the Funds. Applicants also seek relief from the prohibitions on affiliated transactions in section 17(a) to permit a Fund to sell its shares to and redeem its shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
9. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies (“BDC”) and closed-end management investment companies to co-invest in portfolio companies with each other and with affiliated investment funds.
Tortoise Energy Infrastructure Corporation (“Energy Infrastructure Corp.”), Tortoise MLP Fund, Inc. (“MLP Fund”), Tortoise Pipeline & Energy Fund, Inc. (“Pipeline Fund”), Tortoise Energy Independence Fund, Inc. (“Independence Fund”), Tortoise Power and Energy Infrastructure Fund, Inc. (“Power Fund”), Tortoise Essential Assets Income 2024 Term Fund, Inc. (“Income
The application was filed on November 7, 2017, and amended on March 29, 2018, and August 1, 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 Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 17, 2018, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE, Washington, DC 20549-1090. Applicants, 11550 Ash Street, Suite 300, Leawood, KS 66211.
Christine Y. Greenlees, Senior Counsel, at (202) 551-6879 or Andrea Ottomanelli Magovern, Branch Chief, at (202) 551-6821 (Chief Counsel's Office, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. Energy Infrastructure Corp. was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. Energy Infrastructure Corp. is a registered investment company under the Act. Energy Infrastructure Corp.'s Objectives and Strategies
2. MLP Fund was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. MLP Fund is a registered investment company under the Act. MLP Fund's Objectives and Strategies are to seek a high level of total return with an emphasis on current distributions primarily through investments in energy MLPs and their affiliates, with an emphasis on natural gas infrastructure MLPs. MLP Fund has a six member Board, of which four members are Non-Interested Directors.
3. Pipeline Fund was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. Pipeline Fund is a registered investment company under the Act. Pipeline Fund has elected to be treated, and intends to comply with the requirements to continue to qualify annually, as a regulated investment company (“RIC”) under the Internal Revenue Code of 1986, as amended (the “Code”), and intends to continue to make such election in the future. Pipeline Fund's Objectives and Strategies are to seek a high level of total return with an emphasis on current distributions primarily through investments in equity securities of North American pipeline companies that transport natural gas,
4. Independence Fund was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. Independence Fund is a registered investment company under the Act. Independence Fund has elected to be treated, and intends to comply with the requirements to continue to qualify annually, as a RIC under the Code, and intends to continue to make such election in the future. Independence Fund's Objectives and Strategies are to seek a high level of total return with an emphasis on current distributions primarily through investments in North American energy companies that engage in the exploration and production of crude oil, condensate, natural gas and natural gas liquids that generally have a strong presence in North American oil and gas reservoirs, including shale, and, to a lesser extent, on companies that provide associated transportation, processing, storage, servicing and equipment. Independence Fund has a six member Board, of which four members are Non-Interested Directors.
5. Power Fund was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. Power Fund is a registered investment company under the Act. Power Fund has elected to be treated, and intends to comply with the requirements to continue to qualify annually, as a RIC under the Code, and intends to continue to make such election in the future. Power Fund's Objectives and Strategies are to seek a high level of current income, with a secondary objective of capital appreciation primarily through investments in income-producing fixed income and equity securities issued by power and energy infrastructure companies. Power Fund has a six member Board, of which four members are Non-Interested Directors.
6. Income Fund was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. Income Fund is a registered investment company under the Act. Income Fund has elected to be treated, and intends to comply with the requirements to continue to qualify annually, as a RIC under the Code, and intends to continue to make such election in the future. Income Fund's Objectives and Strategies are to seek a high level of current income, with a secondary objective of capital appreciation primarily through investments in corporate debt securities, and private investments. Income Fund has a six member Board, of which four members are Non-Interested Directors.
7. Social Infrastructure Fund was organized as a Maryland corporation for the purpose of operating as an externally-managed, non-diversified, closed-end management investment company. Social Infrastructure Fund is a registered investment company under the Act. Social Infrastructure Fund has elected to be treated, and intends to comply with the requirements to continue to qualify annually, as a RIC under the Code, and intends to continue to make such election in the future. Social Infrastructure Fund's Objectives and Strategies are to seek a high level of total return with an emphasis on tax-advantaged income primarily through investments in the social infrastructure sector. Social Infrastructure Fund has a four member Board, of which three members are Non-Interested Directors.
8. Each of the Existing Affiliated Funds was organized as a Delaware limited partnership and would be an investment company but for section 3(c)(7) of the Act. Each Existing Affiliated Fund has investment objectives and policies that are similar to those of the Existing Regulated Funds.
9. Tortoise Advisors is a Delaware limited liability company and is registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”). Tortoise Advisors is wholly-owned by Tortoise Investments, LLC. Lovell Minnick Partners LLC (“Lovell Minnick”) owns a majority interest in Tortoise Investments, LLC (“Tortoise”). An entity formed by Lovell Minnick owned by certain private funds sponsored by Lovell Minnick and a group of institutional co-investors owns a controlling interest in Tortoise. Certain employees in the Tortoise complex also own interests in Tortoise. Tortoise Advisors serves as investment adviser to Energy Infrastructure Corp., MLP Fund, Pipeline Fund, Independence Fund, Power Fund, DO Fund, and DO Fund II.
10. The Existing Affiliated Adviser is a Delaware limited liability company and is registered as an investment adviser under the Advisers Act. The Existing Affiliated Adviser is privately held and is an affiliate of, and under common control with, Tortoise Advisors. The Existing Affiliated Adviser serves as investment adviser to Income Fund, Social Infrastructure Fund, and Municipal Fund.
11. Applicants seek an order (“Order”) to permit one or more Regulated Funds
12. Applicants state that a Regulated Fund may, from time to time, form a Wholly-Owned Investment Sub.
13. When considering Potential Co-Investment Transactions for any Regulated Fund, the applicable Adviser will consider only the Objectives and Strategies, investment policies, investment positions, capital available for investment (“Available Capital”), and other pertinent factors applicable to that Regulated Fund. The Advisers expect that any portfolio company that is an appropriate investment for a Regulated Fund should also be an appropriate investment for one or more other Regulated Funds and/or one or more Affiliated Funds, with certain exceptions based on Available Capital or diversification. The Regulated Funds, however, will not be obligated to invest, or co-invest, when investment opportunities are referred to them.
14. Other than pro rata dispositions and Follow-On Investments as provided in conditions 7 and 8, and after making the determinations required in conditions 1 and 2(a), the Adviser will present each Potential Co-Investment Transaction and the proposed allocation to the directors of the Board eligible to vote under section 57(o) of the Act (“Eligible Directors”), and the “required majority,” as defined in section 57(o) of the Act (“Required Majority”)
15. With respect to the pro rata dispositions and Follow-On Investments provided in conditions 7 and 8, a Regulated Fund may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of each Regulated Fund and Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board of the Regulated Fund has approved that Regulated Fund's participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Regulated Fund. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Regulated Fund's Eligible Directors. The Board of any Regulated Fund may at any time rescind, suspend or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On Investments must be submitted to the Eligible Directors.
16. No Non-Interested Director of a Regulated Fund will have a financial interest in any Co-Investment Transaction, other than indirectly through share ownership in one of the Regulated Funds.
17. Under condition 14, if an Adviser or its principal owners (the “Principals”), or any person controlling, controlled by, or under common control with an Adviser or the Principals, and the Affiliated Funds (collectively, the “Holders”) own in the aggregate more than 25% of the outstanding voting shares of a Regulated Fund (the “Shares”), then the Holders will vote such Shares as directed by an independent third party when voting on matters specified in the condition. Applicants believe that this condition will ensure that the Non-Interested Directors will act independently in evaluating the Co-Investment Program, because the ability of an Adviser or the Principals to influence the Non-Interested Directors by a suggestion, explicit or implied, that the Non-Interested Directors can be removed will be limited significantly. Applicants represent that the Non-Interested Directors will evaluate and approve any such independent party, taking into account its qualifications, reputation for independence, cost to the shareholders, and other factors that they deem relevant.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit participation by a registered investment company and an affiliated person in any “joint enterprise or other joint arrangement or profit-sharing plan,” as defined in the rule, without prior approval by the Commission by order upon application. Section 17(d) of the Act and rule 17d-1 under the Act are applicable to Regulated Funds that are registered closed-end investment companies. Similarly, with regard to BDCs, section 57(a)(4) of the Act generally prohibits certain persons specified in section 57(b) from participating in joint transactions with the BDC or a company controlled by the BDC in contravention of rules as prescribed by the Commission. Section 57(i) of the Act provides that, until the Commission prescribes rules under section 57(a)(4), the Commission's rules under section 17(d) of the Act applicable to registered closed-end investment companies will be deemed to apply to transactions subject to section 57(a)(4). Because the Commission has not adopted any rules under section 57(a)(4), rule 17d-1 also applies to joint transactions with Regulated Funds that are BDCs.
2. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
3. Applicants submit that Tortoise Advisors and the Existing Affiliated Adviser may be deemed to control the Existing Regulated Funds and the Existing Affiliated Funds, respectively, and any other Adviser will be controlling, controlled by, or under common control with Tortoise Advisors.
4. Applicants state that in the absence of the requested relief, in some circumstances the Regulated Funds would be limited in their ability to participate in attractive and appropriate investment opportunities. Applicants believe that the proposed terms and conditions of the application will ensure that the Co-Investment Transactions are consistent with the protection of each Regulated Fund's shareholders and with the purposes intended by the policies and provisions of the Act. Applicants state that the Regulated Funds' participation in the Co-Investment Transactions will be consistent with the provisions, policies, and purposes of the Act and would be done in a manner that is not different from, or less advantageous than, that of other participants.
Applicants agree that the Order will be subject to the following conditions:
1. Each time an Adviser considers a Potential Co-Investment Transaction for an Affiliated Fund or another Regulated Fund that falls within a Regulated Fund's then-current Objectives and Strategies, the Regulated Fund's Adviser will make an independent determination of the appropriateness of the investment for such Regulated Fund in light of the Regulated Fund's then-current circumstances.
2. (a) If the Adviser deems a Regulated Fund's participation in any Potential Co-Investment Transaction to be appropriate for the Regulated Fund, it will then determine an appropriate level of investment for the Regulated Fund.
(b) If the aggregate amount recommended by the applicable Adviser to be invested by the applicable Regulated Fund in the Potential Co-Investment Transaction, together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the investment opportunity will be allocated among them pro rata based on each participant's Available Capital, up to the amount proposed to be invested by each. The applicable Adviser will provide the Eligible Directors of each participating Regulated Fund with information concerning each participating party's Available Capital to assist the Eligible Directors with their review of the Regulated Fund's investments for compliance with these allocation procedures.
(c) After making the determinations required in conditions 1 and 2(a), the applicable Adviser will distribute written information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each participating Regulated Fund and Affiliated Fund) to the Eligible Directors of each participating Regulated Fund for their consideration. A Regulated Fund will co-invest with one or more other Regulated Funds and/or one or more Affiliated Funds only if, prior to the Regulated Fund's participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i) the terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its shareholders and do not involve overreaching in respect of the Regulated Fund or its shareholders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction is consistent with:
(A) the interests of the shareholders of the Regulated Fund; and
(B) the Regulated Fund's then-current Objectives and Strategies;
(iii) the investment by any other Regulated Funds or Affiliated Funds would not disadvantage the Regulated Fund, and participation by the Regulated Fund would not be on a basis different from or less advantageous than that of other Regulated Funds or Affiliated Funds; provided that, if any other Regulated Fund or Affiliated Fund, but not the Regulated Fund itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this condition (2)(c)(iii), if:
(A) the Eligible Directors will have the right to ratify the selection of such director or board observer, if any;
(B) the applicable Adviser agrees to, and does, provide periodic reports to the Regulated Fund's Board with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and
(C) any fees or other compensation that any Affiliated Fund or any Regulated Fund or any affiliated person of any Affiliated Fund or any Regulated Fund receives in connection with the right of the Affiliated Fund or a Regulated Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Affiliated Funds (who each may, in turn, share its portion with its affiliated persons) and the participating Regulated Funds in accordance with the amount of each party's investment; and
(iv) the proposed investment by the Regulated Fund will not benefit the Advisers, the Affiliated Funds or the other Regulated Funds or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by condition 13, (B) to the extent permitted by Section 17(e) or 57(k) of the Act, as applicable, (C) indirectly, as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction, or (D) in the case of fees or other compensation described in condition 2(c)(iii)(C).
3. Each Regulated Fund has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable Adviser will present to the Board of each Regulated Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated Funds or Affiliated Funds during the preceding quarter that fell within the Regulated Fund's then-current Objectives and Strategies that were not made available to the Regulated Fund, and an explanation of why the investment opportunities were not offered to the Regulated Fund. All information presented to the Board pursuant to this condition will be kept for the life of the Regulated Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for Follow-On Investments made in accordance with condition 8,
6. A Regulated Fund will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Regulated Fund and Affiliated Fund. The grant to an Affiliated Fund or another Regulated Fund, but not the Regulated Fund, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Affiliated Fund or any Regulated Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as to participation by each Regulated Fund in the disposition.
(b) Each Regulated Fund will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Affiliated Funds and Regulated Funds.
(c) A Regulated Fund may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition; (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) the Board of the Regulated Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this condition. In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such disposition solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(d) Each Affiliated Fund and each Regulated Fund will bear its own expenses in connection with any such disposition.
8. (a) If any Affiliated Fund or any Regulated Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Fund.
(b) A Regulated Fund may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(c) If, with respect to any Follow-On Investment:
(i) The amount of the opportunity is not based on the Regulated Funds' and the Affiliated Funds' outstanding investments immediately preceding the Follow-On Investment; and
(ii) the aggregate amount recommended by the applicable Adviser to be invested by the applicable Regulated Fund in the Follow-On Investment, together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, then the investment opportunity will be allocated among them pro rata based on each participant's Available Capital, up to the maximum amount proposed to be invested by each.
(d) The acquisition of Follow-On Investments as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions set forth in the application.
9. The Non-Interested Directors of each Regulated Fund will be provided quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including investments made by other Regulated Funds or Affiliated Funds that the Regulated Fund considered but declined to participate in, so that the Non-Interested Directors may determine whether all investments made during the preceding quarter, including those investments that the Regulated Fund considered but declined to participate in, comply with the conditions of the Order. In addition, the Non-Interested Directors will consider at least annually the continued appropriateness for the Regulated Fund of participating in new and existing Co-Investment Transactions.
10. Each Regulated Fund will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Funds were a BDC and each of the investments permitted under these conditions were approved by the Required Majority under section 57(f) of the Act.
11. No Non-Interested Director of a Regulated Fund will also be a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the Act) of an Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the Advisers under their respective investment advisory agreements with Affiliated Funds and the Regulated Funds, be shared by the Regulated Funds and the Affiliated Funds in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may be.
13. Any transaction fee
14. If the Holders own in the aggregate more than 25% of the Shares of a Regulated Fund, then the Holders will vote such Shares as directed by an independent third party when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable State law affecting the Board's composition, size or manner of election.
15. Each Regulated Fund's chief compliance officer, as defined in rule 38a-1(a)(4), will prepare an annual report for its Board that evaluates (and documents the basis of that evaluation) the Regulated Fund's compliance with the terms and conditions of the application and the procedures established to achieve such compliance.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Independence Policy of the Board of Directors of the Exchange by (a) streamlining references to Intercontinental Exchange, Inc. subsidiaries that are national securities exchanges, (b) removing obsolete references, and (c) adding references to national securities exchange affiliates of the Exchange. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Independence Policy by (a) streamlining references to ICE subsidiaries that are national securities exchanges, (b) removing obsolete references, and (c) adding references to national securities exchange affiliates of the Exchange.
The Independence Policy includes references to the Exchange and its national securities exchange affiliates NYSE American, Inc. (“NYSE American”) and NYSE Arca, Inc. (“NYSE Arca”).
Specifically, the Exchange proposes to add a second paragraph under “Purpose” with the definition of “Exchange.”
• Replace “New York Stock Exchange LLC, NYSE Arca, Inc. and NYSE American LLC” with “an Exchange” in category 1(b) and (c);
• Replace “New York Stock Exchange LLC, on NYSE Arca, Inc. or on NYSE American LLC” with “an Exchange” in category 1(d) and category 4;
• Replace “New York Stock Exchange LLC, and NYSE Arca, Inc. and NYSE American LLC exercise” with “each Exchange exercises” in the final paragraph of category 1;
• Replace “New York Stock Exchange LLC, NYSE Arca, Inc., NYSE Arca Equities, Inc. and NYSE American LLC” with “each Exchange” in category 2; and
• Replace “New York Stock Exchange LLC, NYSE Arca, Inc. or NYSE American LLC” with “an Exchange” under “Listed Companies.”
The proposed changes would make the requirements under “Independence Qualifications” and “Listed Companies” apply to all of the Affiliate SROs, and not just those specifically listed in the Independence Policy. In addition, it would make the Independence Policy consistent with the governing documents of ICE and the intermediate holding companies between the Exchange and ICE, which use the term “Exchange.”
The Exchange no longer has allied members.
NYSE Arca Equities, Inc. merged with NYSE Arca, Inc., and therefore no longer exists.
The proposed removal of obsolete references would be consistent with changes made to the independence policy of the board of directors of ICE.
NYSE National became an Affiliate SRO in 2017. Accordingly, the Exchange proposes to add “Person Associated with an ETP Holder” (as defined in Rule 1.5 of NYSE National, Inc.);” in category 1(b), and add NYSE National to category 5 under “Independence Qualifications.” The changes would be consistent with changes made to the independence policy of the board of directors of ICE.
CHX became an Affiliate SRO in 2018.
The Exchange proposes to update the link included in footnote 2 and make conforming changes to delete and replace connectors.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act
The Exchange believes that the proposed replacement of lists of individual SRO Affiliates in the Independence Policy with the term “Exchange” would contribute to the orderly operation of the Exchange, because use of the term would make the requirements under “Independence Qualifications” and “Listed Companies” apply to all of the Affiliate SROs, and not just those specifically listed in the Independence Policy. The Exchange Act definition of “exchange” states that “exchange” “includes the market place and the market facilities maintained by such exchange.”
For the same reason, the Exchange believes that the proposed replacement of lists of individual SRO Affiliates in the Independence Policy with the term “Exchange” would remove impediments to and perfect the mechanism of a free and open market. The changes would simplify and streamline the Exchange's rules while making them more consistent, thereby ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Independence Policy and the Exchange Rules.
The Exchange believes that the proposed change would remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest by (a) removing obsolete references to NYSE allied members and NYSE Arca Equities, Inc., and (b) incorporating NYSE National and CHX into the text of the Independence Policy. The Exchange believes that such changes would add clarity and transparency to the Exchange Rules by removing any confusion that may result if the Independence Policy retained obsolete references or did not encompass all of the Affiliate SROs. For the same reason, the Exchange believes that the proposed amendments to the Independence Policy would remove impediments to and perfect the mechanism of a free and open market and a national market system by
The Exchange notes that the proposed change would be consistent with changes made to the independence policy of the board of directors of ICE, and believes that making the Independence Policy more consistent with the ICE policy would add clarity and transparency to the Exchange Rules, allowing persons subject to the Exchange's jurisdiction, regulators, and investors to more easily navigate and understand the Exchange Rules, contributing to the orderly operation of the Exchange. The Exchange further believes that the proposed changes would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased clarity, thereby reducing potential confusion.
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 Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with updating the Independence Policy to (a) streamline references to ICE subsidiaries that are national securities exchanges, (b) remove obsolete references, and (c) add references to NYSE National and CHX.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of NEW MEXICO dated 08/15/2018.
Issued on 08/15/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15642 6 and for economic injury is 15643 0.
The States which received an EIDL Declaration # are New Mexico.
Bureau of International Security and Nonproliferation, Department of State.
Notice.
The Department of State, acting under authority delegated to the Secretary of State pursuant to Executive Order 12851, has determined pursuant to Section 306(a) of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 that the Government of the Russian Federation has used chemical weapons in violation of international law or lethal chemical weapons against its own nationals. In addition, the Department of State has determined and certified to Congress pursuant to Section 307(d) of the Act that it is essential to the national security interests of the United States to partially waive the application of the sanctions required under Section 307(a) of the Act with respect to foreign assistance, the licensing of defense articles and services, and the licensing of national security-sensitive goods and technology. The following is a notice of the sanctions to be imposed pursuant to Section 307(a) of the Act, subject to these waivers.
The determination is effective on August 27, 2018.
Pamela K. Durham, Office of Missile, Biological, and Chemical Nonproliferation, Bureau of International Security and Nonproliferation, Department of State, Telephone (202) 647-4930.
Pursuant to Sections 306(a), 307(a), and 307(d) of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, as amended (22 U.S.C. Section 5604(a) and Section 5605(a)), on August 6, 2018, the Deputy Secretary of State determined that the Government of the Russian Federation has used chemical weapons in violation of international law or lethal chemical weapons against its own nationals. As a result, the following sanctions are hereby imposed:
1.
The Department of State has determined that it is essential to the national security interests of the United States to waive the application of this restriction.
2.
The Department of State has determined that it is essential to the national security interests of the United States to waive the application of this sanction with respect to the issuance of licenses in support of government space cooperation and commercial space launches, provided that such licenses shall be issued on a case-by-case basis and consistent with export licensing policy for Russia prior to the enactment of these sanctions.
3.
4.
5.
The Department of State has determined that it is essential to the national security interests of the United States to waive the application of this sanction with respect to the following:
These measures shall be implemented by the responsible departments and agencies of the United States Government and will remain in place for at least one year and until further notice.
Federal Aviation Administration (FAA), DOT.
Request for public comments.
Notice is being given that the FAA is considering a request from the Town of Houlton to dispose of 4.68 acres of land. The parcel is located within the airport industrial park as is not needed for aeronautical purposes. There is adequate developable area on the airport to meet the future twenty year need for projected activity. The airport will obtain fair market value for the disposal of the land and the income derived from this disposal will be placed in the airport's operation and maintenance funds for the facility.
Comments must be received on or before September 26, 2018.
You may send comments using any of the following methods:
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•
•
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts 01803. Telephone: 781-238-7618.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected is necessary to ensure that operation and maintenance of these non-Federally owned facilities is in accordance with FAA safety standards.
Written comments should be submitted by October 26, 2018.
Send comments to the FAA at the following address: Barbara Hall, Federal Aviation Administration, ASP-110, 10101 Hillwood Parkway, Fort Worth, TX 76177.
Barbara Hall by email at:
The collection involves the compilation of:
• Commissioning data, such as the initial standards and tolerances parameters for the aerial navigation aids (NavAids) and electrical/electronic facilities, owned and operated by non-Federal sponsors;
• Maintenance activities and operational history, such as outages and repairs, for facilities owned and operated by non-Federal sponsors; and
• The facilities' periodically verified parameters for the life of the facility.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. This collection involves the submission of forms and other reporting and recordkeeping activities. The information to be collected is necessary to ensure compliance with regulations governing the manufacture and certification of light-sport aircraft, the training and certification of light-sport pilots and instructors, and the certification of light-sport aircraft Designated Pilot Examiners.
Written comments should be submitted by October 26, 2018.
Send comments to the FAA at the following address: Barbara Hall, Federal Aviation Administration, ASP-110, 10101 Hillwood Parkway, Fort Worth, TX 76177.
Barbara Hall by email at:
This information collection requires applicants for certification as sport pilots to complete FAA form 8710-11, log training, take and pass a knowledge test, and requires organizations to develop and maintain training courses for sport pilots. The total of sport pilot applicants is estimated to be 500, with a burden of 3,400 hours. In addition, applications for certification as sport pilot instructors are required to take and pass a knowledge test, submit to a flight review, and purchase a training course. This affects an estimated 40 applicants, with a total annual burden of 120 hours.
This collection also requires light-sport aircraft owners and manufacturers to submit FAA form 8130-15, which is used to process an applicant's request to obtain a Special Airworthiness certificate for Light Sport Aircraft. FAA Airworthiness inspectors and designated inspectors review the required data submissions to determine that aviation products and their manufacturing facilities comply with ASTM requirements, and that the products have no unsafe features. The FAA estimates that approximately 297 respondents are required to complete FAA form 8130-15, with a total annual burden of 99 hours.
Finally, this collection requires applicants for the authorities and privileges of Designated Pilot Examiners to submit FAA form 8710-12, Light-Sport Standardization Board-Designated Pilot Examiner Candidate Application. The FAA uses the form to obtain essential information concerning the applicants' professional and personal qualifications, and to screen and select the designees who act as representatives of the Administrator in performing various certification and examination functions. The FAA estimates a total of 20 respondents per year, with a total annual burden of 10 hours.
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice.
The Surface Transportation Project Delivery Program allows a State to assume FHWA's environmental responsibilities for review, consultation, and compliance for Federal highway projects. When a State assumes these Federal responsibilities, the State becomes solely responsible and liable for the responsibilities it has assumed, in lieu of FHWA. This program mandates annual audits during each of the first 4 years to ensure the State's compliance with program requirements. This is the first audit of the Florida Department of Transportation's (FDOT) performance of its responsibilities under the Surface Transportation Project Delivery Program (National Environmental Policy Act (NEPA) assignment program). This notice finalizes the findings of the first audit report for the FDOT's participation in accordance to FAST Act requirements.
Ms. Marisel Lopez Cruz, Office of Project Development and Environmental Review, (202) 493-0356,
An electronic copy of this notice may be downloaded from the specific docket page at
The Surface Transportation Project Delivery Program (or NEPA Assignment Program) allows a State to assume FHWA's environmental responsibilities for review, consultation, and compliance for Federal highway projects. This provision has been codified at 23 U.S.C. 327. When a State assumes these Federal responsibilities, the State becomes solely responsible and liable for carrying out the responsibilities, in lieu of FHWA. The FDOT published in the
Section 327(g) of Title 23, United States Code, requires the Secretary to conduct annual audits during each of the first 4 years of State participation. After the fourth year, the Secretary shall monitor the State's compliance with the written agreement. The results of each audit must be made available for public comment. This notice finalizes the finding of the first audit report for the FDOT participation in accordance to FAST Act requirements. A draft version of this report was published in the
Section 1313 of Public Law 112-141; Section 6005 of Public Law 109-59; Public Law 114-94; 23 U.S.C. 327; 49 CFR 1.85; 23 CFR 773.
This is the first audit of the Florida Department of Transportation's (FDOT's) performance of its responsibilities under the Surface Transportation Project Delivery Program (National Environmental Policy Act (NEPA) assignment program). Under the authority of 23 U.S.C. 327, FDOT and Federal Highway Administration (FHWA) executed a memorandum of understanding (MOU) on December 14, 2016, whereby FHWA assigned and FDOT assumed FHWA's NEPA responsibilities and liabilities for Federal-aid highway projects and other related environmental reviews for transportation projects in Florida.
The FHWA formed a team in January 2017 to conduct an audit of FDOT's performance according to the terms of the MOU. The Audit Team held internal meetings to prepare for an on-site visit to the Florida Division and FDOT offices. Prior to the on-site visit, the Audit Team reviewed FDOT's NEPA project files, FDOT's response to FHWA's pre-audit information request (PAIR), and FDOT's Self-Assessment Summary Report of its NEPA program. The Audit Team conducted interviews with FDOT and resource agency staff and prepared preliminary audit results from October 16 to 20, 2017. The Audit Team presented these preliminary observations to FDOT Office of Environmental Management (OEM) leadership on October 20, 2017.
Upon accepting the NEPA assignment responsibilities, FDOT updated its procedures and processes as required by the MOU. Overall, the Audit Team found that FDOT is committed to establishing a successful NEPA program. This report describes several successful practices, three observations, and one non-compliance observation. The FDOT has carried out the responsibilities it has assumed in keeping with the intent of the MOU and FDOT's Application. Through this report, FHWA is notifying FDOT of one non-compliance observation that requires FDOT to take corrective action. By addressing the observations in this
The purpose of the audits performed under the authority of 23 U.S.C. 327 is to assess a State's compliance with the provisions of the MOU as well as all applicable Federal statutes, regulations, policies, and guidance. The FHWA's review and oversight obligation entails the need to collect information to evaluate the success of the NEPA Assignment Program; to evaluate a State's progress toward achieving its performance measures as specified in the MOU; and to collect information for the administration of the NEPA Assignment Program. This report summarizes the results of the first audit in Florida. Following this audit, FHWA will conduct three annual audits. The second audit report will include a summary discussion that describes progress since the last audit.
The overall scope of this audit review is defined both in statute (23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as an official and careful examination and verification of accounts and records, especially of financial accounts, by an independent unbiased body. With regard to accounts or financial records, audits may follow a prescribed process or methodology and be conducted by “auditors” who have special training in those processes or methods. The FHWA considers this review to meet the definition of an audit because it is an unbiased, independent, official and careful examination and verification of records and information about FDOT's assumption of environmental responsibilities.
The Audit Team consisted of NEPA subject matter experts from the FHWA offices in Juneau, Alaska, Denver, Colorado, Columbus, Ohio, Washington, District of Columbia, Atlanta, Georgia, Austin, Texas, as well as staff from the FHWA Florida Division. The diverse composition of the team, as well as the process of developing the review report and publishing it in the
The Audit Team conducted a careful examination of FDOT policies, guidance, and manuals pertaining to NEPA responsibilities, as well as a representative sample of FDOT's project files. Other documents, such as the June 2017 six-month status update report from FDOT, the August 2017 PAIR responses, and FDOT's September 2017 Self-Assessment Summary Report, informed this review. The Audit Team interviewed FDOT staff and resource agency staff. This review is organized around six NEPA assignment program elements: program management, documentation and records management, quality assurance/quality control (QA/QC), legal sufficiency, performance measurement, and training program. In addition, the Audit Team considered three cross-cutting focus areas: (1) Engineering Analysis within the NEPA process; (2) Archaeological and Historical Resources; and (3) Protected Species and Habitat.
The Audit Team defined the timeframe for highway project environmental approvals subject to this first audit to be between December 2016 and May 2017, when 209 projects were approved. The team drew both representative and judgmental samples totaling 77 projects from data in FDOT's online file system, Statewide Environmental Project Tracker (SWEPT). In the context of this report, Type 1 CE and Type 2 CE are consistent with FDOT's Project Development and Environmental Manual. The FHWA judgmentally selected all Type 2 categorical exclusions (CEs) (3 projects), all reevaluations (12 projects), all Environmental Assessments (EAs) with Findings of No Significant Impacts (FONSIs) (3 projects), all Environmental Impact Statements (EISs) with Records of Decision (RODs) (no projects fell into this category), and all Type 1 CE projects completed under 23 CFR 771.117(d) CEs (9 projects). Fifty randomly selected project files came from the remaining 182 Type 1 CEs completed under 23 CFR 771.117(c), applying a 90 percent confidence level and a 10 percent margin of error to the sample. The Audit Team reviewed projects in all FDOT's seven districts.
The Audit Team submitted a PAIR to FDOT that contained 55 questions covering all 6 NEPA assignment program elements. The FDOT responses to the PAIR were used to develop specific follow-up questions for the on-site interviews with FDOT staff.
The Audit Team conducted a total of 42 interviews. Interview participants included staff from four of FDOT's seven district offices—District 1 (Bartow), District 2 (Lake City), District 5 (Deland), and District 7 (Tampa)—and FDOT Central Office. The audit team interviewed FDOT environmental staff, middle management, and executive management, regional representatives from the U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), and the State Historic Preservation Officer (SHPO) from the Florida Department of State, Division of Historic Resources.
The Audit Team compared the procedures outlined in FDOT policies and environmental manuals (including the published 2016 Project Development & Environment (PD&E) Manual) to the information obtained during interviews and project file reviews to determine if there are discrepancies between FDOT's performance and documented procedures. Individual observations were documented during interviews and reviews and combined under the six NEPA Assignment Program elements. The audit results are described below by program element.
The Audit Team recognizes that FDOT is in the early stages of the NEPA Assignment Program and FDOT's programs, policies, and procedures may still be in the process of being incorporated into its program statewide. The FDOT's efforts have been focused on establishing and refining policies, procedures and guidance documents; establishing the SWEPT tracking system for “official project files”; training staff; establishing a QA/QC Plan; and conducting a self-assessment for monitoring compliance with the assumed responsibilities. The FDOT has carried out the responsibilities it has assumed consistent with the intent of the MOU and FDOT's Application. By addressing the observations in this report, FDOT will continue to assure a successful program.
A non-compliance observation is an instance where the Audit Team finds the State is not in compliance or is deficient with regard to a Federal regulation, statute, guidance, policy, State procedure, or the MOU. Non-compliance may also include instances where the State has failed to secure or maintain adequate personnel and or financial resources to carry out the responsibilities they have assumed. The FHWA expects the State to develop and implement corrective actions to address all non-compliance observations.
The Audit Team identified one non-compliance observation during this first audit.
Observations are items the Audit Team would like to draw FDOT's attention to, which may improve processes, procedures, and/or outcomes. The Audit Team identified three observations in this report. Successful practices are practices that the Audit Team believes are successful, and
The Audit Team acknowledges that sharing the draft audit report with FDOT allows the Agency to begin implementing corrective actions to improve the program. The FHWA will also consider the status of these observations as part of the scope of Audit #2.
The Audit Team learned that FDOT has maintained its good working relationship with the three resource agencies interviewed—USFWS, USACE, SHPO. Each agency stated that FDOT coordinated any changes in their program with the Agency to ensure satisfaction with their regulatory requirements.
The Audit Team noted in interviews and project file reviews that FDOT's environmental commitments were inconsistently documented and tracked. During the interviews, OEM and district staff indicated inconsistencies in how commitment compliance is accomplished in FDOT and the function and use of the Project Commitment Record (PCR) Form. District staff have developed different tools than the PCR to track commitment compliance. Both the Self-Assessment Summary Report and project file reviews indicated that commitments were not being included verbatim into the Commitments Section of some NEPA documents or reevaluations. The Audit Team noted that commitments are not consistently transferred onto PCR forms for tracking through the various phases of project development. The Audit Team encourages FDOT to implement the commitment compliance recommendations identified in their 2017 Self-Assessment Summary Report to address this observation.
During the audit interviews, though it has not had occasion to do so, FDOT stated they would implement new Federal statutory requirements or U.S. Department of Transportation (DOT) regulations, without FHWA consultation. This approach may establish FDOT policy or guidance in advance of FHWA, which could conflict with any subsequent DOT/FHWA issued policy or guidance. If such a conflict should occur, FDOT would then need to change their policies and procedures to meet the DOT/FHWA guidance. According to MOU subpart 5.2.1 FDOT may not establish policy and guidance on behalf of the DOT Secretary or FHWA for highway projects covered in the MOU. The FHWA met with FDOT to discuss its need for informed decision making necessary for new Federal requirements. The FDOT clarified that they intended to consult with FHWA in order to gain information on emerging policy and guidance in order to make informed decisions.
The FDOT has implemented several successful practices to ensure the quality of its NEPA documents. As an example of a successful QC practice, one district developed a checklist to provide better quality control in making sure they were uploading the necessary information into SWEPT for project review and coordination. As they received comments from OEM, the district adjusted their checklist so that future projects would also benefit from the OEM comments.
The FDOT QA/QC Plan identified only the Self-Assessment as FDOT's QA tool. The FDOT Self-Assessment considered five focus areas for compliance: commitments; ponds; species and habitat; QA/QC; and Type 1 CE projects. Both FHWA and FDOT reviewed the same 27 projects (exclusive of Type I CEs completed under 23 CFR 771.117(c)) and identified a similar number of projects with documentation issues for the focus areas in common (commitments and species and habitat). However, the Audit Team identified additional project documentation or compliance issues not identified by FDOT. While FHWA acknowledges that FDOT has employed quality assurance as a corrective action to address missing information for projects, FDOT's obligation under the MOU is that its QA/QC process identify and address the full range of compliance obligations it has assumed. Though concentrating on focus areas is appropriate for a Self-Assessment Summary Report, FDOT's QA overall process should be broader in scope in order to identify and correct any deficiencies. The FHWA met with FDOT to discuss FDOT's approach to QA. The FDOT clarified that they have other quality assurance tools in addition to the Self- Assessment. The FHWA will include a consideration of FDOT's quality assurance tools in its next audit review.
The Audit Team's review of FDOT's legal sufficiency program found that FDOT has structured the legal sufficiency process for the NEPA Assignment Program by having in house counsel as well as being able to contract with outside counsel who have NEPA experience. Because FDOT is in the early stages of implementation, no legal sufficiency determinations have been made during the audit time frame.
The FDOT Office of General Counsel (OGC) is fully engaged in the NEPA process. Legal staff participate in monthly coordination meetings and topic specific meetings with OEM and the districts. They also review other documents as requested for legal input. There is close collaboration throughout the process among OGC, OEM, the districts, and districts' attorneys.
Based on the information provided, the FDOT OGC is adequately staffed to provide management and oversight of the NEPA assignment process. In addition, FDOT attorneys located in each of the seven districts provide supplemental support to the dedicated NEPA OGC staff as needed.
The Audit Team learned through interviews that employee training is a corporate priority at FDOT. The FDOT's training is considered a successful practice in four respects:
First, FDOT developed its own on-line NEPA Assignment training. These succinct Web-based training videos address new NEPA assignment processes, including performance measures, the FHWA audit process, QA/QC, and the FDOT self-assessment process. Such training contributes to a consistent understanding of and participation in these aspects of the NEPA Assignment Program among all FDOT staff.
Second, FDOT provides employees ample training opportunities. Employees are notified of those opportunities through training coordinators and the Learning Curve system, which provides a library of courses. The training helps FDOT employees understand new roles and responsibilities and is available as
Third, FDOT employees are required to have an Individual Training Plan (ITP). The plan includes required subject matter courses and courses that promote development of technical and leadership skills.
Finally, training is integrated into employee performance evaluations and employees' ITPs are discussed with supervisors on an annual basis, thereby emphasizing the importance of training and promoting compliance with training requirements. Completion of training is incorporated into the employees' and supervisors' performance evaluations.
The FDOT presented a discussion of their performance measures that implement those listed in MOU Section 10.2 in the July 2017 revision of their QA/QC Plan. In that discussion, FDOT developed several sub-measures along with performance targets, responsible parties, relevant processes, and desired outcomes identified (see Appendix A of the Plan-
The FDOT Self-Assessment Summary Report contained the results of FDOT's first report of its assessment of the NEPA Assignment Program and FDOT procedures compliance. This assessment, for the period between December 14, 2016, and April 30, 2017, entailed review of project files as well as results from a survey of Agency satisfaction. The report also included a discussion of FDOT's progress in attaining performance results.
The FDOT has demonstrated it has taken an active interest in developing, monitoring, and implementing the performance measures as required by the MOU. In reviewing Section 3 of the FDOT Self-Assessment Summary Report, the Audit Team noted that FDOT is the first NEPA assignment State to create a training module on performance measures. This module, available to all FDOT staff, explains performance metrics, how the measures are computed in SWEPT, performance monitoring, and how the measures appear in FDOT's annual Self-Assessment Summary Report. During the interviews, FDOT's leadership indicated that they wanted performance measures to account for, objectively measure, and use quantitative data to support, FDOT performance. They also made it clear that FDOT is measuring something worthwhile and plans to revisit the performance metrics over time.
The SWEPT has been identified as FDOT's project file of record, in which FDOT maintains approved reevaluations, CEs, EAs, and EISs. The Electronic Review and Comments (ERC) system is an internal tool to capture review and comments on the environmental documents. During the audit interviews, FDOT staff indicated only final documents are maintained in the SWEPT system. The Audit Team has full access to SWEPT but has no access to ERC.
• The FHWA commends FDOT's use of the ERC system to document internal review and comments on NEPA documents and to maintain a record of the disposition of those comments.
• The FDOT's statewide implementation of SWEPT as the administrative file of record used for decision making and documenting compliance with the NEPA process facilitated the Audit Teams review of project files. The following features are particularly notable:
• The date-stamping of data in SWEPT is used for performance measurement tracking.
• The SWEPT, with its Bates stamping ability, facilitates administrative records and open records request compilations.
• The June 2017 SWEPT update includes Type 1 CE “smartforms” which provide internal controls that increases certainty of NEPA compliance.
Both the MOU (subpart 10.2.1) and FDOT's PD&E Manual specify that documentation is needed to support compliance. The Audit Team observed that 47 of the 77 project files reviewed did not have sufficient documentation in SWEPT to support the environmental analysis or NEPA decision. The FDOT Self-Assessment reached similar conclusions, and identified 9 of 36 projects having insufficient documentation. The Audit Team could not determine if the discrepancy indicated documentation had not been uploaded into SWEPT or if the required process had not been completed. The team provided a list of these projects along with a draft of this report to FDOT for their review and comment. The FDOT provided their comments on this report, but did not provide additional information to clarify whether documentation was not uploaded or a required process was not completed. The FHWA discussed FDOT's comment on this non-compliance observation and the State acknowledged an issue with project documentation. The FDOT indicated that they would share the updated details regarding the 47 project files and they were already implementing corrective actions to address this issue.
The FDOT has committed to comply with all applicable environmental review requirements to highway projects it has assumed and to maintain documentation of this compliance. The file review of projects, most, but not all, of which were processed with a CE, identified the following deficiencies in supporting documentation: 1) missing or outdated technical documents referenced in the NEPA document; 2) using FDOT standard specifications for Endangered Species Act compliance instead of conducting consultation when species are known to be present, missing documentation of consultation, missing impacts analysis, missing documentation which concludes with a finding, and missing concurrence documentation from applicable agencies; 3) missing documentation of Section 106 consultation; 4) missing or incorrect documentation for fiscal constraint (for several levels of documents including Type 1 CEs); 5) missing environmental commitments identified in technical reports, and commitments not carried forward in reevaluations; 6) missing Section 4(f) impacts/avoidance analysis; 7) missing documentation to support floodplain effects finding; 8) missing documentation to support the wetlands finding; 9) missing documentation for Essential Fish Habitat consideration; 10) missing documentation of community and other resources impacts when addressing ROW changes; and, 11) missing documentation of water quality considerations.
The FDOT has informed the Review Team that they have implemented some corrective actions to address missing documentation. The FDOT staff interviews revealed that the SWEPT system was updated to include a control to not allow a project file review to be completed without uploading all
The FHWA received three responses to the Federal Register Notice during the public comment period for this draft report. None of comments were substantive; one from the American Road and Transportation Builders Association voiced support of this program and another was anonymous that was unrelated to this report. The remaining comments came from FDOT. The Audit Team met with FDOT to discuss their comments throughout the Audit report development. The FHWA considered FDOT's comments not to be substantive but nonetheless revised the report language in several instances. This notice includes a final version of the audit report that addresses all comments submitted on the draft audit report.
Under part 211 of Title 49 of the Code of Federal Regulations (CFR), this provides the public notice that by a letter dated March 15, 2018, the Maryland Transit Administration (MTA-MARC), the Illinois Department of Transportation (IDOT), and the California Department of Transportation (Caltrans), have jointly petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 238,
Specifically, Petitioners request relief from 49 CFR 238.131 and 238.133, pertaining to the exterior side door safety system interface with the Siemens SC-44 diesel-electric locomotives to be used in passenger service, when operating in a lite consist (locomotives only). Petitioners found that in daily operation, the by-pass switch for the door safety system must be put into “by-pass” to operate the locomotive lite, causing an operational constraint for daily servicing, maintenance, inspection, and fueling. The repeated unsealing and resealing of the by-pass switch may cause premature failure of the switch. MARC and Siemens worked jointly to develop a proposed “Yard Mode” solution, which monitors the door summary circuit trainline, along with other trainlines and locomotive operating parameters, determining whether the locomotive is operating in a lite consist or a passenger car consist. When “Yard Mode” is activated, it allows low speed (10 miles per hour or less) operation of the locomotive without placing the door by-pass device in by-pass. The “Yard Mode” solution relies on a multi-step software verification, along with multiple deliberate acts and confirmations by an operator, to enable the system.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by October 11, 2018 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Under part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a letter dated April 11, 2018, BNSF Railway (BNSF) petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 227. FRA assigned the petition Docket Number FRA-2018-0066.
In its petition, BNSF asked FRA to waive compliance with 49 CFR 227.109 to allow employees certified under 49 CFR part 240 and/or part 242 to exceed 1,095 days between audiometric tests if they meet the hearing acuity timelines of 49 CFR 240.217 and/or 242.201. Specifically, BNSF asked FRA to allow employees subject to part 240 and/or part 242 audiometric testing requirements to go up to 1,460 days between audiometric tests to alleviate the confusion of having multiple hearing test requirements for part 240 and 242 certified employees (testing requirements under parts 240 and/or 242 as well as under part 227).
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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FRA reserves the right to issue relief in this docket pending consideration of any comments received in response to this notice. Comments received after September 26, 2018 will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Under part 211 of Title 49 of the Code of Federal Regulations (CFR), this provides the public notice that by a letter dated June 18, 2018, the San Francisco Bay Railroad (SFBR), formerly doing business as LB Railco, has petitioned the Federal Railroad Administration (FRA) for a renewal of a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 223,
Specifically, SFBR requests relief for SFBR No. 23, an Alco S-2 diesel electric switcher locomotive built in 1945. The locomotive has its original glass in the cab, consisting of 13 separate windows. SFBR 23 has been operating for the past 73 years in and around the same area of San Francisco, and the glass has remained intact without damage. SFBR maintains 5 miles of Class 1 track with a maximum allowable speed of 10 miles per hour.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by October 11, 2018 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Maritime Administration, Department of Transportation.
Notice of advisory committee public meeting.
The Maritime Administration (MARAD) announces a public meeting of the U.S. Maritime Transportation System National Advisory Committee (MTSNAC) to discuss advice and recommendations for the U.S. Department of Transportation on issues
The meeting will be held on Wednesday, September 12, 2018 from 1:00 p.m. to 5:00 p.m. and Thursday, September 13, 2018 from 9:30 a.m. to 4:30 p.m. Eastern Daylight Time (EDT).
The meetings will be held at the DOT Conference Center at the U.S. Department of Transportation Headquarters, 1200 New Jersey Avenue SE, Washington, DC 20590.
Amanda Rutherford, Designated Federal Officer, at
The MTSNAC is a Federal advisory committee that advises the U.S. Secretary of Transportation and the Maritime Administrator on issues related to the marine transportation system. The MTSNAC was originally established in 1999 and mandated in 2007 by the Energy Independence and Security Act of 2007. The MTSNAC operates in accordance with the provisions of the Federal Advisory Committee Act (FACA).
The agenda will include: (1) Welcome, opening remarks, and introductions; (2) brief remarks by the Maritime Administrator or Deputy Maritime Administrator; (3) administrative items; (4) updates to the Committee on subcommittee work; (5) development of work plans and proposed recommendations; and (6) public comments.
The meeting will be open to the public. Members of the public who wish to attend in person must RSVP to
49 CFR part 1.93(a); 5 U.S.C. 552b; 41 CFR parts 102-3; 5 U.S.C. app. Sections 1-16
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration, DOT
Request for public comment on proposed collection of information.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collections and their expected burden.
Comments must be submitted on or before September 26, 2018.
Coleman Sachs, Office of Vehicle Safety Compliance (NEF-230), National Highway Traffic Safety Administration, West Building, 4th Floor, Room W45-205, 1200 New Jersey Avenue SE, Washington, DC 20590.
National Highway Traffic Safety Administration.
A comment to OMB is most effective if OMB receives it within 30 days of publication.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition for a defect investigation.
This is a notice of denial of a petition submitted to the National Highway Traffic Safety Administration (NHTSA) under 49 U.S.C. 30162, requesting that the Agency commence a proceeding to determine the existence of a defect related to motor vehicle safety in Michelin Model XZU-3, size 305/85/R22.5 Load Range J transit bus tires. After a review of the petition and other information, NHTSA has concluded that a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists, or a NHTSA order for the notification and remedy of a safety related defect as alleged, at the conclusion of the requested investigation.
Bruce York, Medium & Heavy Duty Vehicle Division, Office of Defects Investigation, NHTSA, 1200 New Jersey Ave. SE, Washington, DC 20590. Email:
By letter dated July 14, 2016, Paul Koleber from Intercity Transit wrote to NHTSA requesting that the Agency investigate the existence of a defect related to motor vehicle safety in Michelin Model XZU-3, size 305/85/R22.5 Load Range J transit bus tires. Mr. Koleber alleges the tires are structurally unsound and that this defect can result in sidewall blowouts at any time whether the tires are new or re-tread. Mr. Koleber stated that Michelin had previously recalled similar tires (12T-009) and the Intercity Transit fleet experienced failures with the same characteristics as those specified in the recall. Mr. Koleber submitted a forensics lab report from CASE Forensics to support his allegation.
NHTSA has reviewed the material provided by the petitioner and other information. The results of this review and NHTSA's analysis of the petition are set forth in the DP17-001 Evaluation Report, published in its entirety as an appendix to this notice.
For the reasons presented in the DP17-001 Evaluation Report, it is unlikely that a defects investigation will result in a finding that a defect related to motor vehicle safety exists. It is also unlikely that an order for the notification and remedy of a safety-related defect would be issued as a result of granting Mr. Koleber's request. Therefore, the petition is denied. This action does not constitute a finding by NHTSA that a safety related defect does not exist. The Agency will take further action if warranted by future circumstances.
49 U.S.C. 30162(d); delegations of authority at CFR 1.50 and 501.8.
Paul Koleber, from Intercity Transit petitioned the National Highway Traffic Safety Administration (NHTSA) by letter dated July 14, 2016, requesting that a defect investigation be conducted concerning motor vehicle safety in Michelin Model XZU-3, size 305/85/R22.5 Load Range J transit bus tires. The facts described in this report are based on the Office of Defect Investigations' (ODI) assessment of the information provided by the petitioner and information gathered by ODI from relevant sources.
The petitioner alleged that a defect exists involving the design of tires used in commercial bus operations which have resulted in rapid air loss. The petitioner claimed that failures identical to those described in recall 12T-009 have happened on the subject post recall tires. The petitioner stated that failures occurred on steer and drive wheel positions of both new and retread tires. The petitioner hired a forensics lab to perform scientific failure analysis of failed tires. The lab concluded the tires were of similar design and construction to those in recall 12T-009 and that the failures were caused by corrosion induced degradation of the ply strands.
The subject tires are Michelin XZU-3, size 305/85/R22.5 Load Range J transit bus tires. They are designed to be
The Office of Defects Investigation received two (2) complaints related to Michelin XZU-3 transit bus tires. The first Vehicle Owner's Questionnaire (VOQ) was received in April 2012, the same month that voluntary recall 12T-009 was received from Michelin. A second VOQ was received in April 2017, one month after DP17-001 was opened to assess failures on Michelin XZU-3 transit bus tires. Both reports were submitted by transit fleets. Neither VOQ alleged any crashes, injuries or fatalities.
On March 23, 2017, ODI sent Michelin an Information Request letter asking for information related to the subject tires. Michelin's response was received May 5, 2017, where design and application data were presented. ODI's assessment of that data follows.
Michelin reported a tire population (2012-2014 production) of 17,487 subject tires. The subject tire was discontinued in 2014, upon the introduction of the X InCity Z 305/85R22.5 LRJ tire, which offers increased scrub resistance. The initial tread life of the subject tire is expected to range from 60,000 to 100,000 miles. The casing life is expected to range from two (2) to four (4) years, with one (1) to three (3) retread applications. Therefore, a limited number of subject tires are believed to still be in service.
When asked how Michelin determined the recall population for 12T-009, Michelin stated that the bead design of the recalled tires had undergone a design change. A reduction in the number of strands was determined to be the cause of failures associated with recall 12T-009. Once the defect was identified, Michelin reinstated the original bead design specification, which marked the endpoint of the recall population. The scope of the recalled tires included tires manufactured from the date of the bead design change through the date when the design was changed back to the original specification.
The tires identified by the petitioner were produced after the bead design was corrected.
Michelin queried its databases and found no complaints and one claim for property damage on tires manufactured after the 12T-009 recall scope. Michelin denied this claim based on the following. Michelin evaluated twelve (12) tires from the fleet. All had been retreaded one time, but not at a Michelin Retread Technologies (MRT) approved facility. Michelin's analysis of the tires revealed operational or maintenance failures in ten (10) of the twelve (12) tires. These tires had high levels of moisture and damage or evidence of damage repair adjacent to the rupture. The combination of these conditions allows for corrosion to develop in the belt package, which leads to failure. The other two (2) could not be determined. ODI queried its database and found one (1) Vehicle Owner Questionnaire (VOQ) related to the subject population, which was received after the investigation was opened. In March 2017, Michelin visited the fleet that submitted the VOQ, and analyzed its tires. Similar to the property damage claim above, an MRT was not used. Nor was an air dryer for tire inflation. This leaves in question the integrity of the casings and moisture content which is detrimental to tire life. Michelin submitted to ODI, inspection documentation. Reports of the tires showed signs of overloading. Personnel interviews supported these findings as the fleet followed the vehicle manufacturer's recommended inflation pressure, which is known to be inadequate for true operational loads on the specific vehicles operated by the fleet.
MRT facilities utilize inspection equipment not available to out of network retread facilities. The use of Grazing Light Inspection, X-ray, and Casing Integrity Analyzer (CIA) minimize the risk of tire failure after retreading. MRT facilities also utilize approved processes to repair tire damage prior to retreading to prevent moisture from entering the belt package.
The Altoona Bus Study, Michelin's weight study of fleet buses, and ODI's weight study are all in agreement. Each independently found that the Gillig Low Floor 40′ transit bus as used by the petitioner and other fleets would be overloaded with a foreseeable load. And, the greatest overloading would occur at the left rear wheel-end. ODI went further to assess the average passenger weight. ODI found that the 150-pound weight specified in the Code of Federal Regulations (CFR), 49 C.F.R. Part 567.4(g)(3) and Subtitle B-Chapter VI Part 665 Subpart A is not representative of today's population. The 150-pound value was established in 1971 based on data derived from the National Health Examination Survey from 1960-1962. A more recent value from the National Center for Health Statistics determined the average male and female weight to be 195 and 165 respectively. In both cases, the study participants were not truck/bus drivers or transit passengers. ODI notes that a luggage allowance for each passenger is necessary given the vehicle usage. ODI also surveyed heavy vehicle manufacturers to learn what design weight they use for the driver. Responses ranged from 150 to 312 pounds depending on market. The Federal Transit Authority (FTA) initiated a Notice of Proposed Rulemaking (NPRM) action in 2011, to increase the average passenger weight and standing passenger floor space square footage, but this rule was never enacted.
As required by 49 CFR part 567, the vehicle manufacturer is responsible for the data on the vehicle certification label. The manufacturer will set the tire pressure based on the anticipated axle load. The anticipated loads will drive the selection of components to meet the owner's specifications.
Michelin released a Technical Bulletin in November 2015, recommending 120 psi be used in all subject tires. Michelin met with Gillig in January 2016, and recommended the use of 315/80R22.5 tires and an inflation pressure of 120 psi to provide sufficient load-carrying capacity to support actual loads. Gillig, who produced the petitioner's buses, elected not to adopt this action.
Based on the available information and previous agency experience, ODI believes the tires manufactured after those identified in recall 12T-009 failed as a result of overloading by the fleets operating the buses. In our view, a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists, or a NHTSA order for the notification and remedy of a safety related defect as alleged, at the conclusion of the requested investigation. Therefore, given a thorough analysis of the potential for finding a safety related defect in the vehicle, and in view of NHTSA's enforcement priorities and its previous investigations into this issue, the petition is denied. This action does not constitute a finding by NHTSA that a safety related defect does not exist. The
Deny the petition.
Office of the Comptroller of the Currency, Department of the Treasury (OCC).
Request for nominations.
The OCC is seeking nominations for members of the Mutual Savings Association Advisory Committee (MSAAC) and the Minority Depository Institutions Advisory Committee (MDIAC). The MSAAC and the MDIAC assist the OCC in assessing the needs and challenges facing mutual savings associations and minority depository institutions, respectively. The OCC is seeking nominations of individuals who are officers and/or directors of federal mutual savings associations, or officers and/or directors of federal stock savings associations that are part of a mutual holding company structure, to be considered for selection as MSAAC members. The OCC also is seeking nominations of individuals who are officers and/or directors of OCC-regulated minority depository institutions, or officers and/or directors of other OCC-regulated depository institutions with a commitment to supporting minority depository institutions, to be considered for selection as MDIAC members.
Nominations must be received on or before October 15, 2018.
Nominations of MSAAC members should be sent to
Nominations of MDIAC members should be sent to
For inquiries regarding the MSAAC, Michael R. Brickman, Deputy Comptroller for Thrift Supervision, 400 7th Street SW, Washington, DC 20219; (202) 649-6450; email:
For inquiries regarding the MDIAC, Beverly F. Cole, Deputy Comptroller for Compliance Supervision, 400 7th Street SW, Washington, DC 20219; (202) 649-5688; email:
The MSAAC and the MDIAC will be administered in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2. The MSAAC will advise the OCC on ways to meet the goals established by section 5(a) of the Home Owners' Loan Act, 12 U.S.C. 1464. The MSAAC will advise the OCC with regard to mutual savings associations on means to: (1) Provide for the organization, incorporation, examination, operation and regulation of associations to be known as federal savings associations (including federal savings banks); and (2) issue charters therefore, giving primary consideration of the best practices of thrift institutions in the United States. The MSAAC will help meet those goals by providing the OCC with informed advice and recommendations regarding the current and future circumstances and needs of mutual savings associations. The MDIAC will advise the OCC on ways to meet the goals established by section 308 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Public Law 101-73, Title III, 103 Stat. 353, 12 U.S.C. 1463 note. The goals of section 308 are to preserve the present number of minority institutions, preserve the minority character of minority-owned institutions in cases involving mergers or acquisitions, provide technical assistance, and encourage the creation of new minority institutions. The MDIAC will help the OCC meet those goals by providing informed advice and recommendations regarding a range of issues involving minority depository institutions. Nominations should describe and document the proposed member's qualifications for MSAAC or MDIAC membership, as appropriate. Existing MSAAC or MDIAC members may reapply themselves or may be renominated. The OCC will use this nomination process to achieve a balanced advisory committee membership and ensure that diverse views are represented among the membership of officers and directors of mutual and minority institutions. The MSAAC and MDIAC members will not be compensated for their time, but will be eligible for reimbursement of travel expenses in accordance with applicable federal law and regulations.
Department of the Treasury.
Notice of availability; Request for comments.
The Board of Trustees of the Laborers Local 265 Pension Plan, a multiemployer pension plan, has submitted an application to reduce benefits under the plan in accordance with the Multiemployer Pension Reform Act of 2014 (MPRA). The purpose of this notice is to announce that the application submitted by the Board of Trustees of the Laborers Local 265 Pension Plan has been published on the website of the Department of the Treasury (Treasury), and to request public comments on the application from interested parties, including participants and beneficiaries, employee organizations, and contributing employers of the Laborers Local 265 Pension Plan.
Comments must be received by October 11, 2018.
You may submit comments electronically through the Federal eRulemaking Portal at
Comments may also be mailed to the Department of the Treasury, MPRA Office, 1500 Pennsylvania Avenue NW, Room 1224, Washington, DC 20220, Attn: Danielle Norris. Comments sent via facsimile or email will not be accepted.
For information regarding the application from the Laborers Local 265 Pension Plan, please contact Treasury at (202) 622-1534 (not a toll-free number).
MPRA amended the Internal Revenue Code to permit a multiemployer plan that is projected to have insufficient funds to reduce pension benefits payable to participants and beneficiaries if certain conditions are satisfied. In order to reduce benefits, the plan sponsor is required to submit an application to the Secretary of the Treasury, which must be approved or denied in consultation with the Pension Benefit Guaranty Corporation (PBGC) and the Department of Labor.
On July 31, 2018, the Board of Trustees of the Laborers Local 265 Pension Plan submitted an application for approval to reduce benefits under the plan. As required by MPRA, that application has been published on Treasury's website at
Comments are requested from interested parties, including participants and beneficiaries, employee organizations, and contributing employers of the Laborers Local 265 Pension Plan. Consideration will be given to any comments that are timely received by Treasury.
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 26, 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 Quintana by emailing
44 U.S.C. 3501
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that a meeting of the Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities will be held on September 25-26, 2018, in Room 6W.306, 425 I Street NW, Washington, DC. On September 25, the session will be from 8:30 a.m. until 5:00 p.m.; and on September 26, the session will be from 9:00 a.m. until 3:30 p.m. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on matters of structural safety in the construction and remodeling of VA facilities and to recommend standards for use by VA in the construction and alteration of its facilities.
On September 25-26, the Committee will receive appropriate briefings and presentations on current seismic, natural hazards, and fire safety issues that are particularly relevant to facilities owned and leased by the Department. The Committee will also discuss appropriate structural and fire safety recommendations for inclusion in VA's construction standards.
No time will be allocated for receiving oral presentations from the public. However, the Committee will accept written comments. Comments should be sent to Donald Myers, Director, Facilities Standards Service, Office of Construction & Facilities Management (003C2B), Department of Veterans Affairs, 425 I Street NW, Washington, DC 20001, or emailed to
Category | Regulatory Information | |
Collection | Federal Register | |
sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
Publisher | Office of the Federal Register, National Archives and Records Administration |